Federal Court Temporarily Blocks Biden-Harris Parole-in-Place Amnesty Program

FAIR Take | September 2024

On August 26, a federal judge in Texas blocked the Biden-Harris Administration’s new parole-in-place amnesty program. The court order, issued by the U.S. District Court for the Eastern District of Texas, paused the program for an initial 14 days and may be extended. It was the result of a lawsuit brought by Texas and 15 other states challenging the legality of the parole-in-place amnesty program.

The program, dubbed “Keeping Families Together,” grants parole to illegal aliens – and only illegal aliens – who are married to U.S. citizens and have been living in the U.S. for at least 10 years. Upon receiving parole, these aliens are eligible for work permits, Social Security numbers, tax credits, and Obamacare. They may immediately apply for a green card and then obtain citizenship in a mere three years. The program, which only began accepting applications on August 19, was rapidly approving applications—in some cases within 24 hours.

According to DHS estimates, the resulting program would grant quasi-legal status to at least 550,000 illegal aliens. Some estimates, however, have found that there more than 1.3 million illegal aliens presently in the country married to U.S. citizens.

The lawsuit leading to this temporary stay, State Of Texas v. United States Department of Homeland Security, was filed by Texas and 15 other states on August 23. The other states serving as plaintiffs include North Dakota, Iowa, Wyoming, South Carolina, Georgia, Alabama, Louisiana, Ohio, South Dakota, Tennessee, Kansas, Arkansas, Missouri, Florida, and Idaho joined the lawsuit. Together, the states allege that the “Keeping Families Together” program plainly exceeds the parole statute, Section 212(d)(5) of the Immigration and Nationality Act (INA), and violates the Administrative Procedure Act (APA) by failing to allow for the required public comment period. The states allege that they have standing to sue because of the high costs they will incur by granting amnesty to hundreds of thousands of illegal aliens and because the program “represents a total disregard of Congress’s limits on the parole authority.”

Despite being touted by the Biden-Harris Administration as an effort to keep families together, parole-in-place is an entirely invented concept. The parole statute authorizes the government to permit the entry of aliens into the United States for temporary periods of time, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. It was never intended to apply to aliens already residing in the country. Despite that clear meaning, a memorandum issued by the Clinton Administration in 1998 set forth a new interpretation of the parole statute which declared that the government could grant parole to illegal aliens already living in the U.S., not just aliens arriving at the border. It is that flawed interpretation that the Biden-Harris Administration relied on to create this program.

The judicial opinion accompanying the temporary stay outlines many of the same concerns raised by FAIR regarding the illegality of parole-in-place and the abuse of the parole statute more broadly. First, Judge Barker stated that the court needs to analyze “whether parole ‘into’ the United States, 8 U.S.C. § 1182(d)(5)(A), includes entry by aliens who are already in this country, as opposed to at or beyond the border.” Second, Judge Barker noted that granting parole to illegal aliens through the program may constitute a private benefit as opposed to the “significant public benefit” required under the law. While Judge Barker has prohibited approving parole applications during the stay to ensure that illegal aliens do not receive benefits while litigation is ongoing, illegal aliens can continue to submit applications.

Almost immediately after Texas and the other states challenged the parole-in-place program, an open-borders advocacy group, the Coalition for Human Immigrant Rights (CHIRLA), and eleven individuals—some of whom are applicants to the amnesty program—filed a motion to intervene in support of the program. One of those applicants, Ricardo Ocampo Hernandez, stated: “[f]or years we’ve been caught in a cycle of legal challenges and financial strain trying to navigate an immigration system that oftentimes seems designed to keep families like mine in limbo but with this new process there is finally a path that doesn’t involve risking years of separation from my loved ones.” Judge Barker, has not yet ruled on allowing CHIRLA and the other individuals to intervene.

Following the court’s order, several state attorneys general released statements praising the temporary stay. Texas Attorney General Ken Paxton said: “[w]e have temporarily blocked Biden’s unlawful new ‘parole in place’ program, which would have rewarded over 1 million illegal aliens with the opportunity for citizenship after breaking our country’s laws—and incentivized countless more…This is just the first step. We are going to keep fighting for Texas, our country, and the rule of law.” According to Missouri AG Andrew Bailey, they “filed suit to remind the Biden-Harris Administration that they do not have the authority to allow millions of unvetted aliens into our communities. I’m glad the Court recognized that, too.”

The Biden-Harris Administration meanwhile doubled down on the unlawful program. In a statement from the White House, the President claimed, “I am not interested in playing politics with the border or immigration; I am interested in solving problems. Nor am I interested in tearing families apart. That is not who we are as Americans. I will continue to fight to secure our border and fix our broken immigration system.”

Under the Biden-Harris Administration, hundreds of thousands of illegal aliens have been paroled into the country in direct violation of our immigration laws. While utterly failing to secure our borders, the administration has created a shadow immigration system on the back of the parole authority by establishing a host of unlawful programs, a system that it has repeatedly attempted to expand. If this latest, illegal amnesty program is allowed to stand, the Biden-Harris Administration will extend it until all illegal aliens in the country are covered. Congress must enact real policy changes to ensure that American citizens are protected and the administration’s lawless programs are reversed.