The Volokh Conspiracy

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My New "The Hill" Article on Dubious Lawsuit Challenging Immigration Parole Program for Migrants Fleeing Socialism, Oppression, and Violence in Four Latin American Nations

The case was filed by 20 red states seeking to dismantle the CNVH program extending the successful Uniting for Ukraine policy to migrants fleeing Cuba, Nicaragua, Venezuela, and Haiti.


Venezuelans fleeing the socialist regime of Nicolas Maduro.


Today The Hill published my article on Texas v. Department of Homeland Security, a case challenging the legality of the CNVH immigration parole program. Here is an excerpt:

Judge Drew Tipton of the U.S. District Court for the Southern District of Texas is in the process of considering an important immigration lawsuit that could have tragic effects if the plaintiffs prevail. The trial, which ran between Aug. 24 and 25, involves an ill-conceived lawsuit brought by Texas and nineteen other GOP-controlled state governments attempting to shut down an immigration policy that simultaneously rescues people fleeing violence and oppression and relieves pressure on the southern border. Ironically, statements by the plaintiff states' own leaders show why they deserve to lose.

In January, the Biden administration expanded the approach used by the successful Uniting for Ukraine private migrant sponsorship program to include a combined total of up to 30,000 migrants per month from four Latin American countries: Cuba, Venezuela, Nicaragua and Haiti…

The legal basis for these private sponsorship programs is the 1952 Immigration and Nationality Act, which…. gives the Department of Homeland Security the power to use "parole" to grant foreign citizens temporary residency rights in the United States "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Here, we have both "urgent humanitarian reasons" and "significant public benefit."

The humanitarian need is undeniable. Three of the four nations included in the program — Cuba, Nicaragua, and Venezuela — are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Gov. Ron DeSantis (R), whose state is one of the plaintiffs in the present case.

As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." Venezuelan oppression and socialist economic policies have created the biggest refugee crisis in the history of the Western hemisphere….

In 2021, DeSantis rightly described Cuba's communist regime as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech…."

The CNVH program also creates a significant "public benefit." In December, Texas Gov. Greg Abbott sent a public letter to President Biden urging him to immediately address what he called a "terrible crisis for border communities."

CNVH parole does exactly that. Many of the migrants seeking entry at the border came from the four nations covered by program. Parole enables them to instead enter with advance authorization by ship or plane, and thereby bypass the border entirely, thus alleviating the "crisis"  of which Abbot complained. A report by the conservative Manhattan Institute finds that "[t]he CHNV parole program…. has reduced combined illegal immigration by more than 98,000 immigrants per month…."

If the states prevail in this case, it will have dire consequences going far beyond the CNVH program. It would also imperil Uniting for Ukraine, which relies on the same authority, and has granted entry to some 140,000 Ukrainians fleeing Russia's war of aggression.

In addition, it would make it difficult or impossible for presidents to use parole to aid migrants fleeing future wars and repressive regimes. This harms both migrants unable to escape awful conditions, and the U.S. economy… It also undermines the U.S. position in the international war of ideas of against oppressive dictatorships, like those of Cuba, Russia and Venezuela.

Welcoming migrants fleeing their governments is a powerful signal of the superiority of ours. Conservatives understood this point during  the Cold War, when they supported the use of this same parole power to grant entry to Hungarian, Cuban, Vietnamese and other refugees from communism.

The article is partly based on an amicus brief I filed in the case on behalf of the Cato Institute, MedGlobal (a humanitarian medical organization), and myself.