Biden policy that has allowed 200,000 migrants to enter the U.S. in 10 months faces key legal test

A Biden administration program that has allowed more than 200,000 migrants from Latin America and Haiti with American sponsors to fly to the U.S. in 10 months is facing a key legal test this week as a federal judge in Texas reviews its legality.

U.S. District Judge Drew Tipton is kicking off a bench trial Thursday on a lawsuit from Texas and other Republican-led states seeking to shut down the migrant sponsorship policy, which allows up to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans to enter the U.S. each month and apply for work permits.

The GOP-led states are asking the judge to issue an injunction that would prohibit the government from "implementing or enacting any part of" the program nationwide.

The outcome of the lawsuit will determine the fate of a key component of the Biden administration border management strategy, which pairs programs that allow certain migrants to enter the U.S. legally if they wait to be vetted with stricter asylum rules for those who cross into the country illegally.

As of Aug. 22, U.S. officials at airports have processed 200,279 migrants under the sponsor initiative, allowing them to live and work in the country legally for two years through an immigration law known as parole, according to internal government data obtained by CBS News. The statistics, which have not been previously reported, show that 67,926 Haitians, 58,918 Venezuelans, 43,149 Cubans and 30,736 Nicaraguans have arrived under the policy.

While it will almost certainly ask an appeals court in New Orleans or the Supreme Court to pause any unfavorable ruling, the Biden administration is bracing for the program to be blocked by Tipton, an appointee of former President Donald Trump who has invalidated other Biden immigration policies.

Tipton has previously agreed to requests by Republican state officials to block Biden administration efforts to pause most deportations for 100 days and to instruct deportation agents to focus on arresting recent border-crossers and migrants with serious criminal convictions or national security concerns, while sparing most unauthorized immigrants who have lived in the U.S. for years from deportation.

The Biden administration first created a version of the migrant sponsorship program in Oct. 2022, allowing Venezuelans with American sponsors to fly to the U.S. directly and threatening to expel those who entered the country illegally back to Mexico. The move was designed to deter Venezuelan arrivals along the U.S. southern border, which had soared to record levels at the time.

In January, the administration expanded the program to include migrants from Cuba, Haiti and Nicaragua, which have also seen hundreds of thousands of their citizens journey to the U.S. southern border over the past two years. It simultaneously started expelling some migrants from those countries to Mexico. 

Mexico initially agreed to accept the return of migrants from Cuba, Haiti, Nicaragua and Venezuela expelled by the U.S. under the Title 42 pandemic-era border measure. Since Title 42 expired in May, Mexico has been accepting "voluntary returns" of migrants from these countries who cross into the U.S. illegally

Illegal crossings along the U.S. border by migrants from these four countries have dropped significantly since the policy changes were enacted. But the Biden administration has said Mexico "will almost certainly stop accepting returns" of these nationalities if the U.S. sponsorship program is shut down. 

The legal dispute over the sponsorship program

Texas and 20 other GOP-led states are participating in the lawsuit against the sponsorship program, one of several Biden administration immigration policies that have been challenged by officials in red states.

The coalition of states has argued the sponsorship program abuses the parole authority and flaunts limits that Congress placed on legal immigration levels. The Biden administration, the states have asserted, has used parole too broadly, noting the law says the authority can only be used to admit migrants on a case-by-case basis to further an "urgent humanitarian" cause or "significant public benefit."

Biden administration officials, the red states wrote in a court filing law week, "have created by executive fiat what is essentially a parallel system for visa-free immigration to the United States for aliens from countries with populations with a high risk of overstaying in the United States."

To argue it has legal standing to sue over the policy, Texas has said the program hurts the state financially, citing costs related to issuing driver licenses, social services and public education for migrant children.

Another policy that allows Ukrainians with U.S. sponsors to enter the country is based on the same parole authority, and has permitted an additional 146,000 migrants to fly to the U.S. since Russia invaded Ukraine. That policy has not been challenged by Republican-led states.

The Biden administration has rejected the states' legal arguments, noting the parole authority has been used for decades, by Republican and Democratic administrations, to bring large numbers of migrants and refugees into the U.S. During the Cold War, the U.S. cited the parole authority to resettle hundreds of thousands of Cubans, Hungarians and Southeast Asians fleeing communism.

The administration has also said it reviews every application for the sponsor program on a case-by-case basis, despite the large-scale nature of the initiative. Moreover, it has said, the policy's "significant public benefit" is a decrease in illegal crossings among Cubans, Haitians, Nicaraguans and Venezuelans.

The program, the administration has argued, furthers an "urgent humanitarian" cause since it provides a safe haven to migrants fleeing countries plagued by repressive governments, political instability, violence and extreme poverty. In Venezuela alone, the collapse of the economy there has prompted more than 7 million to leave the country, the largest refugee exodus recorded in the Western Hemisphere.

Stopping the program would also undermine Texas' stated goal of reducing illegal immigration, the administration said in a court filing last week.

"DHS expects that without both the incentives and disincentives associated with the CHNV processes that have led individuals from those countries to wait for lawful, safe and orderly pathways and processes to come to the United States, there will be significant surge in migration at the southwest border — the precise outcome that Plaintiffs allegedly seek to avoid," the administration wrote.

"Returning is not an option"

Francis Arauz, a truck driver in Oakland, California, said her husband's arrival to the U.S. from Nicaragua has brought her a lot of joy and taken some pressure off her and her parents, who had previously been responsible for taking care of her 14-year-old son. 

Arauz, a U.S. citizen, applied to sponsor her husband, Moises Benavides, under the policy in February. The following month, her application was approved. Benavides arrived in California in May. If she had waited for the immigrant visa application she filed on behalf of her husband to be processed, Arauz said it likely would've taken another year or two for Benavides to join her in the U.S.

"This is what is magnificent about parole, that my husband was able to come here sooner," Arauz said. 

For Benavides, the program has also been beneficial. He said he was in a precarious situation in Nicaragua because the international nonprofit he worked with was being targeted by the repressive Nicaraguan government, which has cracked down on political dissidents and international organizations. 

"Returning is not an option due to the crisis there, which keeps getting worse," Benavides said.

A court ruling that strikes down the program that allowed Arauz's husband to come to the U.S. would directly affect hundreds of thousands of migrants and American sponsors. As of earlier this year, 1.5 million prospective sponsors in the U.S. had applied to sponsor migrants through the initiative.

While she's hoping her husband can help the family financially once he receives a work permit, Arauz said the most important thing is that her family is together.

"I'm very thankful, first and foremost, because I now have my husband here," she added. "He can now spend time with my son. He's here physically. It's no longer just video calls, calls or texts."

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

Twitter