On March 25, Department of Homeland Security Secretary Kristi Noem terminated the categorical parole programs the Biden administration established for immigrants from Cuba, Haiti, Nicaragua and Venezuela. Three weeks later, a U.S. district court judge issued an order staying the termination of the program. Then, on May 30, the Supreme Court stayed the district court judge’s order pending the outcome of a decision on the merits of the termination.
This is just one of many lawsuits that have been filed to prevent President Trump from implementing his policies.
People have a right to oppose a president’s policies, but there has to be a limit. After all, he was duly elected by the people — as was his agenda.
The ACLU is the most aggressive of the litigants. During Trump’s first term, it filed 434 legal challenges against his administration. According to the ACLU, this succeeded in blocking some of Trump’s most egregious measures, such as his travel ban. When the ACLU learned that Trump was going to run again, it prepared a roadmap for another barrage of lawsuits.
Trump had to go all the way to the Supreme Court to prevail in the travel ban fight. The high court held that it was a lawful exercise of his authority to suspend the entry of illegal immigrants into the United States. I expect the same outcome for the challenge to Noem’s termination of this parole program.
The program granted “parole for up to two years to 532,000 aliens whose continued presence in the United States the Secretary deems contrary to U.S. interests.”
The parole provision, provides the DHS secretary with unconditional authority to terminate parole when she thinks it is no longer needed. It states that “when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”
This delegation of authority is similar to the delegation in the provision that was the basis for the travel ban. The pertinent part of the travel-ban provision states that:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.”
The Supreme Court held that the sole prerequisite for the exercise of this authority is that the president has found “that the entry of the covered aliens ‘would be detrimental to the interests of the United States.’”
Likewise, if this case reaches the Supreme Court for a decision on the merits, I expect the court to find that the sole prerequisite for terminating parole is that the DHS secretary thinks the purposes of such parole “have been served” or that it has failed to serve those purposes.
Noem terminated the parole program for these countries because, in her opinion, it was not serving its intended purpose.
Moreover, the main objective was to reduce illegal border crossings by offering the migrants from these countries a legal way to migrate to the United States, and border czar Tom Homan has secured the border without offering illegal crossers a “legal” way to enter the country by “deterring and preventing the entry of illegal aliens into the United States.”
The district court judge granted a stay of the administration’s termination order for the parole program “insofar as it revokes, without case-by-case review, the previously granted parole and work authorization issued to” participants before the expiration of their parole period.
But the parole provision only mentions the “case-by-case” requirement with regard to granting parole. It doesn’t mention it with regard to terminating parole.
Moreover, although the Biden administration issued the 532,000 parole grants at issue on a case-by-case basis, its case-by-case determination was not based on an evaluation of whether parole was needed for urgent humanitarian reasons or significant public benefit. It screened applicants to determine whether they met the following eligibility requirements:
- The applicant is a national of Cuba, Haiti, Nicaragua or Venezuela;
- has a supporter in the U.S. who has filed a Declaration of Financial Support on his or her behalf that has been approved by Citizenship and Immigration Services;
- can pay for a ticket to fly to a U.S. airport; and
- has passed background checks.
The Biden administration claimed that its CHNV program met the “significant public benefit” requirement by reducing illegal entries along the southwest border, and that it met the “urgent humanitarian reasons” requirement by addressing the circumstances that caused migrants to flee from those four countries.
Maybe, but that isn’t a case-by-case determination of whether parole is needed. It just establishes a categorical basis for granting parole to nationals of four different countries.
According to U.S. Solicitor General John Sauer, the district court ruling “creates a perverse one-way rachet.” He permits the parole program’s categorical basis for granting parole but rejects Noem’s attempt to restore the traditional case-by-case process by undoing the categorical grant of CHNV parole. The judge is requiring Homeland Security to make “individualized parole determinations for every one of the 532,000 parolees under [the programs] — a colossal undertaking.”
The Supreme Court granted Noem’s stay request with a brief unsigned order.
Trump faced more than 220 lawsuits in the first five months of his second term in office, and he was impeached twice in his first term without a conviction in the Senate.
Can our democracy survive such determined efforts to undermine the person the voters choose to be our president?
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.