Border Crisis Driven by Biden’s Shift in DHS’s ‘Parole’ Release Policy

The most important issue in last week's SCOTUS argument is the one that has not been properly resolved

By Andrew R. Arthur on May 5, 2022

The Southwest border is in chaos, with Border Patrol agents apprehending a record number of illegal migrants there in FY 2021, and apprehensions in FY 2022 (through March) already above one million. When CDC orders mandating the expulsion of illegal migrants expire — orders issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic — things will get exponentially worse. This disaster is driven by the Biden administration’s new policy of releasing illegal migrants it can’t detain on “parole”. That policy shift is at the heart of a critical case pending at the Supreme Court, but it is one that the parties have failed to properly resolve — at least thus far.

Biden v. Texas. The case in question is Biden v. Texas, which I referred to in February as “the most significant immigration case ever because the Court will be considering whether there are any limits on the administration’s authority to ignore explicit congressional mandates in allowing foreign nationals to enter and remain in the United States”.

On its face, Texas deals with the administration’s ability to rescind the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. MPP allowed DHS to return “other than Mexican” migrants caught entering illegally or without proper documents back to Mexico — where the Mexican government agreed to provide them with protection for the duration of their stays — to await removal hearings. When the date of those hearings arrived, they were then paroled (but not released) into the United States to apply for asylum.

In its October 2019 assessment of the program, DHS found that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien migrant families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

The state plaintiffs (Texas and Missouri) charge that DHS: (1) Is required to detain every illegal migrant that it apprehends at the Southwest border; (2) lacks the space needed to detain those illegal migrants; (3) is limited in its statutory ability to release aliens on parole; and thus (4) cannot stop sending illegal migrants back across the border to await their hearings by rescinding “Remain in Mexico”.

Again, “on its face” Texas is about MPP, but as Justice Kavanaugh explained, “the heart of the case” is whether DHS can release migrants it is mandated to detain on parole simply because DHS lacks detention space.

Parole. As I explained in an October post, Justice Kavanaugh’s assessment is correct for a number of reasons.

Section 235(b) of the Immigration and Nationality Act (INA) mandates that DHS detain every “arriving alien” who is inadmissible to the United States — including illegal migrants apprehended after entering illegally. They are supposed to be detained from the moment that they are apprehended, until they are either removed from the United States or granted permanent status (usually asylum) in this country.

That is not to say, however, that DHS has no power to release any of those migrants pending either removal or a grant of permanent status. Congress provided DHS with extremely limited authority to “parole” individual aliens into the United States. That means those aliens are not formally “admitted”, but they can be released into this country pending some future event (like a removal proceeding).

This parole authority is set out in section 212(d)(5)(A) of the INA, which states, in pertinent part, that the secretary of DHS “may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.”

That means DHS can only parole illegal migrants one at a time (“case-by-case”), and not en masse, as the Biden administration has been doing. It also means DHS is only allowed to parole those aliens for one of two reasons: Because there are “urgent humanitarian reasons” justifying the alien’s release; or release on parole will result in a “significant public benefit” to the United States.

Which leads me to the oral argument in Texas, which took place before the Supreme Court last week.

Oral Arguments in Biden v. Texas. Not surprisingly, parole was a hot topic at that hearing, with the Court largely focused on whether releasing illegal migrants into the United States provided this country with a “significant public benefit” (a phrase that was used 45 times during the hearing).

Solicitor General Elizabeth Prelogar, arguing on behalf of the administration, complained that DHS has limited detention space, and therefore:

DHS can permissibly take account of its detention capacity in determining that there is a significant public benefit from releasing a low-priority individual who's not a flight risk, who doesn't have a criminal history, if that would preserve a bed space for someone who's a higher priority under our detention policies.

That prompted Chief Justice Roberts to note that: “So there's no limit at all on how many you can release into the United States”, prompting Prelogar to respond: “Well, I think the inherent limit, of course, is the detention capacity. Congress didn't define that as a significant public interest.”

That response is vague, but it appears that the solicitor general was asserting that Congress did not consider the detention of illegal migrants to be a “significant public interest”. The fact that Congress mandated their detention, though, would indicate that they did.

Much more significant, however, is what Prelogar argued next: “Well, this is the agency's consistent interpretation of the parole provision. Congress has never disapproved it. It has known that DHS is exercising its parole authority that way.”

That statement somewhat vague as well, but she appears to be arguing that DHS has always interpreted the “parole provision” to simply allow it to parole any alien it could not detain. If that is Prelogar’s argument, she is demonstrably wrong.

DHS’s Past Interpretations of the Parole Provision. The best evidence of “the agency’s consistent interpretation of the parole provision” is 8 C.F.R. § 212.5, the regulation that implements section 212(d)(5) of the INA. Simply put, the INA is where Congress sets forth the law, the regulations at 8 C.F.R. are where DHS explains how it interprets the INA.

This regulation states, in pertinent part at subsection(b):

The parole of aliens within the following groups who have been or are detained in accordance with [the expedited removal provision in 8 C.F.R. § 235.3(c)] would generally be justified only on a case-by-case basis for “urgent humanitarian reasons or “significant public benefit,” provided the aliens present neither a security risk nor a risk of absconding:

(1) Aliens who have serious medical conditions in which continued detention would not be appropriate;

(2) Women who have been medically certified as pregnant;

(3) Aliens who are defined as minors in [8 C.F.R. § 236.3(b)] and are in DHS custody;

(4) Aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or

(5) Aliens whose continued detention is not in the public interest as determined by those officials identified in paragraph (a) of this section. [Emphasis added.]

The “Catch-All” Clause in the Parole Regulation. The administration is apparently relying on that “catch-all” paragraph highlighted in 8 C.F.R. § 212.5(b)(5) to justify its release of illegal migrants for whom it lacks detention space (in lieu of sending them back across the border under MPP), and at first glance it appears to be broad. But a review of the regulatory history for that provision reveals that it is anything but.

Paragraph 5 was originally added to the regulations through an interim final rule that was published in the federal register nearly 40 years ago, when it was 8 C.F.R. § 212.5(a)(2)(v).

At the time, it read: “Aliens whose continued detention is not in the public interest as determined by the district director”. “District director” in that context referred to the district director of the INS, which no longer exists, hence the change. Otherwise, it is identical.

Here is how DOJ (which then had jurisdiction over the INS and thus issued the regulation) explained that provision when it published it:

The legislative history of the parole provision shows a Congressional intent that parole be used in a restrictive manner. The drafters of the Immigration and Nationality Act of 1952 gave as examples situations where parole was warranted in cases involving the need for immediate medical attention, witnesses, and aliens being brought into the United States for prosecution. ... In 1965, a Congressional committee stated that the parole provisions “were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations”, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside the limit of the law.

There is nothing “restrictive” — let alone “emergent, individual, or “isolated” — about DHS’s release of thousands of aliens for whom it lacks detention space, which is what the Biden administration has been doing since the day after the inauguration.

But what about Congress’s intention that illegal migrants be detained, versus released in the “public interest”? The regulatory history continues:

Aliens who appear to be inadmissible and who have false or no documentation, and/or who arrive at places other than designated ports of entry, will be detained by the Service under section 235(b) of the Act. This policy is set forth in this rule. In addition, the rule defines a number of situations where exercise of the parole authority is justified for “emergent reasons” or would be “strictly in the public interest”: (1) Serious medical conditions; (2) pregnant women; (3) certain juveniles; (4) aliens with close family relatives in the United States; (5) other unusual situations warranting parole. [Emphasis added.]

As an aside, I note that the exception for “aliens with close family relatives” has subsequently been removed from this regulation, which makes sense, because Congress never made a provision for paroling such aliens.

With that, however, this regulatory history for that catch-all provision demonstrates that the executive branch’s “consistent” policy has been to grant parole only “restrictively”, and only in circumstances that mirrored those in which the alien was pregnant, had a “serious” medical condition requiring “immediate medical attention”, or whose presence was required in a criminal proceeding.

Lest there be any doubt, the rule is clear that detention is the “policy” of the executive branch.

That means that the Biden administration has actually changed the “consistent interpretation of the parole provision”, Prelogar’s representation notwithstanding. As for her contention that “Congress has never disapproved” the executive branch’s interpretation of the parole policy, that isn’t exactly right, either.

You will notice that the regulatory history uses different verbiage (“emergent reasons” and “strictly in the public interest”) from the current version of the “parole provision”, section 212(d)(5)(A) of the INA (2022).

Those earlier terms reflected the standards for release in the parole provision in July 1982 when the regulation was initially issued, but Congress amended that provision in section 602(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

Section 602(a) struck the prior language in section 212(d)(5)(A) of the INA (“for emergent reasons or for reasons deemed strictly in the public interest”), and inserted the current, even more restrictive language, “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. The language in 8 CFR § 212.5(b)(5) remained the same, however, aside from allowing other immigration officers to grant parole.

DOJ’s failure to amend that regulatory paragraph would be fine, so long as that catch-all mirrored the tightening of the parole provision in section 602(a) of IIRIRA — which based on Prelogar’s representations to the Court is not the case under the Biden administration.

In any event, and the solicitor general’s contentions notwithstanding, Congress in IIRIRA plainly “disapproved” of the way that the executive branch was interpretating the parole provision in 1996.

You don’t have to take my word for it, however. Here is how the Second Circuit viewed the IIRIRA amendment to the parole provision in a 2011 decision:

IIRIRA struck from [section 212(d)(5)(A) of the INA] the phrase “for emergent reasons or for reasons deemed strictly in the public interest” as grounds for granting parole into the United States and inserted “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” ... The legislative history indicates that this change was animated by concern that parole under [section 212(d)(5)(A) of the INA] was being used by the executive to circumvent congressionally established immigration policy.

That is the same issue that the justices were focusing on in the April 26 Supreme Court argument in Texas, proving that when it comes to immigration enforcement, “there is nothing new under the sun.”

Put plainly, however, and Prelogar’s contentions notwithstanding, there is no evidence that Congress has ever allowed either the former INS or its successor, DHS, to release aliens on parole under section 212(d)(5)(A) of the INA simply because there were not enough detention beds.

A plain reading of the regulatory history and of the IIRIRA amendment to the parole provision reveals that the medical bases for parole (pregnancy or a need to seek emergency treatment) are premised on DHS’s authority to parole aliens for “urgent humanitarian reasons”. Paroling them to appear in criminal proceedings is justified because it provides a “significant public benefit”.

Thus, under executive branch’s policy for nearly 40 years, parole only provides a “significant public benefit” to the United States if the reason for such parole is equivalent to ensuring that justice is served in a court of law. Respectfully, a simple lack of detention space is insufficient.

None of the legislative or regulatory history of the parole provision was even discussed at the April 26 Supreme Court hearing, aside from Prelogar’s erroneous contentions. That is an oversight that the parties may want to think about correcting. Justice Kavanaugh specifically focused on whether releasing illegal migrants into the United States on parole provides a “significant public benefit”. The answer is “No.”

A Really Big Deal.This is a significant issue in Texas, even if (or especially if) neither the parties nor the Court are aware of it.

In his questioning of Texas Solicitor General Judd Stone II (representing the state plaintiffs), Justice Kavanaugh asked whether there was a “State Farm” issue with DHS’s contention that it was allowed to release illegal migrants it could not detain on parole.

“State Farm” in that context refers to the Supreme Court’s precedent decision in Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co., a 1983 decision in which the Court held that an agency must provide a “reasoned analysis” before changing its policies.

DHS did attempt to amend the regulations to give itself the authority to release illegal migrants where detention was “unavailable or impractical” in a Joint Notice of Proposed Rulemaking that it published in conjunction with DOJ in August (in response to which the Center made many of the points I have set forth herein).

That language was dropped from the subsequent interim final rule, but the departments nonetheless asserted in that interim final rule that:

As has been the case for decades, DHS views detention as not being in the public interest where, in light of available detention resources, and considered on a case-by-case basis, detention of any particular noncitizen would limit the agency's ability to detain other noncitizens whose release may pose a greater risk of flight or danger to the community.

DHS referenced three documents to support this proposition in a footnote: An internal ICE guidance document (for which there was no link) apparently from 2019; a February 2017 memo from then-DHS Secretary John Kelly; and a memo from then-INS Commissioner Gene McNary from April 1992 (again, for which there was no link).

McNary’s memo (whatever it stated) predated the regulatory parole publication in July 1992, while Kelly’s memo did allow for certain releases of illegal migrants for lack of space, but only while DHS worked “to expand [its] detention capabilities”.

Not only is there no evidence that the Biden administration is attempting to expand its detention capabilities, but the president’s FY 2023 budget actually asks Congress to cut the number of ICE detention beds for adults, from their current level of 30,000 down to 25,000.

More shocking, however, is the fact that — even though CBP encountered more than 236,000 illegal migrant adults travelling with children in “family units” (FMUs) in the first six months of FY 2022 — the Biden administration wants to end FMU detention entirely, and so asks for no FMU detention beds in its FY 2023 budget request.

It is rather incongruous for the Biden administration to argue that it must release illegal migrants on parole for lack of detention space while requesting fewer beds to detain illegal migrants. Justice Breyer specifically asked Prelogar, “has the administration asked Congress for more money for detention?” Not surprisingly, the solicitor general failed to answer the question.

In any event, of the three documents that DHS points to in claiming it has been common policy for decades to release aliens on parole for lack of detention space, one is inapposite, one has been superseded by regulation, and one cannot be located (and is likely inapposite as well).

So, to answer Justice Kavanaugh’s question: Yes, there is a State Farm issue with respect to the Biden administration’s shift in parole policy, and yes, it is relevant to the issues in Texas.

Why All This Matters. Here’s why all this matters: The main (if not sole) reason that new apprehensions at the Southwest border are surging toward even higher records is because the Biden administration has released hundreds of thousands of illegal migrants it apprehended previously.

The reason that illegal migrants enter the United States illegally is to live and work in the United States. In essence, the Biden administration is subsidizing illegal entry by allowing those migrants to work in this country, earn back their smuggling fees, and send money back home for future illegal entrants.

“Whatever you subsidize you get more of”, an axiom that is certainly true of illegal migration at the Southwest border. Worse, however, the Biden administration is setting up a vicious circle of illegal entries, lack of detention space, and releases. “Nothing succeeds like success”, and in this situation, illegal entry to live and work in the United States indefinitely has been a success for at least 836,000 aliens since Biden took office, and that will just get worse.

It is true that out of exigency, DHS has exceeded the limits that Congress has set on its ability to parole illegal entrants in the past. That erstwhile exigent exception, however, is now official Biden administration policy. I can only hope that the Supreme Court notices this policy change before there is no border anymore.