Twenty red states filed a highly flawed lawsuit trying to end a private sponsorship program for people fleeing socialism and oppression in four Latin American countries

Venezuelans fleeing the socialist regime of Nicolás Maduro.

The Biden administration has recently adapted the approach used successful private migrant sponsorship program “Uniting for Ukraine”. turn on a total of up to 30,000 migrants per month from four Latin American countries: Cuba, Venezuela, Nicaragua and Haiti. Under these programs, migrants fleeing war, oppression, poverty and violence in these countries can quickly gain legal entry into the United States and the right to live and work here for two years if they have a private sponsor in the US who undertakes to support them.

Twenty GOP-controlled states filed yesterday legal process challenging the legitimacy of the program for four Latin American countries (though not the Association for Ukraine). They argue that the program lacks proper congressional authorization and that it must go through the Administrative Procedure Act (APA) “notice and comment” process. Ironically, the flaws in the lawsuit are highlighted by the plaintiff states’ governors’ own statements about the evils of socialism and the urgent need to resolve the crisis on the southern border.

The legal basis of these private sponsorship programs is Act of 1952 which gives the attorney general the authority to use “parole” to grant foreign nationals the right to reside temporarily in the US “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Are there “urgent humanitarian reasons” to grant entry to migrants fleeing these four Latin American countries? Of course! But don’t take my word for it. Take, for example, the governors of several states who filed this lawsuit.

Three of the four countries included in the program are under the rule of repressive socialist dictators whose policies have created terrible conditions. Few spoke better than Florida Gov. Ron DeSantis, whose state is one of the parties to the lawsuit. Like him said last year, Venezuela’s socialist president Nicolás Maduro is a “murderous tyrant” who is “responsible for countless atrocities and has driven Venezuela into the ground.” DeSantis went on to say that “people (in Venezuela) are ‘really suffering’ because of the government’s policies.” It is indeed true that Venezuelan socialism has led to widespread oppression, poverty and hyperinflation, leading to the largest refugee crisis in the world. history of the Western Hemisphere, with about 6 million people fled. Texas Gov. Greg Abbott, whose state is leading the lawsuit, also pointed to Venezuela’s severe economic crisis, which he (rightly) blames socialism.

In 2021 Desantis signed the law requiring Florida’s public schools to provide 45 minutes of instruction each year about the evils of communist regimes, including Cuba’s regime, which DeSantis rightly called responsible for “poverty, hunger, migration, systemic lethal violence and suppression of speech.” Cuba also leads to severe poverty and oppression of its people, including the recent one brutal suppression of protests in July 2021. It is no coincidence that before the recent crisis in Venezuela, the largest refugee flow in the history of the Western Hemisphere was people fleeing Cuban Communism in the 1960s and 70s. Many would like to run away even today.

Nicaragua is under the increasingly authoritarian socialist rule of Daniel Ortega similar story. Ortega’s repression deepened the already severe poverty and even created it the left BBC describes as “an atmosphere of terror”. This is why many Nicaraguans tried to flee. Like one Nicaraguan human rights defender put itconditions are so bad that “they would rather die than return to Nicaragua.”

I don’t know about you. But it seems to me that there are “urgent humanitarian reasons” for Cubans, Venezuelans and Nicaraguans to seek asylum in the US. And few understand this better than the people who file lawsuits in an effort to prevent them from getting it. Abbott, DeSantis and other GOP governors have repeatedly denounced both the evils of socialism in general and the evils of the governments of Cuba, Venezuela and Nicaragua in particular.

But maybe they somehow forgot about these things. If so, DeSantis should invite his fellow GOP governors to attend one of the 45-minute sessions on the evils of communism founded by under a law he signed last year. Their signing this lawsuit suggests they may need a refresher course on the subject!

Haiti, the only country with a non-socialist government included in the program, has long been one of the poorest and most dysfunctional societies in the world. Over the past year, conditions have worsened even more, with increased violence and shortages of basic necessities. It is hard to deny that Haitians also have “urgent humanitarian reasons” to seek asylum.

In addition to humanitarian considerations, the law also allows the Attorney General to grant parole if there is “significant public benefit.” In this case, a significant advantage is the mitigation of what Republican governors constantly declare a massive crisis at the border. Just last month, Texas Governor Abbott demanded that President Biden will immediately deal with the “terrible border crisis” caused by the many thousands of migrants crossing the border illegally.

The parole policy does just that. Many of the migrants seek illegal entry at the border come from the four countries covered by the program. Parole would allow them to arrive legally by ship or plane and thus bypass the border entirely, thereby easing pressure on the border and mitigating what Abbott calls “terrible crisis for border communities in Texas.” Previously, more limited, legal entry options for Haitians and Venezuelans have been expanded has already caused a significant reduction in the illegal entry of citizens of these countries. The parole program could make much more progress on that front.

Unlike the case with the evils of socialism, I find much of what GOP governors say about the border crisis unconvincing. There is immigration, including from Latin America much more of a benefit to the US than a burden. As far as there are humanitarian problems at the border, they are there largely caused by migration restrictions which have blocked the path to legal entry for many people fleeing horrific conditions. But the more you believe the rhetoric of GOP governors about the scope and urgency of the border crisis, the stronger the legal case for Biden’s parole program.

Certainly, most Republicans prefer to address the border situation by increasing exclusion and deportation rather than easing legal entry. I think their approach is likely to fail (and has historically failed) for the same reasons that prohibition led to the expansion of the illegal liquor trade. But even if their strategy is indeed better, it still does not undermine the legal justification for Biden’s actions. The relevant provision of the law only requires that parole serve a “substantial public benefit,” not that it be the best way to achieve it.

Another “significant public benefit” of the parole program is strengthening the US position in the international war of ideas against socialist authoritarian regimes. By sheltering people fleeing brutal socialist governments, we send a strong message that our system is superior to theirs. Conservatives used to understand this point for days of the Cold War, therefore the most supportive the use of this very power of parole allow the entry of Hungarian, Cuban, and Vietnamese refugees from communism, among others. Unfortunately, too many on the right today favor nativism over opposition to socialism.

The state’s lawsuit also claims the parole program is illegal because it does not engage in a “case-by-case” eligibility determination as required by statute. But unless it be entirely arbitrary or accidental, the judgment in each particular case must be governed by general rules. And, as a rule, migrants from these four countries face severe oppression and deprivation when they are forced to return. Therefore, their admission is justified by “immediate humanitarian reasons”. The Supreme Court recently upheld the use of relatively broad rules within parole law in the Stay in Mexico case..

I have discussed in more detail the relationship between case-by-case discretion and the general rules of immigration policy. this article is from 2016.

The same considerations that defeat the states’ statutory arguments also undermine their APA procedural requirements. Although major regulatory changes typically require notice and comment rules, they are “good cause” exception. for, among other things, emergency situations that require urgent action. The dangers facing migrants from the four countries are clearly extreme. Every day of delay means more suffering for them, and in many cases more exposure to violence. And if the border crisis is as dire as GOP governors say it is, it qualifies as an emergency that also requires swift action.

One could argue that private sponsorship programs — including Unite for Ukraine — cannot continue indefinitely without going through a notice-and-comment process. But considering the urgent requirements, they can at least be started without it.

Finally, it is telling that GOP states have sued to end a privately sponsored parole program for four Latin American countries, but not a very similar program for the Ukrainians, despite the latter being the model for the former. The most obvious explanation is that Ukrainian migrants are more popular, especially among Republicans, than Latin American ones. But such politically motivated demarcations suggest that the plaintiffs are more motivated by politics than by a perceived commitment to the rule of law. In truth, this is a common pattern when it comes to lawsuits by politicians.

Whatever the plaintiffs’ motives, it is important to recognize that if they prevail, United for Ukraine may be at risk, as well as the program they challenge. The legal rationales for both are almost the same. Even if claimant states choose to spare the Association for Ukraine, this may not protect it from challenge by other potential parties (although some of the latter may be blocked by jurisdiction and other procedural barriers).

In this case, as in other state challenges to immigration policy, status is likely to be an issue. I won’t go into detail on that point here, except to reiterate my long-held view that states should have broad rights to challenge federal policy even when I believe it is fundamentally wrong, as in the case of Biden vs. Texasis currently pending before the Supreme Court.

In sum, this lawsuit deserves to fail for reasons well articulated by some of the people who brought it.

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