Response to application from respondent Svitlana Doe, et al. — Kristi Noem, Secretary, Department of Homeland Security, Applicants v. Svitlana Doe, et al.
Supreme Court briefMay 15, 2025
Ask Donna
What actually matters in this document.
Text
No. 24A1079
In the Supreme Court of the United States
KRISTI NOEM, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Applicants,
v.
SVITLANA DOE, ET AL.
ON APPLICATION TO STAY THE ORDER ISSUED BY THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
OPPOSITION TO APPLICATION TO STAY
ANWEN HUGHES
HUMAN RIGHTS FIRST
121 W 36th Street, Pmb 520
New York, NY 10018
(212) 845-5244
JOHN A. FREEDMAN
LAURA S. SHORES
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, NW
Washington, DC 20001
(202) 942-5000
JUSTIN B. COX
Counsel of Record
LAW OFFICE OF JUSTIN B. COX
JAC Cooperating Counsel
P.O. Box 1106
Hood River, OR 97031
(541) 716-1818
justin@jcoxconsulting.org
ESTHER H. SUNG
KAREN C. TUMLIN
HILLARY LI
LAURA FLORES-PERILLA
BRANDON GALLI-GRAVES
JUSTICE ACTION CENTER
P.O. Box 27280
Los Angeles, CA 90027
(323) 450-7272
RULE 29.6 STATEMENT
In accordance with United States Supreme Court Rule 29.6, Respondent Haitian
Bridge Alliance (“HBA”) states that it is a community-based nonprofit organization
incorporated in California. HBA has no parent corporation, nor has it issued any stock
owned by a publicly held company.
(i)
TABLE OF CONTENTS
INTRODUCTION.........................................................................................................................1
STATEMENT ...............................................................................................................................4
A.
The Statutory Parole Authority ................................................................................ 4
B.
CHNV Parole .............................................................................................................. 5
C.
Defendants’ Actions.................................................................................................... 9
D.
Proceedings Below ................................................................................................... 12
ARGUMENT ...............................................................................................................................14
I.
THE LIKELIHOOD OF IRREPARABLE HARM REQUIRES DENYING
THE STAY APPLICATION ............................................................................................16
II.
DEFENDANTS HAVE NOT MADE A STRONG SHOWING THAT THE
CASE IS WORTHY OF CERTIORARI OR THAT IT IS LIKELY TO
SUCCEED ON APPEAL .................................................................................................20
A.
A grant of certiorari is unlikely and unwarranted. ............................................... 20
B.
Defendants fail to show a fair prospect of obtaining reversal. ............................ 23
The Secretary’s cutting short of all existing grants of CHNV parole
is subject to judicial review. ............................................................................ 23
Defendants are unlikely to prevail on the merits of Plaintiffs’ APA
claims................................................................................................................. 27
The Secretary’s en masse truncation of individualized grants of
parole contravened the statutory case-by-case requirement. .................... 32
The Secretary’s truncation of all valid grants of CHNV parole was
arbitrary and capricious. ................................................................................. 35
III. THE DISTRICT COURT’S NARROW STAY ORDER WAS NOT AN
ABUSE OF DISCRETION ..............................................................................................38
CONCLUSION ...........................................................................................................................38
(ii)
INTRODUCTION
Had the district court not granted preliminary relief, the Plaintiff class of
approximately half a million Cubans, Haitians, Nicaraguans, and Venezuelans lawfully in
this country would have become undocumented, legally unemployable, and subject to mass
expulsion on an expedited basis at midnight on April 24, 2025. After multiple hearings and
rounds of briefing, the district court properly held that Plaintiffs are likely to succeed in
proving that Secretary Noem’s decision to trigger the first ever mass revocation of parole
contravened express limits on her authority and was predicated on an erroneous legal
conclusion. Given the massive irreparable harm to class members and their communities
that would otherwise result, the district court exercised its statutory discretion under 5
U.S.C. § 705 to temporarily maintain the status quo by postponing that en masse revocation
of parole, but it otherwise permitted the Secretary to proceed with ending the “CHNV”
parole processes through which the class members arrived. Acting promptly, the First
Circuit held that Defendants had not met their burden to justify staying the district court’s
order but invited them to request that their appeal be expedited. Instead, the Government
demands this Court’s permission—via the emergency docket—to execute the largest mass
illegalization event in modern American history.
The Court should deny Defendants’ Application, which badly mischaracterizes the
scope and effect of the district court’s order. Contrary to Defendants’ repeated assertions,
the district court’s stay does not prohibit the Secretary from terminating or truncating class
members’ parole and employment authorizations, nor does it mandate any particular
process for doing so; it just stays the Secretary’s unprecedented attempt to do so via her
March 25 Federal Register Notice. Likewise wholly unaffected is the Secretary’s discretion
(1)
2
to remove class members—the Secretary has precisely the same authority and ability to do
so now that she had before Plaintiffs filed suit; the stay order does not even make it more
difficult. The district court’s order also left undisturbed the Secretary’s decision to end the
CHNV parole processes, including the summary denial of some two million pending
applications. In fact, the order does not prohibit or require the Secretary to do anything at
all except to respect the district court’s preliminary conclusion that her attempt to truncate
parole en masse violated the Administrative Procedure Act because it was, among other
things, based on her incorrect understanding of the law. To the extent Defendants have
complaints, they are with the statutes Congress enacted and the rule of law itself, which do
not justify the requested relief.
In contrast, granting the Application would cause an immense amount of needless
human suffering. The class members all came to the United States with the permission of
the federal government after each individually applied through a U.S. financial sponsor,
passed security and other checks while still abroad, and received permission to fly to an
airport here at no expense to the government to request parole. After being inspected and
subjected to biometric and other additional vetting, an individual Customs and Border
Protection (CBP) officer determined, on a case-by-case basis, that each individual merited
a discretionary grant of parole, usually for a two-year period. Some class members have
been here for nearly two years; others just arrived in January. Many class members are
eligible under the INA for other, more durable forms of immigration relief, and have
requested it, but the Trump Administration indefinitely suspended adjudicating their
requests months ago. All of them followed the law and the rules of the U.S. government,
3
and they are here to reunite with family and/or to escape, even temporarily, the instability,
dangers, and deprivations of their home countries. The Secretary is admittedly under no
obligation to continue the CHNV parole process that brought class members here, but she
nonetheless must respect required procedures and apply the law correctly before revoking
their parole and upending their lives and causing mass disruption to their families,
employers, and communities.
On that point—the Secretary’s adherence to the law—the Application has relatively
little to say. Instead, Defendants repeat ad nauseam the claim that the Biden
Administration granted class members parole en masse, in violation of the statute’s caseby-case requirement, and assert time and again that this somehow relieves the Secretary
from accountability for her actions. Defendants have yet to present this argument to the
lower courts, and so it was waived; but more importantly, not only did Secretary Noem omit
any mention of this alleged justification in her Notice, she said the opposite, conceding that
CHNV parole was case-by-case, and so the argument is precluded by the record and
additionally cannot be considered under the Chenery doctrine. That Defendants focus on
extra-record and irrelevant arguments not yet presented to the lower courts speaks
volumes as to how far short they fall in carrying their heavy burden to justify the
extraordinary relief they ask of this Court and the harm and chaos that granting it would
unleash.
The Application should be denied.
4
STATEMENT
A.
The Statutory Parole Authority
Since its enactment in 1952, the Immigration and Nationality Act (INA) has
authorized the Executive to grant noncitizens “parole”—temporary permission for them to
be in the United States and, per regulation, eligible for work authorization—for
humanitarian reasons and/or because it benefits the public. Parole does not by itself lead to
permanent status, but once here, parolees can apply for other forms of immigration relief
for which Congress has made them eligible, including asylum, Temporary Protected Status,
and adjustment of status based on employment or family ties.
Over the last seventy years, the Executive has frequently issued guidance on
circumstances in which parole could be justified on humanitarian and/or public benefit
grounds. This guidance comes in a variety of forms but generally identifies a group of
noncitizens eligible to apply (or otherwise to be considered) for parole, with each applicant
then assessed on a case-by-case basis by an adjudicator exercising the delegated parole
authority. 1 See, e.g., Pls. App. 420-427 (describing the creation of guidance for case-by-case
review of military parole in place); see also Pls. App. 333 (providing examples of the use of
programmatic parole). One example of such guidance is contained in DHS’s parole
regulation, 8 C.F.R. § 212.5, as the Government mentions. See Gov. Br. 20.
The first example of this programmatic (or “categorical”) parole guidance was issued
1
Similar guidance is commonly issued regarding other authorities, including by the current
Trump Administration. See Gov. Br. at 20-21; Hamed Aleaziz & Michael Crowley, Inside
the Extraordinary Contradictions in Trump’s Immigration Policies, N.Y. Times (May 13,
2025), https://bit.ly/3SJbxV3 (describing guidance on applying the refugee definition to the
racial discrimination claims of Afrikaners).
5
in 1956 when the Eisenhower Administration paroled into the United States, after case-bycase review, approximately 30,000 Hungarians fleeing a Soviet crackdown. In the decades
since, every single Administration—including the first Trump Administration—has used
the parole authority in this “categorical” way when other authorities were unavailable,
insufficiently expeditious, or otherwise inadequate to address a sufficiently important
interest. Pls. App. 320-324; cf. Biden v. Texas, 597 U.S. 785, 806 (2022) (“Every
administration, including the Trump and Biden administrations, has utilized this [parole]
authority to some extent.”). While there is no official accounting, there have been more than
125 categorical parole processes, usually with multiple processes operating simultaneously,
and addressing a broad array of public and humanitarian concerns. Pls. App. 320-324.
Over the years, certain members of Congress have at times expressed reservations
regarding the Executive paroling large numbers of noncitizens without a clear path to
permanent status. Pls. App. 331-332. When Congress has acted, however, it has repeatedly
extended immigration and other benefits to parolees, adopted modest limits to the parole
statute, and rejected attempts to define and tightly circumscribe the humanitarian and
public benefit grounds on which parole could be granted. Pls. App. 320-324, 329-334.
B.
CHNV Parole
Facing unprecedented migration-related challenges, the Department of Homeland
Security (DHS) under the Biden Administration established several “categorical” parole
processes to address a variety of concerns vital to the national interest, including foreign
policy, migration management, border security, and humanitarian needs. The first such
program was Operation Allies Welcome (OAW), created in the wake of the U.S. military’s
August 2021 withdrawal from Afghanistan and its hasty evacuation of approximately
6
125,000 people—mostly on military cargo jets—including Afghans whose lives were at risk
due to their service to the United States. After individualized medical, security, and other
screenings in third countries, approximately 76,000 Afghans were approved on a case-bycase basis for two-year grants of parole and were brought to the United States. 2
Soon after Russia’s invasion of Ukraine in February 2022, thousands of Ukrainians
traveled to Mexico and presented themselves at U.S. ports of entry to request humanitarian
protection, as is their right under international and U.S. law. Most of these Ukrainians—
some 20,000 total—were paroled into the country. 3 In April 2022, DHS announced the
Uniting for Ukraine (U4U) parole process through which Ukrainians who have a U.S.-based
sponsor committed to providing for their financial support can apply to be considered on a
case-by-case basis for parole. In addition to reducing the strain on border operations and
discouraging the dangerous journey through Mexico to get there, the Ukrainian parole
process further benefitted the U.S. Government by making it possible to conduct security
checks on potential parolees before they traveled. Implementation of the Uniting for
Ukraine Parole Process, 87 Fed. Reg. 25040, 25041 (Apr. 27, 2022). Of the seven million
Ukrainians externally displaced by the ongoing war, about 200,000 of them were
2
DHS, Operation Allies Welcome: Afghan Parolee and Benefits Report (May 8, 2023),
https://bit.ly/4bFvh4L.
3
From fiscal year 2022 to fiscal year 2023, the number of Ukrainians encountered by Border
Patrol at the southern border dropped by more than ninety-nine percent. See David J. Bier,
Parole Sponsorship Is a Revolution in Immigration Policy, CATO Institute (Sept. 18,
2023), https://bit.ly/44KJAnn.
7
individually approved on a case-by-case basis for humanitarian parole and are currently in
the United States because of the U4U parole process. 4
Following the success of U4U, in October 2022 DHS announced a similar process for
Venezuelans after that country’s displacement crisis led to a sharp uptick in asylum seekers
presenting at the southern border. Pls. App. 251-261. In early 2023, DHS implemented
similar processes (for similar reasons) for nationals of Cuba, Haiti, and Nicaragua. 5 Pls.
App. 267-308. The CHNV parole processes were explicitly modeled on U4U and likewise
required individuals seeking parole to apply through a sponsor lawfully present in the
United States who committed to providing for them financially, to undergo individualized
vetting, and to pay for their own travel. Unlike U4U, the CHNV processes were capped at
a maximum of 30,000 total travel authorizations per month for the four countries combined,
notwithstanding overwhelming demand. Pls. App. 263, 265, 279, 293, 306. After flying to an
internal port of entry to request parole, individuals were inspected, underwent additional
vetting (including biometric), with individual CBP officers making the ultimate decision, on
a case-by-case basis, whether to grant parole.
The CHNV sponsorship model encouraged and incentivized paroling individuals
when doing so would bring additional particularized benefits. CHNV sponsors around the
country, including several Plaintiffs, were, for example, able to reunite with close family
4
Julia Ainsley, U.S. Has Admitted 271,000 Ukrainian Refugees Since Russian Invasion,
Far Above Biden’s Goal of 100,000, NBC NEWS (Feb. 24, 2023, 11:15AM),
https://bit.ly/3SJckoZ.
5
Per CBP data, in fiscal year 2020, CBP encountered at the southwest border fewer than
18,000 nationals from Cuba, Haiti, Nicaragua, and Venezuela combined; that number
increased to some 181,000 in 2021 and more than 600,000 in 2022 (comprising more than
forty percent of all such encounters that year).
8
members. See Pls. App. 229-234 (Plaintiff Wilhen Pierre Victor sponsored her brother,
whom she had not seen for over two decades). Sponsorship also allowed families to escape
persecution and the threat of death. See Pls. App. 236-243 (Plaintiff Gabriela Doe sponsored
her cousins, who fled persecution in Nicaragua); 176-180 (Plaintiff Andrea Doe, whose
husband was a political prisoner in Nicaragua, came to the United States via the CHNV
parole processes with her children to flee persecution); 204-206, 208 (Plaintiff Daniel Doe
was paroled into the United States under the CHNV parole processes to flee danger and
threat of gang violence in Haiti). For others, it was a way to live out their deeply held
religious or moral convictions. See Pls. App. 212-218 (Plaintiff Sandra McAnany was
motivated by her Christian beliefs to sponsor seventeen individuals); Pls. App. 220-227
(Plaintiff Kyle Varner was driven by his fierce moral convictions to sponsor dozens of
individuals). The CHNV parole processes also alleviated pressure at the border. 6 Following
individualized assessments, approximately 530,000 individuals—out of nearly three million
applications filed—were permitted to travel through the CHNV processes. 7
6
See CBP, CBP Releases December 2024 Monthly Update (Jan. 14, 2025),
https://bit.ly/43iUJt0 (reporting that encounters of CHNV nationals attempting to cross the
border unlawfully were down ninety-one percent since the parole processes were created);
accord Texas v. Dep’t of Homeland Sec., 722 F. Supp. 3d 688, 710 (S.D. Tex. 2024)
(dismissing Texas’s challenge to the CHNV parole processes after a two-day bench trial,
holding that because the processes decreased the number of CHNV nationals in Texas—
the source of the State’s alleged injuries—it lacked standing). Texas moved to dismiss its
appeal early this month.
7
Due to departures and successful applications for asylum or other status adjustments, the
number of individuals remaining in the United States with CHNV parole is likely
significantly lower than 530,000, especially considering parole grants began in October 2022
and were for a duration not to exceed two years. However, the precise number is unclear.
9
Notwithstanding its successes, the CHNV parole processes became a hot-button
political issue during the 2024 presidential campaign. As a candidate, President Trump
promised to end the CHNV parole processes, repeatedly blaming CHNV parole for (inter
alia) the alleged presence of pet-eating Haitians in Springfield, Ohio, including during the
only presidential candidate debate held during the campaign.
C.
Defendants’ Actions
Within hours of being inaugurated, President Trump signed an executive order
directing the Secretary to terminate “all categorical parole programs,” specifically naming
the CHNV processes. Exec. Order No. 14,615, 90 Fed. Reg. 8467, 8468 (Jan. 20, 2025). DHS
immediately acted upon that directive via a memorandum issued that same day by Acting
Secretary Huffman and, three days later, by imposing an across-the-board indefinite
suspension of all adjudications for parole (or, where available, re-parole) through the OAW,
U4U, CHNV, and other “categorical” parole processes. Pls. App. 129-130, 132.
On February 14, 2025, DHS issued the Davidson Memorandum; it ordered an
indefinite suspension on processing applications for any other immigration benefit—
including but not limited to asylum, TPS, adjustment of status, and employment
authorization—filed by any parolee in the country by virtue of CHNV, U4U, or one of
several family reunification parole processes. 8 Pls. App. 134-136.
Secretary Noem published a Federal Register Notice on March 25, 2025 announcing
8
As a consequence of these indefinite suspensions—which DHS did not make public until
after this suit was filed, D. Ct. Dkt. 66 at 34:22-35:10—thousands of Afghan, Ukrainian,
Cuban, Haitian, Nicaraguan, and Venezuelan parolees, among others, are falling out of
lawful status every month, notwithstanding their efforts and eligibility to stay on the right
side of the law.
10
that she had decided to terminate the CHNV parole processes. DHS, Termination of
Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans, 90 Fed. Reg.
13611-01 (Mar. 25, 2025). The Secretary acknowledged that DHS created the CHNV
processes based on her predecessor’s judgment that they would both “provide a significant
public benefit for the United States and address the urgent humanitarian reasons
underlying the high levels of migration from those countries,” but explained that that did
not provide sufficient public benefit to justify their continuation. 90 Fed. Reg. at 13612.
Beyond prospectively terminating the CHNV processes, the Secretary announced that she
was summarily denying the two million pending applications, rescinding all conditional
approvals of applications and then denying those, and cancelling all travel authorizations
previously issued to potential parolees. 90 Fed. Reg. at 13618. Defendants’ emergency
Application concerns none of those decisions.
Additionally, and most relevant here, the Secretary directed that “as one aspect of
the termination of the CHNV parole programs,” any grants of parole to CHNV parolees
that “ha[ve] not already expired by April 24, 2025 will terminate on that date.” 9 Ibid. The
Secretary stated that she “has determined that the purposes” of those grants of parole
“have been served because” they do not provide a significant public benefit. Id. at 13619
n.70. The Secretary cursorily referenced parolees’ reliance interests, but said that they
9
The Secretary acknowledged that, in these circumstances, DHS regulations require
“written notice” to individuals to terminate their parole and “written notice” and an
opportunity to be heard to revoke employment authorization, but asserted that she “has
determined that publication of this notice in the Federal Register is legally sufficient notice
to all interested or affected persons regardless of actual knowledge or hardship resulting
from ignorance.” 90 Fed. Reg. at 13620 (“Federal Register Notice as Constructive Notice”).
11
were outweighed by the federal government’s “strong interest” in deporting them through
expedited removal, rather than normal removal proceedings under INA § 240. Id. at 13619
(“If DHS were to allow the CHNV parolee population to remain for the full duration of their
two-year parole, DHS would be compelled to place a greater proportion of this population
in section 240 removal proceedings” due to the two-year limit on expedited removal in 8
U.S.C. § 1225(b)(1)(iii)(II).
The Secretary said that she considered two alternatives to cutting short all existing
periods of parole and employment authorization of CHNV parolees: “a longer than 30-day
wind-down period” and simply “permitting CHNV participants’ parole to remain in effect
until the natural expiration of the parole, as DHS has in the past done with some parole
terminations.” 90 Fed. Reg. at 13619-20 (citation omitted). The Secretary gave only one
reason for rejecting these alternatives: DHS’s “strong interest in preserving the ability to
initiate expedited removal proceedings to the maximum extent possible.” Id. at 13620.
“Expedited removal is available only when an alien has not been continuously present in
the United States for at least . . . two years,” the Secretary explained, id. at 13619 (citing 8
U.S.C. § 1225(b)(1)(iii)(II)), and therefore “[a]ny lengthening of the wind-down period will
increase the likelihood” that CHNV parolees will “accrue more than two years of continuous
presence in the United States,” which “would essentially foreclose DHS’s ability” to remove
them via expedited removal, id. at 13620 (also citing 8 U.S.C. § 1225(b)(1)(iii)(II)).
Lastly, the Secretary included a severability clause, explaining: “DHS would intend
that the termination of the CHNV parole programs be implemented immediately, even if
the termination of ATAs [advance travel authorizations] or existing grants of parole were
12
to be enjoined in whole or in part.” Id. at 13622.
D.
Proceedings Below
Plaintiffs 10 brought suit on February 28 and amended their complaint to address the
Secretary’s Notice a month later. Following multiple rounds of briefing and three hearings
on Plaintiffs’ requests for class certification and preliminary relief, the district court
granted each in part on April 14. As to the former, the district court certified a class
consisting of all individuals who received a grant of CHNV parole that was modified and
cut short via the Notice, except those who already departed the United States or sued
separately. Gov. App. 42a-44a.
As to Plaintiffs’ motion for a stay under 5 U.S.C. § 705 and various forms of
preliminary injunctive relief, the district court granted a stay under § 705 of Secretary
Noem’s en masse truncation of all valid grants of CHNV parole. Gov. App. 1a-41a. After
rejecting the federal government’s typical arguments regarding the reviewability of any
exercise of discretion, the district court held that Plaintiffs were likely to prevail for
multiple reasons. First, the Secretary’s “sole basis for rejecting the alternative of allowing
parole to expire naturally was based on a legal error” that ending parole would maximize
DHS’s ability to subject parolees to expedited removal. Gov. App. 33a. As the district court
explained, the parolee Plaintiffs “are not subject to expedited removal even if they have
been here less than two years,” because by its terms, the statute the Secretary relied upon
can be applied only to someone who “has not been admitted or paroled into the United
10
Plaintiffs include eight individual CHNV parolees; six U.S. citizen CHNV sponsors,
including four who sponsored family members for parole; and the nonprofit organization
Haitian Bridge Alliance. Pls. App. 445 n.1.
13
States.” Gov. App. 32a (quoting 8 U.S.C. § 1225(b)(1)(A)(iii)(II) (emphasis added)); see
generally Gov. App. 31a-35a. Second, the Court held that Plaintiffs were likely to succeed
on their claim that the Secretary’s categorical truncation of all existing grants of CHNV
parole was “contrary to the statutory requirement that parole be exercised only on a caseby-case basis,” Gov. App. 36a (internal quotation marks omitted), emphasizing the
mismatch between the individualized purpose of each parole grant and the Secretary’s
decision to change a key condition of parole (its expiration date) on a blanket basis, Gov.
App. 37a. 11
The district court also held that Plaintiffs had proven that irreparable harm was
certainly impending, as the Secretary’s decision would cause Plaintiffs’ parole “to terminate
in less than two weeks, at which time they will be forced to choose between [the] two
injurious options” of leaving the country, forfeiting their claims to other immigration
benefits, and returning to the dangers they left behind; or staying and risking arrest and
detention and undermining their “chances of receiving other forms of immigration relief.”
Gov. App. 37a-38a. The district court concluded that the balance of equities and public
interest supported relief, finding that it is not in the public interest “to summarily declare
that hundreds of thousands of individuals are no longer considered lawfully present in the
country, such that these individuals cannot legally work in their communities or provide for
themselves and their families.” Gov. App. 39a. The district court therefore granted relief,
11
The district court additionally found that, although the Secretary explained why she
concluded that the processes no longer provided sufficient public benefit, she gave “no
rationale” and “offered no reasons” for ignoring “the humanitarian concerns previously
articulated by DHS,” which were an independent justification for the CHNV parole
processes. Gov. App. 35a.
14
staying the Secretary’s mass truncation of all existing grants of CHNV parole pending
further review. 12 Gov. App. 40a; see 5 U.S.C. § 705.
A week later, the federal government moved the First Circuit for a stay of the
district court’s order pending appeal. Following expedited briefing, the First Circuit denied
that motion on May 5, holding that the federal government had not met its burden to make
at least a “strong showing that the Secretary will prevail” on appeal. Gov. App. 46a; Nken
v. Holder, 556 U.S. 418, 434 (2009). The First Circuit directed “[a]ny party intending to seek
expedited briefing of the merits of the appeal [to] file an appropriate motion as soon as
practicable.” Gov. App. 46a. To date, the federal government has not sought expedited
briefing in the Court of Appeals.
ARGUMENT
The government bears a “heavy burden” to justify the “extraordinary” relief of a
stay. Whalen v. Roe, 423 U.S. 1313, 1316 (1975) (Marshall, J., in chambers). It must show,
at a minimum:
(1) a reasonable probability that four Justices will consider the issue
sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority
of the Court will vote to reverse the judgment below; and (3) a likelihood that
irreparable harm will result from the denial of a stay. In close cases the
Circuit Justice or the Court will balance the equities and weigh the relative
harms to the applicant and to the respondent.
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). This burden is “especially heavy” where—
12
The district court also stayed notices sent to class members because DHS had recently
told tens of thousands of people across the country—including many people on parole, but
also to non-citizens with other forms of status and even natural born U.S. citizens—that it
was “time to leave the United States” because their parole had been terminated, and that
they should “not attempt to remain in the United States – the federal government will find
you.” D. Ct. Dkt. 83-1; see also D. Ct. Dkt. 95.
15
as here—the Government seeks emergency relief after both courts below have already
“denied a motion for a stay.” Edwards v. Hope Med. Grp. for Women, 512 U.S. 1301, 1302
(1994) (Scalia, J., in chambers).
Here, a stay would result in the instant and mass termination of parole for Plaintiffs
and approximately 500,000 similarly situated members of the certified class, all of whom
followed the law and came into the United States legally. Many of these individuals would
lose their lawful status and authorization to work legally in the United States. Moreover,
Defendants’ rationale is to subject these individuals to additional irreparable harm: it
argues that termination is justified so that they can be removed from the United States on
an expedited basis without normal deportation protections, including judicial review.
In contrast, Defendants have failed to identify any irreparable injury that would
result in the absence of a stay. For this reason alone, the application for emergency stay
relief should be denied.
In addition, the district court’s decision is correct on the merits, and this Court is
unlikely to grant certiorari because—contrary to Defendants’ cursory contentions
otherwise—no circuit split exists, and the district court’s narrow order does not compel the
Government to allow CHNV parole beneficiaries to remain in the United States; nor does
it prohibit terminating class members’ parole or removing them. The Government has not
shown that emergency relief is warranted, especially when the court of appeals has not yet
issued a decision on the merits and the Government has (thus far) declined its invitation to
expedite appellate review.
16
I.
THE LIKELIHOOD OF IRREPARABLE HARM REQUIRES DENYING
THE STAY APPLICATION
A stay of the district court’s order would immediately effectuate the en masse
truncation of all parole grants for approximately 500,000 current CHNV parole
beneficiaries in the United States, causing immediate irreparable harms not only to
Plaintiffs and hundreds of thousands of similarly situated class members—all of whom
followed the law and were individually approved to enter the United States on a case-bycase basis—but also causing unprecedented disruptions for these parolees’ employers and
communities. The Government’s alleged injuries are purely abstract and do not compare to
the scale and irreversible nature of the harms a stay would inflict on Plaintiffs, class
members, and communities across the country from the sudden removal of approximately
500,000 people from the work force. All of this strongly weighs against this Court granting
the government’s stay application.
1. The harms inflicted by the stay the government requests would be swift and
severe. Categorically terminating CHNV beneficiaries’ parole would render those without
another lawful status undocumented and, with the loss of work authorization, legally
unemployable. See, e.g., Pls. App. 163 ¶¶ 25-26; Pls. App. 141 ¶ 15. A stay would put many
CHNV parole beneficiaries immediately at risk of deportation without normal due process
protections, separating them from their family here in the United States. See, e.g., Pls. App.
178-79 ¶¶ 12-13 (spousal family separation); Pls. App. 248-49 ¶¶ 11-13 (sibling family
separation); see also Trump v. Hawaii, 585 U.S. 667, 750 (2018) (acknowledging “prolonged
separation from family” is an irreparable harm). Moreover, class members would be subject
to expedited deportation to the same despotic and unstable countries from which they fled,
17
where many will face serious risks of danger, persecution, and even death. See, e.g., Pls.
App. 169 ¶ 5; Pls. App. 172-73 ¶ 18; Pls. App. 178-79 ¶¶ 12-13. These harms, independently
and collectively, are not only severe in their own right, but are also exacerbated because
Plaintiffs’ and other class members’ pending applications for asylum and other separate
immigration relief are indefinitely suspended by Defendants’ Davidson Memorandum,
thereby preventing them from being able to adjust to another more stable status. See, e.g.,
Pls. App. 152-153 ¶¶ 18-19 (pending asylum application indefinitely suspended); Pls. App.
233 ¶ 17 (pending green card application indefinitely suspended).
2. Defendants minimize the harms that CHNV parole beneficiaries would suffer if
their grants of parole were prematurely terminated. Below, the Government claimed these
harms were not irreparable, e.g. D. Ct. Dkt. 89 at 17-18; now, it goes a step further and
contends such harms are not even legally “cognizable” because parole was always
temporary and revocable at any time, Gov. Br. 27. These arguments in any form not only
remain disingenuous, but they also miss the mark in the balancing of equities.
The premature, immediate, and en masse truncation of parole grants that
Defendants now seek is qualitatively different from allowing individual grants of parole to
expire naturally by their own terms (which is how DHS has wound down parole programs
in the past), or to be revoked on a case-by-case, individualized basis, as the statute requires.
And while Defendants contend that an immediate and categorical termination of all CHNV
grants of parole would inflict no harm because individuals may have alternate legal status
or can apply for such status through the expedited removal process, this argument is a
mirage. It conveniently elides the facts, as the district court found, that Defendants,
18
through the Davidson Memorandum, have indefinitely suspended the adjudication of
immigration benefits for CHNV parole beneficiaries, thereby preventing them from
acquiring any alternate legal status and artificially preserving their removability; and that
most forms of relief are simply not available in expedited removal. Gov. App. 5a-6a, 19a,
32a, 38a n.32.
3. In contrast, Defendants assert only an abstract institutional injury—the same
type of generic injuries the Government asserts to this Court every time any policy is
enjoined—claiming that the district court’s order thwarts the Government’s policy goals
and contravenes its interest in expeditiously removing CHNV parole beneficiaries. Gov. Br.
24-26. But when the federal government’s policy conflicts with the law, it is the policy and
not the law that must give way: To be clear, Defendants’ quarrel is not with the district
court’s order, but with the INA itself, which expressly exempts from expedited removal
proceedings individuals who have been “admitted or paroled into the United States.” 8
U.S.C. § 1225(b)(1)(A)(iii)(II). Defendants’ claims of “burden,” Gov. Br. 7, 19, 26, arising
from their inability to subject CHNV parole beneficiaries to expedited removal, are caused
by what Congress has mandated in the INA, and not by the district court’s order.
Moreover, even assuming that the federal executive suffers some abstract
institutional injury to its broader policy goals when a federal court order prevents it from
taking action unauthorized by the law, Defendants’ Application is silent on how that injury
would be exacerbated absent a stay. The district court’s order does not require the federal
government to allow “up to 532,000” CHNV parole beneficiaries to remain in the country
indefinitely, and it does not “freez[e]” in place any policy goals of the prior administration
19
that the current administration now wishes to discard. See Gov. Br. 25. Quite the contrary:
the federal government still has at its disposal its longstanding statutory power to remove
from the United States any individual parole recipient whom it determines to be
inadmissible. Nothing in the district court’s order interferes with the Secretary’s exercise
of discretion, as authorized by 8 U.S.C. § 1182(d)(5)(A), to determine “when the purposes
of such parole [of a noncitizen] shall . . . have been served,” and thus to terminate that
individual’s grant of parole and subject them to removal proceedings. Nor does anything in
the district court’s order interfere with the agency’s ability to initiate and pursue removal
proceedings against any CHNV parole beneficiary by issuing a “charging document.” 8
C.F.R. § 212.5(e)(2)(i); see also 8 C.F.R. § 1003.14(a) (describing how a charging document
commences proceedings before an Immigration Judge)). The full array of the federal
government’s statutory removal powers remains available to the current administration.
In sum, Defendants’ claims of irreparable injury in the absence of a stay are illusory,
and they certainly do not support the grant of an emergency stay shortcutting the normal
course of appellate review. Notably, Defendants have not accepted the First Circuit’s
invitation to seek expedition of its appeal; instead of pursuing a more expedited schedule
for review below, Defendants have only sought emergency relief from this Court. Cf. Dep’t
of Educ. v. Louisiana, 603 U.S. 866, 868 (2024) (denying Government’s motion for stay
where “the Sixth Circuit has already expedited its consideration of the case and scheduled
oral argument”).
A stay of the district court’s order would upend the lives of Plaintiffs and the
hundreds of thousands of class members and cause widespread social and economic
20
disruption to employers and communities across the country in one fell swoop. The
Government faces no remotely comparable injuries, and thus, the relative harms tilt
decisively against a stay.
II.
DEFENDANTS HAVE NOT MADE A STRONG SHOWING THAT THE CASE
IS WORTHY OF CERTIORARI OR THAT IT IS LIKELY TO SUCCEED ON
APPEAL
Even had Defendants satisfied the requisite showing of harm, they fail to carry their
burden on the other stay factors.
A.
A grant of certiorari is unlikely and unwarranted.
Defendants treat the question of cert-worthiness almost as an afterthought,
relegating its discussion to a single paragraph on page twenty-three of its brief. Such
cursory treatment reveals the baselessness of Defendants’ assertion that this Court would
“easily” grant certiorari in this case due to a purported circuit split. Gov. Br. 23. This
argument does not withstand even the slightest scrutiny. The two cases Defendants cite for
the supposed split, Gov. Br. 23, do not concern a mass revocation of humanitarian parole,
but rather, the revocation of individual grants of advance parole. The Seventh Circuit held
in Samirah that the revocation of an individual grant of advance parole is barred under 8
U.S.C. § 1252(a)(2)(B)(ii), see Samirah v. O’Connell, 335 F.3d 545 (7th Cir. 2003), and the
Ninth Circuit in Hassan did not even reach that question, finding that the agency complied
with its own regulations when revoking the individual plaintiff’s grant of advance parole,
such that the revocation was “lawfully authorized” and the district court did not have
jurisdiction to review the revocation as ultra vires, see Hassan v. Chertoff, 593 F.3d 785,
790 (9th Cir. 2010) (per curiam).
The district court’s opinion and the Court of Appeals’ decision denying the stay are
21
wholly consistent with these cases, with the former expressly agreeing with Defendants
that “Congress has placed individual parole determinations, and the decision of whether to
revoke such individual grants of parole, within the Secretary’s discretion,” and that
therefore such decisions are “precluded from review by Section 1252(a)(2)(B)(ii).” Gov. App.
20a.
As the lower courts correctly noted, however, this case does not involve an
individual termination of a grant of parole, but instead the “categorical termination of the
period of parole previously awarded to the parolees.” Gov. App. 21a; see also Gov. App. 46a
(“[T]he very lack of clarity cuts against a finding that the en masse termination is immune
to judicial review.”). The district court correctly held that review of such a categorical
termination of parole was not foreclosed by 8 U.S.C. § 1252(a)(2)(B)(ii), and that such review
was consistent not only with this Court’s decision in Kucana v. Holder, 558 U.S. 233 (2010),
but also multiple other cases following Kucana to hold that 8 U.S.C. § 1252(a)(2)(B)(ii) does
not apply to “claims challenging the legality of policies and processes governing
discretionary decisions under the INA.” Roe v. Mayorkas, No. 22-cv-10808, 2023 WL
3466327, at *8 (D. Mass. May 12, 2023) (citation omitted); see also Gov. App. 22a (collecting
cases).
Defendants address none of these cases in their brief. Nor do Defendants cite any
other circuit decision addressing whether 8 U.S.C. § 1252(a)(2)(B)(ii) precludes review of
an en masse truncation of parole—because none exists. Until now, the federal government
has never attempted to effect the premature and categorical extinguishing of hundreds of
thousands of grants of parole. Whether the Government did so lawfully in this first and only
22
instance presents a legal issue that is sui generis.
Defendants paint a circuit split where there is none. Cases concerning the revocation
of individual grants of parole do not conflict with a holding that courts have jurisdiction
under 8 U.S.C. § 1252(a)(2)(B)(ii) to review “categorical truncation of Plaintiffs’ previously
awarded period of parole.” Gov. App. 21a. No such circuit split exists to support a grant of
certiorari.
The Court is further unlikely to grant certiorari due to additional practical issues.
Not only is the legal issue presented here sui generis, it is also of fleeting relevance: all
individual grants of CHNV parole were limited to no more than two years and all will expire
on their own terms in less than twenty months—many of them sooner. 13 The Government’s
contention that the district court’s order “permit[s] up to 532,000 [noncitizens] to remain in
this country even if they lack a lawful basis to remain,” Gov. Br. 23, is unfounded. As the
district court noted, the court’s order does not “extend the original grants of parole awarded
by DHS” and would only require the Government “to make any decisions terminating
grants of parole in an individual, case-by-case manner,” as required by the INA and the
agency’s implementation regulations. Gov. App. 38a. Nothing in the district court’s order
requires the Government to extend or otherwise permit the presence of CHNV parole
beneficiaries in the country indefinitely. Nor does the order prevent the federal government
from terminating the parole of any individual CHNV parole beneficiary and initiating
13
See, e.g., Karina Elwood, Fearing Deportation, a Beloved Music Teacher Gives a Final
Lesson, Wash. Post, May 2, 2025, https://wapo.st/3YEPD92 (telling the story of a
Venezuelan CHNV parole beneficiary who during his 2-year period of parole became a
music teacher at a public Virginia elementary school, and whose parole expired on its own
terms in mid-April).
23
removal proceedings against them. And the Government can always seek relief from the
district court if its order ever does cause harm that rises above speculation.
This case does not present factors warranting certiorari, and a stay pending
appellate proceedings is not warranted.
B.
Defendants fail to show a fair prospect of obtaining reversal.
On each of the merits issues, Defendants have not sustained their burden of
establishing a “fair prospect that a majority of the Court will vote to reverse the judgment
below,” for the simple reason that Defendants are wrong on all the merits issues.
The Secretary’s cutting short of all existing grants of CHNV
parole is subject to judicial review.
The district court dutifully applied the controlling precedent and correctly held that
8 U.S.C. § 1252(a)(2)(B)(ii) does not deprive it of jurisdiction to consider Plaintiffs’ claims,
which do not challenge any decision made discretionary by the parole statute, and that there
is law to apply to assess their merit. In arguing otherwise in their Application, Defendants
ask the Court to insulate from all review the Secretary’s legal conclusions—and her legal
mistakes—regarding her own statutory authority. Defendants have not and cannot cite a
single judicial opinion that has accepted anything like what it asks this Court to endorse on
an emergency posture and without the benefit of even full briefing at the Court of Appeals
or in this Court. This Court should decline that invitation.
a.
The district court correctly held that 8 U.S.C. §
1252(a)(2)(B)(ii) does not strip it of jurisdiction.
The district court correctly rejected the argument that 8 U.S.C. § 1252(a)(2)(B)(ii)
strips its jurisdiction to consider Plaintiffs’ claims. In arguing otherwise, Defendants
proffer an unbounded interpretation of what discretion is conferred by the parole statute
24
and what is thereby not subject to review under 8 U.S.C. § 1252(a)(2)(B)(ii). According to
the Government, not only did Congress insulate from review each and every action related
to the parole authority, it also immunized actions that are not authorized by the statute.
Gov. Br. 14 (arguing first that the parole statute “does not forbid” the Secretary’s
“categorical parole terminations,” but that, “even if it did, Section 1252(a)(2)(B)(ii) still
precludes review”). But Defendants’ position is contrary to the statutory text, precedent,
and separation of powers principles.
“[I]n the immigration realm, properly identifying the mandatory or discretionary
nature of a particular agency decision can be critical, precisely because that status has
implications for whether the agency’s decision can be challenged in court.” Bouarfa v.
Mayorkas, 604 U.S. 6, 10-11 (2024); accord Kucana, 558 U.S. at 252. By its plain text, the
parole statute makes discretionary precisely two decisions: (1) whether to parole a
noncitizen (“The Secretary . . . may . . . in his discretion parole into the United States . . .
any alien applying for admission” 14); and (2) “when the purposes of such parole . . . have
been served.” 8 U.S.C. § 1182(d)(5)(A). Notably, Plaintiffs do not challenge the Secretary’s
decision to parole anyone, nor her opinion about when the purposes of anyone’s parole have
been served. Rather, as the district court recognized, Plaintiffs instead challenge the
Secretary’s failure to abide by the non-discretionary legal limits on her authority. 15 Gov.
14
An applicant for admission is a noncitizen “present in the United States who has not been
admitted or who arrives in the United States (whether or not at a designated port of arrival
. . .).” 8 U.S.C. § 1225(a)(1).
15
In contrast, the two cases Defendants cite, Samirah, 335 F.3d at 549, and Hassan, 593
F.3d at 790, were challenges to individual revocations of advance parole. Moreover, Hassan
25
App. 21a. Section 1252(a)(2)(B)(ii) is thus inapplicable, as the district court correctly held. 8
U.S.C. § 1182(d)(5)(A).
Even if the text were less clear and thereby left doubt or ambiguity about the precise
scope of what Congress made unreviewable, two further principles weigh heavily against
the Government’s position. One is the strong presumption favoring judicial review of
executive determinations, which this Court has “consistently applied . . . to legislation
regarding immigration, and particularly to questions concerning the preservation of
federal-court jurisdiction.” Kucana, 558 U.S. at 251; accord Guerrero-Lasprilla v. Barr,
589 U.S. 221, 229 (2020); Gov. App. 46a; Gov. App. 22a-23a. The Government lacks the “clear
and convincing evidence of congressional intent” necessary to overcome that presumption.
Guerrero-Lasprilla, 589 U.S. at 229 (internal quotation marks omitted). Another
“paramount factor” at issue here is that, if the Court were to accept the Government’s
proffered statutory interpretation, “the Executive would have a free hand to shelter its own
decisions” simply by “declaring those decisions ‘discretionary’” exercises of the parole
authority. Kucana, 558 U.S. at 252. “Such an extraordinary delegation of authority cannot
be extracted from the statute Congress enacted.” Id.; accord Biden, 597 U.S. at 806-07
(holding that, although generally discretionary, the parole authority “is not unbounded”
and is subject to APA review).
Defendants offer little to support the conclusion that both lower courts erred by
held that the district court lacked jurisdiction to review the ultra vires claim only after
holding on the merits that “[t]he revocation was lawfully authorized,” id.; and the Samirah
plaintiff was later permitted to enforce statutory and regulatory limits on parole
notwithstanding § 1252(a)(2)(B)(ii), Samirah v. Holder, 627 F.3d 652, 660-61 (7th Cir. 2010)
(Posner, J.).
26
considering whether the Secretary exceeded her legal authority and whether her legal
conclusions were correct. Defendants assert that the district court erred in citing precedent
holding that “claims challenging the legality of policies and processes governing
discretionary decisions” are not covered by § 1252(a)(2)(B)(ii), Gov. App. 22a, because, in
Defendants’ view, here “there is no overarching policy or process . . . .” Gov. Br. 15; but see
Gov. Br. 5 (“The district court has nullified one of the Administration’s most consequential
immigration policy decisions”). But what matters is not whether Plaintiffs challenge a policy
or practice; instead, the question is whether the parole statute makes discretionary the
decision they challenge. See Gov. App. 20a-22a. There is simply no basis to conclude that
truncating parole on an en masse basis premised on a legal conclusion is subject to the
jurisdictional bar.
b.
The district court correctly held that the APA authorizes
review.
Defendants argue that that APA review is unavailable here under both 5 U.S.C. §
701(a)(1) and (2). Gov. Br. 16-17. Both are plainly inapplicable. Gov. App. 25a-27a.
Defendants’ contention that the “agency action is committed to agency discretion by law,”
5 U.S.C. § 701(a)(2), is duplicative of its argument that the district court lacked jurisdiction
under 8 U.S.C. § 1252(a)(2)(B)(ii) and is wrong for the reasons discussed in the preceding
section. 16
Defendants’ suggestion that review is precluded by 5 U.S.C. § 701(a)(1) because
16
The government likewise repeats its faulty § 1252(a)(2)(B)(ii) argument to claim that the
district court erred in relying on DHS v. Regents of the University of California, 591 U.S.
1 (2020), see Gov. Br. 17 (arguing that “unlike the program in Regents, the INA expressly
commits parole determinations to the Secretary’s discretion by law”).
27
there is no law to apply, Gov. Br. 16-17, is weaker still. This exception is narrow, and its
application is restricted to “those rare circumstances where the relevant statute is drawn
so that a court would have no meaningful standard against which to judge the agency’s
exercise of discretion.” Gov. App. 25a (quoting Dep’t. of Com. v. New York, 588 U.S. 752,
772 (2019)). As the district court held, that “rare circumstance” is not present here, Gov.
App. 26a, as amply illustrated by the law the district court applied in assessing Plaintiffs’
claims: two statutes, 8 U.S.C. §§ 1182(d)(5) and § 1225(b). See also Gov. App. 32a-33a.
Finally, while Defendants may be correct that “[t]here are no judicially manageable
standards for courts to review the Secretary’s own ‘opinion,’” Gov. Br. 17, that contention
has no relevance here, given that the district court’s decision and Plaintiffs’ request for
preliminary relief are aimed at the Secretary’s legal authority and her legal conclusions,
not her opinions. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 392 (2024) (“[The
APA] specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising
on review of agency action . . . and set aside any such action inconsistent with the law as
they interpret it.” (quoting 5 U.S.C. § 706)); see also Biden, 597 U.S. at 806-07 (“[U]nder
the APA, DHS’s exercise of discretion within that statutory [parole] framework must be
reasonable and reasonably explained.”) (citing Motor Vehicle Mfrs. Ass’n of United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)).
Defendants are unlikely to prevail on the merits of Plaintiffs’ APA
claims.
The district court correctly held that Plaintiffs are likely to succeed in proving that
the Secretary’s en masse truncation of all CHNV grants of parole is based on an erroneous
interpretation of the expedited removal statute, 8 U.S.C. §§ 1225(b)(1)(A)(i),
28
1225(b)(1)(A)(iii)(II); contravenes the statutory requirement that the parole authority be
exercised on a case-by-case basis, 8 U.S.C. § 1182(d)(5)(A); and was insufficiently reasoned
and therefore arbitrary and capricious. Gov. App. 31a-37a. Each of these grounds
independently justifies the district court’s stay decision, and the Government cannot
demonstrate that it is likely to prevail on appeal.
a.
The Secretary’s decision to cut short all existing periods of
CHNV parole en masse was expressly and solely premised
on an erroneous understanding of the expedited removal
statute.
Secretary Noem explained that her understanding of the expedited removal statute
was the reason for two of her conclusions: that the reliance interests of CHNV parolees in
the United States “do not outweigh the U.S. Government’s strong interest in promptly
removing” them via expedited proceedings, 90 Fed. Reg. at 13619; and for her rejection of
the only alternatives she considered—of either a longer wind-down period or simply
“permitting CHNV participants’ parole to remain in effect until the natural expiration of
the parole, as DHS has in the past done,” id. at 13619-20. Secretary Noem explained that
because expedited removal “is available only” for use against the CHNV parolees while
they have been “continuously present in the United States” for less than two years, “[a]ny
lengthening of the wind-down period will increase the likelihood that additional CHNV
parolees are no longer subject to expedited removal,” meaning more of them would have to
be removed via normal proceedings under § 240 of the INA, “a result DHS finds
unacceptable.” Id. at 13620.
The district court correctly held that Plaintiffs were likely to succeed in proving that
the Secretary premised her decisions on a patently incorrect understanding of 8 U.S.C. §
29
1225(b)(1)(A)(iii)(II). Gov. App. 32a. Thereunder, and among its other limitations, DHS may
subject a noncitizen to expedited removal only if that person “has not been admitted or
paroled into the United States,” 8 U.S.C. § 1225(b)(1)(A)(iii)(II) (emphases added),
“regardless of how long they have been in the United States.” Gov. App 32a. In their
Application, Defendants never quote or acknowledge this part of the statute; nor did the
Secretary in her Notice ever explain whether (or why) she believes CHNV parolees “ha[ve]
not been . . . paroled into the United States.” From this omission, it can be fairly inferred
that the Secretary simply overlooked this limit that Congress put on the extraordinary
authority to deport noncitizens on an expedited basis without judicial review rather than
through ordinary removal proceedings that are generally the “sole and exclusive
procedure” for making removal determinations. 8 U.S.C. § 1229a(a)(3).
In the absence of any explanation in the Notice or evident awareness by the
Secretary of this statutory limit, Defendants devote just one paragraph trying to defend
the Secretary’s legal conclusion regarding the expedited removal statute. Gov. Br. 21-22.
Defendants’ solitary argument about the text of the statute is ipsa dixit. Ibid. (“The
statute’s use of the present perfect tense (‘has not been . . . paroled’) is best read to reflect
a ‘state that continues into the present.’” (quoting Turner v. U.S. Att’y Gen., 130 F.4th 1254,
1261-62 (11th Cir. 2025) (alteration in original)). 17 Implicit in Defendants’ argument is the
17
The government cites no case but Turner (which concerned a different statute) to support
its semantical point, and it misleadingly quotes what Turner said on that issue. Turner, 130
F.4th at 1261 (“Accepting that the use of the present-perfect tense can, as a matter of pure
semantics, refer to a time in the indefinite past or to a past action or state that continues
into the present, the question becomes which of those meanings applies in this statutory
context.”) (citation omitted, alteration in original); see also Gov. App. 32a-33a.
30
contention that even though all members of the certified class have been paroled into the
United States, DHS can subject them to expedited removal merely by ending their parole;
thereafter, per Defendants’ argument, that individual “has not been . . . paroled into the
United States.” See, e.g., Pls. App. 474-482.
The district court was correct to reject Defendants’ argument, which Defendants
have conceded has no support in precedent. 18 Pls. App. 483. Nor does it have any basis in
accepted canons of statutory construction. See also, e.g., Barrett v. United States, 423 U.S.
212, 216 (1976) (interpreting the present perfect tense in a statute to “denot[e] an act that
has been completed”). In addition to being contrary to the plain text and intent of Congress,
Gov. App. 32a-33a, the government’s interpretation, if accepted, would essentially strike
out of the statute an explicit limit that Congress placed on the exceptional authority it gave
the Executive to expeditiously remove some noncitizens without a hearing or access to
judicial review. Under DHS’s regulations, an individual’s parole is terminated upon service
of charging document. 8 C.F.R. § 212.5(e)(2)(i). Thus, according to the government, DHS
18
Defendants’ novel interpretation is also contradicted by DHS’s own regulations, which
make clear that “has not been admitted or paroled” refers to a past event that either did or
did not occur, rather than a continuing status. See, e.g., 8 C.F.R. § 235.3(b)(1)(ii) (expedited
removal can be applied to “aliens who . . . have entered the United States without having
been admitted or paroled following inspection by an immigration officer at a designated
port-of-entry”); 8 C.F.R. § 235.3(b)(6) (requiring that a noncitizen be permitted to prove he
“was . . . paroled into the United States following inspection at a port-of-entry” before being
subjected to expedited removal). That the inquiry into whether a noncitizen has or “has not
been admitted or paroled” refers to an event rather than a status is also consistent with this
Court’s observation in Sanchez v. Mayorkas that “[l]awful status and admission . . . are
distinct concepts in immigration law,” 593 U.S. 409, 415 (2021). “Parole” can be both a
manner of entry and a status, but in the context of the full statutory expedited removal
scheme and when paired with admission, the text focuses on manner of entry and not
maintenance of a particular admission or parole status.
31
can obtain the authority to subject a parolee to expedited removal by the mere act of doing
so. See Pls. App. 474-482.
The Court should reject Defendants’ interpretation of the expedited removal statute
that would nullify the “has not been admitted or paroled” language. Cf. Nat’l Ass’n of Mfrs.
v. Dep’t of Def., 583 U.S. 109, 128-29 (2018) (“the Court rejects an interpretation of the
statute that would render an entire subparagraph meaningless. As this Court has noted
time and time again, the Court is ‘obliged to give effect, if possible, to every word Congress
used.’”) (citation omitted). Adherence to norms of statutory construction is important,
particularly given how dramatically Defendants’ reading would aggrandize Executive
authority to subject noncitizens to expedited removal. 19 Ibid.
Defendants’ final efforts to paper over the Secretary’s mistake are even less
persuasive. The Government’s complaint, for example, that the district court’s read of the
statute “would require a former parolee’s case to be dealt with differently from any other
applicant [for admission]’s by categorically taking expedited removal off the table,” Gov.
Br. 22, is a complaint about the decision that Congress itself made. Importantly, Congress
carefully prescribed which noncitizens could be exposed to expedited removal and did not
simply say that such procedures could be applied to all applicants for admission. Moreover,
Congress defined applicants for admission to include parolees, 8 U.S.C. § 1225(a)(1), and
made parolees (but not other applicants for admission) ineligible for expedited removal in
the next subsection, 8 U.S.C. § 1225(b)(1)(A)(iii)(II). And Defendants’ assertion that “even
19
As the district court observed, under Defendants’ proffered interpretation, DHS could
also subject to expedited removal noncitizens who had been admitted on visas—contrary to
the clear intent of Congress—if it merely revokes that visa first. Pls. App. 473-474.
32
if the Secretary had erred in that one rationale . . . [she] invoked several other
independently sufficient reasons,” Gov. Br. 22, ignores that the “other” reasons they cite
concerned the decision to end the CHNV parole processes generally, and not her
explanation for overriding reliance interests and for rejecting the only alternatives she
considered to cutting off all existing grants of parole, 90 Fed. Reg. at 13619-20. 20
The Secretary’s en masse truncation of individualized grants of
parole contravened the statutory case-by-case requirement.
The day before the Secretary published her Notice, the Form I-94 (ArrivalDeparture Record) of each member of the certified class reflected the conditions on which
that person had been individually paroled on a case-by-case basis. One important condition
reflected therein is the amount of time remaining on that person’s parole period, measured
by an expiration date. For some class members, the expiration date was as early as March
25, 2025; for others, it was in January 2027. But on the day the Secretary published her
Notice, that expiration date was changed to April 24, 2025, for all of them on a categorical
basis.
As the district court correctly held, Plaintiffs are likely to succeed in proving that
the Secretary’s action contravened the statutory requirement that she exercise the parole
authority “only on a case-by-case basis.” 8 U.S.C. § 1182(d)(5)(A); see also Biden, 597 U.S.
at 806 (“Importantly, the authority is not unbounded.”). The Secretary acknowledged that
the initial grants of parole under CHNV “were adjudicated on a case-by-case basis,” 90 Fed.
20
Indeed, the Secretary said that her decision to “terminat[e] the CHNV parole programs”
should be treated as distinct, severable, and independent from her decision to “terminat[e]
. . . existing grants of parole.” 90 Fed. Reg. at 13621-22.
33
Reg. at 13611, but asserted on a blanket basis that “the purposes” for every single one of
the approximately 500,000 individual parole grants via all four CHNV processes now “have
been served,” id. at 13619 n.70. The Secretary did not take into account any differentiating
considerations, including the amount of time remaining on each person’s parole period (be
it a day or more than six hundred days), whether they have any pending applications for a
different immigration benefit, or any other individualized circumstances (be they social,
economic, medical, legal, or anything else). Gov. App. 45a (“It is also undisputed that the
Secretary did indeed purport to [act] categorically.”).
As below, Defendants contend that the statute only “requires case-by-case
determinations for granting parole” and “contains no parallel language with respect to
terminating parole.” Gov. Br. 18 (emphases in original). Notably, the statute uses neither
the word “grant” nor “terminate,” making much of what the government argues untethered
from the statutory text and thus not that helpful in ascertaining its meaning. Indeed, the
Court need not even decide whether the Secretary must terminate parole on a case-by-case
basis, because that is not what she did; instead, the Secretary changed, en masse, the
conditions under which all those individuals had been paroled, contrary to the statute. See
8 U.S.C. § 1182(d)(5)(A) (“The [Secretary] may . . . in h[er] discretion parole into the United
States temporarily under such conditions as [s]he may prescribe only on a case-by-case
basis . . . any [noncitizen] appl[ying] for admission to the United States.”) (emphasis added).
Under the statute, changing the conditions of a grant of parole can only be performed on
an individual basis. The Secretary’s contravention of a clear limit on her legal authority is
yet another independent reason to deny Defendants’ Application.
34
Moreover, neither the plain text of the parole statute nor common sense supports
Defendants’ reading. As both the district court and the court of appeals observed, the
statute consistently refers to both the grant and termination of parole on a singular and
individual basis, rather than on a plural or categorical basis. Gov. App. 36a, 46a. The district
court further found this to be consistent with the design of the CHNV parole processes,
under which “grants of parole were to be made on a case-by-case basis.” Gov. App. 36a
(emphasizing the statute’s language including “such parole of such alien,” “the alien,” “he
was paroled,” and “his case”) (some emphases added). 21
Defendants argue for the first time to this Court that this line of reasoning “proves
too much,” because many INA provisions and other statutes “use the singular rather than
the plural” to apply to classes or groups. Gov. Br. 19-20 (citing The Dictionary Act, 1 U.S.C.
§ 1 (“In determining the meaning of any Act of Congress, unless the context indicates
otherwise . . . words importing the singular include and apply to several persons, parties,
or things.”)). But the Dictionary Act itself makes clear that context is key. Ibid. And unlike
in the current case, the public-charge rule Defendants cite, 8 U.S.C. § 1182(a)(4)(A),
includes no language approximating the express “case-by-case" requirement delineated in
the parole statute. Under the very Dictionary Act definition Defendants cite, it would be
illogical to fail to take that language into account in determining the scope of parole
termination requirements.
21
This reading is likewise consonant with the agency’s implementing regulation, which also
uses singular and individual terminology to specify that only when “neither humanitarian
reasons nor public benefit warrants the continued presence of the [noncitizen] in the United
States, parole shall be terminated upon written notice to the [noncitizen].” 8 C.F.R.
§ 212.5(e)(2)(i).
35
As a final matter, Defendants repeatedly claim throughout their Application that
because the Biden Administration did not grant parole on a case-by-case basis, Defendants
should not be held at fault for failing to act on a case-by-case basis when it acted
categorically. This argument was never made to the district court, and for good reason: in
her Notice, the Secretary gave no such justification and, in fact, said the opposite. 90 Fed.
Reg. at 13611 (describing how, under “these [CHNV] categorical parole programs,
potentially eligible beneficiaries were adjudicated on a case-by-case basis”) (emphasis
added). Thus, in addition to being waived and directly contradicted by all record evidence,
the Chenery doctrine precludes this Court from even considering Defendants’ belated
contention. Biden, 597 U.S. at 811 (“[T]he grounds upon which an administrative order
must be judged are those upon which the record discloses that its action was based.”)
(internal quotation marks omitted); Regents, 591 U.S. at 24 (“An agency must defend its
actions based on the reasons it gave when it acted.”).
In short, the Government has not made even a strong showing that it will succeed
on appeal as to Plaintiffs’ claim that the Secretary acted in contravention of the statutory
limits on the parole authority.
The Secretary’s truncation of all valid grants of CHNV parole was
arbitrary and capricious.
The district court also correctly held that the truncation of individual grants of
CHNV parole was arbitrary and capricious. Gov. App. 34a-35a. First, as discussed above,
the district court correctly held that DHS’s rejection of the clear alternative—allowing the
grants to expire naturally, as the Secretary acknowledged DHS has historically done—was
based exclusively on a legally erroneous reading of the expedited removal statute discussed
36
above. Gov. App. 31a-34a. DHS’s stated reasoning therefore “lacked a rational basis,” Gov.
App. 34a, in clear violation of the APA. See, e.g., Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 374 (1998) (“Not only must an agency’s decreed result be within the
scope of its lawful authority, but the process by which it reaches that result must be logical
and rational.”); accord Dep’t of Com., 588 U.S. at 785; see also Biden, 597 U.S. at 806-07
(“DHS’s exercise of [the parole authority] must be reasonable and reasonably explained.”).
Additionally, the district court correctly rejected Defendants’ separate attempt to
justify its decisions by arguing that “neither urgent humanitarian reasons nor significant
public benefit warrants the continued presence of [individuals] paroled under the CHNV
programs and the purposes of such parole therefore have been served.” Gov. App. 34a. The
Secretary made that conclusory assertion in explaining why she chose to ignore the
regulatory requirements that DHS provide written notice to parolees to revoke either their
parole or their employment authorization, and to instead rely on “constructive notice.” 90
Fed. Reg. at 13620. As the district court found, the Secretary did not address any of the
urgent humanitarian concerns prompting the creation of the CHNV parole processes and
did not explain why (or even whether) she believed those concerns no longer exist, either
writ large or as to individual parolees. Gov. App. 35a.
Finally, the district court correctly held that the agency’s justification for
terminating existing grants of CHNV parole within 30 days was “inadequate,” “[g]iven the
significant reliance interests at stake.” Gov. App. 35a. The members of the certified class
are here because they followed rules and procedures laid out by the U.S. Government to
obtain sponsorship, travel authorization, and a grant of parole once they arrived in the
37
country. See Gov. App. 2a-3a. Most of these individuals were granted two-year periods of
parole, and they, their families, their employers, and their communities relied on the length
of this grant to plan this chapter of their lives. Ibid.; see also Gov. App. 10a-16a (detailing
the stories of the CHNV parolee Plaintiffs who came through CHNV parole). Since they
have been in the United States, these parolees become integral parts of their local
economies and communities. Ibid. The Notice is dismissive as to the reliance interests of
employers and communities and fails to acknowledge the disruption and chaos that would
ensue from the mass revocation of legal status for approximately 500,000 parolees. The
Secretary would have abruptly stripped all of these individuals of lawful status and, for
most, work authorization. Even those who have applied for separate immigration relief have
no protection against removal, because DHS has indefinitely suspended adjudicating
immigration benefit requests filed by CHNV parolees (as well as those filed by U4U and
other parolees). Gov. App. 5a-6a. The significance of this harm and the reliance interests at
stake cannot be overstated. Yet the Secretary gave these interests exceedingly short shrift,
stating only that they were outweighed by the Government’s “strong interest in promptly
removing [them].” 90 Fed. Reg. at 13619.
This failure to adequately consider and address the widespread harm of premature
revocation of grants of parole, particularly considering the concomitant termination of work
authorization and the Government’s indefinite suspension of processing of all applications
for other immigration benefits, on its own makes the Government’s parole terminations
arbitrary and capricious. So does the Secretary’s failure to consider the chaos and
disruption that would ensue to these individuals’ employers, families, and communities. The
38
district court’s holding was correct.
III.
THE DISTRICT COURT’S NARROW STAY ORDER WAS NOT AN ABUSE
OF DISCRETION
The APA permits a reviewing court, “to the extent necessary to prevent irreparable
injury . . . to postpone the effective date of an agency action or to preserve status or rights
pending conclusion of the review proceedings.” 5 U.S.C. § 705. The district court’s order did
exactly this—nothing more, nothing less. The stay Defendants now request would upend
the status quo, immediately throwing close to half a million individuals out of lawful status
and terminating their authorization to work legally in the United States. Defendants have
not borne their “heavy burden” in justifying such “extraordinary” relief that would
immediately and irreparably harm thousands of parole beneficiaries, their employers, their
families, and their communities. Whalen, 423 U.S. at 1316.
CONCLUSION
The Court should deny the Application.
39
Respectfully submitted.
ANWEN HUGHES
HUMAN RIGHTS FIRST
121 W 36th Street, Pmb 520
New York, NY 10018
(212) 845-5244
JOHN A. FREEDMAN
LAURA S. SHORES
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, NW
Washington, DC 20001
(202) 942-5000
H. TIFFANY JANG
ARNOLD & PORTER KAYE SCHOLER LLP
200 Clarendon Street, Fl. 53
Boston, MA 02116
(617) 351-8053
DANIEL B. ASIMOW
ARNOLD & PORTER KAYE SCHOLER LLP
Three Embarcadero Ctr., 10th Floor
San Francisco, CA 94111
(415) 471-3142
SARAH ELNAHAL
JAVIER ORTEGA ALVAREZ
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019
(212) 836-8000
MAY 2025
JUSTIN B. COX
Counsel of Record
LAW OFFICE OF JUSTIN B. COX
JAC Cooperating Counsel
P.O. Box 1106
Hood River, OR 97031
(541) 716-1818
justin@jcoxconsulting.org
ESTHER H. SUNG
KAREN C. TUMLIN
HILLARY LI
LAURA FLORES-PERILLA
BRANDON GALLI-GRAVES
JUSTICE ACTION CENTER
P.O. Box 27280
Los Angeles, CA 90027
(323) 450-7272
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.