The United States District Court for the Eastern District of Texas struck down the Biden-Harris administration’s new parole-in-place program for spouses and stepchildren of U.S. citizens who are living in the country illegally. The program, called “Keeping Families Together”, sought to grant “parole in place” to covered aliens for the purpose of allowing them to apply for work authorization and green cards (lawful permanent residency). The Department of Homeland Security (DHS) estimated the amnesty would benefit 500,000 illegal-alien spouses and 50,000 stepchildren.
The program was challenged by the State of Texas and 15 other states, asserting that the program conflicts with federal immigration law and exceeds DHS’s legal authority. Specifically, the states argued that the program exceeds statutory authority under 8 U.S.C. §§ 1182 and 1255; exercises a dispensing power prohibited by the Take Care Clause of the U.S. Constitution; is arbitrary, capricious, or an abuse of discretion within the meaning of the APA; and was issued without notice-and-comment procedure required by the APA and the Paperwork Reduction Act.
What Is Parole in Place?
To understand parole in place, you must first understand what parole is in the immigration context. Section 235 of the Immigration and Nationality Act (INA) requires aliens seeking admission to the United States (including illegal entrants) to prove they have a visa or other document that permit their admission, and that they are otherwise admissible. Section 212(d)(5)(A) of the INA, however, authorizes the executive branch (originally the attorney general, now the U.S. Department of Homeland Security (DHS) secretary) to allow inadmissible aliens to enter the United States with parole for “urgent humanitarian” or “significant public benefit” reasons (like emergency medical treatment or to participate as a witness in a criminal trial) and for specific periods of time.
Parole, therefore, is a statutory exception to the rule that all arriving inadmissible aliens — both at the ports of entry and across the border illegally — be detained pending completion of the immigration proceedings or returned. Parole in place, on the other hand, is based on the same parole statute, but was devised by the executive branch to allow aliens who are already in the country unlawfully to obtain a sort of “authorized presence” — in effect, retroactively paroling them into the country. As my colleague Andrew Arthur recently explained:
Parole in Place is a concept that was first proposed under the Clinton administration (at a time it was utterly divorced from any congressional sanction) that would allow the administration to post hoc parole aliens already present in this country.
It received the veneer of sanction 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 the Biden administration could extend Parole in Place to 1.1 million alien spouses, but as I explained in-depth in that recent piece, it would allow them to then obtain green cards through “adjustment”.
That’s notwithstanding the fact that aliens who have entered illegally (as most of the covered population has) are barred by statute from that adjustment process.
Parole in place would allow an alien already unlawfully present in the United States to remain “with authorization”, apply for an employment authorization document (EAD or “work permit”) and a Social Security number, and, according to the Biden-Harris administration, apply for lawful permanent residence (a green card). Parolees may also become eligible for public benefits at the state level and, after five years, at the federal level.
What Did the District Court Rule?
Judge J. Campbell Barker, writing for the court, agreed with the state plaintiffs that the federal government cannot grant parole under section 212(d)(5) of the INA to aliens who are already present in the United States. After analyzing the “statutory text, structure, history and purpose of the parole statute”, the court determined that parole for purposes of section 212(d)(5) can only refer to “a legal entry into the country”. (Emphasis in original.)
Moreover, Judge Barker noted that the U.S. Supreme Court has already held that the INA’s “inspected and admitted or paroled into the United States” requirement (INA § 245a) is a “legal-entry requirement”. The court explained that this reading is “consistent with what Secretary Mayorkas previously recognized as ‘the almost 70-year-old INA requirement that generally only [aliens] who came here lawfully may become permanent residents’”. (Emphasis in original.)
Importantly, the court also agreed that the program violated the statute’s limitation (INA § 212(d)(5)(A)) that DHS may only grant parole on a “case-by-case basis” for “urgent humanitarian reasons or significant public benefit”. DHS did not claim any urgent humanitarian reason to justify the program, but rather argued that the parole in place program satisfied the “significant public benefit” requirement for the following reasons:
- The significant public benefit of family unity;
- U.S. economic and labor interests, based on the fact that parolees would be able to obtain employment authorization and thus work lawfully in the United States;
- Diplomatic and international interests, which the federal government argues would be furthered because allowing aliens “access to protection, services, and employment”, under a grant of parole shows “partnership and commitment” to other countries that want those benefits for their nationals in this country;
- A reduction in government resources spent on consular processing since eligible aliens, under the government’s position, would be able to obtain green cards without consular process abroad;
- A reduction in government resources spent on removal proceedings since paroled aliens may have their removal proceedings terminated; and
- Public safety, based on the possibility that applicants for parole in place may submit identifying information that “may”, after security checks, identify threats to security or safety and that parolees “may be” more willing to report crimes.
The Biden-Harris administration further argued that a case-by-case determination for each applicant is not necessary to determine whether a “significant public benefit” is served because these possibilities “would exist equally as to all aliens offered parole upon furnishing identification, regardless of their spousal or stepchild relationship to a U.S. citizen”.
The court disagreed that the federal government had established an adequate “significant public benefit” to warrant the issuance of parole. The court reasoned that even if each of these potential effects may be considered a “significant public benefit”, in the general sense of the phrase, they are not relevant because they are not benefits that are furthered or created specifically by the issuance of parole. The court explained that because parole under section 212(d)(5) of the INA allows for the lawful entry of an alien into the United States, a “significant public benefit” for the purpose of the parole statute must derive from an alien’s movement into the United States and not merely derive from their change in immigration status. Accordingly, since beneficiaries of this program are already in the United States, the government cannot argue that retroactively granting parole through parole in place will serve any “significant public benefit”.
The court declined, however, to analyze whether the program violated the Take Care Clause of the Constitution; whether the program was “arbitrary or capricious”; whether the rule violated the APA’s notice-and-comment procedure requirements; or whether the program exceeded statutory authority because it circumvents Congress’s requirements for adjustment of status (i.e., green card eligibility) after an illegal entry. The court made this decision because it determined that it was already necessary to vacate the parole in place policy on account of the first issue. Accordingly, further analysis was unnecessary.
How Will the Change in Presidential Administrations Impact this Litigation?
The timing of the district court’s ruling will have a major impact on the Biden-Harris administration’s ability to successfully defend this program. While DHS will file an appeal on this case in the short-term, it is unlikely to be considered by a federal appeals court before the incoming Trump administration takes office on January 20.
That does not necessarily mean this case will disappear. An open-borders advocacy nongovernmental organization (NGO) can also be expected to intervene in the litigation after the Trump administration assumes power. The Trump administration, however, will likely take steps to withdraw the policy and cancel similar parole programs based on the Biden-Harris administration’s “significant public benefit” justifications.
The case is Texas v. DHS, No. 6:24-cv-00306 (E.D. Tex.).