Tag Archive for: Texas v. DHS

Cyrus Mehta

Parole in Place – A Means to an End or An End in Itself?

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By Cyrus D. Mehta and Kaitlyn Box*

 On June 18, 2024, President Biden announced new measures aimed at ensuring that “U.S. citizens with noncitizen spouses and children can keep their families together”. One of these measures provides a discretionary grant of parole in place (“PIP”) to individuals who: are present in the United States without admission or parole; have been continuously physically present in the United States since at least June 17, 2014; have a legally valid marriage to a U.S. citizen on or before June 17, 2024; have no disqualifying criminal history and otherwise are not deemed to be a threat to public safety, national security, or border security; and submit biometrics and undergo required background checks and national security and public safety vetting. Individuals whose PIP applications are approved will be able to remain in the U.S. and apply for work authorization. Moreover, the intent of the program is to provide a path to permanent residence. A grant of parole in place “satisfies the requirement under INA section 245(a) that the requestor has been inspected and paroled by an immigration officer”. Qualifying family members of noncitizens granted PIP can file I-130 petitions on their behalf, and the noncitizens can then apply for adjustment of status.

PIP under DHS’s Implementation of the Keeping Families Together program in the Federal Register poses a philosophical question, however – is the measure a means to an end or an end in itself?  The intent of the program is for a noncitizen granted PIP to ultimately be able to be able to adjust status under INA 245(a). When PIP is granted, though, DHS does not require requestors to establish that they are not inadmissible or ineligible for adjustment of status. Although the grant of PIP is only for 3 years, unless extended, requestors can remain in the U.S. and apply for employment authorization upon being granted in PIP. This in itself is a benefit, albeit temporary, and may allow requestors who face grounds of inadmissibility or ineligibility for adjustment of status additional time to overcome these barriers before they file an I-485 adjustment of status application.

There are clearly explicit criminal grounds that would disqualify a PIP application. On the other hand, if a requestor may be potentially inadmissible that in itself would not preclude them from requesting PIP.

The Federal Register notice implementing PIP states the following regarding inadmissibility:

DHS additionally considered requiring the requestor to demonstrate that they are not inadmissible under any ground set forth in INA section 212(a), 8 U.S.C. 1182(a), to be granted parole under this process. This parole in place process is meant for those requestors who are otherwise eligible to adjust status. As noted elsewhere in this notice, serious criminal convictions, including certain convictions that would render the requestor inadmissible and therefore ineligible for adjustment of status, will be disqualifying for this process; other criminal convictions, as well as prior, unexecuted removal orders, will trigger a rebuttable presumption of ineligibility for this process. However, detailed consideration of grounds of inadmissibility—including whether applicable grounds can be waived—is a complex analysis undertaken during the Form I-485 adjustment of status adjudication. Requiring parole in place adjudicators to conduct the inadmissibility analysis that is normally conducted at the adjustment of status stage would be an inefficient, duplicative, and costly use of USCIS resources. Therefore, when assessing eligibility for parole in place, while DHS will consider the requestor’s criminal and immigration history and any other adverse factors that could bear upon admissibility, it will not import the admissibility analysis conducted at the Form I-485 stage into the parole adjudication.

Therefore, requestors who are likely inadmissible but feel that they will be able to overcome these grounds can still apply for PIP. A requestor, for example, who believes that they will not at present be able to overcome the public charge grounds of inadmissibility because the petitioner lacks sufficient income, for example, can still apply for PIP as they may hope that the petitioner’s future tax returns will reflect an income that exceeds 125% of the relevant poverty guideline. Similarly, a requestor who has committed fraud, such as filing a fraudulent asylum applicant in the past, can still apply for PIP and file an I-601 waiver with the I-485, even if the high standard for demonstrating extreme hardship to a qualifying relevant may not be met at the time of requesting PIP but may be satisfied at a later point. For example, having additional US citizen children in the near future would render it more difficult for the US citizen spouse to take care of children if the noncitizen spouse is hypothetically removed from the US. Requestors in these scenarios would still derive the benefits of PIP in good faith and be able to apply for EADs.

An individual requesting PIP could also be prima facie ineligible for adjustment of status if they are subject to an unexecuted removal order for example. The requestor would need to reopen the removal order, most likely though a joint motion with the government, which may or may not occur. Even though a certain fact pattern presented by the requestor could make it difficult to convince an ICE OPLA attorney to agree to join in a motion to reopen, the requestor can still apply for PIP. The Federal Register notice states the following with regards to prior removal orders:

DHS considered whether noncitizens with unexecuted final removal orders should be eligible for this process. DHS determined that noncitizens with unexecuted final removal orders will be presumptively ineligible for parole under this process. DHS recognizes that a noncitizen may have grounds to request that an immigration judge or the BIA reopen their immigration proceedings when they are otherwise eligible for adjustment of status, and thus determined that categorical ineligibility for this parole process would be inappropriate. As a result, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order and all other mitigating factors presented in determining whether the noncitizen may overcome the rebuttable presumption of ineligibility and be granted parole in place.

 Of course, each noncitizen considering requesting PIP must make these assessments themselves. Even if there is no chance that the I-485 will ever get approved, it may be beneficial to request PIP for a 3 year period along with a grant of employment authorization. On the other hand, the Federal Register notice clearly states that there is no assurance that the information provided by the noncitizen in the PIP request will not be used against them:

DHS generally will not use information contained in a request for parole in place under this process for the purpose of initiating immigration enforcement action against the requestor unless DHS determines, in its discretion, the requestor poses a threat to national security, public safety, or border security.[162] This process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate, in accordance with the INA and consistent with governing policies and practices, against noncitizens who may be eligible or who have pending applications for parole under this process. Information provided under this process may be otherwise disclosed consistent with statutory authorities, obligations, and restrictions, as well as governing privacy and information-sharing policies.

Requestors need to decide on a case by case basis whether it is worth obtaining  PIP and work authorization for at least a 3 year period even if they do not ultimately get permanent residence through adjustment of status, and instead get removed from the US. Indeed, there are other risks that could expose the requestor to enforcement action independent of whether the I-485 may be filed and approved. On August 23, 2024, Texas and 15 other Republican states filed a lawsuit in federal court on the ground that the PIP has violated the INA,  the Administrative Procedure Act and the Take Care Clause of the US Constitution. Although in the opinion of the authors the lawsuit is not meritorious as parole is clearly authorized under INA 212(d)(5), it is likely that a judge may preliminarily enjoin the program and a higher court may find it unlawful. Under this circumstance, information provided in the PIP could potentially be used against the noncitizen in an enforcement action regardless of whether the I-485 application may get granted or not.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

  

Cyrus Mehta

As Texas Has Been Smacked Down Twice for Lack of Standing in Challenges to Federal Immigration Policies, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions

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On March 8, 2024, Judge Tipton in Texas v. DHS dismissed a lawsuit brought by Texas and 20 other states challenging President Biden’s humanitarian parole program. Judge Tipton, who was appointed by Trump,  has otherwise been receptive to challenges to Biden’s immigration policies but not this time. Texas filed the lawsuit in his court thinking that Judge Tipton would again issue a favorable decision but Judge Tipton held that Texas did not have standing to bring the lawsuit.

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukrainian and Venezuelan nationals all0wed 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela (CHNV) to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

In Texas v. DHS  the challengers asserted that the program exceeded the parole authority given to the administration under INA 212(d)(5) as it can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. They also asserted that the program failed to include a notice and comment period and the program was arbitrary and capricious. Judge Tipton’s order did not address the merits because the plaintiffs did not demonstrate they had standing to bring the lawsuit.

Judge Tipton gave short shrift to Texas’s claim that the parole of CHNV nationals  would impose additional health care costs on the state or additional incarceration costs or an increase in education costs since the CHNV program has resulted in the decrease of migrants entering the US irregularly through the southern border. Judge Tipton also found that an increase in CHNV nationals seeking driver’s licenses would not impose additional costs on Texas, in fact the increased applications would result in a profit for Texas.  Prior to the CHNV program DHS released an average of 2,356 CHNV nationals per day but after the implementation of the program there were a total of 1,326 arrivals per day, which was a 44% reduction.

As a result, Texas was unable to show an “injury-in-fact” that the CHNV program increased the   costs on Texas. In fact, to the contrary, the CHNV parole program has reduced the total number of individuals from the four countries and Texas has spent less money after the implementation of the parole program. Texas counter argued that even if there are fewer apprehended CHNV nationals, the court should consider the money Texas would spend on CHNV nationals under the parole program. Judge Tipton emphasized that the court must consider the “actual injury – not the labels put on the injury” as otherwise plaintiffs will engage in “artful pleading” to make an end run around the standing requirement under Article III of the Constitution. To determine whether actual injury exists the raw numbers need to be looked at in context rather than in a vacuum. The CHNV program reduced the overall numbers of CHNV nationals that the United States admitted prior to the implementation of the program.

The CHNV program, which will continue for now,  has been a spectacular success thus far and is built on the US historically using parole to respond to immigration crises.  The CHNV parole program has “redirected many migrants away from risky journeys through Mexico into a lawful framework. By allowing sponsors to financially support beneficiaries, the programs have facilitated safe and orderly migration, reducing the strain on government resources,” according to the Cato report in the link.

Texas and the other states may appeal Judge Tipton’s decision, but this is the second time that Texas’s challenge has been smacked down due to lack of standing. Last June 2023 in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Judge Tipton readily agreed by vacating the Mayorkas Memo. The Fifth Circuit affirmed but the Supreme Court reversed holding  that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.”

As a result of Texas losing twice on standing, the enforcement priorities under the Mayorkas Memo continue to be applied and the CHNV parole program will also allow CHNV nationals to enter the US through parole in an orderly manner and relieve the strain on the Southern border. It remains to be seen whether Texas’s challenge to DACA can also be denied based on standing. Currently, the Fifth Circuit is reviewing Judge Hanen’s ruling in September 2023 holding that DACA is illegal.  Judge Hanen also affirmed that Texas had standing to challenge DACA notwithstanding the Supreme Court decision in United States v. Texas, where Justice Kavanaugh also stated  that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Judge Hanen seized upon this sentence from Justice Kavanaugh’s decision by holding that DACA involved  “non prosecution with benefits” and so it was distinguishable from the enforcement priorities in the Mayorkas Memo. Judge Hanen also seized upon another part in Justice Kavanaugh’s opinion stating that the “standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Judge Hanen thought that DACA was such an example where the administration has abandoned its statutory responsibility to make arrests and bring prosecutions and thus violated the “Take Care Clause” of the Constitution.

Both Texas v. DHS and United States v. Texas should serve as templates for either the Fifth Circuit or the Supreme Court to once again deny Texas standing to challenge DACA and Texas’s other serial challenges to Biden’s immigration programs. Texas lacks standing  because DACA like the CHNV parole program has been widely successful and it can be shown that it has not injured Texas. In his order Judge Tipton contrasted Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised, (Nov. 25, 2015), aff’d by equally divided Court, 597 U.S. 547 (2016), where President Obama’s Deferred Action for Parents of Americans (DAPA) was found to be unlawful, with the CHNV program. The Fifth Circuit held that Texas demonstrated injury in fact because “DAPA would enable at lest 500,000 illegal aliens in Texas” and the extended DACA program  would also cause “pocketbook injuries on the State in the form of healthcare, education, and social service costs.” However, if DACA is viewed independently from DAPA, it can be demonstrated that the benefits from DACA recipients since 2012 in the form of tax contributions to Texas and increased profits from the issuance of driver’s licenses, among other benefits,  have not resulted in injury-in-fact to Texas. Using the comparative analysis of Judge Tipton in Texas v. DHS, it can also be argued that the number of DACA recipients did not increase after the implementation of DACA in 2012 as they were already in the US prior to its implementation.

Moreover, in  Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Although Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would. It is also worth mentioning that In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. As with the Mayorkas Memo, the DACA program also involves prosecutorial discretion and so Texas’s challenge to DACA may suffer the same redressability problem identified by Justice Gorsuch.

As the latest order to Judge Tipton in Texas v. DHS and Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through parole initiatives  and other executive actions without fear of being sued by these states. As a fitting coda, it is worth mentioning that the Judicial Conference of the United States, the policy arm of the judiciary, has  strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit. This new policy would make it more difficult for states like Texas to file a lawsuit in courts where the judge might rule more favorably in a challenge to a Biden federal immigration policy. However, after receiving intense backlash from conservative lawmakers, judges and judicial experts, the Judicial Conference issued a revised policy making clear that the policy is a recommendation and district courts cannot be forced to follow it.  Although Texas’s choice of filing its lawsuit against the CHNV program in the United States District Court Southern District of Texas, Victoria Division, where Judge Tipton presides, backfired, even if this policy is non-binding guidance, it would still make it more difficult for Texas to try this strategy repeatedly in courts where other friendly judges preside like the United States District Court for the Southern District of Texas, Brownsville Division,  where Judge Hanen presides.