Bloomberg Law
March 28, 2023, 9:20 AM

Biden’s Southwest Border Strategy Threatened by GOP-Led Lawsuit

Courtney Rozen
Courtney Rozen

The Biden administration is preparing to defend its use of a Cold War-era law to admit thousands of migrants from Haiti, Venezuela, Nicaragua and Cuba, in a case that could restrain the US response to humanitarian crises.

A Texas judge on Thursday scheduled a June trial for the challenge brought by Republican-led states to the use of humanitarian parole, a policy that lets groups or individuals sponsor migrants to live and work in the US for up to two years.

More than 22,500 people from the four countries were admitted to the US in February under the program, according to the Department of Homeland Security.

The outcome of the case could instantly reshape what tools President Joe Biden uses to help people facing unchecked violence in other countries. It’s also the latest effort by conservatives to dilute the president’s authority to act without Congressional approval.

“This flouts, rather than follows, the clear limits imposed by Congress,” the petitioners wrote in their complaint challenging the policy.

How Parole Works

Homeland Security Secretary Alejandro Mayorkas in January announced the new parole effort, paired with stricter consequences for migrants seeking to illegally cross into the US, a strategy to both help ease an influx at the southwest border and alleviate pressure on immigration officials.

It relies on a 1952 law, passed in response to the Cold War, that lets federal officials accept migrants on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.” Under the policy, the US has admitted tens of thousands of Ukrainians and Afghans in the past two years.

Venezuelan migrants wait in line to receive food donations outside the Autobuses del Norte metro station in Mexico City on Wednesday, Oct. 26, 2022.
Fred Ramos / Bloomberg

Political assassinations, gang violence and economic instability are among the reasons the Biden administration cites to justify parole for applicants from Cuba, Haiti, Venezuela, and Nicaragua. It’s also designed in part to help migrants from those countries avert the dangerous journey to and across the US border.

Qualifying for parole can be extremely difficult, advocates said. Candidates must have an approved sponsor, pass background checks, apply online and meet other requirements.

In Haiti, for example, expecting migrants to fill out an online application or secure a passport is largely impossible because of the Caribbean nation’s surge in violence, said Marleine Bastien, executive director of Family Action Network Movement, a Miami-based organization that supports Haitian expats. Gang-related violence there has reached levels “not seen in decades,” UN Secretary-General António Guterres said in a January report.

Still, hundreds of US individuals, family members, faith organizations and nonprofits have signed up to sponsor migrants, and help them find jobs and apartments. Migrants or their sponsors must pay for their travel to the US.

The new pathway, together with stricter consequences for people who illegally cross the border, appears to be reducing migrant arrivals. US officials encountered 87,046 people from Cuba, Haiti, Nicaragua, and Venezuela attempting to enter the country at the southwest border in December 2022, according to statistics from DHS.

In February, the first full month of the new parole standards, the number of migrants from those four countries arriving at the border dropped to 1,759.

Attention on the issue is likely to increase in coming weeks. Immigration restrictions first imposed by President Donald Trump at the start of the pandemic are set to expire on May 11, igniting an expected new surge at the border.

Case Details

In the challenge they filed Jan. 24 in Texas, 20 mostly Republican-led states claim migrants from the four countries don’t face an “urgent” humanitarian threat.

The plaintiffs also argue that the court should invalidate the effort because the Biden administration skipped required steps, including asking the public for feedback and seeking Congressional approval. That mirrors an argument conservatives made against Biden’s student-debt relief plan before the Supreme Court in February, part of a pattern of attempts to weaken the president’s authority.

White House press secretary Karine Jean-Pierre called the migration lawsuit “a political stunt.”

“Repealing a program that is working just doesn’t make sense,” Jean-Pierre said.

But the administration declined to appeal after a Florida judge ruled against it this month in a similar challenge to its immigration policy. In that case, US District Judge T. Kent Wetherell ordered the administration to stop allowing tens of thousands of migrants arriving at the southwest border to stay in the US while their asylum applications are considered.

In his 109-page opinion assailing the asylum program, Wetherell also referenced the Texas lawsuit over humanitarian parole. He wrote that the Biden administration has “effectively turned the Southwest Border into a meaningless line in the sand.”

The Texas lawsuit has landed before Judge Drew Tipton, who previously blocked Biden’s attempt to put a freeze on other immigration deportations. Tipton, who was appointed by Trump, also denied the Biden administration’s request to move the current case to another court.

The President’s Power

Tipton’s rulings reflect a federal judiciary that is increasingly questioning the president’s authority to make decisions without express permission from Congress. The Supreme Court’s conservative majority has amplified this skepticism since Biden took office, including in cases on environmental standards and vaccine requirements.

Immigration differs from other presidential decisions because the chief executive has historically had broad power to decide how to police the nation’s borders, scholars said.

“It would be quite confusing if there were a lot of different people claiming that authority,” said Ming H. Chen, an immigration law professor at the University of California San Francisco.

The president typically doesn’t need Capitol Hill’s approval, for example, to determine how many refugees to admit each year. His DHS decides who to prioritize for arrest, detention, and removal—though the Supreme Court is considering a challenge to that authority.

Biden used humanitarian parole to bring more than 77,000 Afghans to the US around the time the American military withdrew from their country, according to DHS.

The option for Afghans and Ukrainians is “very different” from using the same tool for migrants from the Southern Hemisphere, said Sen. James Lankford (Okla.), the top Republican on the Senate subcommittee responsible for US borders. The first two countries are facing “specific situations,” he said in an interview.

“If the question is, ‘Should every person that’s facing violence anywhere in the world be able to come to America first?’” Lankford said, the answer is clear: “No.”

The vast majority of Afghans admitted under parole will lose their permission to stay beginning this fall without an intervention from Congress or the administration. The Biden administration will announce a short-term solution in the coming months, a spokesman for the department said.

About 15,000 of the Afghans have requested asylum, according to the department, a distinction that would allow them to stay here permanently. The bureaucratic slog toward asylum can take years, often requires help from an attorney, and doesn’t guarantee approval.

Migrants approved for parole from Cuba, Haiti, Nicaragua, and Venezuela will also need to apply for asylum or other immigration benefits if they want to stay.

Next Steps

Republicans in the Senate are also looking for another way to undo the pathway for migrants from those four countries. Sen. John Cornyn (R-Texas) plans to introduce legislation on it in the coming weeks, he said, though it’s unlikely to gain traction.

At the same time, economic and political instability in Cuba, Haiti, Nicaragua, and Venezuela is not improving, suggesting that more will seek to leave and could end up at the southwest border.

“It’s not a choice,” said Claire Thomas, an immigration lawyer and director of the Asylum Clinic at New York Law School. “It’s simply that there isn’t a method to escape to the country where they see that they will be protected.”

To contact the reporter on this story: Courtney Rozen in Washington at

To contact the editors responsible for this story: John P. Martin at and Bernie Kohn at

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