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This lawsuit is on behalf of 21 states (led by Texas) challenging a process the Biden Administration established to permit nationals of specified countries to apply for and receive a two-year period of “parole”--a statutorily authorized form of temporary permission for a non-citizen to live in the United States. The Biden Administration created the first such process in April 2022, for Ukrainians; to date, no red state has challenged that process. In October 2022, DHS created a similar process for Venezuelans; then on January 5, 2023, that process was expanded to include nationals of Cuba, Haiti, and Nicaragua. The parole processes for these four countries are part of a package of “border security measures”–including new restrictions on access to asylum–that are intended to deter migrants from coming to the U.S. border with Mexico to apply for asylum. 

In the complaint, Texas alleges that the Biden Administration’s creation of the parole processes for Cubans, Haitians, Nicaraguans, and Venezuelans (the “CHNV” parole programs) did not go through required procedures and that they constitute an unauthorized use of the statutory parole authority. 

Texas filed this case in the Victoria Division of the Southern District of Texas, because there it had a 100% chance of it being assigned to Judge Drew Tipton (for more on why, see the third question in our FAQs). Shortly after the case was filed, the Biden Administration filed a motion to transfer the case to somewhere it would be randomly assigned a judge. Judge Tipton denied that motion to transfer on March 10, 2023.

In late March, a group of seven U.S. citizens, represented by Justice Action Center, RAICES, and the Center for Immigration Law and Policy (CILP) at the UCLA School of Law, who have or are applying to sponsor noncitizens to come to the United States through the CHNV programs filed a motion requesting that Judge Tipton permit them to intervene in the lawsuit as defendants, so that they can defend the legality of the parole programs alongside the federal government defendants. Judge Tipton granted that motion on April 20.

On May 12, 2023, Texas filed two motions: one to supplement its complaint to add claims regarding an unrelated policy issued by DHS two days prior, called the “Parole with Conditions” policy; and the other requesting a temporary restraining order (TRO) of that same policy (even though that policy was already subject to a Florida judge’s TRO issued the day before). Judge Tipton held a hearing (via zoom) that same day. During that hearing, Judge Tipton stated that, in light of the Florida TRO, he would not immediately consider the TRO and would permit regular briefing on Texas’s motion requesting permission to add to this case the unrelated claims regarding the parole memo. That briefing is currently scheduled to conclude on June 2.

Under the current schedule, a bench trial on Texas’s claims will begin on June 15, 2023. At a status conference on May 30, however, Judge Tipton indicated that, per agreement of the parties, the trial will move to sometime in August 2023.

Technical Summary

Texas’s Complaint alleges that the parole program was created in violation of the APA’s notice-and-comment requirement and its prohibition on arbitrary and capricious agency action; and that the program exceeds the statutory parole authority, 8 U.S.C. § 1182(d)(5).

Shortly after filing suit, the States moved for a preliminary injunction of the parole programs. That motion was filed on February 14, 2023, but in late February, Judge Tipton informed the parties that he would not decide the motion for preliminary injunction, but would instead go straight to a bench trial.

On April 7, 2023, Judge Tipton issued an order authorizing the States and the federal government to serve their proposed discovery requests on the other (overruling the federal government’s argument that several of the States’ requests were improper).​​​​​


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