The Volokh Conspiracy
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16 Red States File Lawsuit Challenging Biden "Parole in Place" Program for Undocumented Immigrant Spouses of US Citizens
The lawsuit deserves to lose. But it may well lead to a prolonged legal battle.
In June, the Biden Administration granted "parole in place" to undocumented immigrant spouses of US citizens. Predictably, 16 GOP-controlled states led by Texas have filed a lawsuit challenging the legality of the program. I think the lawsuit deserves to fail. But there may well be a lengthy legal battle before the case is resolved.
Here's my brief summary of the parole in place program (written at the time it was announced):
Today, President Biden announced a policy granting "parole in place" to undocumented immigrant spouses of US citizens who have been in the US for at least 10 years, and meet some other criteria. Those eligible can apply for parole status. If they get it, they will then have a three-year period during which they will have work permits and can apply for "green card" permanent residency (that status will eventually also enable them to apply for citizenship). Currently spouses of US citizens are already eligible to apply for green cards. But if they entered the US illegally, they are required to meet onerous conditions, such as first leaving the United States, and staying away for up to ten years. About 500,000 people could potentially benefit from the program.
The grant of parole will enable them to dispense with these requirements. Under Section 245 of the Immigration and Nationality Act, undocumented immigrants who have been granted parole may have their status adjusted to that of temporary legal residents. That adjustment would dispense with various penalties for unlawful entry, including the requirement to leave the US for a long period of time before applying for a green card.
And here's my summary of why the program is legal (which anticipated many of the key legal arguments raised by the plaintiff states):
The relevant statute gives the president the power to grant parole entitling non-citizens to temporary legal residence, "on a case-by-case basis for urgent humanitarian reasons or significant public benefit."
This is the same statute under which Biden earlier granted parole to Ukrainians fleeing the Russian invasion of their country, and to migrants from four Latin American nations (Cuba, Nicaragua, Venezuela, and Haiti, the "CNVH" countries) wracked by oppression and violence. A coalition of twenty red state governments filed a lawsuit challenging the legality of the CNVH program. In March, federal District Judge Drew Tipton (a conservative Trump appointee whose court the states picked because they expected him to be sympathetic to their cause) ruled the states lacked standing to bring the case. That ruling is now on appeal.
As in the CNVH case, there is a strong argument that parole for spouses of US citizens is backed by "urgent humanitarian reasons." Deporting such people (or requiring them to leave the country for many years to become eligible for legal residency) inflicts serious harm on their families, including many children. There is also a strong case that this grant of parole creates "significant public benefit." As already noted, keeping families intact benefits the larger community, as well as the families themselves. Again, don't take my word for it! Take that of pro-family social conservatives (as well as many social scientists across the political spectrum).
If, as is likely, conservative red states challenge the new policy in court, they will probably focus on the requirement that parole only be granted on a "case-by-case basis and claim that the administration's rules are too categorical [update: they do indeed emphasize this point]. This issue has come up in the CNVH case, and I addressed it in some detail in my amicus brief in that case (filed on behalf of the Cato Institute and MedGlobal, as well as myself) (pp. 11-20). I think most of the points made there apply to parole for spouses of citizens, as well. I summarize the most important points in a September 2023 article in the Hill:
[A]ny case-by-case decision-making must be guided by rules and presumptions, if it is not to be completely random and arbitrary. And it is entirely reasonable to presume that migrants from nations with horrifically oppressive governments, widespread violence and economic crisis, have urgent humanitarian needs….
Similarly, it is reasonable to presume that families have an "urgent humanitarian need" to stay together, and that keeping them together is a significant public benefit.
It is worth noting that parole in place has been used since 2007 to protect spouses of US military servicemembers from deportation (a policy begun by administration of Republican President George W. Bush). That policy, too, relies on general rules and presumptions: that keeping servicemembers' families intact is a humanitarian imperative, and that it creates significant public benefits.
The plaintiff states do make a couple arguments I didn't anticipate. They note that the the the parole statute empowers the executive branch to parole migrants "into" the United States, and thus - they contend - cannot apply to those already in the US. The answer to this is that, in context, the phrase "into the United States" refers to the legal status of the of the migrants' entry, not mere physical presence. Moreover, if the courts accept this argument, it would mean the longstanding parole program for spouses of US servicemembers is also illegal (almost all of these spouses are physically present i the US, as well).
The states also contend that the parole-in-place program violates the Take Care Clause of the Constitution, which requires the president to "take Care that the Laws be faithfully executed." But if the program is otherwise legal, it can't possibly violate the Take Care Clause, because the president would not be failing to enforce any binding federal laws by implementing it. To the contrary, he would be exercising authority duly granted by Congress. Moreover, given the vast quantity of federal laws, presidents cannot possibly enforce them all against every violator and thus much necessarily exercise substantial discretion in deciding which violations to to target, and which to let go.
The states also raise various claims under the Administrative Procedure Act. I will leave this to experts on administrative law. But I am skeptical any of these arguments can succeed if the federal government's (and my) interpretation of the parole statute is correct.
Finally, this case, like the CNVH case noted above, raises standing issues. Courts might end up dismissing this case on standing grounds, just as the district court in the CNVH case did. My own view is that states should have broad standing to challenge federal policies, including those that I believe should be upheld on the merits (like this one should be). But in recent years, federal courts - including the Supreme Court - have taken a significantly narrower view of state standing, and that might end up foiling the states in this case.
Whatever happens, it may well take many months to resolve this issue. Whoever loses in the district court will almost certainly appeal to the US Court of Appeals for the Fifth Circuit. The case could even eventually land in the Supreme Court. The CNVH case has dragged on for almost a year now, and this one could also take at least that long. A quick resolution is only likely if Trump wins the election, at which point he would almost certainly revoke the policy soon after taking office.
If that happens, it would resolve legal uncertainty, but at the cost of perpetrating a grave injustice. I discussed the moral considerations raised by this policy in more detail in my previous post about it. Legal issues aside, it is deeply reprehensible that conservative state governments that claim to be committed to "family values" are so intent on breaking up families when it comes to immigration issues.
