In June, the Biden administration granted “parole” to illegal immigrant spouses of U.S. citizens. Predictably, 16 GOP-controlled states, led by Texas, have filed suit challenging the legality of the program. I think the suit should fail. But there could well be a lengthy legal battle ahead before the case is resolved.
Here is my brief summary of the parole program (written at the time of its announcement):
Today, President Biden announced a policy that would grant “parole” to spouses of undocumented U.S. citizens who have lived in the U.S. for at least 10 years and meet some other criteria. Those eligible can apply for parole. If granted, they will have three years of work authorization and can apply for permanent residency (a green card) (this status will also eventually allow them to apply for citizenship). Currently, spouses of U.S. citizens can already apply for a green card, but if they entered the U.S. illegally, they must 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.
Parole will allow them to be exempt from these requirements. Under Section 245 of the Immigration and Nationality Act, illegal immigrants granted parole can convert their status to that of temporary legal resident. This conversion would eliminate several penalties for illegal entry, including the requirement to leave the United States for an extended period of time before applying for a green card.
And here is my summary of why the program is legal (in which I anticipate many of the plaintiff states’ key legal arguments):
The relevant law gives the president the authority to grant parole to non-citizens “on a case-by-case basis for urgent humanitarian reasons or significant public benefit,” allowing them temporary legal residence.
This is the same law that Biden previously used to grant parole to Ukrainians fleeing the Russian invasion of their country, as well as migrants from four Latin American countries (Cuba, Nicaragua, Venezuela and Haiti, the “CNVH” countries) plagued by repression and violence. A coalition of twenty Republican states filed suit challenging the legality of the CNVH program. In March, Federal District Judge Drew Tipton (a conservative Trump-appointed judge whose court the states chose because they expected him to be sympathetic to their cause) ruled that the states did not have standing to bring the case. That ruling is now being appealed.
As in CNVH, there is a strong argument that parole for spouses of U.S. citizens is supported by “pressing humanitarian reasons.” Deporting such people (or requiring them to leave the country for many years to obtain legal residency) causes serious harm to their families, many of whom include children. There is also a strong argument that such parole provides “significant public benefit.” As noted, keeping families intact benefits the larger community as much as the families themselves. Again, don’t take my word for it! Take the word 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 likely focus on the requirement that parole can only be granted on a case-by-case basis, claiming that the government’s rules are too categorical (Update: they actually emphasize this point). This issue came up in the CNVH case, and I covered it in detail in my amicus curiae brief in that case (filed on behalf of the Cato Institute and MedGlobal, as well as on my own behalf) (pp. 11-20). I think most of the points made there apply to parole for citizens’ spouses as well. I summarize the key points in a September 2023 article in the hill:
(J)e individual decisions must be guided by rules and assumptions if they are not to be completely random and arbitrary. And it is entirely reasonable to assume that migrants from countries with terribly oppressive governments, widespread violence and economic crisis are in urgent need of humanitarian assistance…
Similarly, it is reasonable to assume that there is an ‘urgent humanitarian need’ for families to stay together and that their cohesion represents a significant public benefit.
It is worth noting that parole has been used since 2007 to protect the spouses of U.S. soldiers from deportation (a policy introduced by the administration of Republican President George W. Bush). This policy, too, is based on general rules and assumptions: that keeping soldiers’ families together is a humanitarian imperative and that doing so brings significant public benefits.
The plaintiff states make a couple of arguments I wasn’t expecting. They point out that the Parole Act empowers the executive branch to release migrants on parole “into” the United States and therefore, they claim, does not apply to those already in the U.S. The answer is that the phrase “into the United States” in context refers to the legal status of the migrants’ entry, not their mere physical presence. Furthermore, if the courts accept this argument, it would mean that the long-standing parole program for spouses of U.S. service members is also illegal (almost all of those spouses are also physically present in the U.S.).
The states also claim that the local parole program violates the Constitution’s Take Care Clause, which requires the president to “See that the laws are faithfully executed.” But if the program is otherwise legal, it cannot possibly violate the Take Care Clause, because by implementing it the president would not be disregarding enforcement of binding federal laws. On the contrary, he would be exercising the authority duly granted to him by Congress. Moreover, given the enormous volume of federal laws, it is impossible for presidents to enforce them all against every violator, and they must necessarily have considerable discretion in deciding which violations of the law should be prosecuted and which should go unpunished.
The states also make various claims under the Administrative Procedure Act. I’ll leave that to the administrative law experts. However, I’m skeptical that any of those arguments can succeed if the federal government’s (and my) interpretation of the Parole Act is correct.
Finally, like the CNVH case mentioned above, this case raises questions about standing. Courts could ultimately dismiss this case on standing grounds, as the district court did in the CNVH case. In my view, states should have broad standing to challenge federal policies, including those that I believe should be upheld on the merits (as should be the case here). In recent years, however, federal courts—including the Supreme Court—have developed a much narrower interpretation of states’ standing, and that could cause states to fail in this case.
Whatever happens, this issue could take many months to resolve. Whoever loses in district court will almost certainly appeal to the U.S. Court of Appeals for the Fifth Circuit. The case could even end up in the Supreme Court at some point. The CNVH case has been dragging on for nearly a year now, and this case could take at least as long. A quick resolution is only likely if Trump wins the election, and then he would almost certainly repeal the policy soon after taking office.
If that happens, it would remove legal uncertainty, but at the cost of a grave injustice. I discussed the moral concerns raised by this policy in more detail in my previous post. Legal issues aside, it is deeply reprehensible that conservative state governments that claim to be committed to “family values” are so intent on tearing families apart when it comes to immigration issues.
