Immigration Blog

Some people have asked me what I think about Judge Barker’s November 7 decision finding the Keeping Families Together parole in place (PIP) program illegal and the future of PIP.

Judge Barker’s district court decision is not precedential, and it is unlikely that the Department of Justice will appeal.

Will USCIS under Trump 47 follow Judge Barker’s reasoning and find that noncitizens who were paroled in place were not really paroled? The bulk of PIP is Military PIP and Judge Barker indicated that the National Defense Appropriations Act for 2020 “colorably” authorized PIP for certain noncitizen relatives of members of the U.S. military. Hopefully, USCIS under Trump 47 will leave PIP alone!

On the merits, Judge Barker’s decision is overly literal in relying on the language in INA § 212(a)(5) and INA § 245(a) to find that parole must be a physical allowance “into the United States” from a port of entry (POE).

When the Immigration and Nationality Act of 1952 said that a noncitizen applying for admission could be paroled “into the United States,” the only way you could be an applicant for admission was seeking admission at a POE. Similarly, the later expansion of adjustment of status for noncitizens paroled “into the United States” presumed the noncitizen was seeking admission at a POE.

But who is “seeking admission” to the United States was greatly expanded by The Illegal Immigration Reform and Immigration Responsibility Act of 1996, that defined noncitizens present without admission as applicants for admission. And applicants for admission are the class of noncitizens who can be paroled under INA § 212(d)(5).

At a literal level, one doesn’t think of a person already in the United States as seeking admission. Yet Congress said otherwise. As that person is seeking admission, they can be allowed into the United States through a parole, just as someone seeking admission at a POE can be allowed in.  Judge Barker is grounding his decision in a literalness that is simply not present in the Immigration and Nationality Act.

Does Judge Barker’s decision mean that a noncitizen apprehended at a POE and detained at an ICE Detention Center within the United States could not then be paroled, since he is already in the United States? I doubt he would go that far. But this highlights that parole is not limited to the CBP officer physically paroling a noncitizen at a POE.

Paul Hunker, is an immigration attorney based out of Dallas, Texas and partner at DMCA, LLP. Prior to joining DMCA he spent his entire legal career representing the former U.S. Immigration and Naturalization Service (INS), and U.S. Immigration and Customs Enforcement (ICE). He served as the Chief Counsel for U.S. Immigration and Customs Enforcement, Department of Homeland Security, Dallas Office of the Principal Legal Advisor (OPLA).