Based on my conservative estimates, the Biden administration used its extremely narrow “parole” authority to (unlawfully) grant entry to nearly 2.9 million “inadmissible applicants for admission”, i.e., aliens with no right to be here. The Trump administration is now attempting to quickly screen and deport many of them, using “expedited removal”, a procedure that affords those aliens limited “due process” rights. On August 11, the liberal U.S. Court of Appeals for the District of Columbia (D.C. Circuit) cleared the way for DHS to do exactly that in a rollercoaster order — but expect more challenges to follow, even though the administration’s right to do what it wants here is pretty clear.
“Parole”
Alien “applicants for admission” without proper admission documents (like visas and passports) are inadmissible and excludable under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA).
In sections 235(b)(1) and 235(b)(2)(A) of the INA, Congress mandated that those aliens, like all other aliens who have not been admitted, be detained until they are either expelled, admitted, or granted some immigration status that would allow them to remain here legally.
That said, Congress in section 212(d)(5)(A) of the INA also gave the DHS secretary limited discretion to “parole” those aliens “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” (emphasis added) and release them.
As my colleague George Fishman and I have made clear, those adjectives in the parole statute have accepted and specific meanings.
“Urgent humanitarian reasons” equates to a need for the alien to seek emergency medical treatment, while “significant public benefit” means a request by some authority to allow the alien in to appear at judicial proceedings in this country, sometimes as a witness but more often as a defendant.
But if you are wondering why Congress used so many adjectives in limiting the DHS secretary’s parole authority, it’s because various administrations going back decades stretched the meaning of those terms to allow thousands of other aliens — who didn’t need medical aid and whose presence wasn’t required in a U.S. tribunal — into this country, ostensibly on “parole”.
That’s because prior to the passage of Pub. L. 119-1, the “Laken Riley Act”, which amended the parole statute to give state attorneys general standing to sue to stop parole abuses (and which I will discuss further below), no one — not the states, not Congress — could challenge any parole grant.
Biden’s Parole Bonanza
If prior administrations stretched Congress’s parole limits, the last one simply ignored them to suit its “open borders” tastes.
It began by releasing illegal migrants apprehended by Border Patrol agents at the Southwest border on parole — even though (again) Congress requires them to be detained — before implementing “Operation Allies Welcome/Refuge” to release on parole Afghans Biden’s Department of Defense brought to this country following its disastrous retreat from Kabul in August 2021, and then “Uniting for Ukraine” (U4U), a parole program for tens of thousands of Ukrainians fleeing the February 2022 Russian invasion of that country.
Congress largely post hoc acquiesced to paroles of the latter two groups but never approved Biden’s border parole releases.
In fact, a federal judge concluded the only reason Biden’s DHS paroled illegal migrants at the Southwest border (under a policy called “Parole+ATD”) was because paroling those aliens took less time (15 to 30 minutes) than processing them to release them on their own recognizance (“between 2 to 2.5 hours”).
Consequently, that judge shut Parole+ATD down in March 2023, only for the administration to repackage it as “Parole with Conditions” just over two months later (which the unamused judge also shut down).
Prior to the issuance of those judicial orders, and to hide the surge in illegal migrants coming illegally each month, in January 2023 the Biden administration also opened what it referred to as “Legal Pathways for Safe, Orderly, and Humane Migration”.
Two of those “pathways” turbocharged paroles.
The first was “CHNV Parole”, a program under which up to 30,000 nationals of Cuba, Haiti, Nicaragua, and Venezuela could apply for parole from abroad per month to fly to interior U.S. airports in the United States, allegedly for their own protection and in lieu of crossing the border illegally.
The second “legal pathway” enabled would-be illegal migrants in Mexico to schedule their unauthorized entries at the Southwest border ports of entry using the CBP One app, a program I dubbed the “CBP One interview scheme”.
Under that scheme, would-be illegal migrants could download the CBP One app and then up to 1,450 of them per day could use the app to schedule interview appointments at Southwestern border ports of entry.
Not much is known about what occurred during those interviews even today, but congressional disclosures revealed that 95.8 percent of aliens who scheduled appointments using the app were subsequently paroled into this country.
As an important aside, the Government Accountability Office (GAO) — Congress’s watchdogs — examined the U4U, CHNV, and “family reunification” parole programs, and released a report in December blasting the implementation of each of them and concluding they were “vulnerable to fraud” (which may be why no agency wanted to take responsibility for them).
Texas and other states challenged various Biden parole programs while demanding the administration bring back Trump I’s “Remain in Mexico” policy (under which illegal migrants were sent south to await their asylum hearings), only to be told by the Supreme Court they lacked the necessary standing to file suit.
As noted, the legislative branch rectified that in the Laken Riley Act — the first bill passed in the current 119th Congress — proving just how illegal those programs had been.
“Expedited Removal”
Under section 235(b)(1) of the INA (referenced above), immigration officers may quickly expel any alien “applicant for admission” who arrives at the borders or the ports without proper admission documents or with fraudulent or bogus documents under a procedure called “expedited removal”.
Expedited removal orders are issued by immigration officers themselves, without having to place those aliens into (often lengthy) removal proceedings under section 240 of the INA before an immigration judge (IJ).
The only exception to quick deportation under expedited removal applies when an applicant for admission subjected to that process claims fear of persecution or torture if returned or requests asylum. By statute, immigration officers must refer those aliens to USCIS asylum officers (AOs) for a “credible fear” interview.
If at the end of that interview the AO finds the alien has a credible fear, i.e., that there’s “a significant possibility ... that the alien could establish eligibility for asylum” or associated protections, expedited removal is cancelled and the alien is placed into section 240 removal proceedings before an IJ.
If the AO doesn’t find credible fear, the alien can ask an IJ to reconsider that decision in a truncated “credible fear review” proceeding, but if neither the AO nor the IJ find credible fear, the alien will be expelled pursuant to the expedited removal statute.
The Interplay Between Parole and Expedited Removal
As the Fifth Circuit has explained:
parole creates something of legal fiction; although a paroled alien is physically allowed to enter the country, the legal status of the alien is the same as if he or she were still being held at the border waiting for his or her application for admission to be granted or denied.
That concept underpins the parole statute, section 212(d)(5)(A) of the INA, which states that the DHS secretary’s parole of an alien applicant for admission:
shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. [Emphasis added.]
Few if any of the nearly 2.9 million aliens who were paroled into the United States under Biden had proper admission documents, and thus — logically — when they are “returned to the custody from which” they were paroled and they are “dealt with in the same manner as that of any other applicant for admission to the United States”, they can and will be subjected by DHS to expedited removal.
And even though many of those aliens have been physically in this country for years, under regulations at 8 C.F.R. § 1.2, each is still considered an “arriving alien”, that is, “an applicant for admission coming or attempting to come into the United States at a port-of-entry”.
In fact, pursuant to that regulation, parolees remain “arriving aliens ... even after any such parole is terminated or revoked”.
Coalition for Humane Immigrant Rights v. Mullin
Simply put, Biden’s DHS probably didn’t do many of those nearly 2.9 million aliens any long-term favors by paroling them into the United States to linger in what is ultimately (and legally) a parlous immigration status, and not surprisingly, Trump’s DHS has latched onto those legal provisions to start moving them out.
Which brings me to the March 2025 complaint in Coalition for Humane Immigrant Rights [CHIRLA] v. Noem, a challenge brought by CHIRLA and two other organizations to Trump II’s efforts to revoke the parole of certain Biden-era aliens and to place them into expedited removal, which was filed in the U.S. District Court for the District of Columbia (D. D.C.) and assigned to Judge Jia Cobb.
In an August 1, 2025, order, Judge Cobb stayed certain Trump administrative actions that subjected erstwhile parolees to expedited removal. Notably, however, that D. D.C. order had no impact on 8 C.F.R. § 1.2, the regulation on which those actions were premised.
Likely for good reason. The definition of “arriving alien” and the application of that term to aliens who had been paroled into the United States is not a Trump II, or even Trump I, innovation.
That regulation was promulgated (as § 1.1(q) in 8 C.F.R.) by the Clinton administration on March 6, 1997, less than six months after Congress created expedited removal in the Illegal Immigration Reform and Immigrant Responsibility Act of 2006 (IIRIRA) — and it’s arguably too late to challenge it now.
Not surprisingly, DOJ appealed that order, and skipping the tortured litigation history that followed, CHIRLA eventually made its way to the D.C. Circuit, where the caption was amended to reflect the change in DHS leadership to Coalition for Humane Immigrant Rights v. Mullin, but where it is still “CHIRLA”.
On August 11, a three-judge panel of that court issued a per curiam (unsigned, but for the panel as a whole) opinion in CHIRLA, on the question of:
whether the organizations have standing to challenge governmental action in order to avoid expedited removal of their members without showing that the requested relief would likely leave their members less liable to expedited removal.
Succinctly, the panel concluded, CHIRLA and the other organizations “do not” have standing to bring that challenge. Here’s why:
The D.C. Circuit explained that the Trump II actions that were stayed by the D. D.C. were: (1) a memo issued on January 23, 2025, by then-acting DHS Secretary Benjamine Huffman on subjecting parolees to expedited removal; and (2) an ICE e-mail suggesting immigration officers “consider for expedited removal ... all aliens previously released by” CBP “who have not affirmatively filed an application for asylum with” USCIS “when they report to an” an ICE office for scheduled appointments.
Staying those two actions, the D.C. Circuit concluded, without seeking also to stay 8 C.F.R. § 1.2, “the regulation subjecting parolees to expedited removal”, would allow DHS to continue subjecting parolees to expedited removal — meaning it wouldn’t give the plaintiffs the relief they sought (protection against expedited removal).
For that reason, the court concluded, the plaintiffs lacked standing to challenge the Huffman memo and the ICE e-mail.
If that all sounds like confusing legalese, it is, and that’s without bringing up the fact that the same logic could arguably deprive the government of its right to appeal the D. D.C. order to the D.C. Circuit (though the appellate court concluded it nonetheless still had jurisdiction to hear the appeal).
All Pretty Clear, But ...
With due respect to the jurists involved (and those yet to come), it’s clear the INA and regulations give DHS free rein to both terminate nearly all the paroles issued to millions of aliens under Biden and then to subject those aliens to expedited removal. Nonetheless expect more challenges to follow.
If formerly paroled aliens now facing expedited removal want someone to blame, it should be Biden’s DHS for abusing its very limited parole release authority, and not the Trump administration for subjecting those aliens to the inevitable consequences associated with entering this country without proper documents.