On November 3, the House Rules Committee published its version (known in legislative parlance as a “chairman’s mark”) of H.R. 5376, the massive “reconciliation” bill that progressives in Congress have been pushing for months. It is a sneaky piece of work that would grant de facto amnesty to millions of aliens and threaten the national security and communities across the United States.
Prior Amnesty Proposals in the Proposed Reconciliation Bill
Reconciliation is a legislative maneuver that allows bills to be passed without the normal 60-vote majority in the Senate. Democrats who control that chamber currently have 50 seats there, with Vice President Kamala Harris the tie-breaker as president of the Senate.
The Senate parliamentarian had blocked a previous attempt to insert a full amnesty into an earlier version of the bill (known as the “Build Back Better” Act).
My colleague David North explained that the parliamentarian (an administrative functionary in the Upper Chamber) also blocked a second attempt by congressional Democrats at amnesty by moving up the registry date in section 249 of the Immigration and Nationality Act (INA).
The current registry date is January 1, 1972, and section 249 allows aliens who entered before that date to apply for green cards, even if they are in unlawful status. The date the Democrats proposed is unknown (negotiations with the parliamentarian are generally informal), but it presumably would have moved it up decades to legalize the status of most aliens unlawfully present.
North subsequently reported that Senate Democrats were having a third go at the parliamentarian on amnesty, proposing the extension of “a temporary status, parole, to an unspecified number of (presumably millions) of illegals”. (This approach is sometimes called Plan C, since the first two attempts at inserting an amnesty in the bill were rejected by the parliamentarian.) She has not decided whether that is permitted under the strict reconciliation rules yet, but as this proposal shows, House Democrats are pushing ahead, anyway.
Parole is a very limited immigration authority Congress has extended to the executive branch. Under section 212(d)(5) of the INA, it enables DHS to allow aliens into the United States temporarily, without formally admitting them, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
Those terms have traditionally been construed to enable DHS to allow aliens into the United States who are not otherwise admissible, but only if they are seeking urgent medical treatment, or because they are needed for a legitimate law-enforcement interest. Recent administrations, however, have stretched those terms beyond all recognition to allow large numbers of aliens to be released into the country.
Most recently, it appears that President Biden’s DHS has been using parole to allow tens of thousands of illegal migrants apprehended at the Southwest border into the United States. And in a recent regulatory statement, it has proposed administratively expanding parole to move hundreds of thousands of illegal border-crossers into the country, in clear violation of the limited power Congress has granted the department.
The House Rules Committee Proposal
Of course, what Congress has done, Congress can undo or expand, which leads me to the latest idea from the House Rules Committee.
It wants to extend parole to all aliens who entered the United States — legally or illegally — prior to January 1, 2011. Tightening prior amnesty proposals, aliens who are removable under the criminal, national security, smuggling, draft-dodging, polygamy, international child abduction, and unlawful voter grounds of inadmissibility in section 212 of the INA would not be eligible for this massive amnesty.
The proposal would, however, grant those aliens work authorization (and thus Social Security numbers), allow them to travel abroad, and exempt them from the standards for issuing driver’s licenses in the REAL ID Act.
Grants of parole would be good for five years, renewable for another five-year period.
Why This Proposal Is an Amnesty
Why do I refer to this proposal as an “amnesty” if it does not grant permanent status to the aliens who would be eligible to apply? Because it allows aliens without status to remain lawfully for a decade, and because it specifically permits DHS “to provide administrative or statutory relief to aliens on an individual or class-wide basis.”
Aliens who entered illegally but have been paroled into the United States are eligible to apply for green cards under the adjustment of status provision in section 245 of the INA. Otherwise, pursuant to that section of the INA, aliens who entered illegally and who thus have not been admitted or paroled are barred from receiving adjustment.
This bill would relieve them from this impediment and allow them to obtain green cards through a family- or work-based visa filed on their behalf. Untold numbers of illegal aliens have married U.S. citizens or are the parents of adult children born in this country, and they would each be immediately eligible for green cards.
Given the 10-year timeframe, lawful permanent resident spouses and children of illegal aliens would have plenty of time to naturalize, and thus render the illegal alien family member eligible to adjust status.
Of course, that assumes that the secretary of DHS doesn’t simply extend some sort of “deferred action” to those aliens, essentially leaving them in de facto legal status in the United States.
The longer that those aliens are in parole status, the more pressure that will be applied to Congress and some future administration to grant them all amnesty. Applicants for parole under this proposal would all be portrayed as “good hardworking, law-abiding Americans” (even if they aren’t), “citizens” in all but name.
Significant National-Security and Criminal Risks
The national-security and criminal risks, however, are a much more salient problem.
As I explained in a September 30 post, the driver’s license standards in the REAL ID Act were a direct recommendation of the 9/11 Commission.
They exist to set strict limits on license and ID issuance to ensure that the bearers of those documents — when they are being used to board airliners, access federal facilities, or enter nuclear power plants (to name a few) — are who they say they are so they can be identified, and their intentions assessed.
Waiving those standards for aliens who have entered the United States illegally and who have never been screened before entering this country is foolhardy, to say the least. In the years immediately following September 11, it was common to refer to the new security climate as the “post-9/11 world”.
The House Rules Committee apparently lives in the new “post-post-9/11 world”, where the lessons of the past have been forgotten. Recent warnings about a possible ISIS attack over Halloween weekend in Northern Virginia should have been enough to have shaken lawmakers out of this misapprehension, but apparently weren’t.
The House Rules Committee proposal simply doubles down on this risk, however, because (like similar recent amnesty plans) it includes a strict “confidentiality” provision. Under that bar, information that aliens provide DHS in conjunction with their “parole” applications cannot be shared with CBP or ICE for purposes of immigration enforcement.
So, if in the course of adjudicating those applications, USCIS determines that an alien is inadmissible on terrorism grounds and has the nom de guerre of “Timmy the bombmaker”, ICE officers will not be able to pick him up and remove him.
If Timmy is actually conspiring to explode a bomb, or has already done so, that information could putatively be shared with law enforcement or national security agencies for prosecution. That said, law enforcement often hands aliens posing a terrorism threat over to ICE for removal, to protect other national-security information that would have to be disclosed in criminal proceedings.
The bill would eliminate that option, not to mention that such restrictions often have a “chilling effect” when it comes to sharing such information to begin with. USCIS adjudicators — rarely national security experts — who determine that an alien is too deluded to be granted parole but who do not want to risk violating the confidentiality provision may just deny the application and shelve the file.
Putting national security aside, however, this confidentiality provision by its terms only protects aliens who are otherwise removable. Thus, even if aliens are ineligible for parole because of murder, child-sex-abuse, or drug-trafficking convictions and therefore don’t get the benefits in the Build Back Better Act, they will still be allowed to remain in the United States, and therefore be able to continue to prey on the community here.
There is no reason for any confidentiality restrictions. If aliens are unlawfully present and want to apply for immigration benefits, they should do so taking the risk that they could be removed. Only the most fervent immigrant advocates think that such ideas are good ones, but they make it into bills because few understand how bad confidentiality restrictions are.
The proposals in the House Rules Committee’s version of H.R. 5376 may be slightly better versions of a massive amnesty (in large part thanks to the Senate parliamentarian), but they are a massive amnesty all the same. And this one is written in such a way that exposes the American people — citizens and lawful immigrants alike — to unacceptable national security and criminal risks.