Letter from the Editor-in-chief

• Citation: Vol. 6 No. 1
• Publication year: 2024

Letter from the Editor-in-Chief

[Page 5]

The AILA Law Journal hosted its first symposium, titled "Shaping Immigration Policy Through the Federal Courts," on March 21, 2024, in Washington, D.C. I am pleased to introduce readers to this special symposium issue, which covers the topics of the symposium in detail and also allows those who were not in attendance to catch the novel discussions between immigration practitioners and academics.

The theme is very timely. As Congress has remained paralyzed, and been unable to enact sweeping immigration reform, the federal courts have become crucial in the evolution of immigration law. President Biden, like many of his predecessors, has relied on executive actions to reshape key elements of the immigration system. Many of the initiatives have been challenged in federal court. To what extent do plaintiffs have standing to challenge federal immigration policy? What does the future bode for Chevron deference? The panels and presenters covered these important issues and more at the symposium.

One example of an executive action is President Biden's humanitarian parole policy for Cuba, Haiti, Nicaragua, and Venezuela (CHNV), which has been widely successful since its implementation. Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the president to parole noncitizens on a case-by-case basis for urgent humanitarian reasons or significant public benefit. To date, 375,000 nationals from these countries have been paroled into the United States in an orderly manner, thus avoiding perilous journeys through other countries with the aid of smugglers. Texas opposed this program, along with 20 other states, and filed a lawsuit to block it on the ground that the humanitarian parole policy was too broad and violated the narrow prescription under INA section 212(d)(5) that parole can only be granted on a "case by case basis for urgent humanitarian reasons."

Texas's lawsuit was dismissed by none other than Judge Tipton for lack of standing. ¹ Judge Tipton, who had been receptive to prior challenges by Texas, gave short shrift to Texas's claim that the parole of CHNV nationals would impose additional health care, incarceration or education costs since the CHNV program has resulted in the decrease of migrants entering the U.S. irregularly through the southern border. Prior to the CHNV program the Department of Homeland Security (DHS) released an average of 2,356 CHNV nationals per day but after the implementation of the program there were a total of 1,326 arrivals per day, which was a 44 percent reduction. As a result, Texas was unable to show an "injury in fact" that the CHNV program increased the costs on Texas.

The court's finding that Texas lacked standing allows the CHNV program to continue, which has been a spectacular success thus far as it redirects many migrants from risky journeys through Mexico into a lawful framework. ²

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This is the second time that Texas's challenge has been smacked down due to lack of standing. Last June 2023, in United States v. Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities as established in the memo of DHS Secretary Alejandro Mayorkas. ³ Writing for the majority, Justice Brett Kavanaugh said, "The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no...