I have previously bemoaned the abuse of the statutory parole power by multiple administrations, both Republican and Democrat. They all succumbed to the nearly irresistible temptation to create a “shadow” Immigration and Nationality Act, totally divorced from the will of Congress, through the perversion of the quite circumscribed parole power that Congress itself had bestowed upon them. You can read about the whole sordid affair here.
But the Biden administration has now taken this practice to a new low, which my colleague Todd Bensman has just revealed in his blockbuster report, "Border Crossing for All: The Next Stage of Biden's Migration Crisis".
As Mark Krikorian, the Center for Immigration Studies’ Executive Director, has observed, the Biden administration had already settled upon a strategy of stigma removal, attempting to convert as much of the population of illegally-entering economic migrants as it could into people supposedly fleeing persecution or violence or harm of one sort or another. This could justify (at least in the administration’s own mind) the abandonment of any semblance of immigration law enforcement as a goal, replaced with, in DHS Secretary Mayorkas’ words, “safe, orderly, humane, and lawful pathways for migration.” Ancillary benefits abounded. First, the illegal aliens – sorry, prospective “asylees” – could get work authorization after they were released from detention, usually after a wait of six months. Second, if granted asylum, they would become eligible for Federal welfare – sorry, “means-tested” benefits – on a more generous basis than is available to even most legal permanent residents (LPRS), and they could themselves become LPRs after a year’s wait.
However, destigmatization was not a silver bullet for the Biden administration. First, the aliens had to get themselves across the border and into the U.S., thus committing a federal crime even if they later applied for asylum (unless entering through a port of entry). It is harder to sanitize a criminal act, though by no means impossible in this day and age. Second, few of these aliens could meet the eligibility standard for asylum (persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion), and thus few would ever apply. Third, even once the aliens were promptly released on parole following apprehension by the Border Patrol, their apprehensions would still be tabulated in U.S. Customs and Border Protection’s (CBP) statistics. Thus, they would contribute to the Democratic Party’s political headache caused by the Biden administration serving as master-of-ceremonies for the highest number of border apprehensions in history.
The Biden administration has now come upon what very well could be its silver bullet to kill off whatever remains of America’s immigration system. The projectile? Using the parole power in its attempt to convert as much of the population of illegally entering economic migrants as it can into people supposedly fleeing persecution or violence or harm of one sort or another. And I don’t mean paroling aliens out of detention who have illegally crossed the border, which the administration is already doing on a mass scale. I mean granting aliens parole before they ever get to the U.S.
The benefits over the old stratagem are obvious. First and most foremost, if aliens enter the U.S. on parole, they enter legally, they won’t be apprehended, and they won’t need to be counted in the Biden administration’s apprehension statistics. In fact, Biden will be able to crow about dramatically reducing the number of apprehensions at the border, and bringing the border under “control”, simply by obviating the need for aliens to enter illegally. Second, these parolees will not have to wait for six months before being eligible for employment authorization. Third, if they choose to, the parolees can apply for asylum (with all the attendant benefits that accrue). Fourth, the administration can continually extend the duration of their parole. U.S. Citizenship and Immigration Services states on its website that “[a]lthough parole is temporary in nature, in some instances, an individual may need to remain in the United States beyond the period of authorized parole.” Fifth, the parolees are eligible to become LPRs through normal processes (such as by marrying U.S. citizens).
How can the Biden administration pull this off? As I have written:
- [DHS] may temporarily “parole” aliens into the U.S. only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.
- In 1952, Congress granted the Executive Branch this power, which “should be surrounded with strict limitations . . . in emergency cases, such as the case of an alien who requires immediate medical attention . . . and a witness or for purposes of prosecution.”
- Beginning in 1956, both Democrat and Republican presidents have used the parole power “to circumvent Congressionally-established immigration policy”, bringing in hundreds of thousands of aliens over the years. Each succeeding administration (other than the Trump administration) has used the parole power to achieve an illegitimate power grab.
- Congress has unsuccessfully tried to rein in the abuse of parole, even setting up our current refugee admission program in 1980 to prevent the executive branch from setting refugee policy through abuse of the parole power.
Federal courts have long recognized this abuse of the parole power for what it is. For instance, in 1987, the 1st Circuit concluded that:
[P]lainly[, a] purpose of the Refugee Act [was] to eliminate the Attorney General’s use of his parole authority as a regularly-travelled alternate route for entry into the United States. . . . The Refugee Act was intended to provide a procedure which would minimize the Attorney General’s need to utilize his parole power as an informal vehicle to assure the admission of refugees. The only conclusion which can sensibly be drawn . . . is that Congress was attempting to restore the parole authority to the narrow uses for which it was originally intended, that is, “for emergent reasons or for reasons deemed strictly in the public interest,” . . . and not to perpetuate — or further encourage — its employment as a discretionary floodgate for the admission of an alien tide.
In 2007, the 9th Circuit, yes even the 9th Circuit, concluded that:
In enacting [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996]. . . Congress expressed concern that the Attorney General had been using parole “to circumvent Congressionally-established immigration policy or to admit aliens who do not qualify for admission under established legal immigration categories.” . . . Congress responded in IIRIRA by narrowing the circumstances in which aliens could qualify for “parole into the United States”.
And, late last year, the 5th Circuit concluded that:
DHS cannot use that power to parole aliens en masse; that was the whole point of the “case-by-case” requirement that Congress added in IIRIRA. . . . DHS’s pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power [is] . . . misenforcement, suspension of the INA, or both.
And yet the abuses continue. The Biden administration had already dipped its toe in the water with its scheme last year. As Refugees International notes in a report issued earlier this month:
In the spring of 2021, the Biden administration asked a “consortium” of NGOs [non-governmental organizations] to refer vulnerable families to Customs and Border Patrol (CBP) for parole at ports of entry. This process lasted through the end of the summer of 2021 and facilitated the parole of about 13,000 people—mostly Central Americans. . . . The Biden administration’s use of parole to reunify families the Trump administration separated also serves a reparative function.
In that new report, Refugees International is advocating for a program remarkably similar to that revealed by Todd Bensman. Coincidence? You be the judge:
[M]igration is dominated by mixed flows of people—many of whom need protection but may not qualify as refugees. There is all the more reason, then, for parole to be . . . a supplement to refugee resettlement and asylum that is available to populations for whom refugee protection is beyond reach. Parole is a tool to be used for urgent humanitarian reasons and significant public benefit. The Biden administration should think creatively about what that means.
Au contraire. For those populations for whom “refugee protection is beyond reach”, it is beyond reach precisely because Congress deliberately put it beyond reach! Congress has been crystal clear about what non-refugee/asylum avenues are available for humanitarian purposes – primarily withholding of removal, Convention Against Torture relief, Temporary Protected Status [TPS], U visa status (for victims of certain crimes) and T visa status (for victims of human trafficking), and cancellation of removal. And these were all designed for aliens already present the United States! The Biden administration understands this, concluding in a report released last fall that:
TPS does not protect individuals who arrive after the date of designation, making it likely to exclude many of those forced to flee because of the disaster or event that is the basis for a TPS designation. . . . The United States also holds certain discretionary authorities to provide accommodations to individuals affected by natural catastrophes and other extreme situations caused by climate change on a case-by-case basis. . . . These accommodations are limited in that their intent is to address individuals already in the United States unable to return to impacted countries due to climate change.
Parole is the one alternative mechanism Congress provided for relief for aliens not already present in the United States. Of course, that makes it a tempting target for Executive Branch abuse.
In any event, Refugees International goes on:
One creative use of parole could be for people displaced by the impacts of climate change. USCIS has recognized that people displaced by natural disaster are eligible for parole. . . . President Biden promised to explore “options for protection . . . of individuals displaced directly or indirectly from climate change.” In its report on the impact of climate change on migration, the Biden administration notes both the geopolitical imperative to managing the migration of climate displaced people and the limits of available instruments to do so. . . . As the report notes: . . . . “Anti-immigration political actors may . . . undermine[e] efforts to appropriately respond to acute migration or refugee crises, such as those caused by the Syrian civil war or extreme weather and violence in Central America.” Given the administration’s recognition of the “compelling national interest in strengthening protection for individuals and groups displaced by the impacts of climate change,” it should develop a parole program for climate displaced people, especially those from the Western Hemisphere.
Actually, the October 2021 Biden White House’s Report on the Impact of Climate Change on Migration came to a quite different conclusion: .
[T]he United States does not have well-established alternative pathways to complement refugee resettlement through which the United States can admit individuals facing serious threats to their life because of climate change as a permanent solution to their need for protection. While granting parole on a case-by case basis for urgent humanitarian reasons or a significant public benefit is possible, it is ad hoc, temporary, and not designed to be a long-term solution. Using parole to provide a legal, safe, and structured system for individuals, who otherwise lack a basis to enter the United States, to enter the United States for a temporary time due to an emergency is an option. Designed to address temporary situations on a case-by-case basis, parole is not in itself a viable alternative pathway to complement refugee resettlement at scale. . . . These considerations reinforce the report’s recommendation for the Executive Branch to work with Congress to create a new legal pathway for individualized humanitarian protection in the United States for individuals facing serious threats to their life because of climate change. [Emphasis added.]
What a difference a year makes! It looks like the Biden administration now considers parole to be such a “viable alternative pathway”. No more need to “work with Congress”!
Refugee International concludes that:
Humanitarian parole should be used to unify families (especially when relatives abroad are in danger, humanitarian need, or displaced) . . . and to provide those who have been mistreated in the United States or by U.S. policies a chance to seek relief.
Even Senate Democrats are getting into the act, if one can judge from a draft explanatory statement for S. 4678, Senator Christopher Murphy’s “Department of Homeland Security Appropriations Act, 2023”, that is available on the internet. It does not appear to be purloined, since it is available on the website of the Senate Appropriations Committee:
In April 2022, President Biden announced a new process to facilitate a streamlined pathway for Ukrainian citizens and their immediate family to seek protection in the United States. If all requirements are met . . . Ukrainian citizens and their families are authorized to travel to the U.S. Upon arriving at a U.S. Port of Entry, CBP then . . . issu[es] a term of parole. . . . [T]he Committee encourages the Department to explore whether such approaches can be expended further. The Committee directs the Secretary to examine whether a model similar to what was used for Ukrainian nationals, as well as the Central American Minors program, may be employed to process some noncitizens in advance to help deter individuals from making dangerous and costly journeys to the U.S. . . . [T]he Committee recognizes that a safe, orderly process will ultimately be a significantly safer option for noncitizens and their families . . . . Within 180 days of the date of enactment of this act, the Secretary shall submit to the Committee, in consultation with the State Department, an assessment of such an approach, along with recommended steps to leverage the path (or portions of the path) developed under the “Uniting for Ukraine” initiative for further use. [Emphasis added.]
What can stop the Biden administration’s degradation of the rule of law? Either a Federal court can enjoin this mega-abuse of the parole power (and maybe the Supreme Court can finally face head-on the scope of the power), or Congress can defund the mischief. We will see what developments come next. All I can do at this point is to offer my thanks to Todd Bensman for shining some sunlight where light was desperately needed.