Texas challenge against federal program to allow migrant entry sees first day in court

The trial will continue on Friday, but a ruling is not expected for at least a month.


Migrants, many from Haiti, wait to board a bus to Houston at a humanitarian center after they were released from United States Border Patrol upon crossing the Rio Grande and turning themselves in seeking asylum, Wednesday, Sept. 22, 2021, in Del Rio, Texas.

One of the White House's avenues for migrants to seek temporary legal residence in the U.S. was challenged in a Victoria courtroom Thursday.

Texas, along with 20 other Republican-leaning states, is suing the federal government over a program often referred to as the CHNV Pathway, through which the Biden administration has granted entry to migrants from Cuba, Haiti, Nicaragua and Venezuela with permission to live and work in the U.S. for up to two years. Around 180,000 people have entered the U.S. as part of the pathway since it went into effect in February.

The program operates through an executive authority called parole, which allows the executive branch to grant individuals entry into the U.S. on a case-by-case basis in the event of urgent humanitarian need or significant public benefit.

The current White House has employed parole more than any administration before it, as part of a strategy to deter illegal immigration by expanding legal immigration pathways. So far, it has shown a measure of success: since the program's implementation, the Department of Homeland Security has reported 900 fewer migrants being detained and released at the border each day.

Texas argues it has incurred harm due to the program, including costs associated with education and healthcare for entrants. Over 14,000 of individuals paroled into the country as part of the program are currently living in Texas.

Judge Drew Tipton, a Trump appointee, is presiding over the case. Tipton has previously ruled against the Biden administration in other high-profile immigration cases, though one ruling was overturned by the U.S. Supreme Court in June by a margin of 8-1.

Monika Langarica, a lawyer from the Center for Immigration Law and Policy at UCLA, is representing seven individuals who have sponsored recipients of parole in recent months. She argued in court today that the Biden Administration is using the power of parole legally, just as four other administrations have done without any previous programs being found unlawful.

"This program is grounded in long-standing authority," said Langarica. "The evidence shows that this pathway is motivated by indistinguishable reasons from those which have been used before."

She also argued Texas's claims of harm are unfounded, as none of them can be specifically tied with recipients of this particular program. Instead, the data the state is presenting to support its claims of harm pertains generally to costs incurred by undocumented immigrants, which does not include, Langarica said, those who have received parole legally.

However, lawyers for the state of Texas said the program undermines and circumvents the immigration regulations made by Congress.

"This creates a shadow immigration program," said Gene Hamilton, an attorney representing Texas in the case.

Hamilton previously worked in the U.S. Department of Justice and Department of Homeland Security under the Trump administration, where he had a part in ending the Deferred Action for Childhood Arrivals (DACA) program, establishing the Trump administration's "zero-tolerance" family separation policy at the border as well as revoking the temporary protected status of Sudanese and South Sudanese immigrants.

"This is just like DACA," said Hamilton. "This program is so different from the other parole programs it's being compared to."

The state alleged that the Department of Homeland Security is not using adequate discretion in granting parole, which it said is evidenced by the program's application approval rate of over 95 percent.

"The agency is not making determinations on a truly case-by-case basis," said Hamilton.

However, proponents of the program argue that, since the process requires a significant amount of time and paperwork, the pool of applicants primarily consists of people who are serious about the process.

Lawyers for the federal government contend that this statute works in tandem with others to decrease illegal immigration into the U.S. as part of Biden's carrots-and-sticks immigration strategy. Meanwhile, the state of Texas argues that this carrot is unlawful, and the sticks, irrelevant.

The trial will continue on Friday, but a ruling is not expected for at least a month.