This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
On August 19th, the Parole in Place program opened. On August 23rd, ten states filed a lawsuit against the Department of Homeland Security, seeking an injunction to freeze the program and a declaratory judgment that the program is unlawful.
On August 26th, the federal judiciary issued its first reply to the litigants: an administrative stay. The purpose of this advertorial is threefold: First, we’ll explain how this stay will affect current and future Parole in Place applicants; second, we’ll explain the nature of the administrative stay; and third, we’ll offer some guarded predictions about the future of the Parole in Place program.
As a reminder, the Parole in Place program had a particular, and technical, purpose: allowing spouses of U.S. citizens who have been in the country for more than ten years to be ‘admitted’ for immigration purposes without departing the country. (For additional background on program and its eligibility requirements, see our handy ARLnow explainer, here.)
If approved, beneficiaries of the parole in place program would be eligible for work authorization, and, in many cases, to apply for green cards.
The Federal Judge in this case is J. Campbell Barker of the Eastern District of Texas, Tyler Division. Judge Barker was nominated to the bench by President Trump, and is known as a conservative jurist, but it would be wrong to describe him as unqualified or as an ideological pick; Judge Barker graduated first in his class from the University of the Texas School of Law, clerked both at the Federal Circuit and Second Circuit Courts of Appeal, and served as a prosecutor in the Eastern District of Virginia.
While in private practice, Judge Barker served pro bono to defend an asylum applicant, Khagendra Sharma, who had been denied asylum both by the immigration court and the Board of Immigration Appeals; Judge Barker persuaded a panel of the Court of Appeals for the Fifth Circuit that the immigration bureaucracy hadn’t given Mr. Sharma a fair hearing, which is a remarkable achievement both numerically — few immigration cases reach the appellate courts, and fewer still prevail — and politically; the Fifth Circuit is one of the most conservative Courts of Appeal in the United States.
With all of that said, it is no accident that the plaintiffs have their case before Judge Barker — it’s a matter of geographic gamesmanship. Federal litigation is assigned randomly to a judge who sits within the filing district. There are just two judges who sit in the Tyler, Texas district — Judge J. Campbell Barker, and Judge Jeremy Kernodle, also a Trump appointee of a similar age and a similar political background. The plaintiffs doubtless filed there because they believed, rightly or wrongly, that they would receive a sympathetic hearing.
In a rapidly written opinion, Judge Barker stayed the Parole in Place program for fourteen days. He set an extremely rapid schedule for motions practice — which we’ll excerpt, here, for the benefit of any litigators in the audience:
- August 28, 2024 — Deadline to file any motions related to venue or forum.
- August 30, 2024 — Deadline to respond to any such motion.
- September 2, 2024 — Deadline to reply on any such motion.
(August 30th is a Friday and September 2nd is a Monday. Enjoy your weekend, litigators!)
Judge Barker’s opinion also dispenses with initial disclosures and most fact discovery in the interest of speeding the course of decision-making, an indication that he wants to come to a decision pretty quickly on the merits of the case.
We predict that Judge Barker will issue a preliminary injunction that preserves the main features of the administrative stay — new Parole in Place applications can be accepted, but no Parole in Place applications may be approved while the injunction is in place. The litigation will then continue through the summary judgment stage, which might — might! — be concluded as soon as late October 2024, just in time for the election.
What does this mean for Parole in Place applicants? Practically speaking, it means that, for Parole in Place to be granted to any applicant who doesn’t have it now, two conditions must obtain:
- Vice-President Harris must prevail in the Presidential election contest. If President Trump is re-elected, he will immediately revoke the Parole in Place program, deny pending applications as moot, and cease to defend the legality of the program in court.
- The Biden (and, later, the Harris) Administration must prevail in what will likely be protracted federal litigation. Judge Barker’s stay is just the first shot in what is likely to be a long process, not dissimilar to the DACA litigation — and that eventually made it to the desk of Chief Justice Roberts.
Should those who are eligible still apply, given that the application window remains open but that no applications can currently be approved — and that the above two conditions will have to obtain for any approvals to be issued?
We think the answer depends on your particular situation. Applicants who stand to benefit from parole in place with little downside risk should probably apply. Those who might be a priority for deportation in a future administration should probably hesitate to do so — giving the government your full contact information and admitting, under penalty of perjury, that you entered the United States without inspection isn’t the best way to start removal proceedings.
As always, we are grateful for your questions and comments, and will do our best to respond.
