Immigration Parole Challenges Must Overcome Standing Roadblock

Before they can overturn a Biden program offering immigration relief to spouses of US citizens, GOP states will have to show whether they have grounds to challenge the Keeping Families Together program. The Biden administration has temporarily admitted immigrants to the US to an unprecedented extent through use of its parole powers, an authority that hadn’t previously been tested in the courts. Republican state officials have mounted legal challenges to parole programs and the Deferred Action for Childhood Arrivals program, arguing they face financial harm from increased public spending. Last month, conservative states secured a temporary freeze of the new parole-in-place program offering employment authorization and a pathway to permanent residency for immigrant family members of US citizens who have lived here for at least a decade. But if those lawsuits are to successfully overturn large-scale parole programs, Republican-led states will first have to establish that they have been harmed, or will be injured, by the policies. Without that showing, they won’t have standing to bring the litigation in the first place. Some attorneys say they’ll also have to address recent US Supreme Court decisions on standing that lower courts have yet to grapple with. “It’s a big deal. I do think things have changed,” said Karen Tumlin, an attorney and founder of the Justice Action Center. “That’s where the fight is now.” Dollars and Cents Nearly two years before the launch of the parole-in-place program for immigrant family members, GOP-led states sought to stop another parole program admitting up to 30,000 migrants each month from Cuba, Haiti, Nicaragua, and Venezuela—countries that at the time comprised the largest sources of migrants claiming asylum at the Southern border. Led by Texas, the states alleged they would have to make bigger expenditures on health care, schools, prisons, and even driver’s licenses thanks to the parole program. But that challenge to the CHNV program was stymied by a district court’s ruling that the states hadn’t shown they’ve suffered any harm from the parole initiative. Judge Drew B. Tipton, a Donald Trump appointee, found that numbers of new migrants had dropped since the program’s launch, meaning the states “claim that they have been injured by a program that has actually lowered their out-of-pocket costs.” While that standing issue is now being appealed to the US Court of Appeals for the Fifth Circuit, the Biden administration has tried to short circuit the challenge to the parole program for immigrant family members by claiming that states can’t show any actual harm. Whether states actually meet standing requirements will be the first question settled as the Keeping Families Together litigation enters an expedited briefing schedule. Attorneys on both sides of the case expect a similar fight over standing. In a brief to the Fifth Circuit, Republican states argued that Tipton erred by improperly turning standing into an “accounting exercise.” The case makes clear that states must prove actual injury to challenge a federal immigration program, not just speculate about harm, said Talia Inlender, deputy director of the Center for Immigration Law and Policy at the UCLA School of Law. The center drafted a brief for immigrants intervening in the parole appeal. “If the court in the parole-in-place program is going to take a really careful look at the standing claims being made by states in that case, they’re going to reach very similar conclusions,” she said. Supreme Court Precedent Immigrant advocates say arguments that Republican states don’t clear standing requirements are bolstered by recent Supreme Court precedent. The high court ruled last year that Texas didn’t have standing to bring claims against the Indian Child Welfare Act, in particular a challenge to a provision giving Native American families preference in placing a child for adoption if they can’t be placed with a family member or a member of their tribe. And in a subsequent ruling, the court found that Republican states led by Texas couldn’t meet standing requirements to challenge Department of Homeland Security enforcement priorities issued by DHS Secretary Alejandro Mayorkas. “The Supreme Court has made clear that courts need to take a very careful look at states’ standing claims to assess whether there is in fact harm,” Inlender said. Arguments that the ruling on enforcement priorities should undermine a challenge to the DACA program were unsuccesful last year. Matt Crapo, senior counsel at the Immigration Reform Law Institute, said proponents of immigrant relief programs are stretching that decision too far. “That was a very narrow holding,” he said. “I don’t think it will extend to parole policies because they’re actually conferring a benefit.” The legal arm of the Federation for American Immigration Reform, which backs more restrictive immigration policies, filed an amicus brief in support of the GOP challenge to the CHNV parole program and is advising the state of Kansas in the Keeping Families Together litigation. A court shouldn’t get involved in calculating whether costs imposed by states are offset by the program, but only determine whether any harm occurred at all to determine standing, Crapo said. And states also have an interest in ensuring American workers aren’t harmed by employment authorization granted to immigrants. “Between the two programs, there’s nearly a million people authorized to work that they would be competing against,” Crapo said. Inlender said each court hearing the challenges to immigration programs will have to examine the facts in each case before it. “They just haven’t proven harm,” she said. “To the contrary, states are actually benefiting from these programs.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.