Texas v. DHS (KFT Parole) - District Court

This case was only recently filed but already has a complicated history. This a challenge by 16 states (led by Texas and Idaho) to the Keeping Families Together (KFT) process created by the Biden Administration in August 2024, through which certain undocumented immigrant spouses and stepchildren of U.S. citizens can apply for “parole-in-place.” Parole is a statutorily authorized form of temporary permission for a non-citizen to live in the United States; it also can facilitate employment authorization and can make it easier to access immigration benefits for which they are already eligible under existing law. To be considered for KFT (and among other requirements), a U.S. citizen’s spouse must have been continuously physically present in the United States for at least 10 years. The suing states claim that the KFT process exceeds the statutory parole authority and did not go through required procedures. 

The same day they filed suit, the suing states filed a motion requesting that Judge Barker preliminarily block the KFT process while this case proceeds to final judgment. Later that day, the federal government requested a 60-day period of discovery (in which each side can request documents and testimony from the other) into the states’ claimed standing before resolution of the preliminary injunction motion. The next business day, August 26, Judge Barker issued what he called a 14-day “administrative stay” of the KFT process, but which is functionally equivalent to a temporary restraining order.

The next business day after the states sued, a group of 11 individuals who could benefit from KFT and the Coalition for Humane Immigrant Rights (CHIRLA), on behalf of its members, filed a motion requesting that Judge Barker permit them to intervene in the lawsuit as defendants, so that they can defend the legality of the parole programs alongside the federal government defendants. On September 3, 2024, Judge Barker denied that motion. The putative intervenors appealed that decision the same day.

Also on September 3, 2024, the federal government filed a motion to vacate the administrative stay. Without waiting for Texas to respond, Judge Barker denied the motion to vacate the next day, September 4. In the same order, he extended his “administrative stay” for another 14 days (until the end of September 23) and accelerated the schedule even more, such that the entire case may be briefed and argued by September 18, 2024—the date for which the judge set for either oral argument or a bench trial (or potentially both), depending on what is needed (a bench trial would be needed to resolve any factual disputes).

Then on September 11, 2024, the Fifth Circuit issued an order in the intervention appeal staying (pausing) proceedings before Judge Barker during the pendency of that appeal, which it scheduled for oral argument on October 10, 2024 in New Orleans. In that same order, the Fifth Circuit also extended Judge Barker’s administrative stay indefinitely. The Fifth Circuit’s stay of district court proceedings and extension of Judge Barker’s “administrative stay” of the KFT process were sua sponte (meaning no party had requested it). 

On October 4, 2024, the Fifth Circuit affirmed Judge Barker’s denial of the motion to intervene, canceled oral argument on that appeal, and vacated its stay of the district court proceedings and its extension of Judge Barker’s “administrative stay.” Two hours later, Judge Barker re-imposed the “administrative stay” for 30 days–until election day–when he will hold either oral argument, a bench trial, or both.