Fate of half a million Latin American migrants rests with First Circuit

BOSTON (CN) — The Trump administration’s effort to speed up deportation of more than half a million Latin American migrants went before the First Circuit on Tuesday, with the court peppering both sides with so many questions that the oral argument ran more than twice as long as scheduled.

In the end, it wasn’t clear what the judges would do, but overall the three-member panel consisting of Obama and Biden appointees appeared to be leaning toward the Trump administration’s view.

In 2022 and 2023, the Biden administration issued “parole” to some 532,000 migrants from Cuba, Haiti, Nicaragua and Venezuela who could otherwise be deported, allowing them to remain in the country. Although federal law allows the Department of Homeland Security to issue parole “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit,” then-secretary Alejandro Mayorkas granted it to hundreds of thousands of people without an individualized review, claiming that doing so would provide humanitarian benefits and relieve congestion at the border.

The law also says that parole can be canceled “when the purposes of such parole shall, in the opinion of the secretary of Homeland Security, have been served.”

In March, President Donald Trump’s Homeland Security Secretary Kristi Noem revoked the parole. A federal court blocked Noem’s action the following month, finding that she likely needed to revoke parole on a case-by-case basis rather than en masse.

On May 30, the Supreme Court voted 7-2 without comment to stay the federal court’s order pending this appeal to the First Circuit.

Deputy Assistant Attorney General Drew Ensign told the judges they lack authority to question Noem’s judgment. Since the statute leaves revoking parole up to “the opinion of the secretary,” he said, a court can’t review her decision.

“Parole is by its very nature discretionary,” Ensign argued, and since the statute doesn’t establish any objective standard for it, there’s nothing to review and no law to apply.

“Didn’t the secretary have to determine that some purpose of the parole had been served?” asked U.S. Circuit Judge William Kayatta, a Barack Obama appointee.

“As long as she considered it, the requirements have been met,” Ensign answered.

“The categorical program was designed to ease stress at border and provide relief to a chaotic situation. Secretary Noem determined that that prediction was not correct, and it didn’t have the public policy benefits that the prior administration thought it would.”

Ensign claimed that revoking parole en masse made sense in a number of situations, such as if parole were granted due to a civil war in a foreign country but the war ended. He said it was a “strange contortion” to claim that “if you do something 500,000 times, it’s reviewable, but if you do it once, it’s not reviewable.”

“That makes some sense to me,” said U.S. Circuit Judge Lara Montecalvo, a Joe Biden appointee.

But the migrants’ lawyer, Justin Cox of Hood River, Oregon, argued that there is “a presumption that agency action is reviewable” and cannot be arbitrary or capricious.

Montecalvo repeatedly pressed Cox to justify this claim in spite of the statutory language, but he instead focused on the argument that Mayorkas had issued parole on both humanitarian and public-benefit grounds and Noem had focused on the public benefit and ignored the humanitarian rationale. He noted that many states had filed an amicus brief vouching for the advantages of parole.

But this drew an objection from Kayatta, who noted Noem claims there are reasons supporting termination. “If you have two reasons, reason A and reason B, and both are necessary, once you determine there’s no need for A, why bother looking at B? I’m trying to think this through, it’s tricky stuff, but it seems to me if she’s saying A and B are necessary and A is no longer served, what’s the counter-argument?”

Cox replied, “Noem doesn’t get to decide what was necessary for the prior decision."

U.S. Circuit Judge Gustavo Gelpí, another Biden appointee, offered concerns of tying the hands of future officials, and both he and Kayatta seemed reluctant to rule for the plaintiffs given that the Supreme Court rejected the lower court’s stay. “That’s something we obviously pay a lot of attention to,” Kayatta said.

“We have this unusual situation with a Supreme Court order with no rationale,” he told Cox. “So, what are the possible reasons? One, they felt that you’re at the short end of the stick on the merits, or the equities weigh heavily in favor of the government, or some combination. Under all three, this cuts against you. Am I missing something?”

Ensign concluded by arguing that Mayorkas “put an anvil on the scale for these four countries” and the government was merely returning parole to a case-by-case analysis as envisioned by the statute. “Congress gave us the answer,” he said. “The opinion of the secretary is the controlling one. States may have profound disagreements, but her opinion is the controlling standard.”