Supreme Court allows Trump to revoke temporary legal status of 500,000 immigrants
Screamed a headline
What are they talking about?
The first thing I would like to point out is the word “temporary”. This word is not a synonym for permanent. And it does not mean, “practically a citizen”. No, the word means temporary.
There are two different programs involved in all this. There is the whole issue of “Temporary Protected Status” (TPS) and then we have “Cubans, Haitians, Nicaraguans, and Venezuelans” (CHNV).
So, what they are talking about are two separate Court actions, May 19th on TPS and May 30 on CHNV.
TPS
The TPS program was created by Congress as part of the Immigration Act of 1990 and signed into law by President George HW Bush in November of 1990. In short, it is a law that permits the granting of Temporary Protected Status to certain countries or parts of countries.
The law specifically gives the power to execute the provisions of the law to, well, the Executive Branch of government. Specifically, what countries are granted TPS and when those countries lose TPS, and whether or not to extend a person’s TPS are completely in the purview of the DHS Secretary.
So, the recent action of the Supreme court on this issue simply affirmed what was already codified in the law. The Secretary of DHS can revoke the status of a country as they see fit, without oversight from Congress or the Judiciary.
Note the recent Court action on TPS was for Venezuelans only. So, this is not a global revocation of TPS.
CHNV
This is a bit more complex.
CHNV is not a law. It is an executive action built on existing law, to wit, INA § 212(d)(5) is the statute that allows DHS to grant humanitarian parole on a case-by-case basis.
And that’s the rub. Whether by accident or design, the executive action created an open application pipeline that invited parole requests from four entire countries: Cuba, Haiti, Nicaragua, and Venezuela. In its current form it was instantiated in January of 2023.
As promulgated, it is broad and systematized such that the case-by-case concept is a farce. The manpower does not exist for the DHS to process, in any meaningful manner, a half-million people on a case by case basis. So, it became a rubber-stamp operation that amounted to an open-border policy for people from those countries.
Note the following from the DHS fact sheet, dated January 5, 2023.
Through this process, nationals of Cuba, Haiti, Nicaragua, and Venezuela, and their immediate family members, who are outside the United States and lack U.S. entry documents, may seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for a discretionary grant of parole.
(Source: DHS.gov, Fact Sheet: CHNV Processes, Jan 5, 2023)
DHS dutifully added the phrase “considered, on a case-by-case basis” to its press release, because § 212(d)(5) requires it. But when you launch a mass application portal, commit to processing 30,000 per month, and run it largely on sponsor affidavits and identity checks, “case-by-case” becomes a ritual incantation, not a meaningful legal review.
And if, oh gentle reader, you don’t recognize that this is a problem, please think harder.
It can be argued strongly that Trump has legal and rational reasons for wanting to end CHNV:
Legality
Ending the CHNV parole program is sound. The Immigration and Nationality Act, INA § 212(d)(5), allows the Secretary of Homeland Security to grant case-by-case parole for individual aliens based on urgent humanitarian need or significant public benefit. What it does not authorize is a mass automated pipeline admitting 30,000 individuals per month through an online portal. By turning a narrow, discretionary authority into a de facto alternative immigration system for four countries, the Biden administration’s CHNV program openly strained (if not outright violated) the statutory language. The Supreme Court’s recent decision is correct.
Rationality
Because the CHNV program is an unsound use of parole authority, ending such a program is rational. We should reassert proper limits and restore the original intent of parole authority.
But, is this being handled Responsibly?
My primary problem is that I don’t think the ending of CHNV is being handled responsibly with an eye toward real human beings. The administration has provided a 30-day window for parolees to seek other legal status, but that is not a serious opportunity. The existing immigration system is too backlogged to process that volume of cases in such a short time, and many parolees have no viable legal path available to them. These people were after all granted entry, reasonably assumed they would be allowed to extend their stay, and many may be in the middle of normalizing their status to permanent residency. So, the human cost of suddenly uprooting people is disproportionate.
NOTE: None of this applies to perpetrators of violent crime or significant theft. In my mind, due process for convicted criminals is deportation.
What the Glob Thinks
End the program immediately, and stop the process for anyone not already in the United States. Advise existing CHNV parolees that when their current status ends, it will not be renewed. Provide information that assists them in exploring how to normalize their status, and give a reasonable amount of time for this to happen.
Additional caveat, we should address predatory “legal aid” practices and protect these folks from being scammed.
Final Thoughts
If CHNV’s structure inherently destabilizes the legal immigration system, and I think this is self-evident, was this done to pursue a coherent vision of justice, or merely to relieve short-term pressure while ignoring the system’s natural ends and capacities?
Was it another modern exercise in willed action without regard to cause and effect, or to the actual good of either migrants or the receiving polity?
I suppose if thinking were easy, everyone would be doing it.
Man, worrying about stupid immigration policies is really cutting into my day. I’ll tell you what though, these kinds of reality based insightful articles are only possible because of the sanctifying smoke of a fine cigar and the warm reassurance of a worthy scotch. Help a concerned citizen out, won’t you? Smash that button.
I thought your observations were sound, but you lost me with your throw away line about due process.
Due process, as protected by the Fifth and Fourteenth Amendments, refers to both procedural and substantive constitutional guarantees that shield individuals from arbitrary denial of life, liberty, or property by the government.
Procedural due process requires fair and transparent procedures before the government can deprive someone of protected interests. This typically includes notice, an opportunity to be heard, and a neutral decision-maker. It's grounded in the idea that the legal process must be just, regardless of the outcome.
Substantive due process limits what the government may do in its legislative and executive capacities. It protects certain fundamental rights (e.g., privacy, bodily autonomy) from government interference, even if the procedures are followed properly.
Due process plays out in both criminal and civil contexts. In criminal law, it ensures fair trial rights (Miranda warnings, right to counsel, etc.). In administrative law, it affects how benefits are terminated (e.g., welfare or education). In constitutional litigation, courts use strict scrutiny or other levels of review to evaluate whether government action unjustly infringes on fundamental rights.
The Founders were intent on making sure that the State had to play by the rules (Rule of Law), even when it is not efficient or expedient.
I very much appreciate the feedback, and the clarification on what due process actually means. And you're correct about it being a throwaway line. I will ask however since that throwaway line began with "convicted criminal", if you have someone that it turns out is here on a temporary status and then they are convicted of a crime, is it best to keep them here in the United States, or send them back to their home country? So not really a due process question, although I am curious what having been convicted of, say a violent crime, does to their status as a temporary guest. I don't know that this is the case, but I would think that temporary status includes things like obeying the laws of the land, and that some consequences of criminal activity for someone here on a temporary status is rationally distinct from the consequences for a citizen of the country. And I am very specifically leaving aside people who were granted permanent resident status. I am limiting this to TPS and chnv.