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After initially blocking in August the Biden administration’s recent move to reunite the families of some Americans with spouses in the country illegally, a federal judge in Texas last week issued a final ruling ending the parole process completely. I put it down. Justice J. Campbell Barker said the entire concept of “prescribed parole,” a practice used by various governments for years to grant parole to noncitizens already resident in the United States, ) was determined to be unlicensed. ).
The court’s order came in a lawsuit filed by Texas Attorney General Ken Paxton and 15 other Republican-led states with co-advisors from the right-wing group America First Legal. The plaintiffs filed their lawsuit less than a week after DHS began accepting applications under the parole process. The Keeping Families Together (KFT) initiative gives certain noncitizen spouses of U.S. citizens the opportunity to seek parole under INA § 212(d)(5) after residing in the United States for at least 10 years. It would have been. Unmarried stepchildren of U.S. citizens who were under 21 at the time the program was announced are also eligible.
In less than three months, district courts have issued several “administrative stays” of the program, preventing the Department of Homeland Security (DHS) from adjudicating any parole applications. While the case was pending, the court denied requests by affected individuals to intervene. Permitted a limited inquiry into whether the parties had standing in Texas. It then held a consolidated bench trial and hearing lasting less than three hours on each state’s request for a preliminary injunction. In October, the 5th Circuit Court of Appeals took a similar opinion, agreeing that there was no need to allow those actually affected by KFT to intervene in the case.
The district court’s decision invalidating the rules that created KFT immediately ends this effort and applies nationwide. The decision was made the day after Donald Trump’s election was declared. This means that no matter what decisions the current administration makes, this process is unlikely to be reversed.
What decision did the judge make?
The plaintiff’s ability to bring this suit in the first place was a major issue in this case. Sixteen states presented evidence only regarding Texas’ position. All of the injuries claimed in Texas involved speculation about costs to the state resulting from possible future actions of noncitizens who might be granted parole through the KFT process.
Specifically, the plaintiffs argued that Texas noncitizens who are granted parole become eligible for state-administered benefits. Also, some non-citizens would remain in Texas and access educational and health care services, leaving the state without a parole process, thereby increasing costs for the state.
Although the judge acknowledged that the plaintiffs faced a “substantially more difficult” test because they relied on mere predictions about the choices of a third party (applicants for parole proceedings), the The state found that he had demonstrated the necessary elements for candidacy. Whether this decision (based entirely on written declarations) will survive appeal is highly debatable. But given the impending 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 KFT’s proceedings were not authorized by the INA. The judge held that both Section 212(d)(5) of the Parole Act and Section 245(a) of the Status Adjustment Act only allow administrative authorities to parole noncitizens “to the United States.” The court found that under these provisions, there is no room for parole to be granted to people who have already entered the United States; parole can only be granted to people who physically enter the United States.
However, the court noted that Congress created certain statutory exceptions to INA § 245(a)’s requirement that noncitizens be “paroled” into the United States. Perhaps Judge Barker acknowledged that the 2020 National Defense Authorization Act could be interpreted to grant parole, keeping in mind the established practice of granting parole to family members of undocumented U.S. military personnel. However, this was limited to “a limited class.” Military families explicitly mentioned by Congress there.
What’s next?
Given the timing of the Biden administration’s introduction of KFT, the district court ruling, and the election, it is almost certain that DHS will not be able to restart the KFT program. If the circumstances were different, DHS would likely appeal the judge’s order to the Fifth Circuit and then to the Supreme Court. The White House said it is considering next steps. However, given the incoming administration’s plans to curtail all forms of parole, it would likely be futile to embark on a lengthy appeals process over the legality of this initiative.
And despite the plaintiff states’ claims and the judge’s findings, it is Americans, including hundreds of thousands of disparate families and their communities, who will bear the painful costs of not proceeding with parole.
Filed under: Immigrant Families in Texas
