Biden Administration’s “Parole in Place” for Undocumented Spouses Faces Legal Challenge.
In June, the Biden Administration introduced a significant policy change by granting “parole in place” to undocumented immigrant spouses of U.S. citizens. The move, aimed at providing relief to thousands of families, has already sparked a legal battle, with 16 GOP-led states, spearheaded by Texas, filing a lawsuit to challenge the program’s legality. While the outcome of this challenge remains uncertain, it is likely that the case will undergo a prolonged legal process before a final decision is reached.
Overview of the “Parole in Place” Program
The “parole in place” policy was announced by President Biden as a means to offer undocumented immigrant spouses of U.S. citizens a path to temporary legal status. To qualify, individuals must have been in the U.S. for at least 10 years and meet additional criteria. Once granted parole, they will receive a three-year period during which they can obtain work permits and apply for permanent residency or “green card” status. Ultimately, this status could lead to citizenship.
Traditionally, spouses of U.S. citizens are eligible to apply for green cards. However, those who entered the U.S. illegally are often required to leave the country and remain outside for up to ten years before being allowed to return and apply. The new parole program potentially benefits around 500,000 people by allowing them to avoid these stringent requirements. Under Section 245 of the Immigration and Nationality Act, undocumented immigrants who receive parole can have their status adjusted to that of temporary legal residents, bypassing penalties for unlawful entry, including the requirement to leave the country.
Legal Justification and Anticipated Challenges
The Biden Administration’s legal justification for the “parole in place” program is rooted in a federal statute that grants the president the authority to issue parole to non-citizens on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” This same statute was previously invoked by the administration to grant parole to Ukrainian refugees fleeing the Russian invasion and to migrants from Cuba, Nicaragua, Venezuela, and Haiti (“CNVH” countries) suffering from violence and oppression.
In both the CNVH case and the current situation involving undocumented spouses, there is a compelling argument that the parole program serves urgent humanitarian needs. Deporting these individuals or requiring them to leave the country for years before becoming eligible for legal residency would cause significant harm to their families, including children. Additionally, keeping families together is not only beneficial for the individuals involved but also for the broader community.
The GOP-led states challenging the policy are expected to argue that parole should be granted only on a “case-by-case basis” and that the administration’s rules are too broad. This argument was also raised in the CNVH case, where a federal judge ruled that the states lacked standing to sue. That decision is currently on appeal. The administration contends that any case-by-case decision-making must be guided by rules and presumptions, and it is reasonable to presume that families have an urgent humanitarian need to stay together.
Additional Legal Arguments and Potential Outcomes
The plaintiff states have raised additional legal arguments, including the contention that the parole statute only applies to migrants entering the U.S. and not to those already present in the country. The administration counters that the statute’s reference to “entry” pertains to legal status rather than physical presence. Moreover, if this argument were accepted by the courts, it could render the longstanding parole program for spouses of U.S. military servicemembers illegal, as most of them are already in the U.S.
The states also claim that the “parole in place” program violates the Constitution’s Take Care Clause, which requires the president to ensure that laws are faithfully executed. However, if the program is deemed legal, it cannot violate this clause, as the president would be exercising authority granted by Congress. Additionally, the president has considerable discretion in enforcing federal laws, given the vast number of statutes on the books.
Lastly, the states have raised claims under the Administrative Procedure Act, though these are complex legal arguments best addressed by experts in administrative law. If the federal government’s interpretation of the parole statute is correct, these claims are unlikely to succeed.
As in the CNVH case, the issue of standing is also likely to be a factor in this legal battle. The courts may dismiss the case on standing grounds, as was the outcome in the CNVH case. While the author believes states should have broad standing to challenge federal policies, recent court rulings have adopted a narrower view of state standing, which could hinder the plaintiffs’ efforts.
Conclusion
The legal dispute over the “parole in place” program for undocumented immigrant spouses of U.S. citizens is poised to be a lengthy and complex one. Regardless of the district court’s initial ruling, the case is almost certain to be appealed to the U.S. Court of Appeals for the Fifth Circuit and could eventually reach the Supreme Court. The CNVH case has been ongoing for nearly a year, and this case may follow a similar timeline.
Should the legal process drag on, a resolution may only come if a new administration, potentially led by former President Trump, reverses the policy after taking office. While this would eliminate legal uncertainty, it could result in significant harm to many families. The author argues that it is deeply troubling that conservative state governments, which often champion “family values,” are so intent on pursuing policies that could break up families in the context of immigration.