Another immigration court battle drags on

Douglas Baker said more illegal immigrants have crossed into his family’s South Texas ranch in the past 18 months than in the almost seven years they’ve owned it. But lately, fewer people are crashing through fences and gates on the property in Dilley, Texas, about 70 miles from the border. “The pressure here at our ranch has dissipated,” said Baker, a former security expert in the George W. Bush administration who now serves on the Council on National Security and Immigration at the National Immigration Forum. He isn’t sure whether to credit the drop in crossings to a shift in flow to another part of the state or to policies the Biden administration put in place earlier this year.

Illegal crossings dipped after the no-entry Title 42 policy ended in May when the pandemic-era public health emergency expired. The White House attributes the decrease in crossings to a recent sponsorship program, designed for Cubans, Haitians, Nicaraguans, and Venezuelans, that is now the epicenter of a legal battle that could take months to resolve. Opponents to the program claim it improperly uses the humanitarian parole status and bypasses legal channels. But the administration contends the initiative has lowered illegal crossings, easing pressure on border communities while Congress fails to enact meaningful reform.

President Joe Biden announced a parole program for Venezuelans last October and added Cubans, Haitians, and Nicaraguans to the program in January. Parolees must pass medical and security checks and a sponsor must file an application for them in the United States. Once approved, they must fly into the United States within three months and they are allowed to file for work authorization. The administration capped the program at 30,000 immigrants per month. So far, at least 181,000 have arrived while more than 1.5 million have applied, according to internal Department of Homeland Security data obtained by CBS News.

Authorities generally grant humanitarian parole, a temporary status without a pathway to citizenship, for one to two years. It isn’t intended to be used solely as a means to bypass the refugee resettlement system or visa wait times. But the secretary of homeland security has discretionary authority to parole anyone into the country who is ineligible for a visa on a case-by-case basis for “urgent humanitarian reasons,” a category that is not clearly defined. Under the secretary’s direction, immigration officers consider whether the circumstances are “pressing” and what might happen to the individual if parole is not granted.

Parole can also be conferred for “significant public benefit,” such as allowing a noncitizen into the United States to participate in a criminal or civil trial. Though parolees can typically apply for work authorization, parolees are not eligible for certain public benefits, so they are required to have a financial sponsor throughout their stay.

In February, Texas and 20 other Republican-led states filed a lawsuit challenging Biden’s program, accusing the administration of creating a de facto visa system. One attorney pointed out in closing arguments that the officials are granting parole en masse, not on a case-by-case basis as laid out in immigration law.

The states claim they “face substantial, irreparable harms from [DHS’] abuses of its parole authority, which allow potentially hundreds of thousands of additional aliens to enter their already overwhelmed territories.” U.S. District Judge Drew Tipton challenged this claim, repeatedly asking how the program financially burdened the plaintiff states when it had reduced illegal crossings into border communities. The lawsuit outlines the millions of dollars Texas and other states will likely spend on public benefits and emergency medical care for the parolees.

The plaintiffs pointed out the administration did not explain how it would remove the parolees when it announced the program, noting how often “so-called ‘temporary’ immigration policies become permanently entrenched.”

Simon Hankinson, a senior research fellow at the Border Security and Immigration Center at the Heritage Foundation, raised similar concerns. “I think the case will be made that there’s simply no intention of ever terminating the parole and then putting them back into detention, as the immigration laws provide,” he said. Most parolees will join the yearslong asylum backlog, but some will “just disappear,” he argued. Of those who do claim asylum, the majority will be denied, Hankinson projected. In 2022, immigration courts approved about 46 percent of 51,607 asylum cases.

California, New York, Connecticut, and 12 other states submitted a friend of the court brief urging Tipton not to block the program. Doing so would “inflict severe harm on communities within our jurisdictions and across the nation,” they argued. The states added that parolees contribute to their economies by filling labor shortages, paying taxes, and purchasing goods and services.

Ending the program would also put Cubans, Venezuelans, Nicaraguans, and Haitians at risk of returning to “countries with exceptionally dangerous living conditions,” the states claimed. In Haiti, rampant gang violence has contributed to mounting social instability. Economic conditions in Venezuela and Nicaragua have declined thanks to authoritarian governments pushing socialist policies.

But Judge Tipton questioned that argument: “Does the fact they are living in poverty qualify as an urgent humanitarian need?” A lawyer for the federal government agreed that parole shouldn’t be granted for purely economic reasons.

The defendants, which include U.S. immigration agencies and several advocacy groups, said that Congress intentionally did not define “urgent humanitarian reasons” or “significant public benefit,” leaving that to the administration’s discretion.

Jennie Murray, president and CEO of the National Immigration Forum, said this discretionary authority is “something that we need to ensure that our administration has at [its] fingertips for moments … of desperation or moments of congressional inactivity.” She argued the program is an integral tool to compensate for a slow-moving refugee resettlement system and visa backlogs as a result of the COVID-19 pandemic. “For decades, we’ve used parole strategically,” Murray said.

DHS created the Filipino World War II Veterans Parole Program so the extended family members of Filipino veterans could wait in the United States until they received their family-sponsored visa. The Obama administration created a parole program for at-risk children from the Northern Triangle countries of El Salvador, Guatemala, and Honduras to prevent unaccompanied minors from making the dangerous journey to the U.S.-Mexico border.

The United States has also used parole to resettle large groups of people during times of conflict or other humanitarian emergencies, including after the U.S. withdrawals from Vietnam, Iraq, and Afghanistan. Congress has traditionally passed adjustment acts to provide a pathway to permanent residency for parolees. Advocates are urging lawmakers to make a way for the more than 76,000 Afghan refugees evacuated in the wake of the U.S. withdrawal and the fall of Kabul in August 2021. Biden announced Uniting for Ukraine, a private sponsorship parole program, in April 2022, and the United States has admitted more than 117,000 Ukrainians through the initiative.

Baker, of the Council on National Security and Immigration, called Biden’s most recent program “a different use of parole than we’ve seen previously.” But until Congress passes comprehensive reform, parole is one tool the administration can utilize, he said. It isn’t the only one, however. Baker argued it’s essential the administration also increase detention and removal.

Though down from 2022 records, illegal crossings at the U.S.-Mexico border remain high. U.S. Customs and Border Protection recorded over 2.5 million encounters between October 2022 and July 2023. In one South Texas border sector, crossings so far this year have already outpaced total crossings for 2021. Preliminary CBP data revealed a record number of families crossed the U.S.-Mexico border in August.

Judge Tipton likely won’t hand down his final decision for several months. In the meantime, he allowed the parole program to continue. Tipton previously ruled against the administration about who to prioritize for deportation. That case went all the way to the U.S. Supreme Court, which decided in favor of the Biden administration in June.