Today, federal District Court Judge Drew Tipton issued a ruling in Texas v. Department of Homeland Security, rejecting a suit filed by a coalition of red states led by Texas, challenging the legality of the Biden Administration's CNVH parole program (also sometimes called "CHNV"), which allows migrants from four Latin American countries to enter the United States and live and work here for up to two years, if they can find a US-resident sponsor willing to support them.
Judge Tipton (a conservative Trump appointee) ruled that the states lacked standing to bring a lawsuit challenging the program. The plaintiff states argued Texas has standing because parolee migrants entering the state would lead the state government to incur various additional costs, thereby proving the necessary "injury in fact" required by Supreme Court standing precedent. But Judge Tipton concluded the evidence shows that the CNVH program actually reduces the number of migrants from these countries who enter the state. Thus, it doesn't increase the costs borne by the state, and therefore Texas hasn't suffered an "injury" sufficient to get standing:
To prove an injury in fact, Texas must show "an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136…. In the
context of state challenges to federal immigration policies, states have historically proven injury-in-fact by demonstrating the additional costs paid across state-funded industries because of additional aliens….Texas's theory for standing "was based on allegations that the CHNV processes were likely to increase the number of CHNV nationals in the State and thus increase the State's costs…." And as observed by Intervenors [a group of sponsors of CHNV participants], the trial record disproves this theory…. Intervenors argue that the undisputed data presented at trial confirms that the CHNV Parole Program has reduced the total number of individuals from the four countries, and consequently, Texas has actually spent less money as a result of the Program….
Judge Tipton canvasses the relevant Supreme Court and Fifth Circuit court of appeals precedent and finds that the right way to measure costs is to consider the net impact of the program in question, not just the costs that may be created by program beneficiaries taken in isolation. Since the evidence shows the program reduces the total number of CNVH migrants in Texas, it actually saves Texas money, and thus the state lacks standing. Earlier in the litigation, the state plaintiffs stipulated that only Texas's costs were to be considered, not those of the other states.
How does the CNVH parole program actually reduce the number of migrants from these four countries entering Texas? Because it allows program participants to come to the US legally without ever having to cross the southern border, many migrants who might otherwise have tried to enter Texas or other border states illegally instead seek legal entry under CNVH. Many go directly to their final destinations in other states by ship, plane, or other means of transportation. Even those who do enter through border states might not stay there very long.
I covered this point in much more detail in an amicus brief I filed defending the legality of the program, on behalf of the Cato Institute, MedGlobal (a medical non-profit serving migrants and refugees, among others), and myself. Our brief does not address standing. But, for reasons explained in the brief, the alleviation of pressure on the border also matters for the merits of the case (which Judge Tipton didn't reach). See also my September 2023 article about the case in the Hill.
I am skeptical of narrow definitions of standing and would have preferred the court to uphold the CNVH program on the merits. However, Judge Tipton does make a good argument that this is the right result under current standing precedent. It is also broadly consistent with the Supreme Court's June 2023 8-1 decision in United States v. Texas, holding that many of the same red states that brought this case lack standing to challenge the Biden administration's immigration enforcement guidelines, even though the states argued that the administration's decision not to deport certain migrants increases states' costs (though there are also ways to potentially distinguish the two cases).
As David Bier and I explain in a November USA Today article, CNVH could do even more to alleviate border problems—and help migrants fleeing horrific oppression and violence—if the Biden administration were to expand it to cover more countries, and lift the arbitrary 30,000 per month cap on the number of participants. The cap has created a massive backlog of applicants.
And, while it may not be relevant to standing analysis (because of the indirect nature of such effects), the economic benefits of increased migration generally outweigh any additional costs to state and federal governments, especially given the immigrants also pay taxes.
This decision is likely to be appealed to the Fifth Circuit. Alternatively, the states might try to find some other way to get standing. The latter, however, may prove difficult if Judge Tipton's ruling stands. For the moment, however, the CNVH program can continue.
This case likely isn't over. But it's not a good sign for the states that they lost in district court despite the fact they chose to file in this district specifically because they were likely get Judge Tipton to hear the case. He's a conservative whom many observers expected to be sympathetic to the states' position.
NOTE: As indicated above, I filed an amicus brief in this case defending the legality of the program, on behalf of the Cato Institute, MedGlobal, and myself. However, the brief does not address the issue of standing. What I write on that question represents solely my own views, and not those of Cato, MedGlobal, or anyone else.
I am, as discussed in the brief, a sponsor in the Uniting for Ukraine program, which is based on the same statutory authority as CNVH, but was not challenged by plaintiff states.
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