FIRST ON FOX: A coalition of 20 Republican states and a conservative legal group is seeking a preliminary injunction against the Biden administration’s expanded humanitarian parole program that allows up to 30,000 migrants from four countries into the U.S. each month -- arguing that the move is unlawful as it violates limits imposed by Congress.
The 20 states, led by Texas and America First Legal, filed a lawsuit last month seeking to block the program, which allows migrants from Haiti, Cuba, Nicaragua and Venezuela to fly into the U.S. if they meet certain criteria -- such as not entering the country illegally, passing background checks and having a sponsor in the U.S.
The program, which was first announced for Venezuelans in October, and expanded in January, also allows for migrants to receive work permits and a two-year authorization to live in the U.S. and is combined with an extension of Title 42 expulsions to include those nationalities.
The Republican states sued, arguing that the program is illegal given the restrictions on parole by Congress -- which limits its usage to a "case-by-case basis for urgent humanitarian reasons or significant public benefit."
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On Tuesday, the plaintiffs sought a preliminary injunction to place an immediate block on the program as the lawsuit itself is considered -- a process that could take months.
"The President, and by extension his subordinates in the executive branch, are charged to "take Care that the Laws be faithfully executed[.]" But instead of taking care to faithfully execute the limits Congress placed on alien parole, the Defendants are subverting them," the request for an injunction says.
"The new Parole Program they concocted permits hundreds of thousands of aliens per year entry into the United States—aliens who otherwise have no lawful right for admission, entry, or presence. It permits that entry based not upon individual circumstances, but upon membership in particular groups."
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The states also argue that it harms them directly by allowing more migrants into their states, and that the program violated the Administrative Procedure Act -- which makes requirements of policy-making by agencies.
"The Parole Program violates the limitations Congress placed on the parole of aliens into the United States and is therefore unlawful. Enforcing that unlawful program is ultra vires—outside the Defendants’ power. The Parole Program is also unlawful because it was promulgated in violation of the law; the Defendants did not notify the public and seek and consider their comments before promulgation, and the program itself is arbitrary and capricious," they say, arguing that an injunction is needed as the harm to states is "immediate, irreparable and continuing."
The administration has been pushing back against the opposition to the program, claiming that data show it is working. At this State of the Union address, President Biden cited a 97% drop in encounters at the border from those nationalities.
Meanwhile, there were 156,274 encounters overall at the border in January. While that number was a new high for January, and slightly higher than the 154,874 encountered in January last year, it is also a sharp drop from the record 251,978 encounters in December. Officials also said that the number of migrants encountered by Border Patrol entering illegally between ports of entry (128,410) was the lowest number seen since Feb. 2021.
MIGRANT ENCOUNTERS HIT 156,274 IN JANUARY AS BIDEN CLAIMS NEW BORDER MEASURES WORKING
"These expanded border enforcement measures are working," Homeland Security Secretary Alejandro Mayorkas said in a statement last month in response to the lawsuit. "It is incomprehensible that some states who stand to benefit from these highly effective enforcement measures are seeking to block them and cause more irregular migration at our southern border."
Other critics of the administration have expressed skepticism about the long-term potential of the program. Brandon Judd, head of the National Border Patrol Council, told Fox last week that, while the border measures have likely had an impact, that is unlikely to continue without further action.
"A couple of months ago when he started extending Title 42 to Venezuelans, we saw an immediate drop for the first several days of the number of people crossing the border because the vast majority of people that were always at the border were Venezuelans. So we saw an immediate drop right then. But then the cartels, all they did was replace them with a different population. That's why we saw so many more Nicaraguans. That's why we saw so many more Cubans," Judd said.
"So now all the cartels have to do is just go advertise services in other countries and replace the Nicaraguans, Cubans, Haitians and Venezuelans with a different population. And they always adapt. They're very good at adapting. If you do not enforce Title 42 across the board with every single country, we're never going to get out of this rut. The cartels will just adapt to our policies," he said.
The administration has itself said that the measures by themselves will not solve the country’s border woes. Biden used his State of the Union to re-up calls for Congress to provide more funding and pass more sweeping immigration reforms, including a pathway to citizenship for millions of illegal immigrants already in the U.S.
"America’s border problems won’t be fixed until Congress acts. If you won’t pass my comprehensive immigration reform, at least pass my plan to provide the equipment and officers to secure the border. And a pathway to citizenship for Dreamers, those on temporary status, farm workers, and essential workers," he said.
