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Biden’s illegal immigration plan faces legal challenges

President Joe Biden speaks in the South Court Auditorium at the White House in Washington, D.C., on Dec. 8, 2022. (Yuri Gripas/Abaca Press/TNS)
June 20, 2024

Legal challengers are preparing their bids to check President Joe Biden over an executive order they believe will essentially grant amnesty to around 500,000 people living inside the United States illegally.

On Tuesday, Biden announced executive actions instructing the U.S. Department of Homeland Security (DHS) to avoid deporting individuals who have been residing in the United States illegally if they are married to a U.S. citizen.

U.S. citizens have historically been able to marry non-citizens, with the non-citizen then being able to apply for what is known as a marriage green card, but they have had to wait outside the United States until that green card is approved. Biden’s new executive actions entail a so-called “parole-in-place” method, whereby non-citizen spouses who entered the country illegally may simply remain in the United States while they wait for their green cards to process. 

The protection from deportation will also extend to illegal immigrant children whose parents marry a U.S. citizen.

Those eligible under Biden’s new executive actions have to have resided in the United States for at least 10 years and be legally married to a U.S. citizen. 

The United States generally recognizes marriages outside the country as legally valid and, under this new executive action, someone who has been living illegally in the United States could now theoretically find a willing U.S. citizen to marry them to avoid being deported or even having to leave the country temporarily while they await approval on a marriage green card.

Another component of Biden’s executive action states immigration authorities will speed up the process for granting work visas to deferred action for childhood arrival (DACA) recipients—who are themselves the children of illegal immigrants brought to the U.S. as children—if they have received a degree from an accredited U.S. institution of higher education in the United States and have received a job offer from an employer in the United States.

Now, legal analysts are questioning the legality of Biden’s moves.

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Matt O’Brien, director of investigations for the Immigration Reform Law Institute (IRLI) and a former immigration judge, told The Daily Caller that existing U.S. law known as the Immigration and Nationality Act (INA), with limited exceptions, requires “anyone who seeks a green card to enter the U.S. lawfully and maintain lawful status until a green card is granted.”

O’Brien said Biden’s new executive actions appear to be “nothing but an attempt to create an amnesty by abuse of the parole authority.”

Former Acting U.S. Immgration and Customs Enforcement (ICE) Director Thomas Homan told Fox News that Biden’s new executive actions create another “enticement” to illegally enter or remain in the United States. While some illegal immigrants may not find a way to remain in the United States through this latest action, Homan said the expansion for this “parole-in-place” method will still incentivize illegal immigrants to enter the country, “hide out,” and wait for a similar amnesty moment using “parole-in-place.”

America First Legal (AFL), a conservative legal advocacy group led by former Trump White House adviser Stephen Miller, has already announced its intent to sue to stop Biden’s new executive actions on immigration.

“This latest action taken by the Biden Administration is a slap in the face to immigrants who come to the United States lawfully,” AFL said on Tuesday.

Miller said Biden’s actions speeding work visas to DACA recipients create its own risk for abuse, all while opening the door for those DACA recipients to get U.S. citizenship.

“Once granted green cards, illegals will have access to government benefits. Once granted citizenship — in as soon as five years — illegals will have full access to welfare, entitlements, the voting booth, and chain migration, meaning entire illegal alien extended family networks and be made into full voting citizens,” Miller said. “This is a colossal amnesty and a thunderous attack on American democracy in the form of an imperial edict.”