The Trump administration appears poised for a merits victory on its efforts to deport some 430,000 Cuban, Haitian, Nicaraguan and Venezuelan nationals who have been in the country on a Joe Biden-era humanitarian parole program known by the acronym CHNV.

The U.S. Court of Appeals for the 1st Circuit heard oral arguments on Tuesday from the U.S. Department of Justice and the plaintiffs in the case challenging the government”s rescission of the program.

While attorneys for both sides were quizzed unsparingly by the three-judge panel sitting in Boston, the immigrant rights attorney seemed to have had the decidedly harder sell on his hands.

At one point, Circuit Judge William J. Kayatta, Jr., a Barack Obama appointee, raked attorney Justin Cox over the coals using a logical conjunction about the argument before the court.

“If you have two reasons for doing something – reason A and reason B – and both are necessary, once you determine reason A is no longer applicable, why do you need to look at reason B?” the judge asked.

The attorney had a difficult time getting past this point for various reasons, leaving the impression of a morass under which the pro-immigration side’s arguments simply got stuck.

The underlying litigation is relatively simple: the plaintiffs claim Department of Homeland Security (DHS) Secretary Kristi Noem ended CHNV — so named because the beneficiaries of the program are Cubans, Haitians, Nicaraguans, and Venezuelans — in a way that does not comply with the Administrative Procedure Act (APA), the statute governing agency actions.

In 2022 and 2023, the Biden administration began allowing certain immigrants fleeing instability in their home countries to stay in the U.S. for an extended period of time — if financially supported by someone already here. This year, President Donald Trump’s DHS moved to revoke those grants so the immigrants can be deported, while reserving the ability to give back parole on a case-by-case basis. CHNV participants have had their parole status revoked and lost their work status and are now subject to arrest, detention, and deportation.

While the plaintiffs won a district court victory, the U.S. Supreme Court allowed the Trump administration to move forward in a typically reserved and terse ruling on a stay application in late May.

Typical of such rulings on what critics often term the high court’s “shadow docket,” the majority opinion eschews analysis on the merits and positions itself as a straightforward, if argument-lacking, exercise in ticking the boxes required to grant stays undoing injunctions.

Drew Ensign, appearing for the DOJ, however, argued something not entirely unlike the idea that the Supreme Court was clear and, in a sense, had, in fact, ruled on the merits – terming the ongoing appeal the “plaintiff’s brazen request to defy the Supreme Court.”

Asked outright whether the justices actually relied on the merits, the government’s lawyer hedged a bit but settled the notion that the judges on the panel should give the Supreme Court’s opinion some deference and weight – if not controlling weight – as they decide the case.

Both attorneys, for their part, agreed with the judges that the issue turned entirely on how to dissect statutory language in one section of the Immigration and Nationality Act (INA) concerning the granting of “parole” – relief from deportation proceedings – “on a case-by-case basis for urgent humanitarian reasons or significant public benefit” and “when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served.”

To hear the government tell it, the authority here largely cuts two ways in this “highly discretionary statute.”

The DOJ attorney said that, for purposes of the present case, a DHS secretary can – and did – initiate such a parole program and a DHS secretary can – and did – revoke such a program. The lone caveat here, the government’s lawyer said, was that since the passage of the Laken Riley Act, granting parole is now slightly more conditioned – but, he said, this recent law has no relevance to the facts of the case.

And that fount of discretion from which Noem’s authority pours, Ensign said, should be an open-and-shut reason for the court to back off due to the government’s jurisdictional challenge alone.

“If it’s a discretionary decision,” Ensign said, “there’s a judicial bar.”

While the judges, perhaps unsurprisingly, pushed back a bit on the idea that they do not even have the authority to consider the case, they appeared to accept the general contours of the merits argument about the statute’s authority.

Directly asked to address the merits, Ensign argued that, for example, if a person is granted parole because of a civil war, they might naturally lose such parole status after the civil war is over.

“Congress has not just invested authority in the secretary but made her opinion the standard,” the government’s lawyer said.

One of the judges noted that if Noem were to leave her job tomorrow and a new DHS secretary came in the next day, the next secretary might undo what Noem did. Ensign said they likely could – stressing that the role, authority and discretion are highly political in nature.

The judges, when some skepticism of the government did appear, largely asked Ensign to account for a 2019 Supreme Court 5-4 opinion finding the first Trump administration’s decision to wind down Deferred Action for Childhood Arrivals (DACA) was not valid under the APA. That opinion, in part, turned on DHS’ failure to provide a “reasoned analysis.”

Ensign contrasted that opinion by saying Noem, for her part, “provided a plethora of reasons for why she was terminating these programs.”

Those reasons are where the plaintiffs’ attorney tripped up.

Throughout the hearing, despite several inquiries, it remained an open question as to how the court viewed each side’s arguments about the thoroughness and necessity of Noem’s justifications for ending CHNV.

At one point, one of the judges seemed to accept the logic behind Ensign’s example that the end of a country’s civil war might be a valid enough reason for DHS to end a parole program for that country’s nationals.

In response, Cox said that was not actually what Noem did in the case.

For several minutes, the plaintiffs’ attorney and Kayatta sparred over whether the statute mandates an either/or approach, or satisfying all the listed prongs, or something else more contingent upon the original grant of parole. And here, while confusion was evident, the judge was clearly leaning against Cox’s arguments.

The attorney tried to put a point on the discussion by saying Noem simply restated the original reasons cited by the Biden administration – essentially arguing Noem’s reasons were lacking.

“She has said nothing,” Cox said at one point.

But then Kayatta directly disputed that characterization – saying Noem said a lot about the benefit to the public from cancelling the program.

Finally, another judge interjected – but not really to save the plaintiff’s lawyer so much as to move things forward and out of the quagmire.

“If you’re right, then wouldn’t that bind future secretaries?” Circuit Judge Gustavo A. Gelpi, Jr., a Biden appointee, asked.

Cox replied that the government would not have to provide an “exegesis” every time it wanted to change policies in this way. Rather, he said, the problem here is that Noem did not really address the prior grant of parole in any way beyond “boilerplate” recitation.

“She needed to address both of them,” the plaintiff’s lawyer said.

Kayatta then asked Cox to address the “unusual” Supreme Court ruling, which effectively ended the program with “no rationale.” But even here, the judge suggested this was to the plaintiff’s detriment.

That’s because either the justices think the merits are against the immigrants, the equities heavily favor the government, or some combination of the two, Kayatta argued. And, he said, in any instance, that looks bad for the plaintiffs. But the judge offered Cox the opportunity to dispute that conclusion.

The lawyer was more than happy to oblige. Originally, the government said there was no case-by-case consideration in the original grants of parole. Now, however, they no longer stand by that claim.

“No one was given parole on the basis of those categorical determinations,” Cox said. Instead, the lawyer said, the program was only open to nationals from those four countries – but each parole decision was individualized.

And there, the pro-immigrant attorney appeared to find a rare opening.

Noem actually violated the law, the plaintiffs’ lawyer said, by categorically trying to end the program. Such revocations, Cox insisted, must be done on a case-by-case basis.

Gelpi spoke up again to ask whether or not every participant got an email about the end of CHNV.

Here, Cox came close to withering.

Answering in the negative, he said they in fact, had not – and had only put notice in the Federal Register of the end to the program.

“They’re quite bad at sending these letters,” Cox went on. “In March, April, the government was sending native-born U.S. citizens notices that it was time for them to leave the United States because their parole had been terminated.”

One of the judges then asked outright if the plaintiffs believe Noem cannot terminate parole.

To which Cox replied: “What I’m saying is that under the APA, we evaluate the reasons she gave, and the reasons she gave were insufficient.”