Texas and 19 other states sued the Biden administration Tuesday, looking to block a new program that allows up to 30,000 would-be asylum seekers to enter the United States by air each month.
The lawsuit centers on the administration’s use of parole under immigration law to grant entry to the migrants, who otherwise would likely not qualify for entry visas.
“The Department of Homeland Security (DHS or Department), under the false pretense of preventing aliens from unlawfully crossing the border between the ports of entry, has effectively created a new visa program—without the formalities of legislation from Congress—by announcing that it will permit up to 360,000 aliens annually from Cuba, Haiti, Nicaragua, and Venezuela to be ‘paroled’ into the United States for two years or longer and with eligibility for employment authorization,” reads the lawsuit.
The Texas lawsuit comes as the Biden administration seeks to extricate the border and immigration issues from each other, creating avenues for migrants to bypass the border while cracking down on migrants who arrive unauthorized by land.
The administration’s plan to admit 30,000 Cuban, Venezuelan, Haitian and Nicaraguan migrants every month came coupled with the threat to immediately expel to Mexico an equal number of migrants from those countries apprehended at the border.
While the move is designed to ease pressure from border states by lowering foot traffic along the border, immigration hawks have balked at the plan.
“Every state in America, especially border states like Texas, is being crushed by the impacts of illegal immigration,” said Texas Attorney General Ken Paxton in a statement.
“The Biden open borders agenda has created a humanitarian crisis that is increasing crime and violence in our streets, overwhelming local communities, and worsening the opioid crisis. This unlawful amnesty program, which will invite hundreds of thousands of aliens into the U.S. every year, will only make this immigration crisis drastically worse.”
Paxton’s suit alleges that the Biden administration plan violates the precepts of immigration parole.
“The parole program established by the Department fails each of the law’s three limiting factors. It is not case-by-case, is not for urgent humanitarian reasons, and advances no significant public benefit,” reads the lawsuit.
The administration’s use of parole is unprecedented both in scale and scope – the authority has generally been used in large scale to respond to humanitarian crises, like the 1980 Cuban Mariel boatlift.
And while immigration statute does not explicitly limit the administration’s use of parole, a 2008 DHS policy memo stated that parole “is not to be used to circumvent normal visa processes and timelines.”
But according to the American Immigration Council, “while humanitarian parole is explicitly authorized by the [Immigration and Nationality Act] for ‘urgent humanitarian reasons,’ there is no statutory or regulatory definition of an ‘urgent humanitarian reason,’” giving the executive a wide berth in defining parole.
In his suit, Paxton asked the court to “enjoin, declare unlawful, and set aside the Department’s lawless parole program,” in part because “the Department does not have the authority to invite more than a third of a million more illegal aliens into the United States annually as it has announced with this program.”
But in the press release announcing the lawsuit, Paxton’s office wrote that the program “unlawfully creates a de facto pathway to citizenship for hundreds of thousands of aliens.”
Would-be asylum seekers who enter the United States via air with parole would not be undocumented — or “illegal aliens” according to statute — and would likely have an easier time than other asylum seekers if they ultimately sought permanent residency and citizenship.
Many asylum seekers who first enter the United States without prior authorization face bureaucratic hurdles to getting permanent residency because of their initial illegal entry.
Paxton’s lawsuit was filed in the United States District Court Southern District of Texas Victoria Division, where Trump-appointed Judge Drew Tipton in 2021 issued an unprecedented ruling in an immigration case.
Tipton’s 160-page ruling, among other things, ordered Immigration and Customs Enforcement (ICE) to drop its enforcement priorities, which directed the agency to focus its resources on dangerous foreign nationals.
A three-judge Fifth Circuit panel overruled most of Tipton’s ruling the following month, writing that “while the district court’s interpretation of these statutes is novel, executive branch memos listing immigration enforcement priorities are not.”