Today, Thursday August 24, 2023, the trial begins in Texas et. al. v. U.S Department of Homeland Security et. al. in federal court in Victoria, Texas. The state of Texas and twenty other states are suing to end the Biden administration’s parole processes for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV).
The CHNV programs began in January 2023. They were modeled on a similar parole program created for Ukrainians in 2022. Supporters in the United States start the process by applying online and identifying beneficiaries (nationals of the four countries) they would like the Department of Homeland Security (DHS) to consider for parole. DHS vets supporters and beneficiaries. Beneficiaries who qualify can be issued travel authorization by United States Citizenship and Immigration Services to fly to U.S. airports, where Customs and Border Protection officers can parole them into the United States for two years. Under the program, up to 30,000 people can be paroled each month. As of mid-August, more than 160,000 Cubans, Haitians, Nicaraguans, and Venezuelans have arrived in the United States through the parole program.
In June, Refugees International’s Yael Schacher submitted an expert declaration in the case on behalf of seven people in the United States who applied to support potential parolees and were permitted to intervene in defense of the program
In this Q&A, Yael Schacher explains the substance and stakes of the case.
Q: What is the litigation about?
A: The state of Texas claims that the CHNV parole program is unlawful because it relies on too expansive use of the parole authority, which the immigration law specifies can be granted “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Texas also argues that the program financially “injures” the state (thereby giving it “standing” to sue) because parolees use its public schools, hospitals, DMVs, and prisons. (After filing suit, the twenty other states all disclaimed any intent to prove that they have standing).
The Biden administration argues that the CHNV program is well within its legal authority and is an important part of its efforts to limit irregular migration in the region and at the U.S.-Mexico border, including through a new agreement with Mexico allowing return there of Cubans, Haitians, Nicaraguans, and Venezuelans who cross the border without authorization. The Biden administration further argues that Texas has not provided evidence to show that the CHNV program has led to increased expenditures by the state.
In addition to defending the legality of the CHNV program, the intervenors argue that the CHNV program is a lifeline for people from the four troubled countries who can unite with relatives and others who want to welcome them to the United States. The intervenors also argue that, rather than being a burden, CHNV parolees contribute to the Texas and U.S. economy in important ways.
Q: What was the purpose of your Expert Declaration?
A: My declaration discusses the legislative and policy history of parole. I write about how, in amending the parole provision in the immigration law, Congress opted not to narrowly constrain its use. Indeed, Congress has frequently responded to the use of parole with provisions that allow parolees to receive benefits or adjust to permanent status. I also explain that, both before and after Congress amended the provision in 1980 and 1996, administrations of both parties used parole as a supplementary humanitarian pathway and as part of efforts to work with other countries to handle displacement crises. This is evident, for example, in the ways parole was used alongside refugee resettlement to bring Vietnamese people to the United States from 1975 through the end of the twentieth century. Especially since the 1990s, parole has been used as an alternative to irregular migration from Cuba and other countries in the Americas. The reasons for the CHNV program and the ways it is being implemented are consistent with parole programs of the past.
Q: What is at stake in the case?
A: First and foremost, tens of thousands of people who have applied for the CHNV program are waiting for their applications to be processed even as reports emerge of increasingly deteriorating conditions in Haiti and Nicaragua. Countless relatives are hoping to be united with loved ones, and many faith and community groups are eager to welcome parolees.
Second, Texas is not suing to end the parole program for Ukrainians, which relies upon the exact same parole authority and upon which the CHNV program was explicitly modeled. Texas thus implies that paroling Black and Brown immigrants from Cuba, Haiti, Nicaragua, and Venezuela is unlawful and “harms” the state, but paroling white immigrants from Ukraine does not. It is worth watching whether (and how) Texas and the district court judge address this elephant in the court room.
Third, and related to my declaration, parole has served frequently in the past as a versatile and flexible tool to facilitate entry into the United States of large groups of noncitizens; eliminating it from the Executive’s toolkit would have broad and long-lasting consequences. If anything, the need for versatile parole authority is all the more apparent right now, given the extent and reasons for forced displacement and inadequate or eroding laws and agreements to manage it.