CA5 Amicus Brief: Texas v. DHS

BRIEF OF FORMER EXECUTIVE BRANCH OFFICIALS AS AMICI CURIAE IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE

"Amici are former officials of the Department of State, Department of Homeland Security, Immigration and Naturalization Service, and other federal departments and agencies who served in both Republican and Democratic administrations. Amici may differ in their views of the parole processes for nationals of Cuba, Haiti, Nicaragua, and Venezuela as a matter of policy, but they all agree that programs like these are lawful and are critical to the executive branch’s ability to enforce the nation’s immigration laws and manage its foreign policy. ... Despite the Supreme Court’s repeated exhortation that courts should not “improperly second-guess” the executive’s parole decisions, Biden, 597 U.S. at 816 (Kavanaugh, J., concurring); Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) (immigration decisions are “largely immune from judicial inquiry or interference”), Texas now claims that the CHNV Parole Program exceeds DHS’s authority under 8 U.S.C. § 1182(d)(5), see Appellants’ Br. 3. This argument is wrong. ... The executive branch has for decades employed programs in which certain categories of noncitizens are presumptively eligible for parole, subject to case-by-case review. Indeed, officials have long relied on such programs to advance the same objectives that underlie the CHNV Parole Program. And in the course of developing such initiatives, immigration officials have twice explicitly rejected the reading of the statute that Texas now proposes. See infra at 19-20. If Texas were correct, all of these programs would have violated federal law. That is simply not the case. ... For decades, § 1182(d)(5) has enabled the executive branch to adapt “congressional policy to infinitely variable conditions,” Knauff, 338 U.S. at 543, by creating programs that have advanced the government’s diplomatic goals and helped to reduce irregular migration. Texas’s arguments are at odds with longstanding historical practice, and for good reason: they would frustrate the executive’s ability to respond quickly to emergencies involving border security, humanitarian catastrophes, and sensitive “foreign-policy judgment[s],” Biden, 597 U.S. at 816 (Kavanaugh, J., concurring). ... For the foregoing reasons, if this Court reaches the merits, it should conclude that the CHNV Program is lawful."