Amicus Curiae Brief — Kristi Noem, Secretary, Department of Homeland Security, Applicants v. Svitlana Doe, et al.

Supreme Court briefMay 13, 2025

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No. 24A1079

IN THE SUPREME COURT OF THE UNITED STATES

Kristi Noem, Secretary of Homeland Security, et al.,

Applicants,

Svitlana Doe, et al.

Respondents.

BRIEF OF IMMIGRATION REFORM LAW INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF APPLICATION FOR STAY

CHRISTOPHER J. HAJEC

Counsel of Record

MATT A. CRAPO

IMMIGRATION REFORM LAW INSTITUTE

25 Massachusetts Ave., NW, Suite 335

Washington, DC 20001

chajec@irli.org

(202) 232-5590

Counsel for Amicus Curiae

Immigration Reform Law Institute

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................ ii

IDENTITY AND INTEREST OF AMICUS CURIAE .........................................1

SUMMARY OF ARGUMENT ..............................................................................1

ARGUMENT .........................................................................................................2

A. Secretary Noem’s termination of the CHNV parole programs was an

exercise of presidential authority and is unreviewable under the APA ..4

B. This Court should harmonize the parole statute with the President’s

inherent constitutional authority ..............................................................7

CONCLUSION ......................................................................................................8

TABLE OF AUTHORITIES

Page(s)

CASES

Ariz. Dream Act Coalition v. Brewer,

855 F.3d 957 (9th Cir. 2017)............................................................................1

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

333 U.S. 103 (1948) ..........................................................................................3

Crowell v. Benson,

285 U.S. 22 (1932) ............................................................................................7

Dalton v. Specter,

511 U.S. 462 (1994) ................................................................................. 5, 6, 7

Detroit Int’l Bridge Co. v. Gov’t of Can.,

189 F. Supp. 3d 85 (D.D.C. 2016) ....................................................................6

Jennings v. Rodriguez,

583 U.S. 281 (2018) ..................................................................................... 7, 8

Leng May Ma v. Barber,

357 U.S. 185 (1958) ..........................................................................................4

Nishimura Ekiu v. United States,

142 U.S. 651 (1892) ..........................................................................................3

Matter of Silva-Trevino,

26 I. & N. Dec. 826 (B.I.A. 2016) .....................................................................1

Trump v. Hawaii,

585 U.S. 667 (2018) ..........................................................................................1

Tulare Cty. v. Bush,

185 F. Supp. 2d 18 (D.D.C. 2001) ....................................................................6

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) ..........................................................................................3

United States v. Hansen,

599 U.S. 762 (2023) ..........................................................................................7

United States v. Texas,

599 U.S. 670 (2023) ..........................................................................................1

Wash. All. Tech Workers v. U.S. Dep’t of Homeland Sec.,

50 F.4th 164 (D.C. Cir. 2022) ..........................................................................1

STATUTES

8 U.S.C. § 1101(a)(13)(B) ......................................................................................3

8 U.S.C. § 1182(d)(5)(A) ........................................................................................4

8 U.S.C. § 1182(f) ..................................................................................................3

MISCELLANEOUS

Executive Order 14165, Securing Our Borders,

90 Fed. Reg. 8467 (Jan. 20, 2025) (published Jan. 30, 2025) ........................4

Termination of Parole Processes for Cubans, Haitians, Nicaraguans, and

Venezuelans, 90 Fed. Reg. 13611 (Mar. 25, 2025) .........................................4

iii

IDENTITY AND INTEREST OF AMICUS CURIAE

Amicus curiae Immigration Reform Law Institute (IRLI) is a non-profit

501(c)(3) public interest law firm dedicated to litigating immigration-related

cases on behalf of, and in the interests of, United States citizens, and also to

assisting courts in understanding and accurately applying federal immigration

law. IRLI has litigated or filed amicus curiae briefs in a wide variety of cases,

including Trump v. Hawaii, 585 U.S. 667 (2018); United States v. Texas, 599

U.S. 670 (2023); Ariz. Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir.

2017); Wash. All. Tech Workers v. U.S. Dep’t of Homeland Sec., 50 F.4th 164

(D.C. Cir. 2022); and Matter of Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016).1

SUMMARY OF ARGUMENT

Secretary Noem’s termination of the previous Administration’s

categorical grant of parole to 532,000 aliens from Cuba, Haiti, Nicaragua, and

Venezuela (CHNV parole programs) was an exercise of inherent Executive

power under Article II of the Constitution as well as discretionary delegated

legislative power via the parole statute. Indeed, her actions were directed by

the President, and because Secretary Noem’s actions were at the behest of the

No counsel for any party authored this brief in whole or in part and no

person or entity, other than amicus curiae, its members, or its counsel, has

contributed money that was intended to fund preparing or submitting the brief.

President, her actions are unreviewable under the Administrative Procedure

Act (APA).

Furthermore, the district court’s reading of the statute introduces a

conflict between it and the President’s inherent authority. The district court

read the parole statute to preclude the Executive Branch from terminating

parole except only on a case-by-case, alien-by-alien basis—even though parole

under the CHNV programs had been granted en masse. But that reading

intrudes upon the President’s inherent and independent authority to oversee

foreign affairs and immigration policy. And, as the government shows, another

reading of the statute is, at the very least, permissible, according to which the

statute permits categorical termination of parole programs. Accordingly, to

avoid constitutional conflict, this Court should harmonize the parole statute

with Secretary Noem’s exercise of inherent Executive authority by adopting

the government’s interpretation.

ARGUMENT

There is no question that the United States has a right inherent in its

sovereignty to defend itself from foreign dangers by controlling the admission

of aliens. “It is an accepted maxim of international law that every sovereign

nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to

admit them only in such cases and upon such conditions as it may see fit to

prescribe.” Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). It is also

well-established that the President has independent authority in the areas of

foreign policy and national security. See e.g., Chicago & Southern Air Lines,

Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109 (1948) (“The President . . .

possesses in his own right certain powers conferred by the Constitution on him

as Commander-in-Chief and as the Nation’s organ in foreign affairs”); United

States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) (“The

exclusion of aliens is a fundamental act of sovereignty . . . inherent in [both

Congress and] the executive department of the sovereign”); see also id. at 542

(“When Congress prescribes a procedure concerning the admissibility of aliens,

it is not dealing alone with a legislative power. It is implementing an inherent

executive power.”) (emphasis added). Indeed, Congress has acknowledged the

President’s inherent authority to exclude aliens in the nation’s interest. See

8 U.S.C. § 1182(f) (implementing the President’s authority, in the interests of

the United States, to “suspend the entry of all aliens or any class of aliens” or

“impose on the entry of aliens any restrictions he may deem to be appropriate”).

And, granted the president’s inherent constitutional power, as Commander-inChief, to exclude aliens, it cannot be a nullity even if exercised outside of the

precise form of its implementation by Congress in 8 U.S.C. § 1182(f).

“An alien who is paroled under section 1182(d)(5) . . . shall not be

considered to have been admitted.” 8 U.S.C. § 1101(a)(13)(B); see also id.

§ 1182(d)(5)(A) (“[S]uch parole of such alien shall not be regarded as an

admission . . . .”). In Leng May Ma v. Barber, this Court held that parolees,

even though physically present within the United States, have not effected an

entry and are treated under the law as though they remain detained at the

border. 357 U.S. 185, 188-90 (1958). Accordingly, parolees are subject to the

President’s inherent exclusion power. By reason of this power, as explained

below, Respondents are unlikely to succeed on the merits of their action, and

this Court accordingly should stay the district court’s order postponing agency

action.

Secretary Noem’s termination of the CHNV parole

programs was an exercise of presidential authority and is

unreviewable under the APA

On January 20, 2025, President Trump directed Secretary Noem to

“[t]erminate all categorical parole programs that are contrary to the policies of

the United States established in my Executive Orders, including the program

known

the

‘Processes

for

Cubans,

Haitians,

Nicaraguans,

and

Venezuelans.’” Executive Order 14165 at § 7(b), Securing Our Borders, 90 Fed.

Reg. 8467, 8468 (Jan. 20, 2025) (published Jan. 30, 2025). On March 25, 2025,

Secretary Noem complied with the President’s directive and issued a notice in

the Federal Register terminating the CHNV parole programs and notifying

aliens who had been granted parole under that program that any unexpired

period of parole would end in thirty days. Termination of Parole Processes for

Cubans, Haitians, Nicaraguans, and Venezuelans, 90 Fed. Reg. 13611 (Mar.

25, 2025). In this notice, Secretary Noem made clear that she terminated the

CHNV parole programs at “the President’s direction, and for the independent

reasons stated in this notice….” Id. Accordingly, as the government suggests,

Secretary Noem exercised both inherent Executive authority and delegated

statutory authority in terminating the CHNV parole programs. See

Application for Stay at 24 (stating that the district court’s injunction

“undermines the Executive Branch’s constitutional and statutory authority”).

Because Presidents must always act through subordinates, whether an

action is that of the President or the head of an agency, for purposes of APA

reviewability, hinges not on whether agency personnel help perform a given

action, but on whether the authority to take that action is presidential or

delegated by Congress to an agency. See, a fortiori, Dalton v. Specter, 511 U.S.

462, 477 (1994) (“Where a statute … commits decisionmaking to the discretion

of the President, judicial review of the President’s decision is not available.”).

Here, one source of independent authority for Secretary Noem’s action came

directly from the President in the exercise of his inherent constitutional

authority over foreign affairs and immigration policy, and she terminated the

CHNV parole programs pursuant to his executive order. As the U.S. District

Court for the District of Columbia has explained:

[A]n unreviewable presidential action must involve the exercise of

discretionary authority vested in the President; an agency acting

on behalf of the President is not sufficient by itself. Since the

Constitution vests the powers of the Executive Branch in one

unitary chief executive officer, i.e., the President, an agency always

acts on behalf of the President. Nonetheless, there is a difference

between actions involving discretionary authority delegated by

Congress to the President and actions involving authority

delegated by Congress to an agency. Courts lack jurisdiction to

review an APA challenge in the former circumstances, regardless

of whether the President or the agency takes the final action.

However, “[w]hen the challenge is to an action delegated to an

agency head but directed by the President, a different situation

obtains: then, the President effectively has stepped into the shoes

of an agency head, and the review provisions usually applicable to

that agency’s action should govern.” Elena Kagan, Presidential

Administration, 114 Harv. L. Rev. 2245, 2351 (2001).

Detroit Int’l Bridge Co. v. Gov’t of Can., 189 F. Supp. 3d 85, 101-04 (D.D.C.

2016). See also, e.g., Tulare Cty. v. Bush, 185 F. Supp. 2d 18, 28 (D.D.C. 2001)

(“A court has subject-matter jurisdiction to review an agency action under the

APA only when a final agency action exists. Because the President is not a

federal agency within the meaning of the APA, presidential actions are not

subject to review pursuant to the APA.”) (citing Dalton, 511 U.S. at 470) (other

internal citations omitted).

Here, Secretary Noem, in addition to “other independent reasons,”

acted at the direction of the President and implemented his executive order

when she terminated the CHNV parole programs. Accordingly, Secretary

Noem exercised independent Article II authority in terminating the CHNV

parole programs, and the district court lacked jurisdiction to review her actions

under the APA. Dalton, 511 U.S. at 477. It is, of course, not to the prejudice of

the unreviewability of the Secretary’s action that it was pursuant to an order

that the President had inherent constitutional authority to issue. Obviously, if

actions committed to the President’s discretion by a statute are unreviewable

under the APA, actions he takes pursuant to his authority under the

Constitution are at least equally so.

This Court should harmonize the parole statute with the

President’s inherent constitutional authority

In any event, the district court’s reading of the parole statute as

precluding the Executive from categorically terminating parole programs

intrudes on the President’s inherent and independent authority to oversee

foreign affairs and immigration policy. A reviewing court should seek to

harmonize Congress’s enactments with the President’s inherent constitutional

authority to terminate parole programs. See United States v. Hansen, 599 U.S.

762, 781 (2023) (“When legislation and the Constitution brush up against each

other, our task is to seek harmony, not to manufacture conflict.”). “When ‘a

serious doubt’ is raised about the constitutionality of an Act of Congress, ‘it is

a cardinal principle that this Court will first ascertain whether a construction

of the statute is fairly possible by which the question may be avoided.’”

Jennings v. Rodriguez, 583 U.S. 281, 296 (2018) (quoting Crowell v. Benson,

285 U.S. 22, 62 (1932)).

Of course, the “canon of constitutional avoidance comes into play only

when, after the application of ordinary textual analysis, the statute is found to

be susceptible of more than one construction.” Id. (internal quotation omitted).

Here, the government has persuasively established one such permissible

construction—that the parole statute’s “case-by-case” limitation on grants of

parole does not apply to parole terminations. See Application for Stay at 18-20.

Thus, to avoid the conflict between the parole statute, as interpreted by the

district court, and the Executive’s inherent constitutional authority to protect

the nation from foreign threats, this Court should construe the statute as

permitting categorical terminations of parole.

CONCLUSION

For the foregoing reasons, the Court should grant the Application for

Stay.

Dated: May 13, 2025

Respectfully submitted,