Conservatives hope key legal case can bring Biden migrant parole policies ‘tumbling down’

The Biden administration is facing a significant legal challenge to a key border policy that allows 30,000 nationals from four countries to fly in and be paroled into the U.S. each month as part of the administration’s efforts to tackle the ongoing crisis at the southern border – with the conservative plaintiffs in the case believing a win could bring down other Biden policies in its wake.

Arguments began Thursday in a case challenging a Homeland Security policy expanded in January to allow up to 30,000 Cuban, Haitian, Nicaraguan and Venezuelan (CHNV) nationals into the U.S. each month. Those brought in, who are not present at the border, are flown in and paroled, and allowed to apply for work permits if they meet certain conditions such as having a sponsor and passing background checks.

Twenty GOP-led states are suing to block the policy, claiming that it represents an abuse of parole – which is set out by Congress to be used on a “case-by case” basis for “urgent humanitarian need or significant public benefit.” 

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President Biden speaks with Customs and Border Protection officers as he visits the U.S.-Mexico border in El Paso, Texas, on Jan. 8, 2023. (Jim Watson/AFP via Getty Images)

The administration says it is confident that its use of parole is legal, and has pointed to past uses of parole for Vietnamese refugees in the 1970s, and more recently Ukrainian nationals last year. It also says the processes are necessary as nationals from those countries are “difficult for DHS to remove to their home countries.”

The expanded parole pathways have been part of the administration’s strategy to tackle the ongoing crisis that has hammered the border since 2021. That strategy has seen a number of legal pathways opened up while the administration says it has increased consequences for illegal entry since the end of Title 42 on May 11 and introduced an asylum restriction for some illegal immigrants that is also facing legal challenges. It says the expanded pathways encourage people to use them as an alternative to entering illegally. In July it said the program had yielded “positive results” and pointed to a drop in illegal encounters at the border from those nationalities.

In its filing, the administration warned that without the CHNV process and others in place to encourage migrants to use lawful routes “there will be a significant surge in migration at the southwest border – the precise outcome that Plaintiffs allegedly seek to avoid.”

The 20 GOP-led states are partnering with America First Legal, former Trump White House adviser Stephen Miller’s group, which has already won a number of victories in court challenging Biden initiatives. Miller, in an interview with Fox News Digital, said the administration is abusing the parole authority to create what he described as a form of amnesty for would-be illegal immigrants.

“America First Legal is partnering with Texas and 19 other states in what we regard as one of the most important, not just immigration cases, but one of the most important lawsuits in American history. Because if Biden prevails then, in effect, the border is gone forever,” he said.

Miller said the administration has “gone past just catch-and-release to actively importing would-be illegal immigrants with the goal of making them into future citizens.” 

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Homeland Security Secretary Alejandro Mayorkas speaks during the daily press briefing at the White House on May 11, 2023. (Brendan Smialowski/AFP via Getty Images)

“And so I would say it’s as if the Biden administration created a brand-new visa program for illegals that was never authorized, funded or in any way established by Congress,” he said.

The case lands in favorable courtroom territory for the plaintiffs. Judge Drew Tipton, a Trump nominee who in 2021 shut down the administration’s reduced interior enforcement priorities. CBS News reported this week that the administration is bracing for the program to be blocked.

But should the CHNV program be shut down, it could have a knock-on effect on other related policies. Specifically, the administration has also used parole to bring in up to 1,450 migrants a day at the border itself if they have made an appointment by the CBP One app. 

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While this case does not target those paroles specifically, Miller believes it could lead to that program being declared unlawful as well.

“If we prevail on the merits, as we are confident that we must, it creates the possibility that the whole entire artifice of Biden’s parole scheme could come tumbling down,” he said.

He warns, however, that if it remains in place, there is no upward limit to the number of people it could be expanded to.

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“If you accept the preposterous notion that Biden has the authority to do this, which he clearly does not, then there’s no limit on the number of illegal immigrants that he can mint into legal immigrants through parole,” he said.

The case comes as the border has seen an increase in numbers in July, with over 180,000 encounters. Republicans have blamed the ongoing crisis on the Biden administration’s policies, while the administration has called for Congress to approve more funding and pass an immigration reform bill – legislation that Republicans have rejected due to its inclusion of a pathway to citizenship for millions of illegal immigrants.