Biden/Harris ‘Keeping Families Together’ Scheme Seems Headed for Annulment

George Fishman

By George Fishman on August 30, 2024

It looks like Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas will shut down the Biden/Harris administration’s ill-begotten “Keeping Families Together” (KFT) parole-in-place scheme scheme to legalize illegal alien spouses of U.S. citizens, just as in 2015 Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas shut down President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) scheme in Texas v. U.S.

On August 26, in Texas v. DHS, Judge Barker issued an “administrative stay” for 14 days of the implementation of KFT and stated that “good cause may exist to extend this … stay for additional periods through mid-October”. The stay came less than a week after impeached Secretary of Homeland Security Alejandro Mayorkas published his ”Notice of implementation of the “Keeping Families Together” process” (Notice) in the Federal Register on August 20.

Judge Barker also stated that:

[T]his is an appropriate case to … [“]consolidate [the trial on the merits] with the hearing” on the motion for a preliminary injunction, under timing that does not unduly delay resolution of the request for injunctive relief.
The court will set an expedited hearing on preliminary relief and summary judgment, and if necessary a consolidated bench trial … allow[ing] for prompt, efficient resolution of the case before any significant burden from the administrative stay.

The ‘Keeping Families Together’ Scheme

The KFT scheme is designed to launder the immigration status of over half a million illegal aliens who “[h]ave been continuously present in the United States for at least 10 years as of June 17, 2024” and “[h]ave a legally valid marriage to a U.S. citizen as of June 17, 2024”. The scheme would enable them “to apply for lawful permanent residence without having to leave the United States”. My colleague Andrew Arthur thoroughly analyzed the scheme when it was just a rumor. Suffice it to say that once Secretary Mayorkas utilizes his statutory power to “in his discretion parole into the United States [though in this case they are already here] temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States”, the erstwhile illegal alien spouses can adjust status to permanent residence while in the U.S. if their U.S. citizen spouses have petitioned for them for (a numerically unlimited number of) green cards.

Without parole, the illegal alien spouses would not be able to adjust status (unless being “visa overstayers” who had actually been admitted to the U.S.), but would have to apply for green cards overseas. However, if they do so and have been “unlawfully present in the United States for a period of more than 180 days” when 18 or older, they would be inadmissible to the U.S. for three years from the date of their departure (if their unlawful presence was for less than one year) or for 10 years (if it was for one year or more).

Michelle Hackman has described the “three- and 10-year bars” in the Wall Street Journal as “administrative cobwebs preventing spouses from being granted green cards”, but as Arthur has noted, “what the Journal describes as ‘administrative cobwebs[’] … is instead federal statute, passed by Congress”. Specifically, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) established the bars, based on legislation (H.R. 1765) introduced by U.S. Rep. Elton Gallegly (R-Calif.). Gallegly explained that “H.R. 1765 … targets long-term illegal immigration … . [The bar] will serve as a strong encouragement for illegal immigrants — both persons who overstayed their visa and those who crossed the border illegally — to return to their native countries and re-enter through legal channels.” The states challenging KFT in federal court also perceptively pointed out in their Complaint that the adjustment of status bar plus the three- and 10-year grounds of inadmissibility “serve as powerful disincentives for individuals to cross the border unlawfully. Indeed, were they not present, there would be no practical reason for any alien to abide by the law, wait his or her turn, and only come to the United States when the law provides.”

In any event, the Immigration and Nationality Act (INA) provides that Secretary Mayorkas can waive the three- and 10-year bars for an alien “who is the spouse or son or daughter of a U.S. citizen or of an alien lawfully admitted for permanent residence [LPR], if it is established to [his] satisfaction … that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien”, and an alien can even apply for such a waiver before leaving the U.S. under an Obama administration innovation. But, as DHS explained in its Notice:

[I]f they choose to depart the United States, they face uncertainty about whether they will be granted an immigrant visa and be able to return.
The length and uncertainty of the process, along with the prospect of either separating from their U.S. citizen family members or uprooting them to travel abroad creates a disincentive.

Parole Abuse

I have long complained about the executive branch’s abuse of the parole power (enacted into law in 1952) going back to the Eisenhower administration. One of my first pieces for the Center for Immigration Studies was titled “The Pernicious Perversion of Parole”, and I have since penned “Biden’s Perversion of Immigration Parole Has Reached a New Low” and “Biden’s Perversion of Parole Is a Constitutional Crisis in the Making”. I have written that:

There is a “dark” web, a dark internet, referring to websites that cannot be accessed without special software … . [T]his dark web “may be used ... to conceal criminal or otherwise malicious activities”, with major markets in illicit drugs, pharmaceuticals, fake documents, fraud, hacking, and child sexual abuse/exploitation.
There is also a “dark” immigration codex, one that can be equally as sinister. In contravention of the bedrock constitutional principal of separation of powers, Congress has not passed this shadow [INA], rather it has been created out of whole cloth by the executive branch, usually for the express purpose of “circumvent[ing] congressionally established immigration policy” (as the House Judiciary Committee concluded in 1996).
The abuse continues with President Biden. In fact, his administration has actually driven the megalomaniacal perversion of the executive’s statutory immigration powers to new lows.

The KFT scheme’s perversion of parole is uniquely troubling in that it raises the specter of massive marriage fraud. Arthur warned us to “Expect more than a fair share of fraud [with KFT] that overwhelmed … adjudicators won’t be able to stop.” Bad enough. But two additional factors would make the level of fraud far worse. First, the secretary of Homeland Security implementing the scheme is Alejandro Mayorkas — who as director of U.S. Citizenship and Immigration Services (USCIS) during the Obama administration apparently considered anyone at the agency concerned about immigration fraud to have “black spots on their heart[]”. Second, marriage fraud for immigration purposes was endemic even before Mayorkas took the helm at DHS. I have explained the coming KFT fraud tsunami here.

The States’ Lawsuit

On August 23, Texas along with 15 other states filed a Complaint with the U.S. District Court for the Eastern District of Texas, asking it to “[t]emporarily restrain, preliminarily enjoin, or stay … implementation” of KFT and “[f]ollowing a trial … decree” that it violates the Administrative Procedure Act and “declare that [it] exceeds [DHS’s] statutory authority” and “vacate … set … aside … [and] permanently enjoin” its implementation. The Complaint argues that KFT represents a perversion of the parole program (OK, without using that specific word):

[KFT] represents a total disregard of Congress’s limits on the parole authority and thus constitutes an abdication of Defendants’ [essentially, DHS’s] statutory responsibilities.
[As the Supreme Court has stated,] the parole “authority is not unbounded: DHS may exercise its discretion to parole applicants ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’” [quoting the Court’s 2022 decision in Biden v. Texas]. DHS “cannot use that power to parole aliens en masse” [quoting the Fifth Circuit Court of Appeals 2021 decision in Texas v. Biden], which is precisely what [KFT] amounts to.
In IIRIRA, Congress “specifically narrowed the executive’s discretion … to grant ‘parole into the United States’” precisely because of Congress’s “concern that parole … was being used by the executive to circumvent congressionally established immigration policy [quoting the Second Circuit Court of Appeals’s 2011 decision in Cruz-Miguel v. Holder].”
[KFT] is designed to circumvent the statutory requirements that unlawfully present aliens may not adjust their status within the United States but must instead depart and apply for an immigrant visa at a U.S. embassy or consulate overseas.

Exactly! Though I should mention that the Supreme Court in Biden v. Texas ducked ruling on the scope of the parole power (in the context of its use in releasing aliens en masse who were apprehended at the border), stating that “we need not and do not resolve the parties’ arguments regarding … whether the Government is lawfully exercising its parole authorities.” Justice Alito in dissent criticized the majority’s “claim[] that the Government’s use of its parole authority … is not before us.”

In demonstrating that they have standing to challenge KFT, the states contend that they “are suffering concrete and particularized injuries attributable to the Defendants’ actions”, arguing that:

[The States] have incurred and will incur considerable financial injuries on education, healthcare, and law-enforcement costs that they would not otherwise incur but for [KFT] … . These costs arise because [KFT] incentivizes aliens — who would otherwise be unlawfully present and unauthorized to work — to remain in the country, thereby causing Plaintiffs to incur those additional financial costs.

The states then contend that:

The[se] aliens … would be removable if [KFT] were vacated, “providing incentives for some if not many to leave the United States … and their departure would reduce the State[s’] Medicaid, social services and education costs for those individuals and their families who depart with them.”… [quoting the Fifth Circuit Court of Appeals’s 2022 decision in Texas v. U.S.]

In Texas v. U.S, the Fifth Circuit stated that:

Texas contends that the rescission of DACA [Deferred Action for Childhood Arrivals] would cause some recipients to leave, thereby reducing the financial burdens on the State. It cites a survey of over three thousand DACA recipients in which twenty-two percent of respondents said they were likely or very likely to leave the country if DACA ended. The Government presents evidence that many recipients would remain without DACA, but that does not controvert Texas's showing that some would leave.

In the present case, the plaintiff states have not (yet) presented evidence that KFT beneficiaries would leave should the scheme be vacated. Additionally, as Judge Barker noted, “given that [illegal alien] spouses who may seek relief [under KFT] … have, by definition, not left the country during the past 10 years, the court perceives a minimal risk that requiring them to wait a short, additional period will cause a departure from the country during this short stay”. And DHS stated in its Notice that “[KFT] applies to individuals who have resided in the United States for more than 10 years. Such individuals would likely continue to reside in the United States with or without [KFT].” One of the challenges that the states will face in this litigation is demonstrating that some prospective KFT beneficiaries would in fact leave the U.S. should it be vacated.

As to welfare expenditures, the states’ Complaint stated that “under federal law, aliens who have been paroled into the United States become eligible for a variety of benefits after five years. These State benefits, which impose significant costs on the State, include Medicaid, SNAP (commonly referred to as “food stamps”), and TANF (commonly referred to as welfare payments)”, a concern I raised last year. In this context, the states argue that “Federal law … requires [them] to include paroled aliens in programs such as S-CHIP [the State Child Health Insurance Program], Medicaid, and SNAP.” This is true in the case of S-CHIP and SNAP.¹ But I should note that it is not the case for Medicaid, where, with certain exceptions, after the “period of 5 years beginning on the date of alien’s entry into the United States with a status within the meaning of ... ‘qualified alien’”, “a State is authorized to determine the eligibility of an alien who is a qualified alien”.

The states also contend that KFT will harm American workers:

[B]ecause [KFT] beneficiaries … will be entitled to work authorization, these additional workers will drive down the wages of [State] residents, directly harming the State and its citizens.
[KFT] would enable eligible aliens to compete with lawful workers for jobs.
[KFT] would create a distorted labor market and thereby injure the economic well-being of Plaintiffs’ lawful workers by making it harder for them to obtain jobs.
Failing to consider the effects on American workers of employment authorization of [KFT] recipients is arbitrary and capricious.

Good for them — states that want to discourage the employment of illegal aliens, rather than demand it (such as California)!

The states also argue that KFT will encourage further illegal immigration:

[T]he Defendants … did not seriously consider whether [KFT] will create a perception among potential migrants that illegally entering the United States will result in eventual amnesty and, therefore, whether the policy is exacerbating the border crisis.
[KFT] will incentivize increased illegal immigration into the State[s]. As the number of paroled and illegal aliens … increases, the number of aliens receiving such services likewise increases, and so too the burden on the public increases.

You might ask how KFT could incentivize increased illegal immigration since, in order to qualify, an illegal alien spouse must have been continuously present in the United States for at least 10 years as of June 17, 2024. It is because any program of the nature of the KFT scheme is likely to be expanded once implemented. This is what occurred with the Obama administration’s DACA program. Then Secretary of Homeland Security Janet Napolitano created the program through a June 2012 memo that made one of the eligibility criteria “not [being] above the age of 30”. Two years later, Jeh Johnson, President Obama’s subsequent DHS secretary, issued a memo that in part provided that:

DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen ... regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981). That restriction will no longer apply.

In 2015, the Fifth Circuit Court of Appeals in Texas v. U.S. upheld a preliminary injunction against this expansion of DACA, but the Obama administration’s intent was clear. It is entirely reasonable for prospective illegal aliens to believe that an administration establishing an amnesty program will likely loosen its eligibility criteria once it is up and running, either as part of the original plan or because of subsequent political pressure.

The states’ Complaint contends that KFT violates the parole statute’s “urgent humanitarian reasons or significant public benefit” requirement “or, alternatively, is an unreasonable construction of it”, noting that:

The Notice justified [KFT] entirely based on generalized claims, without valid evidence, that [KFT] would afford the following five claimed “significant public benefits”: (1) “promot[ing] family unity”; (2) “advanc[ing] U.S. economic and labor interests by enabling paroled noncitizens to work lawfully in the United States”; (3) “further[ing] critical U.S. diplomatic interests and U.S. foreign policy objectives of managing migration, increasing economic stability, and fostering security in the United States and in partner countries in the region; (4) “preserv[ing] limited resources across U.S. government agencies that may otherwise be expended on consular processing and removal proceedings”; (5) “further[ing] national security, public safety, and border security objectives by encouraging noncitizens to provide information for background and security checks.”
Notably, all five of the claimed benefits were programmatic benefits — none of the claimed reasons were related to a significant public benefit resulting from an individual grant of parole in a specific case.

As to the parole statute’s “case-by-case” requirement, the Complaint argues that:

[KFT] is … not in accordance with law and exceeds the Defendants’ statutory parole authority … because it fails to satisfy the “case-by-case” requirement.
A program that, with the stroke of a pen, makes more than a million aliens eligible for parole is not what Congress had in mind when it amended that provision to add the case-by-case requirement.
DHS pays only lip service to the case-by-case requirement … . The message to DHS officers is obvious: they are expected to rubber-stamp all qualifying applications.

It is true that DHS stated in its Notice that:

Even if a requestor establishes that they have met all of the criteria for eligibility, USCIS will examine the totality of the circumstances in the individual case to determine whether the requestor merits a grant of parole in place as a matter of discretion for significant public benefit or urgent humanitarian reasons. In doing so, USCIS will weigh the positive factors against the negative.

But as Judge Hanen pointed out in 2021: “The DACA Memorandum, in places, purports to confer discretion … . Nevertheless, this does not end the analysis because ‘a rule can be binding if it is “applied by the agency in a way that indicates it is binding.”’ [quoting the Fifth Circuit Court of Appeals’s 2015 decision in Texas v. U.S.]” It is of course foreseeable that rubber stamps will be in great demand should DHS actually adjudicate KFT requests — just as Judge Hanen determined in 2015 with regard to DACA deferred action requests and as my colleague Todd Bensman revealed as to CBP One parole requests. Hopefully that day never comes.

Parole in Place

The states also argue that “because the parole power may only be exercised to allow an alien to come ‘into’ the United States, it may not be lawfully exercised for aliens already present in the country”, that “An alien who is already physically present in the United States cannot be paroled ‘into’ the country.”

As the parole statute talks in terms of “parole into the United States [of] any alien applying for admission to the United States”, one might assume that only aliens outside of the U.S. can be paroled. Well, that would have been a valid assumption, until IIRIRA. As the House Judiciary Committee report explained:

[The bill replaces] the definition of “entry” with a definition for “admission”... the entry of an alien into the United States after inspection and authorization by an immigration officer … .
This ... is intended to replace certain aspects of the current “entry doctrine,” under which illegal aliens who have entered the United States without inspection gain equities and privileges in immigration proceedings that are not available to aliens who present themselves for inspections at ports of entry. Hence, the pivotal factor in determining an alien’s status will be whether or not the alien has been lawfully admitted.
Currently, aliens who have entered without inspection are deportable ... . Under the new “admission” doctrine, such aliens will not be considered to have been admitted, and thus, must be subject to a ground of inadmissibility, rather than a ground of deportation, based on their presence without admission. Deportation grounds will be reserved for aliens who have been admitted to the United States.

What does this have to do with DHS’s ability to parole into the U.S. aliens already here? In 1998, Bo Cooper, the then Immigration and Naturalization Service’s general counsel explained in a memo (“Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens”) that:

[A]liens who are present in the United States without having been admitted or paroled are now deemed to be applicants for admission ... . Before [IIRIRA] ... aliens who had entered the United States without having been inspected were amenable to deportation, rather than to exclusion, proceedings. …. Congress has [also] now provided for an expedited removal proceeding. ... The Service may invoke this procedure if an alien “who is arriving in the United States” is inadmissible ... . The consequence of these two [provisions] is that there are now two categories of applicants for admission, those who are arriving aliens, and those who are not ... . [A]liens who were once deportable for having entered without inspection are now considered in law to be applicants for admission ... . As [such], they are within the scope of the statutory parole authority.

OK, I don’t think the authors of IIRIRA had this result, called “parole in place”, in mind — that aliens already in the U.S. are eligible for parole. But, to be fair, it is the upshot of IIRIRA’s reboot of the entry doctrine. IIRIRA dramatically altered the meaning of “admission” without at the same time modifying the language providing that parole applies to “any alien applying for admission to the United States”.

Further, the “National Defense Authorization Act for Fiscal Year 2020” specially recognized the validity of parole in place, providing that:

In evaluating a request from a covered individual for parole in place under section 212(d)(5) of the [INA], the Secretary of Homeland Security shall consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit.
It is the sense of Congress that … parole in place reinforces the objective of military family unity … and … the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed.

If I were the states, I wouldn’t bet the farm on parole in place being outside the bounds of the parole statute.

Judge Barker’s Stay

Judge Barker explained the rationale for his stay:

[The States’] theory of harm sounds in costs that they will bear from the continued unlawful presence of aliens, some of whom would depart the country to pursue consular process abroad without the parole-in-place rule … .
Affording relief on that theory of causation would seem to require negating the parole benefit possible under [KFT]. And the court does not presently perceive how to practicably unwind parole once issued to an alien, given that the grant of that benefit occasions reliance interests such as applications for work authorization and in some cases adjustment of status. Accordingly, preserving the court’s ability to grant full relief to plaintiffs … seems to require enjoining the agency from granting parole under [KFT] for a short time, to allow review of [the States’] entitlement to at least preliminary injunctive relief controlling through entry of final judgment.

Judge Barker made clear that his stay “reflects a ‘first-blush judgment about … the relative consequences of [blocking agency action …] versus allowing it to go into effect’ [quoting Justice Amy Coney Barrett’s concurring in the Supreme Court’s denial of applications for stays in U.S. v. Texas²]” with the goal of “preserving the status quo and preventing irreparable harm”, but “just so long as is necessary … and no longer [quoting the Supreme Court’s 1974 decision in Granny Goose Foods, Inc. v. Teamsters Local No. 70]”. This will “preserv[e his ability] to enter complete relief for [the States] should their lawsuit ultimately prove meritorious, without losing the chance for complete relief by taking the time necessary to fully consider the merits or likely merits of this action.” Judge Barker made clear that he “does not … express any ultimate conclusions about the success or likely success of [the States’] claims.”

Judge Barker noted that under the stay, “aliens will still be able to apply for parole in place under the rule during this short stay”, since DHS’s “mere acceptance of applications … do[es] not seem to pose the same practical risks of irreversibility as would the actual grant of parole in place.”

Conclusion

Despite Judge Barker not “express[ing] any ultimate conclusions”, I think the conclusion is clear. He stated that:

The [States’] claims are substantial and warrant closer consideration than the court has been able to afford to date. That conclusion is particularly based on the need to analyze (1) whether parole “into” the United States … includes entry by aliens who are already in this country, as opposed to at or beyond the border; and (2) [KFT’s] possible misapprehension of the legal standard in focusing on significant public benefit … [as where DHS] identif[ies] perceived policy benefits from a new process for gaining LPR status that is less burdensome [for the aliens] … rather than whether a specific alien’s lawful presence in the country would have public, as opposed to private, benefit that is significant…. focusing on judgments about Congress’s policies rather than how a particular alien’s presence in the country achieves significant benefit to the public.

I get the sense that Judge Barker finds the states’ arguments regarding the legal infirmities of KFT to be compelling. If they can convince him on the thornier standing questions, I think the (wedding) cake is baked, and that illegal-alien spouses should be getting together their three- and 10-year bar waiver applications.