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After initially blocking the Biden administration’s recent move to promote family unity for some U.S. citizens with undocumented spouses in August, a federal judge in Texas issued a final judgment last week ending the parole process altogether. Judge J. Campbell Barker found that the whole concept of “parole in place” – the practice of granting parole to noncitizens already in the United States, which has long been used by various administrations – is not authorized by the Immigration and Nationality Act (INA).
The court’s order came in a lawsuit brought by Texas Attorney General Ken Paxton and 15 other Republican-led states, co-counseled by the right-wing group America First Legal. The plaintiffs filed the lawsuit less than a week after DHS started accepting applications under the parole process. The Keeping Families Together – or KFT – initiative would have given certain noncitizen spouses of U.S citizens the chance to seek parole in place under INA § 212(d)(5) after at least 10 years of residence in the country. Unmarried stepchildren of U.S. citizens who were under 21 when the program was announced would also be eligible.
Over the course of less than three months, the district court issued several “administrative stays” of the program, ensuring that the Department of Homeland Security (DHS) couldn’t adjudicate any parole applications. While the case was pending, the court denied a request to intervene by impacted individuals; allowed the parties to conduct limited discovery into whether Texas had standing; and held a less than three-hour consolidated bench trial and hearing on the states’ request for a preliminary injunction. In October, the Fifth Circuit Court of Appeals also weighed in, agreeing that there was no need to allow the people actually impacted by KFT to intervene in the lawsuit.
The district court’s decision vacating the rule that created KFT ends the initiative immediately and applies nationwide. It came down the day after the election was called for Donald Trump – meaning that no matter what the current administration decides to do, the process is unlikely to go back in effect.
What did the judge rule?
The plaintiffs’ ability to bring this lawsuit at all was a major question in the case. The 16 states only presented evidence regarding Texas’ standing. All the claimed injuries to Texas involved speculation about costs to the state resulting from the possible future actions of noncitizens who might have been granted parole through the KFT process.
Specifically, the plaintiffs argued that noncitizens in Texas who were granted parole would become eligible for state-run benefits; and that certain noncitizens would remain in Texas and use educational and healthcare services who, but for the parole process, would have left the state, thereby increasing costs to the state.
While acknowledging that the plaintiffs faced a “substantially more difficult” test because they relied on mere predictions about the choices of third parties (i.e., applicants for the parole process), the judge found that Texas had proved the necessary factors for standing. Whether this determination—based entirely on written declarations—would survive an appeal is highly debatable. But given the looming change in presidential administration, that question may remain unanswered.
The district court also ruled in favor of the plaintiff states on the merits, agreeing that the KFT process isn’t authorized by the INA. The judge held that both Sections 212(d)(5), the parole statute, and 245(a), the adjustment of status statute, only allow for the executive to parole noncitizens “into the United States.” Under those provisions, the court found, there is no room for granting parole to people already in the country – parole is only for people physically entering the United States.
However, the court noted that Congress has created certain statutory exceptions to INA § 245(a)’s requirement that noncitizens be “paroled into” the United States. Perhaps mindful of the well-established practice of granting parole in place to undocumented family members of people in the U.S. military, Judge Barker recognized that the 2020 National Defense Authorization Act could be read to authorize parole in place – but only for the “limited class” of military families explicitly mentioned by Congress there.
What’s next?
The timing of the Biden administration’s rollout of KFT, the district’s court decision, and the election all but guarantee that DHS will not be able to restart the program. In different circumstances, DHS might be expected to appeal the judge’s order to the Fifth Circuit and even the Supreme Court. The White House has said it is evaluating next steps. But given the incoming administration’s plans to curtail all forms of parole, embarking on the lengthy appellate litigation process about the initiative’s legality is likely futile.
And despite the plaintiff states’ claims or the judge’s findings, it is the American public—including the hundreds of thousands of mixed status families and their communities—that will bear the painful costs of the parole process not going forward.
FILED UNDER: immigrant families, Texas