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.)

Comments

[Bored Lawyer]

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."

We respect the law. Except when it gets in our way.

[Commenter_XY]

Dead on.

[Sarcastr0]

That is the law, BL - there are 3 other factors in considering a stay, including balance of harms and irreparable harm.

She is saying the majority didn't sufficiently consider those.

[JonBlack]

The claim in your sub-head seems reasonable enough. Shame that a District Court in Massachusetts chose to ignore that reality.

To be fair though, anytime a District Court rules in a "Trump case"- and actually has jurisdiction in the matter- it's something of a victory for the rule of law.

[Joe_dallas]

"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"

Case by Case Basis

The mass granting of 500k doesnt sound like a case by case basis. perhaps it was the Biden administration that didnt follow the statute.

[Dr. Ed 2]

https://www.youtube.com/watch?v=_50-gOeBilc

[Incunabulum]

That is (D)ifferent.

[Tafkap]

Jesus, that's 500 000 refugees from oppressive countries, who trusted the USA and whose hope and future are crushed. Just like that.
Who cares, right ?

[Mr. Bumble]

You are confusing "temporary" with permanent.

[F.D. Wolf]

It's called Temporary Protected Status for a reason. Biden himself announced before the election that he would not be renewing it. Its purpose is to give the alien two years to pursue other legal options to achieve legal status. If someone is currently in the midst of such a process, they will be able to stay until its conclusion. If, on the other hand, someone has sat around and done nothing in that time, then they will be departing.

[David Nieporent]

It is not in fact called Temporary (or Temporary) Protected Status at all. CHNV is a different thing than TPS.

[Tafkap]

"If someone is currently in the midst of such a process, they will be able to stay until its conclusion."
I don't think so.

[Dr. Ed 2]

https://www.youtube.com/watch?v=_50-gOeBilc

[Incunabulum]

Yes.

Let's not forget that those are 'oppressive.countries' the Democrats have traditionally held up as successful implementations of the socialism they want here.

[Tafkap]

No, it's not (Haïti ?!) and it's not the point anyway.
Are you going really to punish innocent refugees for the supposed sins of previous administrations ? Is that what you're saying ?

[wvattorney13]

Does Jackson even pretend to do law?

[JoeFromtheBronx]

Yes.

I think Alito also "pretends" to do law. So, even anti-Jacksonites shouldn't think that is a high bar.

[F.D. Wolf]

It's still somewhat surprising, given Roberts, joined by the four Democrat appointees, was the author of Department of Homeland Security v. Regents of the University of California (2020). That was the DACA case, in which Obama had purported to grant protected status to hundreds of thousands of illegal aliens. Obama did this via memo, without any pretense of following APA procedures like "notice and comment". Regardless, Roberts wrote that Trump could not revoke DACA without jumping through all the APA procedural hoops himself. He also invoked the "reliance interests" of the aliens. I thought he might fall back on that here. I wonder if Roberts is rethinking that opinion.

[wvattorney13]

I agree that Roberts was wrong in that case, but the reliance interests were stronger. In that case the President's actions promised the "dreamers" a path to citizenship and induced them to come forward, register, and put their names all over government documents. It would seem most unfair for the government to do that and then start deporting.

In this case you have what was always a temporary parole which was revocable at will. The affected parties took no action to their detriment--merely took advantage of something they never would have had in the first place. But for Biden's actions they never would have been here.

I would have held that DACA was much like this. If you accept that one President will decline to prosecute you assume the risk that the next President may not be so lenient and you enroll at your peril. But I do see a big difference, at least a difference that Roberts would think significant.

[JoeFromtheBronx]

"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.

Jackson leaves open the possibility of "success."

What does "effectively tie hands" mean?

She leaves open the chance that Trump can win in Court. If the challenge goes against what Congress enacted, it should ultimately fail. She opposes a stay at this moment, especially without the Court saying why it warrants what supposedly requires a high bar.

There is no "one way ratchet." A lower court ruling that supported the Administration might in another case not warrant a stay. The same overall principle applies.

"Tying hands" seems to mean that any significant judicial review is problematic. Or is there an "immigration law" exception?

[ReaderY]

I think that to get an injunction, a plaintiff has to have an at least plausible legal claim. Only if there is at least that does the “much more” come into play. And here there just isn’t one. The staute is just very clear. That which the Secretary giveth in the way of parole, the Secretary can taketh away. Good policy or not, like it or not, think it wise or prudent or just or fair or not, the Trump administration’s power to do what it did is just too clearly stated to be disputable.