Are Illegal Migrants Being Issued Work Authorization?

An investigation is in order, because the most disadvantaged Americans are the ones who will be harmed

By Andrew R. Arthur on June 24, 2022

Anecdotally, I have been told that the Biden administration denies that it is granting employment authorization to illegal migrants that it apprehends at the Southwest border. A recent article, however, suggests that at least some of those migrants are being issued work documents at the time that they are being released from CBP custody. That’s not how any of this is supposed to work, and it merits a serious investigation by Congress, the Inspector General, and/or the media.

Border Releases. As I explained recently, since the day after Joe Biden was inaugurated, more than 1 million migrants encountered by CBP at the Southwest border have been released into the United States. Most are aliens apprehended by Border Patrol after entering the United States illegally, but some are aliens who were deemed inadmissible at the land border ports of entry.

Under section 235(b) of the Immigration and Nationality Act (INA), DHS is required to detain all of those aliens, from the point at which they are encountered to the time that they are removed or granted status in the United States.

A recent report suggests illegal border-crossers are being issued work permits, which merits a serious investigation by Congress, the Inspector General, and/or the media.

Admittedly, not all migrants encountered at the Southwest border in recent years have been detained, but prior administrations did a much better job of it than the present one. A recent DOJ Supreme Court filing reveals that 82 percent of aliens encountered at the Southwest border in FY 2013 were detained throughout the entire process, a figure that dropped to 54 percent by FY 2018.

During the “border emergency” in FY 2019, however, just one-third of all Southwest border migrants were detained from encounter until their cases were completed, while 26 percent were detained but released, and 40 percent were never detained.

In a June 16 post, however, I explained that due to a flawed 2015 federal district court decision, DHS can only detain children in “family units” (“FMUs”, consisting of alien adults and children who have entered illegally) for 20 days, and that ever since, DHS has (with exceptions) followed a policy of releasing all of the aliens in FMUs to avoid “family separation”.

Of the more than 851,000 illegal migrants apprehended by Border Patrol at the Southwest border in FY 2019, 55.6 percent were in FMUs, likely explaining the low percentage of migrants who remained detained that fiscal year.

Following the full implementation of the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”) in late FY 2019, however, that non-detained figure quickly dropped, and more than two-thirds of Southwest border migrants were detained throughout the process in FY 2020.

The Covid-19 pandemic was declared in March 2020, at which time CDC issued its first order directing the expulsion of illegal migrants under Title 42 of the U.S. Code in response to that pandemic. Under Trump, most aliens subject to those Title 42 orders were expelled.

Court orders related to public health limited ICE detention space following the pandemic declaration, which may explain why the percentage of detained migrants at the end of FY 2020 was not even higher.

All of that said, between FY 2013 and FY 2019, more than half (57 percent) of aliens encountered by CBP at the Southwest border remained in detention while their cases were proceeding. By contrast, 22 percent were detained and released, while 21 percent were never detained.

Biden took office on January 20, 2021, four months, two weeks, and six days into FY 2021. As noted, most illegal migrants subject to Title 42 under the Trump administration were expelled. Of the 296,450 aliens encountered by CBP at the Southwest border between September 2020 and January 2021 (the first five months of FY 2021), 254,770 of them — nearly 86 percent — were expelled under Title 42.

That changed rapidly under Biden. CBP encountered more than 1.438 million aliens at the Southwest border in the last seven months of FY 2021, and just 808,856 of them (56.2 percent) were expelled under Title 42. The rest were processed for immigration proceedings under the INA.

In FY 2021, just 10 percent of the migrants encountered at the Southwest border remained detained as section 235(b)(1) of the INA requires. By contrast, 26 percent were detained and released, and a whopping 64 percent were never detained.

As the foregoing figures on Title 42 expulsions in FY 2021 reveal, it is fair to attribute the low level of Southwest border migrant detentions last fiscal year largely to Biden administration release policies. Simply put, while the Biden administration contends that it lacks space to detain migrants (factually true to a degree), more importantly it lacks the will to do so.

June 21 Article in The Federalist. On June 21, The Federalist published an article captioned “Border Dispatch, Part II: ‘The Cartel Controls Everything Here Now’”. The spot reporting in that piece is worth reading in full for the insights that it provides on the role Mexican cartels play in human smuggling along the U.S.-Mexico line, but one passage therein caught my eye.

It discusses the administration’s policy of releasing illegal migrants on parole, and focuses on two Nicaraguan migrants, Ramon and his wife Veronica, who entered the United States with their daughter illegally and were paroled. The article states:

They say they were only asked for the address and telephone number of their destination. ICE discharged them with a sheaf of documents that allows them to travel inside the United States — which they’ll need to do, because they were also given a date, 30 days out, to report to an ICE office in central Washington State, where they’re headed.

What they don’t have is a court date or work permits. For whatever reason, their parole documents, which they showed us, did not include a work authorization number.

The couple’s plight is then contrasted with other entrants, as follows:

We spoke to a group of Haitian men at the Respite Center who had all been released under a slightly different iteration of humanitarian parole. Their paperwork differed significantly from Ramon and Veronica’s. Not only did these men have authorization to work, they had court dates for removal proceedings that were months away, some more than a year.

I have no reason to believe that this report is incorrect, and thus will treat it as fact. None of it makes any sense, however.

Employment Authorization. By regulation, certain aliens in the United States, including lawful permanent residents (“LPRs”, aka: green card holders) and aliens granted asylum and refugee status receive employment authorization “incident” to their status.

Others — almost exclusively nonimmigrants who are admitted to the United States temporarily — are only allowed to work for a specific employer incident to their status.

Finally, there are large numbers of aliens in various statuses who must apply for employment authorization to work in the United States.

Aliens who apply for asylum must currently wait 180 days after their complete applications have been filed to be granted work permits. That applies to illegal migrants subject to expedited removal who claim a fear of harm upon return.

Those aliens are interviewed by asylum officers to determine whether they have a “credible fear” of persecution or torture. Credible fear is a screening standard used to determine whether the alien may be eligible for asylum, and not surprisingly, most aliens in expedited removal claiming a fear of harm receive a positive credible fear decision from asylum officers.

Most of those aliens are placed into removal proceedings before an immigration judge to apply for humanitarian protection (including but not limited to asylum). The Biden administration, however, has recently implemented a poorly thought-out (and in my opinion, illegal) process by which the asylum officer can directly grant them asylum.

Under a December 2009 ICE directive, aliens who receive positive credible fear determinations in expedited removal proceedings are eligible for release from DHS custody on a very limited authority known as “parole” under section 212(d)(5)(A) of the INA.

I am also of the opinion that those releases are illegal because they exceed DHS’s limited parole authority in section 212(d)(5)(A) of the INA, but that directive is downright restrained compared to the way the Biden administration has stretched and contorted its parole release authority.

In any event, the work authorization regulation contains a carve-out that explicitly bars aliens paroled under that 2009 ICE directive from applying for employment authorization. They must file asylum applications and wait to apply for work authorization, like any other applicant for that protection.

Parolees and Employment Authorization. That carve-out is necessary because aliens who are paroled under section 212(d)(5)(A) of the INA are otherwise eligible to apply for employment authorization as soon as they are released.

Specifically, 8 C.F.R. § 274a.12(c)(11) states, in pertinent part, that other than aliens paroled under other provisions, “and except for aliens paroled from custody after having established a credible fear or reasonable fear of persecution or torture”, aliens “paroled into the United States ... pursuant to section 212(d)(5) of the Act” are eligible to apply for work permits.

That returns me to the “group of Haitian men ... released under a slightly different iteration of humanitarian parole” who were described in The Federalist as having “authorization to work” in their release paperwork.

Reviewing the employment authorization regulation, there is no parole provision that would allow DHS to simply grant those aliens work permits at the time that they were released. Potentially, they would be allowed to apply for that authorization later, but as noted I have been told that the Biden administration contends that the hundreds of thousands of migrants it has released on parole are not eligible for employment authorization.

Just last month, for example, DHS released 68,527 Southwest border migrants on parole, on top of 91,250 who were paroled in April, 36,777 in March, 13,413 in February, and 18,576 in January. That is more than 228,500 new potential workers this calendar year — larger than the population of Tacoma, Wash. (or in D.C. terms, just fewer people than reside in Arlington, Va.).

Someone — Congress, the DHS Office of the Inspector General, the Government Accountability Office, or the media — needs to get to the bottom of this. My sympathies are with Ramon, Veronica, and their child, but they were treated better than the law allows (inasmuch as they were released) and not worse (because, at best, they will have to apply for employment authorization — it should not just be given to them).

I have repeatedly opined that the Biden administration is violating the INA by releasing illegal migrants on parole en masse. If is rubber-stamping work authorization documents for those aliens, or has in the past, a serious investigation is in order.

One of the purposes of the INA is to protect the wages and working conditions of American workers (both citizens and LPRs). If the Biden administration is simply issuing work permits to hundreds of thousands of illegal migrants — most of whom have little education and few skills—it is harming the most disadvantaged in our country with whom they will be in direct competition for jobs.