Federal law grants the Secretary of Homeland Security the discretion to parole noncitizens into the United States on a “case-by-case basis” for “urgent humanitarian reasons or significant public benefit.” This legislation gives immigration officials the needed flexibility to respond to changing world conditions and humanitarian emergencies in real time. In 2023, DHS created the parole programs for Cuba, Haiti, Nicaragua, and Venezuela that are at issue in this case (collectively, the “CHNV Parole Program”).

Despite the Supreme Court’s repeated exhortation that courts should not “improperly second-guess” the executive’s parole decisions, Texas, joined by 21 other states, argues that the CHNV Parole Program exceeds DHS’s authority under the federal parole statute. In August 2023, the Southern District of Texas held that the plaintiff states lacked standing to sue because they could not identify any harms they had suffered.

Texas appealed the district court’s decision to the Fifth Circuit. In the Fifth Circuit, CAC filed an amicus brief on behalf of former executive branch officials in support of the government, explaining why Texas’s arguments that the CHNV Parole Program is unlawful are wrong.

Our brief makes three principal points. First, federal law gives immigration officials broad authority to use parole. As our amici know from their time in government, and as the Supreme Court has recognized, immigration decisions are interwoven with sensitive foreign policy judgments. In part for that reason, the executive branch has long enjoyed significant flexibility in the enforcement of immigration law. When Congress passed the current parole statute in 1996, it preserved the executive’s flexibility to determine when parole was appropriate. Texas argues that the “case-by-case” language in the law prevents the Secretary from granting parole to categories of immigrants, but as the text and history of the parole provision make clear, the government can recognize that certain “categories” of individuals presumptively satisfy the parole criteria, so long as people within those categories are then evaluated individually. This is the case under the CHNV Parole Program.

Second, for decades, the executive branch has used parole programs to respond to pressing diplomatic and migration-related developments. These parole programs have afforded the executive the crucial ability to provide alternatives to dangerous and potentially unmanageable migration patterns and to advance broad geopolitical aims. Both before and after Congress added the “case-by-case” requirement to the parole statute, Republican and Democratic administrations alike have used the parole authority to designate specific classes of noncitizens for whom parole is presumptively available and to permit them to enter the country in fairly large numbers.

Finally, the CHNV Program is a valid exercise of the executive branch’s parole power. Like the programs employed by previous administrations, the CHNV Program designates a class whose members would be considered candidates for parole, subject to an individual determination of whether a person is a member of the class and whether there are any reasons not to exercise the parole authority in that particular case. Furthermore, the CHNV Program is integrally related to the foreign policy goals of the U.S. Government and helps honor our commitments to regional partners.