This is an appeal of a district court’s refusal to let potential beneficiaries of the Keeping Families Together (KFT) parole process intervene in a lawsuit brought by 16 states challenging its legality. The KFT process was created by the Biden Administration in August 2024, and it allows certain undocumented immigrant spouses and stepchildren of U.S. citizens to 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. The suing states claim that the KFT process exceeds the statutory parole authority and did not go through required procedures.
One business day after the states (led by Texas) sued, a group of eleven individuals 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. Judge Barker denied that motion a few days later, and the putative intervenors filed their notice of appeal the same day.
As soon as this appeal was docketed, the would-be intervenors filed a motion asking the Court of Appeals to expedite this appeal, given the current schedule at the district court; that motion was granted (over Texas’s opposition). The parties will conclude briefing on this appeal by September 16, 2024.
On September 11, 2024, the Fifth Circuit set this appeal for oral argument on October 10, 2024 in New Orleans and, a few minutes later, issued an order administratively staying (pausing) the district court proceedings “pending a decision on the merits [of the intervention appeal] or further order of this court.” In that same order, the Fifth Circuit also extended the district court’s “administrative stay” of the KFT process “pending further order of this court” (i.e., indefinitely).
On September 19, the intervenors and the federal defendants each filed a motion asking the Fifth Circuit to vacate its extension of the district court’s “administrative stay,” arguing that it was substantively and procedurally improver for the district court to issue it and even less appropriate for the Court of Appeals to extend it.
Hours after the final brief regarding the motions to vacate were filed on October 4, 2024, the Fifth Circuit issued an unpublished opinion affirming 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.”
technical summary
The suing states claim that the KFT process exceeds the statutory parole authority (8 U.S.C. § 1182(d)(5)) because it allegedly: (1) violates the requirement that parole only be granted for “urgent humanitarian reasons or significant public benefit”; (2) violates the requirement that parole be granted on a “case-by-case” basis; (3) violates the statute by granting parole to individuals already in the country; (4) violates the requirement that parole be “temporar[y]”; and (5) is designed to circumvent other INA provisions regarding inadmissibility and adjustment of status. They additionally allege that the KFT process is arbitrary and capricious, should have gone through notice-and-comment, failed to comply with the Paperwork Reduction Act, and violates the Take Care Clause.
Texas filed the Tyler Division of the Eastern District of Texas, where they had a 50% chance of drawing Judge Barker and 50% chance of drawing Judge Kernodle, both Trump appointees.
The unpublished opinion affirming the denial of intervention was per curiam.
Latest Updates
Full Timeline and Documents
- 09/16/2024
- 09/12/2024
- 09/07/2024
- 09/05/2024Appeal Docketed
