‘Incur concrete harm’: Judge strikes down Biden ‘Keeping Families Together’ immigration policy that allowed spouses, stepchildren of citizens to ‘parole in place’

A federal judge in Texas has struck down a policy aimed at allowing undocumented spouses and stepchildren of U.S. citizens to stay in the country instead of being deported while waiting for green card status.

The so-called “parole in place” policy was announced by President Joe Biden in June, and the “Keeping Families Together” program was implemented on Aug. 19. According to U.S. Citizen and Immigration Services, the purpose was to allow “certain noncitizen spouses and noncitizen stepchildren of U.S. citizens to request parole in place” and avoid deportation. Specifically, it allowed spouses and stepchildren to stay in the U.S. while applying for Legal Permanent Resident (LPR) status, instead of leaving the country and seeking an immigrant visa, waiting for approval — which could potentially take years — in their home country.

Texas — which has a history of fighting Biden’s border policies — along with more than a dozen other states filed a lawsuit within days of the announcement, and on Aug. 26, U.S. District Judge J. Campbell Barker issued an administrative stay blocking enforcement of the policy. On Thursday, Barker made the stay permanent, finding that the Biden administration lacked the legal ability to grant this type of relief to noncitizens.

“The court declares that defendants lack statutory authority under 8 U.S.C. § 1182(d)(5)(A) itself (as opposed to under other provisions modifying or supplementing that authority) to grant parole ‘in place’ to aliens, as that term is used in the final agency action published [on Aug. 20, 2024], or to deem parole ‘in place’ as used there to be parole ‘into the United States’ for purposes of [federal immigration law]. That agency action is hereby set aside and vacated[,]” wrote Barker, a Donald Trump appointee, in a one-page judgment.

In a separate, 74-page memorandum, Barker explained his reasoning.

The judge noted that while the policy didn’t automatically change the qualifying noncitizens’ status — that decision was left to the discretion of Department of Homeland Security officials, who “may” grant such a request — language in the rule itself suggests that such applications would have to essentially be rubber-stamped.

“The Rule then constrains the exercise of that discretion, declaring that granting parole in place to aliens eligible under the Rule’s criteria ‘will achieve’ or ‘will generally provide’ significant public benefits,” Barker wrote, honing in on the difference between “may” and “will” in his interpretation of the rule.

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The judge further found that other provisions of the policy similarly limited DHS officials’ decision-making ability.

“It is not merely a proposed measure,” he wrote. “It states what DHS ‘will begin’ doing.”

The language of the rule, Barker also found, “does not leave DHS personnel free to deny parole requests based on a different view” of relevant immigration law. “Rather, the Rule obligates DHS staff to act on a particular understanding of a legal norm, with direct consequences for whether many aliens obtain immigration relief or not.”

Barker didn’t buy the federal government’s argument that certain “qualifiers” in the language of the policy left officials “free to disagree in specific cases or exercised ‘unfettered’ discretion” to deny a noncitizen’s request.

“[I]t is more likely than not that, as employees of a government agency acting under directions to preserve family unity, agency staff will not read the Rule as allowing them to disregard the agency’s stated conclusion that a ‘significant public benefit’ as [federal law] uses the term includes granting parole in place to aliens meeting the Rule’s family-relationship and other eligibility criteria,” the judge wrote. “At a minimum, the Rule imposes a presumption no less impactful than the presumptions … that certain aliens are eligible for parole.”

Barker also found that requiring DHS staff to use “new forms and process” also “creat[ed] obligations binding them.”

Texas had argued that the policy injured the Lone Star State because the noncitizens’ updated status would allow them to qualify for state-sponsored benefits, such as food assistance through SNAP, as well as costs “incurred based on the continued presence and activities” of noncitizens as well as costs “incurred on account of future immigration into Texas encouraged by a broader message behind the Rule.”

The judge agreed, calling the “increased cost to Texas of administering SNAP for these additional beneficiaries is substantially likely” and would last for years.

“[Keeping Families Together] Rule beneficiaries who entered the country after August 22, 1996, would thus generally become SNAP eligible five years after receiving parole,” the judge wrote. “It is fairly predictable and substantially likely that SNAP benefits will be utilized among that group, as many will have incomes leading to SNAP enrollment even after work authorization (as with Americans generally).”

The judge also found that Texas had successfully shown that qualifying minors would also put an additional strain on the state’s SNAP resources. He also agreed that Texas would “incur concrete harm on account of increased costs of providing educational and healthcare services to that additional alien population.”

The Biden policy provided temporary relief from the threat of deportation to an estimated 500,000 people, NPR reported. Potential applicants under the policy would have to have lived continuously in the U.S. for at least 10 years and not pose a security threat.

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