The Slapdash, Court-Ordered 1982 Regulation that Drives Biden’s Parole Policies

And why that regulation hasn’t been valid since April 1, 1997

By Andrew R. Arthur on December 15, 2023

A major issue in Senate negotiations over immigration and border reforms is a limitation on “parole”, the executive’s power to release inadmissible aliens (including illegal entrants) temporarily for a time certain or indefinitely while they await decisions on their asylum applications. The administration’s abuse of that authority is facilitated by a 1982 district court order in a case dealing with a past migrant surge — this one of Haitians arriving by boat. That order required the then-Immigration and Naturalization Service (INS) to issue regulations implementing its parole authority in section 212(d)(5)(A) of the Immigration and Nationality Act (INA). The problem is that the resulting regulation was promulgated in a slapdash manner, and that it is no longer valid given amendments to the parole statute in 1996.

Louis v. Nelson. The case in question is Louis v. Nelson, and at issue was a policy change that was implemented by the Reagan administration that applied to Haitian migrants who had arrived in South Florida by boat.

Under Carter administration policies, such aliens were usually only briefly detained and then released on parole into the country. That continued until the spring of 1981, when the Reagan administration implemented its own new policy, which curbed the use of parole and expanded detention of Haitian migrants.

There was no publication of that change in policy, and the plaintiffs in that case — a class of Haitian nationals who had been detained pending exclusion proceedings argued that: (1) that policy change should have been published in accordance with the Administrative Procedure Act (APA, which governs administrative branch rulemaking); and (2) alternatively the policy was discriminatory because it only applied to Haitians.

The court agreed with the plaintiffs’ APA violation argument, and on June 18, 1982, issued an order giving INS 30 days to promulgate its new policy and publish it in the Federal Register.

“Detention and Parole of Inadmissible Aliens”. Two weeks to the day later, INS published an interim final rule (IFR) in the Federal Register captioned “Detention and Parole of Inadmissible Aliens”. Notably, that IFR explains:

This rule is therefore being published in compliance with and consistently with the court’s order, although the Service strongly disagrees with the analysis and conclusions of the court, strongly disagrees that the Service’s detention policy is subject to and falls within the APA rule making requirements, and strongly disagrees that its detention policy is null and void because the Service did not engage in formal APA rule making. Accordingly, this rule is being published “under protest.” [Emphasis added.]

Under protest or not, the language of the resulting regulation, 8 C.F.R. § 212.5 (1982), bears a strong resemblance to the current version of that regulation and is identical in current key aspects.

Both state that it is appropriate to parole “aliens who have serious medical conditions”, “women who have been medically certified as pregnant”, and “aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States”. Each has special rules for parole of minors.

Most importantly, both contain the same “catchall” provision: “Aliens whose continued detention is not in the public interest”.

Why is that important? Because that language is the primary basis for the Biden administration’s parole policies, which have brought more than 1.4 million aliens without status into the United States.

Consider the following excerpt from the administration’s petition in Biden v. Texas, in which DOJ (successfully) attempted to reverse a circuit court affirmance of a district court order requiring it to reinstate the Migrant Protection Protocols (MPP, better known as Remain in Mexico):

The court of appeals stated, without citation, that DHS’s longstanding parole practices are inconsistent with [section 212(d)(5)(A) of the INA] because parole decisions are not made on a “case-by-case basis.” ... That is incorrect. DHS’s parole regulations require “case-by-case” decisions, including a threshold determination that a noncitizen “presents neither a security risk nor a risk of absconding” and a further determination that parole is appropriate, including because “continued detention is not in the public interest.” 8 C.F.R. 212.5(b). In making those determinations, DHS must of course account for its actual detention capacity. But that does not make its decisions any less case-by-case.

“Aliens Whose Continued Detention Is Not in the Public Interest”. That brings me to the statutory authority for that “aliens whose continued detention is not in the public interest” parole exception in the July IFR. At the time that this clause (paragraph 8 C.F.R. § 212.5(b)(5) in the current version) was promulgated, the parole statute read as follows, in pertinent part:

The Attorney General may, in his discretion, parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States.

That language had remained unchanged since section 212(d)(5) was first included in the INA in 1952.

There is, of course, a difference between paroling an alien “in the public interest” (as in the then-statute) and paroling an alien because the alien’s continued detention is “not in the public interest” (as in the implementing regulation). Given the tight timeframe under which INS was acting at the time, however, some inartful drafting could be expected.

Keep in mind also that at the time the court issued its order in Louis, the INA mandated the detention of aliens who were deemed inadmissible at the ports (and had in various iterations since 1903), like the Haitians at issue there, but it said nothing about the detention (or not) of aliens who entered illegally.

IIRIRA of 1996. Congress, concerned that various administrations had abused the parole authority to bring in and release whole classes of inadmissible aliens, amended the language of section 212(d)(5)(A) of the INA in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), in two key ways.

First, it limited the executive branch’s authority to parole aliens as a class, instead allowing it to do so “only on a case-by-case basis”. Second, it struck the phrase “for emergent reasons or for reasons deemed strictly in the public interest” and substituted in its place “for urgent humanitarian reasons or significant public benefit”.

In addition, IIRIRA amended the inspection protocol in section 235 of the INA to mandate the detention not only of those aliens who are seeking admission at the ports, but also those who entered the United States illegally, without inspection.

Consequently, on the effective date of IIRIRA — April 1, 1997 — that paragraph (b)(5) in 8 C.F.R. § 212.5 became ultra vires, because the statutory language upon which it was based was rescinded and revoked.

In his signing statement for IIRIRA, President Clinton explained that the bill:

includes landmark immigration reform legislation that builds on our progress of the last 3 years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally.

Regardless, INS under the Clinton administration never got around to changing the now ultra vires language in 8 C.F.R. § 212.5(b)(5), and it has never been amended by any subsequent administration, either. Which is why the Biden administration has been able to rely on it in Texas and numerous other parole programs ever since.

Congress is debating whether it should again amend section 212(d)(5)(A) of the INA, again to curb the administration’s abuses of its parole authority. That, however, is not necessary. All it really needs to do is require DHS to do what it should have done prior to April 1, 1997: amend its now-invalid parole regulation, which was issued in a slapdash manner under court order during two short weeks in July 1982.