CHNV Parolees With Old Removals: Sue the EAD, Hold the I-485

A Nicaraguan parolee who married a U.S. citizen called in to The Immigration Answer Show on June 10 with a fact pattern that is now showing up in attorney offices around the country: humanitarian parole under Biden’s CHNV program, an old expedited removal at the border, an I-130 approved, an I-485 sitting untouched for more than a year, and an EAD application pending since February 2025.

Jim Hacking’s answer was blunt — and reflects an emerging consensus among practitioners.

The strategy turns on a posture USCIS has held since SCOTUS cleared the way for DHS to terminate the parole program last spring.

On March 25, 2025, DHS published the CHNV termination notice in the Federal Register, ending categorical humanitarian parole for nationals of Cuba, Haiti, Nicaragua, and Venezuela and revoking the parole and EAD of more than 500,000 people already inside the country. Judge Indira Talwani of the U.S. District Court for the District of Massachusetts blocked the termination on April 14, 2025 in Doe v. Noem, but on May 30 the Supreme Court stayed her order, allowing DHS to proceed pending appeal.

For practitioners, the legal architecture is now this: parolees inside the U.S. retain whatever derivative status they qualify for — TPS, asylum, adjustment under INA § 245(a) through a USC spouse — but the parole itself, and the parole-based EAD under 8 C.F.R. § 274a.12(c)(11), is gone. USCIS officers reviewing I-485 applications from CHNV entrants are pulling on a thread the Trump DOJ argued at the Supreme Court: that the Biden categorical parole was an abuse of INA § 212(d)(5), which authorizes parole only on a “case-by-case basis” for “urgent humanitarian reasons or significant public benefit.”

Layered on top is Policy Memorandum PM-602-0199, which directs officers to weigh “conduct inconsistent with the applicant’s stated purpose of entry” and “compliance with the conditions of the visa or parole under which the applicant entered” as negative factors in the I-485 discretionary calculus.

A CHNV entrant with a stale removal order checks both boxes.

The caller’s record made that explicit. He turned himself in at the Mexican border at 17 in 2007, was processed for expedited removal under INA § 235(b)(1), and never saw an immigration judge. He returned to the United States sixteen years later under CHNV parole. His FOIA to USCIS came back empty — the records office could not locate his removal — but Hacking flagged the missing record as the trap, not the safety.

A prior expedited removal triggers reinstatement under INA § 241(a)(5) on any subsequent unauthorized reentry, but parole is not a reentry that itself reinstates removal. The vulnerability is upstream: if the parole application or the CBP interview at the airport asked about prior U.S. immigration history and the answer was incomplete, USCIS can charge a material misrepresentation under INA § 212(a)(6)(C)(i), which is independently disqualifying and difficult to waive.

The defensive move, then, is to pull every Biden-era record before USCIS does — DHS FOIA for the 2023 parole application, CBP FOIA for the airport secondary inspection, USCIS A-file FOIA — and confirm that the prior removal was either disclosed or never asked.

The offensive move is the EAD lawsuit.

USCIS is supposed to adjudicate an I-765 filed on a pending I-485 within 30 days under 8 C.F.R. § 274a.13(d). That regulation was vacated in 2022 but the agency continues to operate under its 30-day target as a matter of policy. Cases past 90 days are routinely sued under the Administrative Procedure Act § 706(1) and the Mandamus Act, 28 U.S.C. § 1361. A 16-month wait, as the caller has, is well inside the zone where federal judges have ordered adjudication.

The EAD case is also cleaner than the I-485 case. The court is not asked to grant a benefit — it is asked to order an answer. USCIS can still deny the EAD, but a denial creates a reviewable record. Silence does not.

The same is not true of the I-485. PM-602-0199 invites a discretionary denial on facts USCIS would have approved a year ago. A judicial push on the I-485 risks accelerating a “no” that locks in INA § 212(a)(9)(B) unlawful-presence accrual and forecloses any future strategy.

What the bar is now telling CHNV-entry clients with married-to-USC adjustment cases:

• Pull every record before USCIS does. FOIA the CBP secondary inspection at the port of entry, the USCIS A-file, and the underlying parole application. Confirm whether prior removals were disclosed and whether any question was answered “no” that should have been “yes.”
• Build the I-765 lawsuit. A pre-litigation 60-day notice letter under 5 U.S.C. § 555(b) paired with a draft mandamus complaint resolves a meaningful share of these cases without filing. The remainder are filed.
• Leave the I-485 alone for now. No mandamus on the green card, no congressional expedite, no inquiry calls. PM-602-0199 is being litigated; the lower the case’s profile in the meantime, the better.
• Keep the asylum claim pending. The asylum filing protects against removal while litigation over CHNV termination, PM-602-0199, and the I-485 plays out. Withdrawing it costs more than it saves.

For parolees who do not have a USC spouse — and who are now without parole status, without parole-based EAD, and without a pending adjustment — the calculus is different. Those clients are looking at asylum, TPS where still available, or withholding of removal under INA § 241(b)(3), and the strategy memos circulating among the immigration bar are markedly more pessimistic.

For the caller, the answer is the narrow one: file the EAD lawsuit, leave the green card alone, wait out the litigation, and do not give USCIS a reason to look closer than they already are.