Rescinding an Inappropriate Obama-Era Immigration Parole Rule

By Dan Cadman on May 29, 2018

U.S. Citizenship and Immigration Services (USCIS), the immigration benefits agency within the Department of Homeland Security, has issued a notice in today's Federal Register of its intent to roll back an Obama-era rule that authorized the grant of immigration parole to so-called "international entrepreneurs".

In the immigration context, parole means letting an alien enter the United States who is otherwise ineligible to do so. These paroles were issued by USCIS under the Obama White House to aliens on the basis of their claimed entrepreneurial skills and expertise, because they were not eligible under the multitude of existing visa classifications available to alien investors, business people, and intra-company transferees of large multinational corporations.

This administration asserts, rightly in my opinion, that the prior rule was an "overbroad" (translate "abusive") interpretation of the parole authority embedded in the Immigration and Nationality Act. Clearly it was just one more way of wedging in an ever-increasing group of aliens who couldn't fit within the scope of the INA as enacted into law.

Section 212(d)(5)(A) of the INA, which governs immigration parole, says this:

(5) (A) The Attorney General may, except as provided in subparagraph (B) or in section 214(f), 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 Attorney General, 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. [Emphases added.]

It is clear from the language of the statute that immigration parole is permitted to be used a) sparingly; b) only after careful consideration on a case-by-case basis; c) for a significant public benefit, not the benefit an the alien or a particular business interest; and d) only on a temporary basis.

Yet the Obama administration chose to ignore the plain language to interpret it to permit admission of whole classes of loosely defined "entrepreneurs"; claimed that this was in the public interest without showing that it was, and despite evidence that it constituted, instead, an end-around to the well-defined parameters of the nation's visa classification system; and, finally, made clear that the parole grants were more-or-less indefinite, and would be extended until such time as these entrepreneurs could find other inroads to admission, thus defeating the intent of the Congress to exclude aliens until properly granted visas to enter the United States.

Law360 (partially behind a paywall) tells us:

It [rescission of the rule] was originally scheduled to go into effect in July 2017, but DHS issued a notice in the Federal Register delaying its effective date until March 2018 to allow for more time for review. The program was thereafter reinstated by order of a D.C. federal judge in December 2017 following a successful challenge of that notice on the basis of the Administrative Procedure Act. In practice, however, U.S. Citizenship and Immigration Services has not processed any visa applications under the program, according to attorneys.

This episode also points out one of the anomalies of our present rule of law and the role of the courts. It's worth noting that the Obama administration repeatedly violated the mandatory provisions of the Administrative Procedure Act — for instance, in the way it announced and implemented its extra-statutory Deferred Action for Childhood Arrivals (DACA) program. Yet no court stayed the Obama White House in implementation. Why? Because under the slippery and one-sided notion of "standing" as practiced by U.S. courts, you have to establish "harm" — and the courts somehow don't find it compelling for American citizens to claim a harm in asserting that misapplication of the immigration laws adversely affects their lives. That leaves a very narrow field of who might conceivably be able to successfully assert standing against overly liberal or malfeasant interpretations of what benefits may properly be granted to aliens. Congress has shown no intestinal fortitude where this is concerned, even though it is their legislative powers under Article I of the Constitution that have been egregiously trampled.

Conversely, though, when a particular alien claims that he will be deprived of a benefit by application of a rule (or, in this case, rescission of a rule), even if the rule is patently beyond the scope of the law by its plain language, then the courts are liberal in finding that there is "standing" and permit lawsuits to go forward, often underwritten by a variety of open-borders organizations.

The result is the kind of lawfare that we see being waged all over the country to impede the Trump administration's efforts to instill a respect for the rule of law where immigration is concerned. It often doesn't even matter if the outcomes are favorable to the government, because such outcomes are far in the future and in the meantime, more and more aliens accrue benefits from inappropriate and downright shady interpretations of statute, upheld by activist lower courts by means of injunctions that must wind their way to the Supreme Court for ultimate resolution.

So, for the American people, justice delayed is indeed justice denied where such tactics are concerned.

While I hope that USCIS's re-announcement of its intent to rescind results in withdrawal of the immigration parole benefit for otherwise-inadmissible aliens, only time will tell whether this too gets bogged down in our increasingly disappointing, and out-of-balance, federal court system.