Biden’s ‘Parole in Place’ Plan Is a Solution in Search of a Problem

The lack of a ‘limiting principle’ would allow parole to swallow all the other immigration rules

By Andrew R. Arthur on April 30, 2024

As I recently explained, the Biden administration appears to be planning to expand on its other “parole” programs to grant de facto amnesty to approximately 1.1 million illegal aliens who are married to U.S. citizens. If that happens, those sympathetic couples in “mixed status” families will be just the beginning, but it should be noted that nearly all of those alien spouses already have a remedy to their plight. In other words, this plan is a solution in search of a problem, albeit one that will make future enforcement efforts next to impossible, but more importantly, it would expand DHS’s limited parole authority so wide that it will quickly swallow all the other rules governing aliens in the INA.

Parole, and Ice Cream. Under section 235 of the Immigration and Nationality Act (INA), aliens seeking admission to the United States (including illegal entrants) must prove they have a visa or other document that permit their admission, and that they are otherwise admissible.

In section 212(d)(5)(A) of the INA, however, Congress gave the executive branch (originally the attorney general, now the DHS secretary) the authority to allow inadmissible aliens to enter the United States for given reasons (like emergency medical treatment) or for specific periods of time.

Parole doesn’t make those aliens any less removable, and in fact the parole statute requires DHS to take parolees back into custody and treat them like all other aliens seeking admission at ports of entry once their periods of parole have expired.

Due to abuses of that parole power by prior administrations, Congress placed restrictions on that authority in 1996. Under amendments that year, the DHS secretary may parole aliens “only on a case-by-case basis” and then only “for urgent humanitarian reasons” or for a “significant public benefit”.

The problem is that the Clinton administration never properly amended the parole regulation to reflect those changes. Instead, a sloppy regulation, first implemented during a two-week period in 1982 under a district-court order, largely remains in place.

As noted, the statute permits the DHS secretary to parole inadmissible aliens only if parole is necessary for an urgent humanitarian reason or provides the country with a significant public benefit. That 1982 regulation, however, turns that latter requirement on its head — it permits parole whenever the secretary determines that “continued detention is not in the public interest”.

Substitute “ice cream” for “significant public benefit” and this complicated error is easier to appreciate. That statute would allow parole if it would give Americans ice cream, but the statute permits release only if it meant detention would not provide extra ice cream. Those are similar concepts, but under the regulation, you’re not guaranteed any ice cream at all — and that’s how it has played out under Biden.

Biden’s Parole Schemes. In fact, under Biden’s parole schemes, ice cream is now being rationed. Let me explain.

Parole is an exception to the rule that all arriving inadmissible aliens — both at the ports of entry and across the border illegally — be detained.

The first Biden border paroles were ad hoc, but quickly solidified around a policy known as “Parole+ATD”, for parole under section 212(d)(5)(A) of the INA and release on so-called “alternatives to detention” (“ATD”, which is an “alternative” to detaining aliens like cottage cheese is an alternative to ice cream).

As a federal judge considering a challenge brought by the state of Florida to the administration’s border release policies found, DHS only implemented the Parole+ATD policy because (1) the administration didn’t want to detain those aliens; and (2) it was quicker to release aliens on parole than it was to process them for removal proceedings.

That judge shut Parole+ATD down, which left the administration in a pickle as tens of thousands of aliens poured over the Southwest border illegally each month.

In response, and to hide that surge of illegal migrants from the public, the White House rolled out two new parole programs in January 2023.

The first, known as “CHNV Parole”, expanded a program originally implemented for Venezuelan migrants in October 2022, to permit up to 30,000 nationals of that country as well as of Cuba, Haiti, and Nicaragua to enter the United States per month. Through the end of March, some 404,000 nationals of those countries have been paroled under CHNV.

The second, which I have dubbed the “CBP One interview scheme”, permits up to 1,400 would-be illegal migrants in central and northern Mexico to schedule interviews at the ports of entry per day using the CBP One mobile app to schedule interviews at the ports of entry.

More than a half million aliens through the end of March have scheduled CBP One appointments, and congressional disclosures have revealed that DHS has subsequently paroled nearly 96 percent of those aliens into the United States, where they are placed into indefinite removal proceedings.

Those two programs are in addition to a separate one, “Uniting for Ukraine” (U4U), under which 187,000 nationals of that country have been paroled into the United States; and programs under which tens of thousands of Afghan nationals have been paroled in, as well.

When I last stopped counting, last October, almost 1.4 million inadmissible aliens had been paroled into the United States under these parole programs, and that figure well exceeds 1.5 million now. So much for an extremely limited executive authority.

Parole in Place. Which brings me to a recent Wall Street Journal exclusive, which reported the Biden administration is mulling yet another parole plan, this one to grant “Parole in Place” to 1.1 million illegal alien spouses of United States citizens.

Parole in Place is a concept that was first proposed under the Clinton administration (at a time it was utterly divorced from any congressional sanction) that would allow the administration to post hoc parole aliens already present in this country.

It received the veneer of sanction in the National Defense Authorization Act for FY 2020 (NDAA 2020), but then only for members of the U.S. Armed Forces, their spouses, children, and widows.

In other words, it’s legally questionable (at best) to conclude the Biden administration could extend Parole in Place to 1.1 million alien spouses, but as I explained in-depth in that recent piece, it would allow them to then obtain green cards through “adjustment”.

That’s notwithstanding the fact that aliens who have entered illegally (as most of the covered population has) are barred by statute from that adjustment process.

The Biden administration is plainly considering Parole in Place for those “mixed status” alien couples (the Journal’s term, not mine) because they are among the most sympathetic illegal aliens in the United States. If the White House gets away with it, expect a cascade of other Parole in Place programs for illegal parents of U.S. citizens, and then parents of green-card holders, and so on.

The I-601A Waiver. The issue is that most of those alien spouses don’t need Parole in Place at all. And that brings me to section 212(a)(9)(B)(v) of the INA, which provides a waiver to bars in the INA that would normally require aliens to remain outside the United States for years before they receive green cards.

Not only can’t alien spouses who entered illegally not adjust status because they’ve never been admitted (a condition precedent to adjustment), but section 212(a)(9) of the INA also requires them to wait outside the United States for three years before seeking admission if they have lived here illegally for 180 days but less than one year, or for 10 years if they have been living here illegally any longer than one year.

The waiver, if granted, wipes away those “3- and 10-year bars”, but it comes with two requirements. First, applicants must show that they have spouses or parents who are U.S. citizens or green-card holders; and second, they must show that the bars would result in “extreme hardship” to those relatives.

The latter is generally not a significant burden, and the alien can apply for the waiver (using the Form I-601A) in the United States. If it is approved, the alien must then depart to appear at a U.S. consulate abroad “for an immigrant-visa interview”. If approved, they can then simply be admitted and receive their green cards.

Alien spouses who don’t go through the I-601A process generally skip it because they’re concerned they won’t be allowed back in and/or because they don’t want to spend the handful of months outside the United States consular processing requires.

That said, adjustment was always an exception to consular processing abroad — not the rule — and moreover, most have no one to blame for their illegal status except themselves.

“Legal Authority for USCIS to Grant Parole”. It’s unclear why the Biden administration is considering Parole in Place now, but if I had to make a guess it was likely goaded on (at least in part) by a memo issued by Cornell University Law School in October 2023 captioned “Legal Authority for USCIS to Grant Parole”.

In that memo, two immigration experts from the school detail Parole in Place for aliens’ spouses, and specifically point to CHNV Parole and U4U for such an expansion in arguing:

Providing parole for this targeted population is a focused and practical solution that would promote more efficient use of USCIS resources and staffing, as it would eliminate the need for the agency to process I-601A provisional waiver applications. Creating a process by which spouses of U.S. citizens can apply for and be granted parole would add value to the orderly operation of our immigration laws, and relieve some of the pressures on other parts of the immigration system that may require more complex solutions.

I have great respect for the lead author of that memo, which makes it all the more difficult to conclude that the authors are treading dangerous ground in asserting that the administration can extend parole to any alien it chooses so long as it takes some work off of USCIS’s plate.

The problem with their arguments, and with the Biden administration’s parole programs generally, is not just that they exceed DHS’s limited parole authority in section 212(d)(5)(A) of the INA, but also that they have no “limiting principle”.

In law, that term is used to describe limitations that have been placed on the authority of each of the branches of our federal government. In the case of Congress, it limits the power of the legislature to make laws unmoored from constitutional authority, and in the case of the administration, it limits the ability of the executive branch to operate within the powers Congress has given it.

Accepting the Cornell memo at face value, nothing would limit the administration’s ability to grant parole to any alien, so long as it would “promote more efficient use of” DHS’s “resources and staffing”, thus opening the limited parole authority wide enough to swallow all of the other rules and requirements in the INA.

Most of the “pressures” the authors allude to were inflicted by the Biden administration, through the non-detention policies that the Florida judge described. Allowing the administration to thus expand its parole programs based upon those pressures would be the definition of what we call in D.C. a “self-licking ice cream cone” — which would again mean you wouldn’t get any of that sweet dairy treat.

Left to its own devices, the Biden administration seems satisfied to ignore most of the restrictions Congress has placed on the entry of foreign nationals to the United States, and trash most of the rest. Trust me — Parole in Place for alien spouses is just the beginning, and the vanguard of a much larger amnesty.