Red states sue to block spousal citizenship program

TYLER, Texas (CN) — Texas again leads a coalition of 16 Republican-led states in a new lawsuit against the Biden administration to stop a program that grants resident status to spouses of U.S. citizens who are in the United States illegally.

The Keeping Families Together program would allow certain noncitizen spouses and stepchildren of U.S. citizens who had entered the country illegally to stay in the United States and apply to become lawful permanent residents, using a process called Parole in Place. U.S. Citizenship and Immigration Services would examine each application on a case-by-case basis, and weigh them based on “urgent humanitarian or significant public benefit reasons” as well as strict eligibility requirements.

In the lawsuit, filed Friday in the Eastern District of Texas, the states take issue with the Parole in Place program and accuse the Biden administration of exceeding its statutory authority, taking an arbitrary and capricious action, failing to provide sufficient time and notice for public comment on the program, and violating the take care clause of the U.S. Constitution, which requires the executive branch to “take care that the laws [passed by Congress] be faithfully executed.” They want the court to block the program.

“Even if the government’s understanding of ‘urgent humanitarian reasons’ or ‘significant public benefit’ were accurate (it is not), the PIP program is also not in accordance with law and exceeds the defendants’ statutory parole authority under 8 U.S.C. § 1182(d)(5) because it fails to satisfy the ‘case-by-case’ requirement," the states say in the lawsuit.

“The PIP program is designed to circumvent the statutory requirements that unlawfully present aliens may not adjust their status within the United States but must instead depart and apply for an immigrant visa at a U.S. embassy or consulate overseas,” the states add.

The states also point to the major questions doctrine as a reason to block the Parole in Place program. A November 2022 congressional report outlining the doctrine states that “in a number of decisions, the Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear congressional authorization.”

The states claim they will suffer irreparable economic harm from Parole in Place. They estimate how many noncitizens in each state are eligible for the program, citing figures from the nonpartisan Migration Policy Institute, and use spending figures from different state public services agencies to estimate the increased burden the program will put on the states.

They also cite the Federation for American Immigration Reform, a conservative think tank that the Southern Poverty Law Center has designated as an anti-immigrant hate group, on figures of how much the total illegal noncitizen population costs each state per year.

The case is the latest in the ongoing political fight over immigration that is set to be a key element of the presidential election in November, in which Texas Attorney General Ken Paxton is a major player for the GOP. While Paxton saw his efforts this year to shut down an El Paso migrant shelter stymied, he has numerous lawsuits against the Biden administration over immigration and many other policies pending.

Three attorneys from the highly conservative America First Legal Foundation, founded by former President Donald Trump’s adviser Stephen Miller, join the states in bringing the lawsuit. Miller has been labeled by the Southern Poverty Law Center as an extremist for his anti-immigrant rhetoric and policies, though his foundation has not received a similar label. He was a key force behind several policies during the Trump administration that sought to limit immigration, from the family separation policy and the Muslim travel ban to ending the Deferred Action for Childhood Arrivals program.

The case has been assigned to U.S. District Judge J. Campbell Barker, a Trump appointee. In his five years on the bench, Barker has ruled against the federal government on at least two major policies. In February 2021, he struck down the CDC’s Covid-19 eviction moratorium, and in March 2024 he vacated the National Labor Relations Board’s joint-employer rule.

Other states in Friday’s lawsuit include Idaho, Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Louisiana, Missouri, North Dakota, Ohio, South Carolina, South Dakota, Tennessee and Wyoming.