The Biden-Harris administration has paroled more than 2 million aliens into the United States—nearly all of them in violation of the terms of the parole statute, section 212(d)(5)(A) of the Immigration and Nationality Act (INA).
What you may not realize is that even though none of those parolees has been thoroughly vetted or lawfully admitted, it’s not illegal for them to possess a firearm, even though gun possession is illegal for most aliens who have been lawfully admitted but who don’t have green cards. For some reason, a White House obsessed with closing gun “loopholes” created a major one of its own.
The “Legal Fiction” of Parole
The aforementioned section 212(d)(5)(A) of the INA provides, 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, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [DHS secretary], 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.
The only aliens who seek parole – and thus the only ones who are granted it – are those ineligible to be admitted to the United States, usually because they lack proper admission documents and therefore have no right to be admitted.
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.
So, even though an alien who has been paroled can be released, obtain work authorization, get a job, buy a house and a car, get married, and have children, in the eyes of the law that alien has never really left the port of entry and has only the constitutional rights that any other alien sitting in a port has.
Which is to say, they don’t have many rights at all. Even their Fifth Amendment due process rights are limited to whatever procedures Congress has provided them, as the Supreme Court recognized in 2020.
That conclusion was premised on the Court’s 1982 opinion in Landon v. Plasencia, where the majority noted: “This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”
It’s only after aliens are admitted and “begin[] to develop the ties that go with permanent residence” that their “constitutional status changes accordingly”. But again, parolees aren’t admitted, so their constitutional status never changes.
18 U.S.C. § 922(g)
The federal law criminalizing firearm possession by aliens is 18 U.S.C. § 922(g)(5), which states: “It shall be unlawful for any person- who, being an alien- (A) is illegally or unlawfully in the United States; or (B) except as provided . . . has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the INA)”.
The referenced exception, in paragraph (y)(2) of that statute, applies to nonimmigrants admitted “for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States”, those here on diplomatic visas, other foreign officials designated by the State Department, and foreign cops from “friendly foreign government[s]” coming here on official business.
For every other tourist, student, and other alien in nonimmigrant status, the possession of firearms is illegal.
27 C.F.R. § 478.1
Congress should have known when it wrote that provision that there is no statutory definition of “aliens illegally or unlawfully in the United States” and thus should have been a little clearer about its intentions.
Clarity is a must when it comes to enforcing criminal statutes, however (otherwise courts can declare them invalid as “void for vagueness”), and so the Department of Justice’s Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a regulation at 27 C.F.R. § 478.1 defining that and other vague terms in section 922.
Here’s how that regulation defines the term “alien illegally or unlawfully in the United States”:
Aliens who are unlawfully in the United States are not in valid immigrant, nonimmigrant or parole status. The term includes any alien— (a) Who unlawfully entered the United States without inspection and authorization by an immigration officer and who has not been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (INA); (b) Who is a nonimmigrant and whose authorized period of stay has expired or who has violated the terms of the nonimmigrant category in which he or she was admitted; (c) Paroled under INA section 212(d)(5) whose authorized period of parole has expired or whose parole status has been terminated; or (d) Under an order of deportation, exclusion, or removal, or under an order to depart the United States voluntarily, whether or not he or she has left the United States. [Emphasis added.]
The term “immigrant” as used in that definition refers to “lawful permanent residents”, i.e., green card holders. And as the statute itself shows, although aliens admitted in valid nonimmigrant status aren’t deemed to be here illegally by regulation, most are already barred from possessing firearms by statute.
That, however, leaves the parole exception.
I assume there are valid reasons why H-1B nonimmigrants in “specialty occupations” who went through background inspections before they were issued their visas by consular officers abroad should be barred from possessing firearms here, though it’s anomalous that parolees who skipped those background checks before coming here can have guns.
If that distinction is premised on the Second Amendment, it doesn’t make much sense given parolees who haven’t been admitted have few real constitutional rights, whereas lawfully admitted nonimmigrants are accorded almost as many rights as citizens and green card holders are.
Nonetheless, in the eyes of the ATF, it’s a crime for most nonimmigrants to possess firearms but not a crime for parolees.
The Massive Biden-Harris Expansion of Parole
Still, that anomaly wasn’t too big of a deal when parole was issued only relatively sparingly.
In FY 2020, 312 aliens apprehended by Border Patrol agents at the Southwest border were given humanitarian release on parole, mostly because they needed emergency medical treatment or were needed in a criminal proceeding as a witness or defendant.
Few were likely here long enough to even find a gun store, let alone acquire a firearm.
By contrast, in FY 2022, agents at the Southwest border released more than 320,000 apprehended migrants on parole, and in the first 10 months of FY 2024 alone, CBP officers in the agency’s Office of Field Operations (“OFO”, which has jurisdiction over the ports of entry) paroled more than 459,000 inadmissible aliens, according to DHS Office of Homeland Statistics data.
The vast majority of those OFO parolees were Cuban, Haitian, Nicaraguan, and Venezuelan nationals who came in under the Biden-Harris administration’s “CHNV parole” program, as well as other aliens of various nationalities who prescheduled their entries at the ports using the CBP One app (which I have dubbed the “CBP One app interview scheme”).
Those aliens were each paroled for at least two years and will likely remain in that status much longer than that, but the bigger issues are: (1) both CHNV parole and the CBP One app interview scheme are rife with fraud; and (2) because those aliens didn’t apply for valid visas abroad, the U.S. government knows very little about them.
Not surprisingly, at least one CHNV parolee has been arrested here and charged with a serious crime (aggravated rape), and in August 2023 the Washington Examiner revealed that Mexican cartels were exploiting the CBP One app.
Of course, there’s no way of knowing whether any members of the Venezuelan transnational criminal organization Tren de Aragua (TdA) have been paroled after using the app or under CHNV parole. But given how little incentive the socialist government of that country – which is openly hostile to the United States – has to share derogatory information about its nationals, likely more than a few have.
Most notably, the House Judiciary Committee disclosed in August that three Tajikistani nationals with potential ISIS ties made appointments using the app and were subsequently released into the United States – each almost definitely also on parole.
“Expanding Firearm Background Checks to Fight Gun Crime”
The Biden-Harris administration has made much of its efforts to close what it deems “loopholes” in the background checks run on American firearm purchasers.
For example, in April, the White House issued a “fact sheet” captioned “Biden-Harris Administration Announces New Action to Implement Bipartisan Safer Communities Act, Expanding Firearm Background Checks to Fight Gun Crime”, which explained:
The federal gun background check system is one of the best tools we have to keep guns out of the hands of individuals prohibited from purchasing or possessing firearms, including domestic abusers and other violent criminals. But the loopholes in America’s background check laws have enabled domestic abusers, school shooters, violent criminals, and gun traffickers to illegally acquire firearms.
Even if you wholeheartedly agree that “the federal gun background check system is one of the best tools we have to keep guns out of the hands of individuals prohibited from purchasing or possessing firearms”, what good does it do to run a background check on a foreign national recently paroled about whom DHS and ATF know little or nothing?
The most dangerous of those individuals – the criminals, the gang members, the would-be terrorists – are likely the ones who would be most interested in getting their hands on guns as quickly as possible, long before they start racking up the sorts of convictions that would otherwise bar them from possessing firearms under the other provisions in section 922 of Title 18.
Allowing millions of unscreened aliens, indefinitely here on parole, access to firearms is a recipe for mayhem, if not disaster. But that big gun loophole is just one of the deleterious consequences of the Biden-Harris administration’s illegal parole programs.