The Epoch Times reported last week that DHS is releasing illegal migrants on a limited authority known as “parole”, and then giving them a year to get their affairs in order before reporting to ICE. That’s bad enough, but worse is that it’s doing so while more than 30 percent of ICE detention space — which is meant to house those aliens — sits empty at a cost of $40 million-plus per month, or more money per day than the average American will earn in a quarter century.
Parole. DHS is required to detain illegal migrants apprehended entering the country illegally, from the time that they are seized until they are granted immigration status or removed.
Although that detention mandate is the law, Congress has given DHS extremely limited authority to “parole” individual aliens into the United States in emergent circumstances. Aliens paroled by DHS are not formally “admitted”, but they can be released into this country pending some future event, like the end of non-immigration court proceedings or full recuperation from medical treatment.
That reflects the statutory limitations on parole authority. The parole statute at section 212(d)(5)(A) of the Immigration and Nationality Act (INA) states, in pertinent part, that the DHS secretary “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.” (Emphasis added.)
Parole Policy Across Administrations. Because parole is a limited authority, DHS can only release illegal migrants on parole individually (“case-by-case”), and not en masse, as the Biden administration has been doing. Further, DHS is only allowed to parole aliens for one of two reasons: Because there are “urgent humanitarian reasons” justifying the alien’s release; or that release on parole will result in a “significant public benefit” to the United States.
“Urgent humanitarian reasons” has been read for nearly four decades to mean that the alien has a serious medical condition requiring emergency care. “Significant public benefit” requires, for example, that the alien’s presence is required in an ongoing court matter in the United States. That list is not exhaustive, but release on any other grounds is supposed to be of the same urgency and import.
Despite these limitations, various administrations have exceeded this limited parole authority. For example, in December 2009, then-ICE Director John Morton directed that illegal entrants in expedited removal proceedings who had been found to have a “credible fear” of return (a screening standard for arriving aliens seeking asylum) generally be released on parole.
Not surprisingly, given that the Morton directive exceeded the statutory parole authority in section 212(d)(5)(A) of the INA, that drove a massive increase in aliens entering illegally and claiming asylum in order to seek release into the United States.
For example, in FY 2009, before the Morton parole directive went into effect, asylum officers at USCIS (who screen migrants for credible fear) completed 5,173 credible fear cases. That had been the norm for years.
But asylum claims then grew to nearly 9,000 in FY 2010 and jumped to more than 13,600 in FY 2012, before increasing by almost 280 percent, to 36,454, in FY 2013. By FY 2019, asylum officers were adjudicating more than 102,000 credible fear claims as smugglers discovered and exploited the “credible fear” loophole that allowed illegal migrants to live and work in the United States indefinitely: a more than 19-fold increase in just a decade.
The Trump administration never rescinded the Morton directive, even though — again — it directly contravenes congressional limitations on the parole authority. That said, by the time that Trump took office, there were too many aliens claiming credible fear to detain them all.
In a February 2017 memo, Trump’s first DHS secretary, John Kelly, allowed his officers to prioritize illegal migrants for detention and to release others on parole, but only as a stopgap measure while the department worked “to expand detention capabilities”.
The Migrant Protection Protocols (MPP or “Remain in Mexico”), implemented in FY 2019, enabled DHS to send illegal migrants back across the border to await their removal hearings in the United States, and therefore freed up limited detention beds for aliens who were not returned. That allowed DHS to revert to the traditional (and legal) parole standards.
Even before MPP came into effect, however, release of illegal migrants under the Trump administration on parole was the exception, not the rule. The Biden administration has turned that calculus on its head, explaining in the Federal Register that:
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. [Emphasis added.]
Although the administration contends that this “has been the case for decades”, a careful review of the highlighted words in that passage reveals this new policy it is an inversion of the statutory parole statute: The statutory “public interest” standard guides the release of individual aliens, but under this formulation, “public interest” is now the standard for parole’s polar opposite, “detention”.
Mayorkas New Parole Rule. As objectionable as all of this is from a legal standpoint, the Biden administration’s implementation of its parole policies has made it exponentially worse.
Again, the Trump administration exceeded the statutory limits on parole as an emergency measure, but even then DHS under the 45th president at least first issued illegal migrants Notices to Appear (NTAs), the charging documents in removal proceedings (akin to an indictment in a criminal case) before releasing them on parole.
Those NTAs required illegal migrants who were released on parole to appear in immigration court for removal proceedings on a time and date certain. If they failed to appear, they were to be ordered removed, allowing DHS to quickly deport them. That is no longer the case under the current administration.
In a January response to an inquiry from Sen. Ron Johnson (R-Wisc.), DHS Secretary Alejandro Mayorkas’ office explained: “In general, [an illegal migrant] who is paroled into the United States is not placed into removal proceedings until the parole is terminated.” Consequently, those migrants are not issued NTAs before they are released into the United States.
Although I have carefully followed Mayorkas’ testimony and public statements on the border, neither he nor the department ever revealed how much time those paroled aliens were being given to roam freely in the United States before they were placed into removal proceedings.
When Border Patrol agents were releasing aliens on “Notices to Report” (“NTRs”, which have no legal effect and have been described by my colleague Mark Krikorian as “essentially immigration enforcement by the honor system”), those migrants were given 60 days to report to an ICE office for an NTA. Thus, I assumed that this 60-day NTR standard applied to aliens released on parole.
Epoch Times Report. I was wrong, because as the Epoch Times reports, illegal migrants released on parole are being given up to a year to report to ICE.
That is time those aliens — who, remember, entered illegally to live and work in the United States — can get settled, work (albeit illegally), have children, build up equities, and put down roots.
An unnamed DHS official quoted in that report next explained: “If no contact is made, at the end of that year, the alien would revert back to the status he or she had upon arriving as an illegal alien and would be removable”.
I have no idea who that official is, but he or she is either naïve or lying. The alien is already removable but cannot now be removed until after DHS goes through the complex and time-consuming process of finding the alien, obtaining a removal order, locating and picking up the alien again (they likely won’t be detained the next time, either), and removing him or her.
Why is DHS giving illegal migrants a year to get settled into the United States before beginning this process? No idea, but if you wanted to erase — completely obliterate — the border, this would be the tack you would take.
ICE Detention Goes Empty, but You Still Pay. Why would DHS release aliens whom Congress has ordered it to detain on parole, in violation of the strict statutory limits governing that authority?
The Biden administration complains that — despite the detention mandate — it is forced to release illegal migrants on parole because Congress has failed to give it adequate detention space to hold them. A series of court-ordered disclosures in ongoing litigation, however, reveals that ICE detention beds are going empty while the Biden administration is releasing tens of thousands of aliens monthly on parole.
Those disclosures were ordered by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas in Texas v. Biden, a challenge by state plaintiffs to Mayorkas’ attempts to end MPP.
As I have noted in the past, those documents reveal that the Biden administration has released hundreds of thousands of illegal migrants into the United States — nearly all of them in violation of law.
Based on the disclosures for migrant releases from January 21, 2021 (the first full day after Biden’s inauguration) to October 2021, November, December, January, February, March, and April, DHS has released 954,214 arriving aliens encountered by CBP at the Southwest border.
If all those people lived in one city, it would be the 13th largest in the United States, and by the time that I am writing this, border releases will have exceeded the population of America’s 12th largest city, Fort Worth, Texas (958,700). By law, few if any of them should have been released.
Parole is increasingly the Biden administration’s go-to option for border releases. In the last eight months of FY 2021 (which ended on September 30), 80,250-plus arriving aliens encountered by CBP at the Southwest border under the Biden administration were released on parole. In just the month of April, by contrast, DHS paroled in 91,250.
Of those April parolees, only 27,654 were given NTAs. The remainder — nearly 63,600 aliens — were apparently given a year to settle into their new homes in the United States, have babies, and get jobs. Few if any will ever leave.
Here’s the kicker, however: Despite the Biden administration’s protestations that it lacks detention space, more than 31.5 percent of ICE detention beds (9,118) — which are funded by you, the taxpayer, to detain illegal migrants — went empty. At $152 per bed per day, that is waste of nearly $1.386 million every day, or $41.578 million for the month.
The Unbelievable Waste and the Damage Done. The average wage in the United States in 2022 is just short of $53,500, meaning DHS wastes more money on unused detention every day than the average American will make in almost 26 years.
The Biden administration is not even attempting to use its authorized bed space for detaining illegal migrants. No wonder that the president is asking Congress to cut funding for detention beds by more than a quarter — from the current level of 34,000 beds to just 25,000 — in FY 2023. At least he has his eye on the bottom line, if not national security or sovereignty.
We now know the Biden administration is giving illegal migrants almost a year to settle in before it starts the removal process. And we also now know the president has released nearly one million aliens who should have been detained, while wasting more money every day than the average taxpayer will earn in a quarter-century. Thank God for diligent judges and a dogged press.