January 26, 2022
Red states challenge new parole process for nationals of four Latin American countries
Earlier this week, Stephen Miller’s America First Legal and a Texas-led coalition of red states sued over a process the Biden Administration announced January 5 to allow some nationals of certain countries to apply for a two-year period of “parole”— a statutorily authorized form of temporary permission for a non-citizen to live in the United States. Biden created the first such parole process last April, for Ukrainians; to date, no state has challenged that program. DHS made a similar program for Venezuelans in October, and Biden’s announcement three weeks ago expanded these parole programs to include nationals of Cuba, Haiti, and Nicaragua.
The parole program for these four countries is part of a package of new, mostly draconian “border security measures,” including yet another expansion of Title 42 expulsions and new restrictions on access to asylum modeled on Trump-era efforts. The Biden Administration hopes that these measures will deter migrants from coming to our southern border to apply for asylum (and yesterday DHS reported that border apprehensions of Cubans, Haitians, Nicaraguans, and Venezuelans have dropped 97 percent since the parole program was announced on January 5). Texas claims the Biden Administration did not go through required procedures in creating the parole program and that it exceeds the authority given DHS by the parole statute.
Although there is a long history of similar parole programs—the parole statute dates to 1952 and was last amended in 1996—red states have filed lots of litigation against Biden seeking to end various ways immigration parole has been used for decades. This case, Texas v. DHS, is definitely one to watch: Texas (yet again) judge shopped to ensure Trump-appointed Judge Drew Tipton would hear this case. Texas filed in one of only two locations in the state—Victoria—where only one judge sits such that they knew who the case would be assigned to. Earlier today, however, the Biden Administration filed a motion asking Judge Tipton to transfer the case because the states’ “judgeshopping . . . undermine[s] public confidence in the administration of justice.” It will be interesting—and consequential—to see how Judge Tipton resolves this motion.
Fifth Circuit finally schedules oral argument on injunction of the Title 42 termination, for March
The Biden Administration’s appeal of the injunction of its latest effort to end Title 42 has been fully briefed since September, and the Fifth Circuit has finally scheduled it for oral argument: for March 8, in New Orleans. That argument will be exactly one week after the Supreme Court hears argument on the red states’ attempt to intervene in Huisha-Huisha to defend Title 42 (as we reported on last week).
A win by the Biden Administration in either of these two cases should mean the end of Title 42, while red states need to win both to keep Title 42 in place (and even that wouldn’t be enough by itself; for example, they could win the right to intervene in Huisha-Huisha but lose on the legality of Title 42). The identities of the three judges deciding the Fifth Circuit appeal will be made public on February 27.
As always, we'll keep you posted on these and other cases.