In a major legal development, a federal judge in Texas has temporarily approved the Biden administration’s Keeping Families Together (KFT) program, effectively suspending the program designed to provide U.S. citizens with visas and follow-up services for noncitizens. Just days earlier, 16 states led by Texas Attorney General Ken Paxton filed a lawsuit challenging the legality of the KFT program.
The judge’s order, issued on August 26, 2024, prohibits the Department of Homeland Security (DHS) from approving any parole applications under the new program, but the agency is still allowing them to be accepted. The purpose of this temporary stay is to give the court more time to review the substance of the states’ lawsuit challenging the suspension.
Background of the case
The lawsuit was launched shortly after DHS began accepting applications for KFT, a program designed to provide some noncitizen family members of U.S. citizens with an opportunity to reside in the United States through the parole process. The program specifically targets people who have lived in the United States for a long time, providing these people with a potential path to legal status.
The states that filed the lawsuit argue that the KFT program exceeds the authority of the bankruptcy and violates the Administrative Procedure Act (APA) and the U.S. Constitution. Their complaint also includes a temporary restraining order, or preliminary motion, seeking to end the nationwide operation of the KFT program.
The judge’s ruling and its impact
Immediately issuing judge J. Campbell Barker said the states’ arguments raise some pretty serious questions that warrant deeper judicial scrutiny. Judge Barker, a former deputy attorney general for Texas, noted that the parole statute — Section 212(d)(5) of the Immigration and Nationality Act — was originally intended for aliens entering the United States, not for those already living there. This interpretation calls into question the legality of the KFT program, which evaluates individuals who have lived in the United States for years.
Judge Barker also said in his ruling that he is concerned that the Department of Homeland Security may not emphasize the “substantial public interest” of the KFT program as a whole, rather than evaluating each applicant’s case on a case-by-case basis. The court’s decision to suspend the program has fueled concerns about the desire for a future similar to that of mixed-status families.
Impact on mixed-status families
The immediate impact of the final ruling is significant, especially for a small number of mixed-status families who were not sure that the collapse of the KFT program would provide them with a clearer path to legal stability. For now, the families are still willing to wait for the legal process to unfold.
Larissa Leibman, an attorney with the Animal Legal Defense Fund who has been following the case closely, called the sanctions ruling a “devastating blow” to families who have lived in the United States for many years and are important members of the community. “This temporary injunction blocks a program that could have brought much-needed wealth to countless families. The court’s decision to block the program, even temporarily, leaves these families in a difficult position,” Leibman said.
See also: Biden immigration plan kicks off application process
Legal challenges and standing
The central question in the case is whether the states that filed the lawsuit have legal standing to challenge the KFT program. Italy filed the lawsuit in federal court, where plaintiffs must prove that they suffered specific injuries directly related to the defense and that the court can provide a favorable measure for the injury.
In the case, the states argued that the KFT program encouraged states to cross the border illegally, resulting in increased state spending on public services such as education, health care and law enforcement. However, critics of the prosecution, including the Department of Justice (DOJ), believe that the states’ claims are more tenable. They also argue that the KFT program only applies to individuals who have lived in the United States for at least 10 years, which makes the states’ claims that they encourage illegal immigration even more untenable.
As the case progresses, the question of standing is likely to come into focus. Preliminary reviews have dismissed several high-profile immigration cases on the grounds of standing, and it remains to be seen whether the states’ arguments stand up to rigorous scrutiny.
What’s Next?
As the case progresses, the parties will conduct an expedited inquiry into whether the defendant plaintiff’s state can prove that it has standing to sue. The court also allowed a limited inquiry into whether the states’ claims of damages are supported by evidence.
In addition to the legal fight over standing, the court considered motions to intervene filed by 11 travel agents and one legal services agent. These foreign interveners included people living in the United States, U.S. citizen warriors with serious medical conditions who are considering reasons for their lives, and small business owners who are concerned that their families may be broken up if the KFT program is permanently blocked.
The case will proceed on an expedited schedule, with the parties expected to complete their final briefs by October 10, 2024. Depending on the outcome, the case could move to a fifth hearing in the Amplified Court or even the United States.
For now, the fate of the Keep Families Together program remains undecided. The legal battle in Texas will determine whether the program can move forward or be struck down as overreaching federal power. As the case unfolds, domestic status families across the country are waiting, hoping for a hybrid solution that would allow them to reunite and continue living in the United States.