Judge’s Past Red-State Advocacy Shadows Big Immigration Case

J. Campbell Barker ordered pause on Biden program Trump appointee previously challenged immigration policy for Texas AG The judge who paused the Biden administration’s latest immigration program challenged by red states previously helped lead litigation against deportation relief policies while with the Texas attorney general’s office. US District Judge J. Campbell Barker spent four years as a deputy state solicitor where he backed cases at the US Supreme Court contesting key Obama-era immigration initiatives before he was appointed to the bench in 2019 by Donald Trump. Terence M. Garrett, a political science professor at the University of Texas, Rio Grande Valley, said Barker’s record on immigration while advocating for Texas reflects “a hard-core right-wing approach.” Still, others urge caution in linking his past advocacy to how he might rule. In his first major immigration test as a judge, according to a review of recent cases, Barker’s presiding over a challenge by his former office and 15 other states to a program allowing unauthorized spouses and stepchildren of US citizens to apply for removal protections and work permits while seeking permanent legal status. Those individuals would otherwise have to leave the country before seeking a family-based greencard. The case affecting up to 500,000 immigrant spouses and unfolding in the Eastern District of Texas comes six years after progressives raised concerns about how he would square his record litigating partisan immigration and other issues if confirmed as a trial judge. With an eye on November elections, the administration has curbed asylum options at the southern border, leading to a drop-off in new arrivals. The parole litigation will determine whether pro-immigrant policies are preserved as Democrats try to balance pressure from advocates with attacks from opponents over the border. Travel Ban, DACA As Texas deputy solicitor general from 2015 to 2019, Barker took positions in court defending Trump’s travel ban against people from certain Muslim-majority countries and a state law targeting so-called “sanctuary” policies. He also helped to sue over an expansion to Barack Obama’s signature immigration policy effort, the Deferred Action for Childhood Arrivals program, and a proposed offshoot for parents of citizens and permanent residents known as DAPA. A Texas federal judge struck down DAPA in 2015. A federal appeals court is set to hear oral arguments next month in the latest court fight over DACA. Democrats and immigrant advocates raised concerns during Barker’s Senate confirmation process about his litigation history for the state. Answering written questions about his immigration record, Barker said he’d recuse from any case he had worked on, and that the positions advanced were for his clients and don’t reflect his personal views. Sen. Mazie Hirono (D-Hawaii) said Aug. 29 through a spokesperson that she had questioned Barker’s immigration record out of concern that his past stances against immigrant relief programs might “color his approach” to cases as a judge. “His preliminary ruling in this case, in which the President is using power clearly within his legal authority, suggests that those concerns were well-founded,” Hirono said of the Aug. 26 administrative stay that froze new case approvals for undocumented spouses for 14 days. Barker later extended the stay through Sept. 23. He also put the case on an expedited timeline, teeing it up for a ruling as soon as this fall. Barker didn’t return a request for comment left with his chambers for this story. But he wrote in his August order that in temporarily pausing the program he’s “simply undertaken a screening ‘first-blush’ review of the claims” and what’s at stake. Former colleagues and supervisors said he’s got the right demeanor for the bench. R. Paul Yetter told Bloomberg Law in March that his former colleague will “call them as he thinks the law requires.” Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, which has opposed immigrant relief programs, compared attacks on Barker’s record to criticism by sports fans of a call by a referee they don’t like. ‘Foreboding’ Outcome GOP states sued to block the administration’s Keeping Families Together initiative shortly after the program launched, arguing it violated administrative law and exceeded the government’s authority. The program relies on the government’s “parole-in-place” authorities to permit longtime undocumented immigrants married to Americans to remain in the country while their permanent residency requests are processed. Cyrus Mehta, an immigration attorney at Cyrus D Mehta & Partners, noted that Barker’s order raised questions about whether someone could be paroled “into” the US if already present in the country and whether the Homeland Security Department incorrectly focused on public benefits stemming from the larger parole program, rather than individual grants. That logic would undermine the legal basis of a separate program granting parole for military spouses, which has been used since 2013, Mehta said. “I don’t think it’s a foregone conclusion that this judge will rule in Texas’ favor, but it’s foreboding at this point in time,” he said. Ira Kurzban, an immigration attorney at Kurzban Kurzban Tetzeli & Pratt, said Barker’s background opposing DACA and DAPA in court “indicates a strong disposition against immigrants” and cautioned against applying for parole while the legal challenge is pending. “I would urge people at this point not to apply until this judge has rendered a decision because, in my view, it’s just setting up all these people for potential mass deportation if Trump wins,” Kurzban said. Standing Issues Though a judge’s reasoning won’t necessarily reflect the positions they previously took as an advocate, immigration law professors said Barker’s prior arguments on behalf of Texas in similar challenges may offer a window into how he views a state’s authority to challenge immigration enforcement matters. For Texas, Barker successfully advanced an argument that the state had standing to challenge a program for undocumented immigrants with American kids because it was harmed by the cost of providing them services, from health care to driver’s licenses. It was a position less commonly used at the time, but now a fixture in state-led immigration challenges, said Jaclyn Kelley-Widmer, clinical professor of law and immigration clinic director at Cornell Law School. And it’s a theory he, as a lawyer for Texas, thought “has legs,” she said. The states made similar arguments when challenging the undocumented spouses program. “Of course we want to think that the analysis could look different for him being in a new role. But we also know that people are human. And if you bought that argument before and helped develop it, it’s, I would say, more probable that the judge would continue to see that argument as meritorious,” she said. Still, a more recent Supreme Court ruling finding states didn’t have standing to challenge a memo narrowing immigration enforcement priorities, which was handed down after Barker’s tenure in government, could also influence his approach, said Lenni Benson, an immigration professor at New York Law School. “I hope the judge sees that entire case in context and not in this politically aggressive soundbite kind of litigation,” Benson said. And as deputy solicitor general in Texas, Barker was representing his client, not necessarily advancing his own views, said Arthur, also a former immigration judge and senior GOP staffer for the House Committee on Oversight and Government Reform. “Simply because you made an argument doesn’t mean you are going to be amenable or predisposed to a similar argument in a different case thereafter,” he said. “Nothing about the administrative stay order would indicate he’s prejudiced on this case in a certain manner.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.