District Court Strikes Implementation of Keeping Families Together Policy

Last week, right after the election, we had a concrete example of how Trump-appointed judges are likely to approach immigration.  A federal judge in Texas struck down the Biden Administration’s policy called Implementation of Keeping Families Together, which essentially told immigration enforcement authorities not to deport undocumented immigrants who are married to American citizens so long as they don’t have criminal records.  Texas v. U.S. Dep’t of Homeland Security, 24 Civ. 00306 (E.D. Tex.) (J. Campbell Barker, J.).  The court’s logic was closely similar to a ruling last month that struck the DACA program, or Deferred Action on Childhood Arrivals, an Obama-era program that exempted undocumented aliens who were brought here as young children and had no say in the creation of their undocumented immigration status.  I wrote about that decision in a blog post on this site on October 16.  Both decisions, in my view, are heartless efforts to disallow immigration policies that are designed to guide enforcement policy and discretion in fair and humane ways.

The Keeping Families Together policy protects American citizens who chose to marry someone whose immigration status has them here in an undocumented capacity.  There are more than 10 million such persons, and they, and their American spouses, and children, have lives.  According to the Supreme Court, marriage is protected by the Due Process Clause, among other things.  It is among our most sacred and intimate liberties.  Imagine the disruption to an American citizen’s life if his or her spouse is deported.  Imagine the children whose lives may also be disrupted.  They too are American citizens.  Do we really want to interfere with those relationships?  And yet that was precisely what the court did.

The court’s decision was 74 pages.  More than half of that was devoted to whether Texas had standing to bring the suit.  The logic of the court’s substantive decision was that there are only two ways to adjust an immigrant’s legal status, one at a U.S. Embassy or consulate prior to entry, and the second upon being “paroled into the United States.”  The second essentially requires the immigrant to seek an individualized hearing immediately upon arrival for any of a number of grounds to be released into our country, generally on humanitarian grounds such as seeking asylum.  Needless to say, most undocumented immigrants don’t pursue that path because they would not likely be found to qualify (although the recent trend to seek asylum upon arrival is certainly one strategy that many immigrants nowadays do employ).  

While most undocumented immigrants have not availed themselves of these two possible routes, there are millions of such persons here, many for many, many years.  They have jobs, live lives and get married and have children.  What the Keeping Families Together policy told immigration authorities is not to waste time deporting such persons, because of the enormously adverse impact that would have on American citizens, both spouses and children.  But the district court struck the policy, on the grounds that it was a generalized policy that did not make the case-by-case determination that adjusting an undocumented immigrant’s status is supposed to entail.  In that regard, this decision mirrored the court’s logic in striking down DACA, which was that it was too broad a policy to constitute the exercise of individualized enforcement discretion when an entire class of undocumented immigrants was to be spared deportation.  Both courts ruled that unless immigration statutes expressly provided for either program, they could not lawfully be implemented on a class-wide basis, even if their principles could guide individualized enforcement determinations.  I personally do not see why enforcement priorities can’t be driven on a broader basis, which was the theme of my October 16 blog post.

Both decisions in my mind are entirely heartless.  In the DACA case, the decision casts out people who have lived essentially their entire lives here, to deport them to a country of which they have no memory or experience.  In the Keeping Families Together case, the decision will cast out people who are married and may have children, depriving people of their spouse and children of a parent.  Is that really the society we want to live in?  And yet that is exactly what the new administration threatens, with the apparent support of a majority of the American voters.  

President-elect Trump has indicated an intention to nominate as head of immigration someone who supported the separation of immigrant children from their families in the last Trump administration, and there are still hundreds of children who have not yet been reunited with their families and likely never will be.  That policy was shameful, and we have not begun to atone for the sin.  The only argument for such a policy is that it discourages and deters others from following the same route.  Again, is this really what we want?  

My own belief is that it is one thing to say in the abstract that we want mass deportation; it will be another thing entirely to see it in action.  I personally believe that when we see it in action there will quickly be buyer’s remorse on the part of many.  We quickly stopped separating children from their families when there was a public outcry against it, and there is a reason why DACA, an Obama-era program, survived the first Trump administration.   But maybe such policies really are what Americans want right now.  If so, for shame. 

At NYCLA we are beginning to organize a potential litigation and resistance effort to say “no” to such policies.  We will be prepared, along I am sure with many others.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.

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