The Biden administration recently adapted the approach used by the successful United for Ukraine private migrant sponsorship program to include a total of up to 30,000 migrants per month from four Latin American countries: Cuba, Venezuela, Nicaragua and Haiti. Under these programs, migrants fleeing war, oppression, poverty and violence in these countries can quickly gain legal entry into the United States and the right to live and work here for up to two years if they have a private sponsor in the US who commits to support.
Yesterday, twenty GOP-controlled states filed suit challenging the legality of the program for four Latin American nations (though not Unification for Ukraine). They claim the program lacks proper congressional approval and had to go through the Administrative Procedure Act (APA) “notice and comment” procedure. Ironically, the flaws in the lawsuit were highlighted by the plaintiff states’ governors’ own statements about the evils of socialism and the urgent need to resolve the crisis on the southern border.
The legal basis for these private sponsorship programs is a 1952 law that gives the attorney general the power to use “parole” to grant foreign nationals temporary residency in the US, “on a case-by-case basis for urgent humanitarian reasons or substantial public benefit.” Are there “urgent humanitarian reasons” to allow migrants fleeing these four Latin American nations to enter? For sure! But don’t take my word for it. Take the governors of the several states that filed this lawsuit.
Three of the four nations included in the program are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few expressed it better than Florida Governor Ron DeSantis, whose state is one of the participants in the lawsuit. As he said last year, Venezuela’s socialist president Nicolas Maduro is a “murderous tyrant” who is “responsible for countless crimes and has run Venezuela into the ground.” DeSantis went on to say that “people [in Venezuela] they are “really hurting” because of government policy. It is indeed true that Venezuelan socialism has resulted in widespread repression, poverty and hyperinflation, leading to the largest refugee crisis in the history of the Western Hemisphere, with some 6 million people fleeing. Texas Governor Greg Abbott, whose state is leading the lawsuit, also noted the severe economic crisis in Venezuela, which he (rightly) blames socialism.
In 2021, DeSantis signed a bill requiring Florida public schools to provide 45 minutes of instruction each year about the evils of communist regimes, including Cuba, which DeSantis correctly described as responsible for “poverty, hunger, migration, systemic lethal violence and suppression of speech.” Cuba, likewise, inflicts severe poverty and oppression on its people, including the recent brutal suppression of protests in July 2021. It is no coincidence that, before the recent crisis in Venezuela, the largest refugee flow in the history of the Western Hemisphere was that of people fleeing Cuban Communism in the 1960s- them and the 70s. Many would still like to escape today.
Nicaragua under the increasingly authoritarian socialist rule of Daniel Ortega is a similar story. Ortega’s repression deepened already severe poverty and created what even the left-leaning BBC describes as a “climate of terror”. Because of this, many Nicaraguans tried to escape. As one Nicaraguan human rights activist says, conditions are so bad that “[t]he would rather die than go back to Nicaragua.”
I don’t know about you. But it sure sounds to me like there are “urgent humanitarian reasons” for Cubans, Venezuelans, and Nicaraguans to seek refuge in the US. And few understand this better than the people who file lawsuits trying to prevent them from getting it. Abbott, DeSantis and other Republican governors have repeatedly denounced both the evils of socialism in general and the evils of the Cuban, Venezuelan and Nicaraguan governments in particular.
But maybe they forgot those things somehow. If so, DeSantis should invite his fellow Republican governors to attend one of the 45-minute lectures on the evils of communism, established under the law he signed last year. Their signing this lawsuit means they may need a refresher course on this topic!
Haiti, the only nation with a non-socialist government involved in the program, has long been one of the poorest and most dysfunctional societies in the world. Over the past year, conditions have become even worse, with increased violence and shortages of basic necessities. It is hard to deny that Haitians also have “urgent humanitarian reasons” to seek refuge.
In addition to humanitarian grounds, the law also allows the attorney general to grant parole when there is a “substantial public benefit.” In this case, the significant benefit is easing what Republican governors keep claiming is a massive crisis at the border. Just last month, Texas Governor Abbott demanded that President Biden immediately address the “terrible border crisis” caused by the many thousands of migrants crossing the border illegally.
The parole policy does just that. Many of the migrants seeking illegal entry at the border come from the four countries covered by the program. Parole would allow them to enter legally by boat or plane, bypassing the border entirely, reducing pressure on the border and easing what Abbott calls “a terrible crisis for Texas’ border communities.” Earlier, more limited expansions of legal entry for Haitians and Venezuelans have already caused a significant reduction in illegal entry by nationals of those countries. The parole program can make much more progress on that front.
Unlike the evils of socialism, I find much of what Republican governors say about the border crisis unconvincing. Immigration, including that from Latin America, is far more of a benefit to the US than a burden. To the extent that there are humanitarian problems at the border, they are largely caused by migration restrictions that have closed off pathways to legal entry for many people fleeing appalling conditions. But the more you believe the rhetoric of Republican governors about the scale and urgency of the border crisis, the stronger the legal case for Biden’s parole program.
Of course, most Republicans would prefer to solve the border situation by increasing exclusions and deportations, rather than by easing legal entry. I think their approach is likely to fail (and has historically failed), for the same reasons that Prohibition led to the expansion of the illegal liquor trade. But even if their strategy is indeed better, that still doesn’t undermine the legal rationale for Biden’s actions. The relevant statutory provision requires only that parole produce a “substantial public benefit”, not that it be the best possible way to achieve it.
Another “significant public benefit” of the parole program is strengthening the US position in the international war of ideas against socialist authoritarians. By providing refuge to people fleeing brutal socialist governments, we send a strong message about the superiority of our system over theirs. Conservatives understood this point during the days of the Cold War, which is why most supported using that same parole authority to grant entry to Hungarian, Cuban, and Vietnamese refugees from communism, among others. Unfortunately, too much of the right today favors nativism over opposition to socialism.
The state’s lawsuit also claims the parole program is illegal because it does not engage in “case-by-case” eligibility determinations, as required by statute. But unless it is to be entirely arbitrary or haphazard, case-by-case discretion must be governed by general rules. And, as a general rule, migrants from these four countries face severe oppression and deprivation if forced to return. Thus, their admission is justified by “urgent humanitarian reasons”. The Supreme Court recently upheld the use of relatively broad rules under parole authority in a “Remain in Mexico” case.
I discussed the relationship between case-by-case discretion and general rules in immigration policy in more detail in this 2016 article.
The same considerations that defeat the states’ statutory argument also undermine their procedural APA claim. Although notice-and-comment rulemaking is generally required for major regulatory changes, there is a “good cause” exception for — among other things — emergencies requiring immediate action. The dangers facing migrants from the four countries are quite clearly urgent. Every day of delay means more suffering for them, and in many cases more exposure to violence. And if the border crisis is as bad as GOP governors say it is, it qualifies as an emergency that also requires swift action.
Arguably, private sponsorship programs—including Unification for Ukraine—cannot continue indefinitely without going through a notice-and-comment process. But given the urgent needs, I can at least start without it.
Finally, it is significant that Republican states filed suit to end the privately sponsored parole program for four Latin American countries, but not a very similar program for Ukrainians, despite the fact that the latter is the model for the former. The most obvious explanation is that Ukrainian migrants are more popular – especially among Republicans – than those from Latin America. But such politically motivated differences suggest that prosecutors are motivated more by politics than by any alleged commitment to the rule of law. Frankly, this is a common pattern when it comes to lawsuits brought by politicians.
Regardless of the plaintiffs’ motives, it is important to recognize that if they prevail, Unification for Ukraine is likely to be threatened, as is the program they challenge. The legal justifications for the two are almost identical. Even if claimant states would prefer to spare Unification for Ukraine, this may not protect it from challenges by other potential litigants (although some of the latter may be blocked by legitimation and other procedural hurdles).
In this case, as in other state challenges to immigration policies, status is likely to be an issue. I will not go into detail on that point here, except to reiterate my long-standing position that states should have broad rights to challenge federal policies, even when I believe they are wrong on the merits, as in Biden v. Texascurrently before the Supreme Court.
In short, this lawsuit deserves to fail for reasons well articulated by some of the people who brought it.
UPDATE: Cato Institute immigration policy expert David Bier makes some related points about the legal justification for using parole in this case, here .