In Federal Court, a Baptist Judge Weighs the Future of US Immigration

Update (March 11, 2024): On Friday, March 8, a federal judge upheld the Biden administration’s humanitarian parole program for residents of Cuba, Haiti, Nicaragua, and Venezuela. In his decision, Judge Drew B. Tipton said that Texas and other states suing to shut down the program, which allows up to 360,000 people a year to enter the United States with help from financial sponsors, were “unable to demonstrate that they have been injured by the program.” Tipton, who was appointed by President Donald Trump, also noted that immigration from the four countries has significantly decreased since the program’s January 2023 implementation. He said that the states are now spending less on undocumented immigrants than they were before. The decision could be appealed.

Long before he was seated as a federal judge in the southern district of Texas, Drew Tipton starred in a high school musical.

In 1977, when he was just ten, Tipton landed the title role in Angleton High School’s fall play. The show was Oliver!, an adaptation of Charles Dickens’s Oliver Twist. Pulling it off required a community-wide effort in the 10,000-person town of Angleton, Texas. The cast drew not only from the high school, but also from the local middle school and three elementary schools.

During rehearsals, when the young Tipton danced and sang among youth nearly twice his size, he put “forth an unusual effort and shows great confidence,” according to a local newspaper, The Brazosport Facts. To that, Tipton simply added: “It makes me feel excited to be doing the lead role.”

Like his father, the pastor of Angleton’s Second Baptist Church, Tipton enjoyed speaking before a crowd. He would later say, as an adult, that it was part of what led him to the law.

“My parents were consistently convinced that great things lay in store for me,” Tipton told members of the Senate Judiciary Committee during his confirmation hearing in February 2020, by then an attorney at a Houston law firm specializing in employment law and trade secrets litigation.

If this were a Dickens novel, then Tipton’s breakout performance as a child—portraying a destitute boy rescued by a distant wealthy relative—would be almost too good a foreshadowing of the drama before him now. In his fourth year as a district judge, Tipton is considering a case that will decide whether thousands of people can escape desperate circumstances with the help of benevolent friends and family.

Perhaps the most consequential immigration trial of the year happened last week in Tipton’s courtroom in Victoria, Texas—the arguments from which are now sitting with Tipton for review. The case is also, as it happens, the context for a very public confrontation between Texas evangelicals over the future of immigration in the United States.

At issue is a program the Biden administration launched in January that permits as many as 30,000 people a month to temporarily enter the country from Cuba, Haiti, Nicaragua, and Venezuela. The rules are simple: Each participant must have a financial sponsor before they can travel, they must be vetted and security screened, and they can apply to work once they arrive.

The initiative is the linchpin of the president’s strategy to de-escalate the chaos at the southern border, where encounters with migrants attempting to cross soared to near-record highs in 2021 and 2022. The program, built on a policy known as humanitarian parole, works like a pressure-relief valve: Certain groups get a safe and systematized way into the country so they do not illegally pour through in large numbers. (Since the program took effect, the Department of Homeland Security says the number of migrants sneaking in from the four targeted nations has dropped by 89 percent.)

But a Texas-led coalition of Republican states is suing to shut the program down. They claim it will swamp them with newcomers dependent on costly public services. They argue that, when Congress gave presidents the power to parole immigrants, it was meant to be used on a small scale—not to unilaterally wave in as many as 360,000 a year.

The Biden administration’s program differs little from similar programs dating back to the 1950s. Both Republican and Democratic presidents have long used humanitarian parole to aid migrants fleeing war and instability. It’s how the United States helped hundreds of thousands of people escape communism in Cold War Europe, and in Cuba, and in Vietnam. It was the tool used to welcome Haitians escaping the aftermath of one of the deadliest earthquakes in history.

Without parole, the United States could not have evacuated roughly 78,000 Afghans during its breakneck withdrawal from their country in 2021, and it could not have opened its arms to more than 125,000 Ukrainians who rushed here after Vladimir Putin’s invasion.

Biden, however, has wielded his parole authority more often and more ambitiously than any president before him. The program for Cubans, Haitians, Nicaraguans, and Venezuelans is unprecedented in its scope. So far, it has brought more than 175,000 people to the country. More than 1.5 million Americans, including churches and other houses of worship, have applied to be sponsors. Demand has overwhelmed US Citizenship and Immigration Services, which resorted to processing half of those applications on a first-come-first-served basis and the other half at random (go ahead, figure the odds).

The scale of it all has riled political opponents: Chief among them is Texas Attorney General Ken Paxton.

“This constitutes yet another episode in which the administration has abused its executive authority,” Paxton said when he filed the lawsuit in January. For our purposes, Paxton is something of a stand-in at this point: Four months after he sued, he was impeached for his own abuses of power and has been suspended while awaiting trial.

But Paxton is the standard-bearer for a subset of immigration-wary evangelicals. He is a member of influential Dallas-area megachurch Prestonwood Baptist and has built his political brand as a man whose Christianity guides his battles. “As believers, we have to stand up and speak out,” he once told worshippers at another Texas church.

And no one has gone to the mattresses against Biden’s immigration policies like Paxton. He has sued the administration more than a dozen times to stop them.

State of Texas, et al. v. US Department of Homeland Security, et al., though, is not just a fight between Paxton’s cadre of red states and the president. Tipton has allowed a group of seven citizens, helped by immigrant rights groups, to join the lawsuit as defendants. They argue that sponsors participating in the program would be harmed if it were nixed. They include a Florida teacher trying to bring Haitian relatives who survived murder and kidnapping attempts, a Jewish woman trying to bring friends from Venezuela with the help of her Massachusetts synagogue, and a Texas evangelical trying to bring a Cuban pastor and theologian being persecuted for his faith.

If the Biden administration loses, experts believe it could plunge the southern border into a greater crisis. It’s “massively important,” David Bier, an immigration analyst at the Cato Institute, has said. “If parole is greatly restricted, the entire edifice on which Biden has reduced illegal crossings crumbles. Illegal migration will spike.”

The stakes rise even higher in the long term. If the case is appealed, and if the administration loses in higher courts, it could jeopardize the very foundation of humanitarian parole programs. It could deprive future presidents of virtually the only tool at their disposal for offering hospitality on American soil when tired, poor, huddled masses need it most.

Is Tipton prepared to unleash all of that? Many observers believe the judge, who was appointed by former president Donald Trump and is viewed as a conservative, will end Biden’s program.

As Americans have become accustomed to flattening men and women on the bench to “Trump judges” or “Obama judges,” it’s easy to forget there are still actual people behind judicial rulings. Tipton did not respond to requests for an interview but, by all appearances, he is a kind man and a proud father. Photos on social media show him taking his children deer hunting and meeting them at Texas A&M football games.

At his Senate confirmation, he thanked his church, Second Baptist of Houston, for “praying and supporting me throughout this process.” He lamented that his father-in-law, who had been his Sunday school teacher as a toddler, had recently passed away. He served for years as a Bible teacher himself and was a leader in his church’s marriage ministry.

Glenn McGovern, a New Orleans attorney who was opposing counsel against Tipton in a 2015 case, told CT that Tipton “was a nice guy.” He recalled that Tipton was the first lawyer he’d ever seen conduct nearly an entire case on an iPad. “He was professional and accessible and open. No bullshit, which is unusual.”

At the trial on Friday, Tipton told attorneys that he had been to Haiti himself and had witnessed severe poverty there—making him one more in a long line of American evangelicals who have a personal connection to the country and who find themselves in a position of outsize influence over its future.

“Does the fact they are living in poverty qualify as an urgent humanitarian need?” he asked. (Lawyers clarified that in Haiti, people are also fleeing unfettered gang violence.)

At the same time, Tipton questioned Texas’s claims that the parole program was causing the state harm, given that data suggest it has actually reduced the number of undocumented migrants arriving in the state from the four countries in question. He said he was reluctant to issue any temporary injunction against the program, given that some states say it has been a boon for employers struggling to fill open positions.

How the judge will make sense of the arguments is anyone’s guess. When Tipton was sworn in on June 26, 2020, Senior Judge John D. Rainey said Tipton—who had once clerked for him—would “bring a sense of compassion to the bench.”

In the end it will come down to this: Compassion for whom?

Among the influential Texans involved in the lawsuit, Paul Zito has drawn the most explicit connection between his faith and Biden’s parole program.

Zito, a 67-year-old venture capitalist who is intervening in the case, is not exactly the caricature of a justice warrior. The tech entrepreneur and real estate investor owns a $6 million home overlooking Austin’s skyline, with the words coram Deo etched in a fireplace mantel. An environmental activist once included him in a group of Austin’s top 10 residential water users.

If you had spent the day with Zito on May 15, 2013, you would have accompanied him to the ranch of his longtime business partner John McHale, who had gathered then-governor Rick Perry and other influencers to eat barbeque and to shoot the laser-guided, high-powered hunting rifles McHale’s company was unveiling.

In 2015, Zito traveled to Cuba on a mission trip with Paul Pennington, a friend who had become known in some circles as “the father of the orphan care movement.” (Pennington, a former salesman, is credited with working alongside the likes of Steven Curtis Chapman and James Dobson to make adoption a leading cause among American evangelicals.)

Zito, who had adopted two children of his own, would return to Cuba twice more. He saw and felt that he was grasping, for the first time, the polychrome diversity of heaven. He cried when Pennington spoke to their small group about how serving orphans reflects the gospel. One of Pennington’s slogans—“the more vulnerable, the more valuable to God”—had lodged itself into Zito’s head.

He shared with Pennington about a change his visits seemed to have wrought in him, of “a humility in the Christian community” he was taken by. “I see my own crass materialism,” Zito wrote his friend in a note. “I have been revitalized in my walk to see God at work in this world. We lose that here in America. We are too affluent. Too comfortable.”

Over the course of his trips, Zito grew close with a Cuban pastor named Abel, whose last name CT is withholding out of security concerns. Abel served as Zito’s interpreter, guide, and, eventually, as the country director for Pennington’s ministry, Hope for Orphans.

Within weeks of Biden’s announcement of the new parole program that would include Cubans, Zito applied to support Abel’s family. “I saw the opportunity to sponsor Abel as a calling from God to help a friend in need,” Zito told CT in a statement. He was concerned about reports that Abel was being harassed because of his faith and threatened with imprisonment, and about Abel’s worsening struggle to make ends meet.

Zito and his wife put their plans to downsize on hold so they could house Abel, his wife, and their two daughters if they were approved to travel to the US. They dreamed about getting them involved at their church and began compiling job openings.

“This program represents Abel’s best chance at reaching safety,” Zito said. “When my state sued to block this program, I knew I needed to defend my right, and the rights of all American citizens, to follow the calling of their faith, when we are guided by God to give shelter to our brothers and sisters fleeing oppression.”

Speculating about how faith steers judicial decision-making is a pastime for both believers and the nonreligious. Supreme Court justice Samuel Alito may have bemoaned the conversation as tired, but it’s only natural.

In her 2017 Senate confirmation hearing as a federal appeals court judge, current Supreme Court justice Amy Coney Barrett famously sat across from Sen. Dianne Feinstein as the Democrat from California fretted that “the dogma lives loudly within you.”

Barrett, a devout Catholic, responded: “We have many judges, both state and federal, across the country, who have sincerely held religious views and still impartially and honestly discharge their obligations as a judge.”

Is Tipton one of those judges? He is far from unique in carrying evangelical convictions to the bench. There are more than 800 federal district and appellate judges established by Article III of the US Constitution. Reliable data about their faith is hard to come by, but a 2017 study of appellate judges, if we want a rough guess, found that almost half were Protestant.

On its face, Texas v. US Department of Homeland Security is not a case about religion. Most of the intervenors did not cite religion as a motivator, and religious freedom is not central to the arguments being made by the plaintiff or by the Biden administration. America’s immigration laws are numbingly complex. People of faith have a harder time connecting the Bible to, say, the finer points of employment visa policies, than to morally charged issues like abortion or capital punishment.

Image: Screenshot from the U.S. Senate Committee on the Judiciary video / Edits by CT

Drew Tipton, federal judge in Texas.

That said, opinions about immigration are “an inherently political, personal matter,” says Sarah Flagel, a pastor’s kid like Tipton and an attorney at World Relief, an evangelical organization that focuses heavily on refugee resettlement and immigration law. The perspectives of people like Zito and the other intervenors can sway outcomes, she says. “All of us are influenced by our backgrounds and our beliefs.”

And any belief can influence to a fault. In a 2021 ruling based on some judicial philosophy that was clearly mistaken, Tipton quashed a DHS policy that told federal agents to prioritize certain migrants for arrest and deportation. DHS said its officers had to choose their battles, given limited staff and funding. But in Tipton’s reading of the law, this was illegal.

Ultimately, the Supreme Court overturned Tipton’s ruling in a stinging 8–1 decision, noting that law enforcement has always had discretion to set enforcement priorities—this is why drivers rarely receive tickets for speeding only five miles over the limit—and that the case should never have gone as far as it did.

But judges are, inevitably, going to err in some direction. And if, all things being equal, a judge has to choose between two perfectly valid interpretations of a statute? “As Christians, I think we err on the side of mercy,” Flagel says. “That’s kind of fundamental to our Christian faith.”

As an instrument of mercy, Biden’s parole program is good but not perfect. It offers migrants an alternative to making perilous, hellacious journeys to reach safety, such as trekking through the deadly terrain of Panama’s Darién Gap. But parole programs are only temporary, granting beneficiaries two years in the US. They carry the risk of leaving immigrants in a state of limbo about their future. (If Congress cannot agree on the Afghan Adjustment Act, a stalled bill that would grant Afghan evacuees a path to legal residency in recognition of the war they fought side-by-side with US troops, what can they agree on?)

It’s “certainly better than nothing,” Flagel says. “It doesn’t fix the fact that we need a functional refugee resettlement program.”

It also doesn’t fix the crises driving migration at its source. Brain drain is a major concern for people like Mark Fulton, a missionary who works with a Church of God hospital in Saintard, in central Haiti. More than a third of the 70 staff at his hospital have left the country through the Biden program, including 11 physicians. On calls with other medical centers in the country, he hears reports of departures on a similar scale.

Fulton doesn’t blame his Haitian colleagues for exiting. They all say the same thing: There is no future for them in a nation that has been taken hostage by gangs, that has virtually no government and a failing economy.

“But the people, oh my gosh, what a resource we’re losing,” Fulton says. “I think anyone and everyone who is able is trying to leave.”

Tipton’s ruling is expected this fall. When it comes down, word will fly nearly as soon as the decision is signed. The news will wing on WhatsApp groups up and down the continent. And most likely, before any headline scrolls into view on your phone or across cable network chyrons, at least some of the 50 or 60 people at Zion Community Church will already know.

Pastor Jennifer Joseph says her predominantly Haitian congregation in Yeadon, Pennsylvania, just west of Philadelphia, has applied to sponsor at least 10 people, on top of those that families in her church are sponsoring on their own. Joseph’s mother coordinates the congregation’s prayer ministry, a loop of continuously circulating requests that God would protect their relatives while they wait to win the lottery, that he would give them strength to accept whatever comes.

Especially in Haiti, Biden’s parole announcement was a lifeline in a country with virtually no other lawful way out. The traditional route to visas, the family-reunification program, ground to a halt so long ago that many Haitians would have to wait a lifetime for their papers to clear if they qualified. And Haitians are almost never granted employment visas that would allow them to work seasonal jobs in agriculture or to take other low-paid work.

But still, Joseph says, “this program feels like giving a thousand hungry people a little piece of bread.” Like so many in her community, Joseph can’t help but notice that “countries with people of African descent tend to get treated differently.” After all, no one has sued to stop the president from paroling Ukrainians.

Even if this program escapes Tipton’s courtroom intact and survives appeals, its clock will eventually run out, and most of those who applied for parole will never have their number called. Whenever the door closes, Joseph says, “I’m not looking forward to that. It’s going to be devastating.”

Her mind goes to a single woman in her church whose husband, three children, and sick mother call each day, sometimes twice a day, asking the woman what she is doing to help their case move through the system. Is she calling the immigration offices? Did she miss something? “It just consumes her—from a mental health perspective, she’s up and down, she’s not okay,” Joseph says. “That, unfortunately, is the reality for a lot of people right now.”

At least one person who was paroled has already become a member at Joseph’s church. The man, in his 40s, met some members of the congregation downtown and began taking the bus Sunday mornings to worship with them.

And about eight miles from the church, on Philadelphia’s north side, another newcomer named SoSo Benoit is still looking for a church to call home. The 36-year-old is single and has no children, a fact her mother always said was because the rest of their family had come to depend on her to provide for them.

She was the lab director at Mark Fulton’s hospital.

Benoit arrived through Biden’s program in the middle of June, after a journey that seemed to be dotted with miracles. She had spent her share of nights sleeping at work, when gangs had blocked nearby roads. She lost a relative to a stray bullet in a firefight not far from the hospital. One night, Benoit dreamed she was in the United States and took it as a vision from God. She felt she had to come. “I had no choice,” she says.

She applied for a visa, but then Biden announced the new program and she applied for that. Her family began praying and, just two months later, she was approved to travel. “Lots of crying that day,” Benoit says.

The roads between her home and the international airport in the capital, Port-au-Prince, were cut off by multiple gangs. So to travel a distance of just 29 miles—a routine commute to the office for many Americans—Benoit climbed into a crowded sailboat that pitched for hours through high waves. She was soaked with seawater when she arrived.

In her damp luggage, besides the essentials, she had allowed herself to bring only the Bible she had been given as a girl, with her baby photo tucked inside. As if she were beginning life anew.

When Benoit stepped outside at the Philadelphia International Airport five days later, she looked around and marveled at how every hustling person simply went about their business, and at how everything around her seemed just fine.

“God has done great things for me,” she says.

This story was originally published before the trial and has been updated to reflect the trial proceedings and the decision.

Andy Olsen is senior editor at Christianity Today.