Immigrant families file motion to defend Biden program as Republican states sue

A group of undocumented immigrants and their families is seeking to intervene in federal court to defend a new Biden administration program from a lawsuit by 16 Republican-led states. 

The program, which the White House named Keeping Families Together, offers a form of legal relief known as “parole in place” to an estimated half-million undocumented spouses of U.S. citizens, allowing them to more easily apply for permanent residency and citizenship. The Republican states, led by Texas Attorney General Ken Paxton, filed a lawsuit Friday seeking to end the program.

In response, six undocumented immigrants who stand to benefit from parole in place, alongside their U.S. citizen spouses, filed a motion Monday seeking to join the government in defending the program in federal court. 

“It’s just absurd to me why Texas would bring a lawsuit that would literally tear my family apart,” said Foday Turay, one of the immigrants seeking to intervene in the case. Turay was brought to the U.S. as a child from Sierra Leone, where his family escaped a civil war. He is now a lawyer working as a prosecutor for the Philadelphia district attorney. He is married to an American citizen from New Jersey, with whom he has a 1-year-old son. 

“I’ve been waiting for over a decade for a program like this,” Turay said. “Living in a country where you’ve been paying taxes for years, and yet you have to face the constant fear of being torn from your family and your community — when is that fear going to stop?” 

Undocumented immigrants married to U.S. citizens can apply to legalize their status, but they typically have to leave the country first, risking yearslong or even permanent separation from their families. For that reason, many choose to remain undocumented. The parole in place program allows them to apply for a green card and eventually citizenship without leaving the country. 

Applicants must prove they have lived continuously in the U.S. for 10 years and were married to an American citizen before the program was announced on June 17. They must also pass a criminal background check — felonies are disqualifying, as are a number of other crimes, such as domestic violence and most drug offenses. 

In announcing its lawsuit, the office of the Texas attorney general said the parole in place program “directly violates the laws created by Congress.”

“Under Joe Biden and Kamala Harris, the federal government is actively working to turn the United States into a nation without borders and a country without laws,” Paxton said in a statement. “This [program] violates the constitution and actively worsens the illegal immigration disaster that is hurting Texas and our country.”

The states suing the federal government alongside Texas are Idaho, Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Louisiana, Missouri, North Dakota, Ohio, South Carolina, South Dakota, Tennessee and Wyoming. 

They are assisted in the lawsuit by America First Legal, the group founded by Stephen Miller, who served as senior adviser to then-President Donald Trump and was the architect of many of his administration’s immigration policies. 

“It is brazenly unlawful, a deadly accelerant to the ruinous border invasion, and we will use every lawful tool to stop it," said Miller, who called the program "executive amnesty."

The lawsuit was filed in Tyler, a small city in eastern Texas, in a division of the federal district courts whose two judges were both appointed by Trump. The case was assigned to Judge J. Campbell Barker. 

If Barker grants the motion to intervene, the immigrants and their legal counsel will become directly involved as defendants in the lawsuit. Whereas the federal government will defend the program on behalf of its own agencies, the immigrants and their counsel will defend it on the basis of their own personal interests. 

“If we didn’t intervene, the judge would not have for his consideration the voices or the experiences of the people who are actually standing to benefit from Keeping Families Together parole,” said Esther Sung, legal director of Justice Action Center, which is representing the immigrants alongside Make the Road New York. 

In addition to its potentially transformative effect on the lives of immigrants and their families, the parole in place program could have an impact on some voters in November's election. The pro-immigration group FWD.us estimates that approximately 60,000 people who qualify for the program live in swing states — though they cannot vote, their citizen spouses can. 

But the lawsuit puts the program in immediate jeopardy. Texas and the other states are asking Barker to immediately halt the program while the courts hear the case. 

Arguing over its impact on states

To back up the lawsuit, the 16 Republican attorneys general are asserting that the parole in place program causes irreparable damage to their states, mainly by arguing that undocumented immigrants cost states money in education, health care and other expenses, and that a program like this one will incentivize future unauthorized immigration. 

Sung, the attorney for Justice Action Center, said the group intends to challenge the states’ claim that they will suffer harm as a result of the program. The group successfully pursued a similar legal strategy when it intervened to defend a different Biden administration program that offers parole to certain immigrants from Cuba, Haiti, Nicaragua and Venezuela. In March, a Trump-appointed judge dismissed a challenge to the program brought by Texas on similar grounds.

The question of whether undocumented immigrants produce a net fiscal cost or benefit is controversial, with different analysts reaching different conclusions often falling along ideological lines. 

But Turay says he and the other immigrants who qualify for parole in place tend to be taxpayers who are well established in their communities, given the program’s requirement that applicants have lived in the country for 10 years. The White House estimates applicants have lived in the U.S. for an average of more than 20 years. 

Turay himself is largely relying on tax receipts to prove his residence. “Most of the people who are applying, we’ve been paying taxes for years — on mortgages, on wages,” he said. “That’s what we’re showing for proof: Ten years of paid taxes.”