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IMMIGRATION JULY 21, 2023 | The Indian Eye 38

DHS’s Family Reunification Parole Initiative Can Serve as

Template for Other Bold Executive Actions to Reform the

Immigration System Without Fear of Being Sued by a State

BY CYRUS D. MEHTA AND KAITLYN Immigration and Nationality Act and children of permanent resi- manitarian parole program has “Parole Plus Alternatives to De-
BOX* (INA) authorizes the Secretary dents. The invited petitioner can been the subject of a lawsuit by tention” (Parole+ATD) and “Pa-
of Homeland Security, in his dis- then initiate the process by filing Texas and nineteen other states, role with Conditions in Limited
n July 7, 2023, DHS an- cretion, to parole noncitizens into a request on behalf of the benefi- and allows 30,000 qualifying na- Circumstances Prior to the Issu-
nounced a new family the United States temporarily on ciary and eligible family members tionals of Cuba, Haiti, Nicaragua ance of a Charging Document”
Oreunification parole initia- a case-by-case basis for urgent hu- to be considered for advance trav- and Venezuela to be admitted to (PWC) policies in Florida v. May-
tive for beneficiaries of approved manitarian reasons or significant el authorization and parole. the United States every month for orkas that is currently pending
I-130 petitions who are nationals public benefit. The parole author- The new processes allow up to two years. The new FRP ini- before the Eleventh Circuit Court
of Colombia, El Salvador, Guate- ity has long been used to establish for parole only on a discretion- tiative is more narrowly tailored of Appeals. In a brief filed on July
mala, & Honduras. Nationals of family reunification parole (FRP) ary, case-by-case, and temporary as it applies only to spouse, chil- 5, 2023, the government argued
these countries can be considered processes administered by U.S. basis upon a demonstration of dren and sibling beneficiaries of that the “special solicitude” doc-
for parole on a case-by-case basis Citizenship and Immigration Ser- urgent humanitarian reasons or approved I-130 petitions. Also, trine proffered by states in United
for a period of up to three years vices, including the Cuban Family significant public benefit, as well in United States v. Texas, the States v. Texas. should not apply
while they wait to apply to be- Reunification Parole Program, as a demonstration that the ben- Supreme Court in an 8-1 major- in the humanitarian parole con-
come lawful permanent residents. which was established in 2007, eficiary warrants a favorable ex- ity opinion rendered a blow to text. Florida asserted that it was
This is an example of the adminis- and the Haitian Family Reunifi- ercise of discretion. Individuals Texas and Louisiana in holding entitled to special solicitude for
tration using its executive author- cation Parole Program, which was paroled into the United States that they had no standing to chal- the same reasons articulated by
ity to shape immigration policy in established in 2014. under these processes will gen- lenge the Biden administration Texas in United States v. Texas –
the absence of meaningful Con- The processes begin, accord- erally be considered for parole on federal immigration policy on “a challenge to its sovereignty and
gressional action to reform the ing to the DHS announcement, for up to three years and will be enforcement priorities. Although indirect fiscal costs flowing from
system. Indeed, this initiative can with the Department of State issu- eligible to request employment that case dealt with whether a the presence of more noncitizens
serve as a template to allow bene- ing an invitation to the petitioning authorization while they wait for state could challenge the federal in its state.” Because the Supreme
ficiaries of approved I-130, I-140, U.S. citizen or lawful permanent their immigrant visa to become government’s ability to exercise Court rejected an almost identical
and I-526 petitions to be paroled resident family member whose available. When their immigrant prosecutorial discretion, it can argument for the application of
into the US while they wait for a Form I-130 on behalf of a Colom- visa becomes available, they may also potentially deter a state’s special solicitude in United States
visa number to become available, bian, Salvadoran, Guatemalan, or apply to become a lawful perma- ability to demonstrate standing v. Texas, the government argued
which under the backlogs in the Honduran beneficiary has been nent resident. when it challenges other federal that Florida is similarly not enti-
employment and family prefer- approved. Beneficiaries awaiting The Federal Register No- immigration policies. tled to avail of the doctrine.
ence categories, can take several an immigrant visa could include tices for Colombia, El Salvador, In Texas’ challenge to the The Supreme Court’s de-
years to decades. certain children and siblings of Guatemala, and Honduras pro- Deferred Action for Childhood cision in United States v. Texas
Section 212(d)(5) of the U.S. citizens and certain spouses vide more information on the Arrivals (DACA) program, Tex- could have interesting implica-
FRP process and eligibility as has argued that it is entitled tions for challenges to DACA,
criteria. to “special solicitude.” The doc- as well, and DACA recipients
According to the fed- trine first enunciated in Massa- as intervenors have filed addi-
eral register notices, the chusetts v. EPA allows states to tional briefing to the US District
justification for the new skirt some of the usual standing Court for the Southern District
FRP initiative is part of a requirements, like whether the of Texas in US v. Texas, Case No.
broader, multi-pronged, and court can redress an alleged inju- 1:18-CV-68. In his concurrence
regional strategy to address ry. However, Justice Brett Kava- in United States v. Texas, Justice
the challenges posed by ir- naugh addressed the doctrine in a Gorsuch argued that the harm
regular migration through footnote in United States v. Texas Texas and the states that joined
the Southwest border. Con- stating that the states’ reliance on it were concerned with – primar-
sideration of noncitizens for Massachusetts v. EPA to support ily increased spending to provide
parole on a case-by-case ba- their argument for standing was healthcare and other services to
sis will meaningfully contrib- misplaced. Massachusetts v. EPA higher numbers of undocument-
ute to the broader strategy held that the state could challenge ed immigrants present in the state
of the United States gov- the U.S. Environmental Protec- – was not redressable. Although
ernment (USG) to expand tion Agency’s failure to regulate an injunction would prevent the
access to lawful pathways greenhouse gases based on spe- implementation of the Biden ad-
for individuals who may oth- cial solicitude, although that case ministration’s enforcement guide-
erwise undertake an irregu- dealt with a “statutorily autho- lines, Justice Gorsuch argued
lar migration journey to the rized petition for rulemaking, not that this remedy was unavailable
United States. The case-by- a challenge to an exercise of the to the states because of 8 U. S.
case parole of noncitizens executive’s enforcement discre- C. § 1252(f )(1), which provides
with approved family-based tion,” the footnote said. Another that “no court (other than the
immigrant visa petitions un- footnote in Justice Kavanaugh’s Supreme Court) shall have juris-
der this process will, in gen- majority opinion said lower courts diction or authority to enjoin or
eral, provide a significant need to be mindful of constraints restrain the operation of ” certain
public benefit by furthering on lawsuits filed by states, say- immigration laws, including the
the USG’s holistic migration ing that indirect effects on state provisions that the states want to
m of management strategy, spe- spending from federal policies see enforced. The district court
attempted to avoid offending
cifically by: (1) promoting
don’t confer standing. Still, Justice
CYRUS D. MEHTA & PARTNERS PLLC family unity; (2) furthering Kavanaugh’s opinion in United this provision by “vacating” the
important foreign policy ob- States v. Texas left open the possi- Biden administrations guidelines
jectives; (3) providing a law- bility that “a challenge to an Exec- instead of issuing an injunction,

ful and timely alternative to utive Branch policy that involves but Judge Gorsuch argued in
irregular migration; (4) re- both the Executive Branch’s ar- part that a vacatur order nullify-

  ducing strain on limited U.S. rest or prosecution priorities and ing the guidelines does nothing
   
­ resources; and (5) address- the Executive Branch’s provision to redress the states’ supposed
€
‚   ing root causes of migration of legal benefits or legal status injuries because the “federal offi-
through economic stability could lead to a different standing cials possess the same underlying
analysis”. Note that Justice Kava-
prosecutorial discretion”, even
and development supported
by increased remittances. naugh said that it “could” lead to in the absence of the guidelines.
a different standing analysis and
It remains to be seen
DACA recipients argued that
whether states like Texas not that it would. this program also represents an
2 6th Floor

    will attack this program in Florida has already chal- exercise of inherent prosecutorial
federal court. A similar hu- lenged the Biden administration’s discretion, and states’ challenge
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