Last week, we wrote that the Biden administration’s “Parole in Place” program had gone into effect to prevent blended families made of a U.S. citizen and foreign national from having to split up for years while the foreign national waits in his or her home country for permanent resident status to be granted. Since then, a lot has happened.
Predictably, Texas and 15 other Republican-led states including Louisiana sued the Biden administration to stop the program from going into place. Texas Attorney General Ken Paxton calls it “unconstitutional,” challenges the Department of Homeland Security’s right to use parole in this way, and claims the program will “incentivize illegal immigration and will irreparably harm the Plaintiff states,” according to the court filing.
A White House spokesperson responded, "Republican elected officials continue to demonstrate that they are more focused on playing politics than helping American families or fixing our broken immigration system. This lawsuit is seeking to force U.S. citizens and their families, people who have lived in the United States for more than ten years, to continue to live in the shadows.”
Paxton filed in a reliably conservative district in Texas where the Trump-appointed judge J. Campbell Barker temporarily halted processing of Parole in Place applications. “The claims are substantial and warrant closer consideration than the court has been able to afford to date,” he said in a written statement.
DHS can continue to receive applications, but it can’t process them. Barker set a deadline of October 10 for lawyers to file arguments.
Married spouses eligible for Parole in Place have to have lived in the U.S. for more than 10 years, have been legally married as of June 17, 2024, have avoided any disqualifying criminal offense, and not pose a threat to national security or public safety. That means they’ll have to go through a serious screening process to get Parole in Place status. That makes the suit sound more like politics than a genuine act on behalf of public safety.
The argument against Parole in Place is a cynical one. There is no question that the administration has the power to use parole in the immigration arena, and Biden has done so on behalf of Ukrainians fleeing the Russian invasion and migrants facing oppression and violence in Cuba, Nicaragua, Venezuela and Haiti. In March, a Trump-appointed judge ruled against a similar coalition of Republican-led states when they sued to stop the latter parole, saying that they lacked standing because they couldn’t show how they had been damaged by the parole.
That standing question will continue to be a problem for the states here because the program is designed to help families that are rooted and have established lives in their communities. It will be hard to show how the states will be harmed by the parole recipients’ continued presence. Unfortunately, the outcome will almost certainly be appealed to the Fifth Circuit Court of Appeals in New Orleans, which The New York Times recently identified as “a proving ground for some of the most aggressive conservative arguments in American law.” That means Parole in Place could well end up going to the Supreme Court.
The argument isn’t only cynical in its effort to assert harm that the states have yet to be able to show—and as we have written about before, tried to twist arms to get—but it’s contradictory. It’s hard to assert that Biden has the discretion to unilaterally change conditions at the southern border but that he doesn’t have the parole discretion he utilizes in Parole in Place. It’s also hard to claim to be pro-family and fight a program that helps keep families together.
If you think you or someone you know might qualify for Parole in Place, it’s still a good idea to consult with an experienced immigration attorney who can help evaluate how these changes might affect you.
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