Federal Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas issued an order this week in Texas v. USDHS, staying the Biden-Harris administration’s “Parole in Place” (PIP) amnesty for hundreds of thousands of illegal immigrants who are married to U.S. citizens (in so-called “mixed-status families”) and their alien children for at least 14 days. Don’t get too excited, though.
Parole in Place. “Parole” under section 212(d)(5)(A) of the Immigration and Nationality Act (INA) enables DHS to allow inadmissible aliens at the ports of entry and the border to enter the country (for extremely limited purposes) without formally “admitting” them.
Under the Biden-Harris administration, however, parole has become its own immigration program, parallel to but separate from the immigration limits Congress has imposed under the INA. That’s opened the doors of the country to more than 2.2 million facially removable aliens who lack any admission documents (visas and passports) or any right to be here.
Unlike many of its other parole programs, however, the Biden-Harris administration didn’t create PIP out of whole cloth.
If this program survives, and Harris wins in November, expect a flood of other PIP amnesties to follow — for illegal parents of U.S. citizens, and then parents of green-card holders, and so on.
It started as a purely theoretical concept first proposed under the Clinton administration (when it was utterly divorced from any congressional sanction) that would allow the then-INS to parole aliens already present in this country who had entered illegally — well after they’d entered illegally — in effect, retroactively legalizing their entry into the United States.
PIP received a veneer of legitimacy in the National Defense Authorization Act for FY 2020 (NDAA 2020), but then only for members of the U.S. Armed Forces, their spouses, children, and widows.
In other words, it’s legally questionable (at best) to conclude that the Biden administration could extend PIP to an estimated 1.1 million alien spouses, but as I explained in depth back in April, if it were able to do so, those aliens could then seek green cards through an INA-authorized process called “adjustment”.
Under the adjustment statute, aliens who have entered illegally (as most of the population covered by the Biden-Harris PIP has) are explicitly barred by statute from that adjustment process, but if they were paroled, they could then apply for green cards.
Although it won’t admit as much, the administration likely wants to extend PIP to illegal aliens in mixed status couples because: (1) they’re among the most sympathetic illegal aliens in the United States, so the administration is likely to face less public opposition; (2) their U.S. citizen spouses can vote, and every vote will count in a presidential election likely to be a squeaker; and (3) the campaign wants to rebrand its unpopular immigration policies as “family-friendly”.
If you want to see how much politics plays into this PIP, consider the following analysis of the program from the Washington Post:
The administration called Biden’s initiative “Keeping Families Together,” a not-too-subtle dig at the Trump administration’s Zero Tolerance prosecution push — orchestrated in part by [Trump White House immigration advisor Stephen] Miller — that separated more than 3,000 migrant children from their parents along the southern border in 2018.
In any event, if the White House succeeds in implementing its “Keeping Families Together” program, and Vice President Kamala Harris wins election to the presidency, expect a flood of other PIP amnesties to follow — for illegal parents of U.S. citizens, and then parents of green-card holders, and so on.
“First Blush” Administrative Stays. On August 23, Texas and 15 other states filed a complaint in the Eastern District of Texas, arguing that the Biden-Harris PIP is unlawful because it exceeds DHS’s parole authority under section 212(d)(5)(A) of the INA, and that it will “incentivize[] illegal immigration and will irreparably harm the” plaintiff states.
It was assigned to Judge Barker, and on August 26, he issued his order imposing an “administrative stay”, which prevents USCIS from approving any PIP applications for the next 14 days but explicitly allows the agency to continue to accept new applications.
As he explained, “this administrative stay does not apply to the agency’s creation of a process for seeking parole in place under the rule, as opposed to the granting of parole in place under the rule”. (Emphasis in original.)
Such an administrative stay (that one issued by a three-judge panel of the Fifth Circuit) was at the heart of a heated controversy in Texas v. U.S., a Biden-Harris challenge to a Texas law — Senate Bill 4 (SB 4) — that would make it a state crime to cross an international boundary illegally.
By way of brief background, at DOJ’s request, a federal district court judge there had blocked SB 4 (which was passed last December) from being enforced the day before it was supposed to take effect, March 1.
Texas appealed, and two days after the district court issued its order, the Fifth Circuit granted an administrative stay of the lower court injunction, which it then stayed for seven days at the administration’s request to allow DOJ to ask the Supreme Court to vacate that administrative stay.
That sounds like a lot of legal mumbo-jumbo, but the two key points are that: (1) if the circuit court stay had remained in place, SB 4 would have taken effect, allowing Texas to prosecute illegal entrants; and (2) nobody apparently ever asked the justices to stay an administrative stay before.
In any event, on March 19, the Supreme Court denied the administration’s request to vacate the Fifth Circuit’s stay (and yet another temporary stay Justice Alito had placed on that circuit-court order), with two justices in concurrence and three in dissent.
The four justices in the majority (Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch) didn’t explain their reasoning, but Justice Barrett, writing for herself and Justice Kavanaugh, did a deep dive into the nature of judicial administrative stays, which clarifies Judge Barker’s order in USDHS.
As she explained:
Administrative stays do not typically reflect the court’s consideration of the merits of the stay application. Rather, they “freeze legal proceedings until the court can rule on a party’s request for expedited relief.”
. . .
That such stays are “administrative” does not mean they are value neutral. Their point is to minimize harm while an appellate court deliberates, so the choice to issue an administrative stay reflects a first-blush judgment about the relative consequences of staying the lower court judgment versus allowing it go to into effect.
The same is true of Judge Barker’s administrative stay of the PIP in USDHS: It’s a “first-blush” effort to leave the parties in the same position that they were in before the complained-about action (here, the PIP) to allow the trial judge to sort out the parties’ arguments. In fact, the words “first blush” appear three times in Judge Barker’s order, likely to short-circuit the nonsense that had ensued in Texas v. U.S.
The states will have to quantify the harms they allege will follow from the Biden-Harris PIP in order to show that they have standing to challenge that program — likely the highest hurdle they’ll have to clear in this case given the lack of statutory authority that undergirds the “Keeping Families Together” program.
The Supreme Court has signaled in prior opinions a lack of interest in getting the federal judiciary involved in squabbles between the states and the Biden-Harris administration over immigration policy (it would prefer they be resolved in Congress).
In Texas v. DHS (a case involving Biden-Harris DHS criminal alien releases) however, the Court held it might consider “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status” — which is the essence of the states’ challenge in USDHS.
They’ll have to prove an “injury in fact” to get to that point, however, which will be no mean feat given that Judge Barker has told the parties that he wants discovery completed by September 16, much less time than usual. They’ll be burning some midnight oil at Main Justice and in Austin between now and then.
To recap: The Biden-Harris administrative PIP amnesty for illegal alien spouses of U.S. citizens (and those aliens’ children) is on hold for a few weeks, but aliens can continue to file their PIP applications in the interim. The real action is in the offing, and the states opposing PIP will be in a sprint simply to get to the true starting line on their claims.