SCOTUS Allows Trump Administration to Revoke Parole Status of Noncitizens Present under CHNV Program

A reminder that the Executive Branch retains substantial discretionary authority over immigration policy and will prevail in court when that authority is properly exercised.

Today, in Noem v. Doe, the Supreme Court granted the Trump Administration's application for a stay of a district court order that barred the Department of Homeland Security from revoking "parole" status for an estimated 500,000 noncitizens from Cuba, Haiti, Nicaragua, and Venezuela under the so-called "CHNV" program. Justice Jackson dissented, joined by Justice Sotomayor.

The Court's order in Noem v. Doe should not be surprising. As even Justice Jackson acknowledged in her dissent, the decision to offer noncitizens parole "is discretionary by statute."

The language of 8 U.S.C. §1182(d)(2)(A) is quite clear:

The Secretary of Homeland Security may, . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

While it is certainly disruptive to revoke a noncitizen's parole status, it is something the Secretary clearly has the power to do. Unlike in the Alien Enemies Act cases, there is little question about the scope of the Administration's authority or the way it is being exercised. Further it is not clear that such discretionary choices are even subject to judicial review.

Justice Jackson objected to the stay on the grounds that granting a stay should reflect "more--much more" than the likelihood that one party will prevail. While leaving hte district court's injunction in place would prevent the DHS Secretary from exercising her discretion, and inhibit the administration's ability to pursue its immigration and foreign-policy objectives through power expressly delegated by Congress, she believes the Court should have shown greater solicitude for the effects of revoking parole on the program's beneficiaries. "Even if the Government is likely to win on the merits, in our legal system, success takes time and the stay standards require more than anticipated victory." Yet under this approach, one administration could effectively tie the hands of its successor by granting parole or other status to large groups of noncitizens, without regard for what Congress enacted. Immigration law is not, and should not be, this sort of one-way ratchet.

Today's order is a reminder that the President retains ample authority to direct immigration policy and undo the policies of his predecessors. All that is necessary is exercising those authorities forthrightly. (And if one does not like that a single President can exercise authority in this way, that is a question to take to Congress.)