Revised December 26, 2019.
Deep in the bowels of the 3,444 pages of S. 1790, the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020) is a curiously placed and worded immigration provision. Somehow, a Kamala Harris talking point has become law, introduced before our very eyes through its initial application to a very select and sympathetic group of aliens. You can expect it to get much, much bigger and blossom into a full-grown amnesty at some point during a future administration, likely sooner rather than later.
President Trump signed that bill, now Pub. L. 116-92, on December 20, 2019. Much of the focus of that bill has been on the size of the appropriation ($738 billion), the fact that it contains a much-deserved 3.1 percent pay increase for members of the military, a provision that designates paid family leave for all federal workers, and the fact that it creates a new branch of the armed forces, the "Space Force". It takes a little bit of digging (or wading) through that bill to get to Division A, Title XVII, Subtitle B, section 1758 on p. 667 of NDAA 2020, which is captioned "Parole in Place for members of the Armed Forces and certain military dependents".
"Parole" under section 212(d)(5) of the INA is a tightly restricted authority granted by Congress to the Department of Homeland Security (DHS) to allow aliens who are "applying for admission to the United States", that is, seeking admission at a port of entry, into this country. I say "tightly restricted" because, by its terms, it can be granted "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Section 1758, however, has changed parole into a conduit for a de facto amnesty, using as an entrée a very sympathetic group of individuals.
"Parole in place" for certain relatives of members of the military who entered the United States illegally is not a new idea. As U.S. Citizenship and Immigration Services (USCIS) explains:
We may grant parole in place on a case-by-case basis for urgent humanitarian reasons or significant public benefit under section 212(d)(5)(A) of the INA. You may be eligible for parole in place in one-year increments if you are the spouse, widow(er), parent, son or daughter of an:
- Active-duty member of the U.S. armed forces;
- Individual in the Selected Reserve of the Ready Reserve; or
- Individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.
It does not apply, however, to visa overstays:
If you entered the U.S. lawfully but overstayed your visa (or are otherwise in the U.S. past your period of authorized stay), you are not eligible for parole in place because you are not an applicant for admission. However, you may qualify for deferred action.
The genesis for "parole in place" can be found in a policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) on November 15, 2013, captioned "Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)".
That policy memorandum, in turn, rested on certain legal determinations made by the general counsel of the former Immigration and Naturalization Service (INS) during the Clinton administration. The gist of all of these contortions of the INA are summarized in one sentence in the 2013 document: "An alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i)."
Why is this important? Two reasons.
First, an alien who enters the United States without inspection (which is to say, illegally) is inadmissible under section 212(a)(6)(A)(i) of the INA and (with only a very limited exception applicable to VAWA self-petitioners) ineligible for adjustment of status under section 245(a) of the INA. An alien who is paroled, on the other hand, is eligible for adjustment of status under that provision. But normally an alien gets parole when the alien is newly arrived in the United States and seeking admission, not years after entering illegally.
Second, under section 212(a)(9) of the INA, aliens who have been present in the United States illegally for more than 180 days are inadmissible, and must remain outside of the United States for a specified period of time before they can be admitted — either through the ports of entry or adjustment of status. In particular, under subclause (B)(i)(I) therein, any alien who has been illegally present for more than 180 days and less than one year is inadmissible for three years, and under subclause (B)(ii)(I), they are inadmissible for 10 years. That means that an alien who entered illegally and therefore cannot adjust his or her status must spend between three and 10 years outside of the United States before entering with an immigrant visa.
The secretary of Homeland Security does have the authority to waive the three- and 10-year bars under clause 212(a)(9)(B)(v) of the INA:
[I]n the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.
Since March 2013, USCIS has allowed immediate relatives to apply for "stateside" waivers of these bars, allowing aliens to obtain the waiver before proceeding to the consular interview, a policy that was expanded to all aliens eligible for immigrant visas in August 2016. As USCIS states:
The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.
This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.
Those aliens would still need to proceed abroad to get their visas, however, going through the consular process with the Department of State (DOS) and inspection process at the ports of entry with U.S. Customs and Border Protection (CBP) before receiving their green cards.
What all of the extra-statutory, administrative legalese surrounding "parole in place" did was to take a group of people who were never "inspected and admitted" (because they had evaded inspection at the ports of entry by entering illegally) or "paroled" (for the same reason), and place them into the position of an alien who was "paroled" after seeking admission. That has allowed them to apply for adjustment of status in the United States, and therefore avoid having to travel abroad and running the risk that DOS would deny them visas or that CBP would deny them admission.
Of course, what can be administratively done can be administratively undone (eventually). Once that administrative action is legislated by Congress into statute, on the other hand, it is a different issue entirely — unless the legislation is unconstitutional, conflicts with another status, or is repealed, it is the law. Legislation by reference into statute is what section 1758 of NDAA 2020 does with "parole in place".
Here is the specific language of that section:
PAROLE IN PLACE FOR MEMBERS OF THE ARMED FORCES AND CERTAIN MILITARY DEPENDENTS.
(a) IN GENERAL.—In evaluating a request from a covered individual for parole in place under section 212(d)(5) of the [INA] , the Secretary of Homeland Security shall consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit.
(b) SENSE OF CONGRESS.—It is the sense of Congress that—
(1) parole in place reinforces the objective of military family unity;
(2) except as required in furtherance of the missions of the Armed Forces, disruption to military family unity should be minimized in order to enhance military readiness and allow members of the Armed Forces to focus on the faithful execution of their military missions and objectives, with peace of mind regarding the well-being of their family members; and
(3) the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed.
(c) COVERED INDIVIDUAL DEFINED.—In this section, the term ''covered individual'' means an alien who—
(1) is a member of the Armed Forces;
(2) is the spouse, son, or daughter of a member of the Armed Forces;
(3) is the parent of a member of the Armed Forces who supports the request of such parent for parole in place; or
(4) is the widow, widower, parent, son, or daughter of a deceased member of the Armed Forces.
Again, that section applies to a very sympathetic group of individuals: aliens who are members of the armed forces and the spouses, widows, widowers, parents, sons, and daughters of those aliens. It would be difficult to find any member of Congress or senator (or many in the American public at large) who is not grateful for the sacrifices of our men and women in uniform, and the sacrifices of their families. So, why didn't Congress just grant them lawful immigration status to begin with?
I can think of two reasons. First, regardless of the manner in which many Democrats (and some Republicans) talk about the value of amnesty and how great it would be for American society and the economy, it is still an unpopular idea among American voters as a whole — that is why 2013's "Gang of Eight" bill failed. Just ask Eric Cantor.
Second, and more saliently, members of the military and their family members are not the end game for many who pushed this proposal: legislating "parole in place" is.
Would-have-been President Sen. Kamala Harris rolled out an immigration proposal on the campaign trail in June 2019 that would have used "parole in place" to grant amnesty to some two million so-called "Dreamers," aliens who had entered the United States illegally at a young-ish age:
Under the proposed plan, Harris would use executive action to grant Dreamers "parole-in-place" and retroactively issue them work authorizations. That legal exception, carved out in the Immigration and Nationality Act but not typically used for Dreamers in the past, would allow them to apply for green cards through a direct family member or employer. Those who obtain legal permanent residence are allowed to apply for citizenship.
Paragraph 1758(b)(3) of NDAA 2020, which "reaffirms" the "authority" of DHS to grant "parole in place", is the crucial part of this provision. It takes what had heretofore been an administrative interpretation of the INA and incorporates it into statute.
I would be remiss if I did not note that this post is a correction of an earlier post that was based on the September 17, 2019, House engrossed amendment to NDAA 2020, which had passed the House and been certified by the clerk before it was sent to the Senate, and before conference by the two chambers on that bill.
Subsection 1099C(a) therein would have deprived DHS of the authority to deny "parole in place" in the exercise of discretion under section 212(d)(5) of the INA. That would have directly contradicted President Trump's own Executive Order (EO) 13767, "Border Security and Immigration Enforcement Improvements", which was issued on January 25, 2017. Subsection 11(d) therein stated:
The Secretary [of Homeland Security] shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA ... is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole. [Emphasis added.]
The final version of section 1758 of NDAA 2020 gave the president a victory on that provision, and reinforces the authority of DHS to grant or deny parole on a case-by-case basis.
The aforementioned section 1099C of the original House amendment to NDAA 2020 also contained six provisions that expressed the "sense of Congress", as opposed to the three that were included in subsection 1758(b) of the final version of NDAA 2020. Specifically, paragraph 1099C(b)(1) therein expressed the sense of Congress that "parole in place reinforces family unity", while paragraph 1099C(b)(6) would have expressed the legislative sense that "Congress reaffirms parole in place authority for the Secretary of Homeland Security."
Paragraph 1758(b)(1) of the final version of NDAA 2020 adds the word "military" before "family unity" in the sense of Congress that had appeared in paragraph 1099C(b)(1) of the House amendment ("parole in place reinforces the objective of military family unity"), while paragraph 1758(b)(3) essentially just rewrites paragraph 1099C(b)(6), focusing on the "importance" of DHS's "parole in place authority" ("the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed" as opposed to the earlier "Congress reaffirms parole in place authority for the Secretary of Homeland Security.")
As an aside, paragraph 1758(b)(2) of NDAA 2020 basically just compresses paragraphs 1099C(b)(2), (4), and (5), while striking paragraph (3) ("separation of military families must be prevented") — a provision that likely would have been unworkable given the fact that deployment by definition separates military families.
Paragraph 1758(b)(1) of NDAA 2020 likely undercuts the discretion of DHS to deny "parole in place" in most cases to specified family members of members of the military — if Congress states that it reinforces such a public good as "military family unity" ,DHS would be unlikely to deny it in all but the most extreme cases, but at least the department still gets the final say.
The focus is really on paragraph 1758(b)(3) of NDAA 2020, which in essence legislates the concept of what had previously just been an administrative interpretation of the INA — "parole in place".
Expect this paragraph to be used by a future president to grant future amnesties. DACA and DAPA rested on the slim reed of "prosecutorial discretion". The next administrative action to grant status to those who entered illegally, on the other hand, will set firmly on the rock of Congress's recognition of the "authority of" DHS to grant "parole in place" — implicit in Congress's reaffirmation of the "importance" of that authority is Congress's conclusion that DHS has the authority to begin with.
In Winterbottom v. Wright, Baron Rolff famously stated: "Hard cases ... are apt to introduce bad law." In section 1758 of NDAA 2020, the sympathetic cases of alien members of the military and their alien family members will not only introduce, but codify bad law, which will eventually swallow most if not all of the enforcement provisions in the INA. President Bernie Sanders is just waiting for the opportunity.