Today, Federal District Court Judge Drew Tipton issued a ruling Texas v. Department of Homeland Securitydismissing a lawsuit brought by a coalition of red states led by Texas, challenging the legality of the Biden administration’s CNVH parole program (also sometimes called “CHNV”), which allows migrants from four Latin American countries to enter the United States and live and work here for up to two years, if they can find a U.S.-based sponsor willing to support them.
Judge Tipton (a Trump-appointed conservative) ruled that the states did not have standing to sue the program. The plaintiff states argued that Texas has standing because paroled migrants entering the state would cause the state government to incur various additional costs, thus demonstrating the necessary “injury of fact” required by the Supreme Court as precedent. But Judge Tipton concluded that the evidence shows that the CNVH program actually reduces the number of migrants from these countries entering the state. This therefore does not increase the costs to the state, and therefore Texas has not suffered a sufficient “injury” to remain standing:
In fact, to prove an injury, Texas must prove “an invasion of a legally protected place.”
interest that is (a) concrete and detailed, and (b) current or imminent, no
conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. at 9.36pm…. In the
In the context of state challenges to federal immigration policies, states have historically demonstrated harm by effectively demonstrating the additional costs paid in state-funded industries due to additional aliens….Texas’ legitimation theory “was based on the proposition that CHNV trials would likely increase the number of CHNV citizens in the State and thus increase the State’s costs…”. And as observed by the interveners [a group of sponsors of CHNV participants], the trial report denies this theory…. Respondents argue that the undisputed data presented at trial confirms that the CHNV Parole Program worked reduced the total number of people from the four countries and, as a result, Texas actually spent less money as a result of the Program….
Judge Tipton examines Supreme Court and Fifth Circuit Court of Appeals precedents and believes that the right way to measure costs is to look at the net impact of the program in question, not just the costs that may be created by the beneficiaries of the program taken in isolation. Since evidence shows that the program reduces the total number of CNVH migrants in Texas, it actually saves Texas money, and therefore the state has no standing. Early in the litigation, the state plaintiffs had determined that only Texas’ costs should be considered, not those of other states.
How does the CNVH parole program actually reduce the number of migrants from these four countries entering Texas? Because it allows program participants to come to the United States legally without ever having to cross the southern border, many migrants who would otherwise attempt to enter Texas or other border states illegally instead seek legal entry under the CNVH. Many directly reach their final destinations in other states via ship, plane or other means of transportation. Even those who enter through border states may not stay there long.
I covered this point in much more detail in an amicus brief I filed defending the legality of the program, on behalf of the Cato Institute, of MedGlobal (a nonprofit medical organization serving migrants and refugees, among others) and for myself. Our brief does Not standing address. But, for the reasons explained in the brief, the easing of pressure at the border also matters to the merits of the case (which Judge Tipton did not reach). See also my September 2023 article on the case in Hill.
I am skeptical of restrictive definitions of status and would have preferred the Court to uphold the CNVH program on its merits. However, Judge Tipton validly argues that this is the right outcome in light of current precedent. It is also substantially consistent with the Supreme Court’s June 2023 8-1 decision United States vs. Texasarguing that many of the same red states that brought this case lack standing to challenge the Biden administration’s immigration enforcement guidelines, even as the states argue that the administration’s decision not to deport some migrants increases states’ costs (although there are also ways to potentially distinguish the two cases).
As David Bier and I explain in a November article United States today article, the CNVH could do even more to alleviate border problems – and help migrants fleeing horrific oppression and violence – if the Biden administration were to expand it to cover more countries and raise the arbitrary limit of 30,000 participants per month on the number of competitors. The limit has created a huge backlog of applicants.
And, while it may not be relevant to ongoing analysis (due to the indirect nature of such effects), the economic benefits of increased migration generally outweigh any additional costs to state and federal governments, especially considering that immigrants also pay taxes.
This decision is likely to be appealed to the Fifth Circuit. Alternatively, states could try to find another way to stay on their feet. The latter, however, could prove difficult if Judge Tipton’s ruling stands. For the moment, however, the CNVH program can continue.
This case is probably not over. But it’s not a good sign for the states that lost in district court, even though they chose to file in this district precisely because they would likely convince Judge Tipton to hear the case. He is a conservative who many observers expected to be sympathetic to the states’ position.
NOTE: As noted above, in this case I filed an amicus brief defending the legality of the program, on behalf of myself and the Cato Institute. However, the brief does Not address the issue of standing. What I write on this question represents solely my opinions and not those of Cato, MedGlobal, or anyone else.
As discussed in the brief, I am a sponsor of the Uniting for Ukraine program, which relies on the same statutory authority as CNVH, but has not been challenged by the Claimant States.