Judge Grants Texas’ Request to Keep Families Apart, At Least For Now

A mere three days after 16 Republican-led states sued the Biden administration over its “Keeping Families Together” parole process, a federal judge in Texas handed the plaintiffs a temporary “administrative stay,” ordering the federal government to stop granting any applications under the new process while the lawsuit proceeds.  

The judge’s order, which allows the U.S. Department of Homeland Security (DHS) to keep accepting applications but not granting them, was issued before the federal government had a chance to respond to the challenger states’ motion for preliminary relief. 

Texas Attorney General Ken Paxton and 15 other states, with an assist from Stephen Miller’s group America First Legal, filed the lawsuit less than a week after DHS started accepting applications for “parole in place” under the recently-announced process. The Keeping Families Together – or KFT – initiative gives certain noncitizen spouses and stepchildren of U.S citizens the chance to seek parole after lengthy residence in the country.  

The plaintiff states argue that the parole process is unlawful because it exceeds the government’s statutory authority and violates the Administrative Procedures Act (APA) and the Constitution. Along with their complaint, the states filed a motion for a temporary restraining order or preliminary injunction that asked the district court to vacate the KFT process, declare it unlawful, and end its implementation nationwide.  

What did the judge rule? 

Judge J. Campbell Barker imposed a temporary—but renewable—stay of the parole process for 14 days beginning August 26, 2024. Notably, before Judge Barker joined the bench in 2019, he was Deputy Solicitor General in Texas Attorney General Ken Paxton’s office, where he brought litigation against DACA and DAPA. He is one of only two judges in the Tyler Division of the Eastern District of Texas, both appointed by former President Trump, where the states chose to bring their suit.  

Judge Barker said that upon “first blush,” the states’ claims were “substantial and warrant closer consideration.” He highlighted the argument that the parole statute, INA § 212(d)(5), only applies to noncitizens trying to come “into” the United States. But “parole in place” for people already here has been used by DHS for years, including for undocumented family members of people serving in the U.S. military. Congress indicated its support for that program as recently as 2020, reaffirming the “importance of the parole in place authority of” DHS in the 2020 National Defense Authorization Act.

The court also flagged the states’ argument that DHS improperly focused on the “significant public benefit” of the process itself instead of whether a specific applicant’s lawful presence in the country would benefit the public.  

But that puts the cart before the horse: indeed, applicants for the Keeping Families Together process must explain why they specifically merit parole for “urgent humanitarian reasons” or how a grant in their case would benefit the public. And immigration officers adjudicating the applications are required to consider those same factors on a case-by-case basis before granting parole to any individual applicant.  

Judge Barker’s order has the effect of pausing KFT. DHS cannot grant any pending applications while the stay is in place. The judge did set the case on an expedited schedule, consolidating the preliminary injunction and ultimate merits of the case and ordering the parties to complete briefing by October 10.  

The court also allowed for limited discovery to permit the federal government to probe whether the red states have standing to bring the lawsuit.  

Can states bring this lawsuit at all?  

Whether plaintiffs have standing to bring a lawsuit in federal court is a notoriously complex inquiry. But here, the states’ claimed basis to challenge the KFT process is particularly tenuous.  

Standing requires both concrete injury and redressability – the harm cannot be general or speculative, and a court must be able to order relief that actually prevents that specific harm. The Supreme Court has dismissed several high-profile immigration cases on standing grounds in recent years, including Texas and Louisiana’s challenge to President Biden’s immigration enforcement priorities.  

In this case, Texas and the other states argue that the new parole process incentivizes irregular border crossings. The crux of their claimed injury? Additional state spending on services to paroled and undocumented noncitizens, including education, healthcare, and law enforcement because of increased crime.  

But the states’ theory of standing not only lacks specifics, it relies on many unsupported conjectures and assumptions. It also revives the widely-debunked myth about noncitizens and crime and rests on discriminatory motives.     

As DOJ pointed out in its motion for expedited discovery on standing, this is a song Texas and other plaintiff states have sung before – about very different immigration programs, with mixed success. Here, they claim that the parole in place process encourages undocumented noncitizens to remain in the country. But this injury is highly dubious, in part because the parole process is only open to people who resided in the country for at least 10 years before the program was even announced.  

Some federal courts in Texas have rejected similar theories of standing in recent cases. Earlier this year, a federal judge in the Southern District of Texas ruled in favor of the federal government in a lawsuit brought by Texas and 20 other states against the administration’s parole program for Cuban, Haitian, Nicaraguan, and Venezuelan nationals, finding the states lacked standing. 

What’s next?   

The next steps in the case – including whether and when any appeals to the Fifth Circuit Court of Appeals or the Supreme Court will take place – remain to be seen. For now, the parties will engage in discovery about whether the states can prove standing and likely argue about whether the district court should extend the administrative stay of KFT.  

The district court will also rule on a motion to intervene brought by 11 impacted individuals and a legal service provider. The proposed intervenors include people who came to the United States as infants and toddlers, people caring for U.S. citizen spouses with serious illnesses, and small business owners – all with families in this country who depend on them. 

While all this plays out, the hundreds of thousands of mixed status families who hoped this process would bring them some certainty—and a slightly easier path to staying together—will have to keep waiting. 

FILED UNDER: mixed status families