A paper from CIS explains that the Biden administration is exceeding DHS's limited parole authority in section 212(d)(5)(A) of the INA:
"Parole in Place is a concept that was first proposed under the Clinton administration (at a time it was utterly divorced from any congressional sanction) that would allow the administration to post hoc parole aliens already present in this country.
It received the veneer of sanction in the National Defense Authorization Act for FY 2020 (NDAA 2020), but then only for members of the U.S. Armed Forces, their spouses, children, and widows.
In other words, it's legally questionable (at best) to conclude the Biden administration could extend Parole in Place to 1.1 million alien spouses, but as I explained in depth in that recent piece, it would allow them to then obtain green cards through 'adjustment.'"
District Judge J. Campbell Barker wrote in his ruling that the "claims are substantial and warrant closer consideration than the court has been able to consider to date." With the Aug. 26 court ruling, Texas Attorney General Ken Paxton reiterated the White House is violating federal statute with the exception. Paxton wrote in his Aug. 27 press release in response to the judge's temporary administrative stay:
"Instead of abiding by current federal law, Biden's DHS announced that it would permit 1.3 million aliens, more than 200,000 of whom live in Texas, to ignore federal law and apply for permanent residency—an opportunity that is not legally available to those present in the country unlawfully,"
America First Legal filed the lawsuit in the United States District Court for the Eastern District of Texas on behalf of 16 states and a coalition of 14 Attorneys General led by Paxton. Federal law forbids illegal aliens from adjusting their status to that of Lawful Permanent Residents in the U.S. if they have been unlawfully living in the country.
PIP effectively provides legal relief for spouses and children of American citizens who have lived in the U.S. "for ten years or more." The White House announced the new process on Jun. 18, 2024. According to the White House announcement, about "500,000 spouses and approximately 50,000 noncitizen children under the age of 21" will be allowed to change status on U.S. soil if the Biden-Harris administration prevails with the notice. Federal immigration agencies began to accept applications for the exception on Aug. 19. Individuals who qualify have three years to apply, will be allowed to remain in the U.S., and "be eligible for work authorization for up to three years."
Additionally, the White House announced that DACA recipients and other "Dreamers," who have earned a degree at an accredited U.S. college or university and "who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas."
The following deadlines, as shown in a screencap below, control the expedited progression of the case according to Judge Barker's temporary administrative stay. Judge Barker ruled all "forum disputes should be 'top priority' in handling a case":
Barker also gave notice in his ruling that he "will consider summary judgment granting permanent relief (whether a declaration, an injunction, an order setting aside the rule, or relief in defendants' favor) on the same schedule as it considers plaintiffs' motion for a preliminary injunction." Barker issued several other additional deadlines for Plaintiffs and Defendants to respond on page 9 of the ruling. Judge Barker will also set an expedited hearing on "preliminary relief and summary judgment, and if necessary a consolidate bench trial on a date as soon as possible after completion of that briefing."
