As my colleague Andrew Arthur has documented, the Biden administration is engaging in the mass release of thousands of illegal border crossers a day into the United States along our southern border. This, despite the fact that, as Arthur notes, “the law mandates detention” of such aliens. Well, that brings up the question: Did Congress really mean what it said about detaining aliens apprehended along the border and placed into expedited removal proceedings? Well, to adopt and adapt Paul McCartney’s sage advice, “won't you listen to what the (Congress)man said?”
As the Departments of Homeland Security and Justice have explained:
When ... expedited [removal] procedures were first implemented [following their creation by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)] ... relatively few aliens [apprehended at the border] ... asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens ... were immediately repatriated.
As I have recently portrayed in graphic form, the Departments went on to explain that:
In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... and are subsequently placed into removal proceedings in immigration court. ... Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in ... 2008 to about 97,000 in ... 2018. ... In FY 2018 ... positive credible-fear determinations [by asylum officers] climbed to about 89% of all cases.
Wait one hot second. As I have written, IIRIRA “mandated th[e detention of] aliens receiving positive credible fear determinations ... pending the adjudication of their asylum claims”. How are all these aliens being released into America’s communities if the law says they must be detained? Well, as I also noted, “Congress’s command has been disregarded by every administration through misuse of the parole power. ... [T]the result is that the vast majority of aliens receiving positive credible fear determinations are released into the United States.”
Maybe presidential administrations since 1996 just thought that Congress was kidding? Well, not to date myself, but during my first two years on the House Judiciary Committee’s immigration subcommittee (1995-96), I was part of the small team of staffers consumed with writing and advancing through the legislative process H.R. 2202, the House bill that formed the basis for IIRIRA (along with Sen. Alan Simpson’s legislation in the Senate). I can assure you that Lamar Smith, the subcommittee chairman and the author of H.R. 2202, was not kidding. IIRIRA’s conference report states quite clearly that:
The purpose of [expedited removal] is to expedite the removal ... of aliens who indisputably have no authorization to be admitted to the United States, while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed. ... If the [asylum] officer finds that the alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum under normal non-expedited removal proceedings. If the alien does not meet this standard ... the alien will be ordered removed. ... Throughout this process of administrative review, the alien shall be detained by the INS [Immigration and Naturalization Service]. [Emphasis added.]
Couldn’t be clearer, right?
Evidence Before Congress on the Need for Detention
H.R. 2202 was drafted in the context of a growing consensus on the need for detention, a consensus whose kernel was planted a century ago. Andrew Arthur writes that:
It should be evident already why the Immigration Act of 1903 mandated the detention of arriving aliens at the ports of entry: They had come seeking admission to the United States, and once they were let in: (1) they received the benefits they came for, i.e., to live and work in the United States; and (2) it would be next to impossible to find them thereafter in a continental republic with a population that then totaled more than 80 million people. While the methods by which foreign nationals have arrived in the United States have changed, that basic calculus has not. Consequently, neither has the law.
Fast forward 102 years. The Congressional Research Service issued a report to Congress noting that:
Prior to IIRIRA, most aliens arriving without proper documentation who applied for asylum were released on their own recognizance into the United States (and given work authorization), a practice which enabled inadmissible aliens falsely claiming persecution to enter the country. As a result, many argued that the only way to deter fraudulent asylum claims was to detain asylum seekers rather than releasing them on their own recognizance. Indeed the practice of detaining asylum seekers has reduced the number of fraudulent asylum claims. [Emphasis added.]
On March 1, 1996, weeks before H.R. 2202 was brought to the House floor, the Department of Justice’s Office of the Inspector General (OIG) reported that:
INS removed most detained aliens promptly after final orders were issued. In our sample, we found that INS successfully deported almost 94 percent of the detained aliens, with an average deportation time of 16 days.
INS was successful in deporting only about 11 percent of nondetained aliens after final orders had been issued. Contributing to this low percentage were delays by district counsel in transmitting final orders to D&D, delays by D&D in taking action, failure to send surrender notices to aliens, failure of aliens to surrender in response to the notices, and limited efforts made by INS to pursue aliens who failed to surrender. Special conditions affecting certain nationalities also impaired INS' ability to remove aliens. [Emphasis added.]
Based on the results of our sample of 1,058 cases, it is clear that most of the aliens actually deported were detained, and few of the nondetained aliens were deported. Detention is key to effective deportation.
In the 2003 case of Demore v. Kim, the Supreme Court cited this OIG report for the proposition that Congress “had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings.” The Court also cited the House Judiciary Committee’s report on H.R. 2202 for this proposition, the report concluding that: “A chief reason why many deportable aliens are not removed from the United States is the inability of the INS to detain such aliens through the course of their deportation proceedings. ... [R]elatively few deportable aliens, outside of criminals, are detained at all.” The Court further concluded that “in adopting §(c) [a mandatory detention provision for criminal aliens in IIRIRA] Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully.”
The Legislative History and Structure of IIRIRA’s Detention Mandate in Expedited Removal
The Congressional Research Service has written that:
[E]xpedited removal was proposed in the early 1980s under the name “summary exclusion” ... triggered largely by the mass migration of approximately 125,000 Cubans and 30,000 Haitians to South Florida in 1980. ... The goal of “summary exclusion” was to stymie unauthorized migration by restricting the hearing, review, and appeal process for aliens arriving without proper documents at ports of entry.
The Clinton administration itself had implemented a form of expedited removal a few years before the enactment of IIRIRA. On June 18, 1993, President Bill Clinton issued Presidential Decision Directive/NSC-9, which stated that:
The recent increase in Asian criminal syndicate smuggling of Chinese nationals illegally into the U.S. by air, sea and across land borders is a matter of serious concern. ... I direct that criminal syndicate alien smuggling be dealt with in the following fashion:
The U.S. Government will take the necessary measures to preempt, interdict and deter alien smuggling into the U.S. Our efforts will focus on disrupting and dismantling the criminal networks which traffic in illegal aliens. We will deal with the problem at its source, in transit, at our borders and within the U.S. We will attempt to interdict and hold smuggled aliens as far as possible from the U.S. border and to repatriate them when appropriate. We will seek tougher criminal penalties both at home and abroad for alien smugglers. We will seek to process smuggled aliens as quickly as possible. Within available physical and fiscal resources, INS will detain illegal aliens entering the US with the assistance of criminal syndicates. Absent a credible claim for asylum, smuggled aliens will remain in detention pending final determination of asylum status so as to ensure repatriation if asylum status is denied. [Emphasis added.]
Smith took note of President Clinton’s actions. As Smith and Ed Grant, my co-counsel on the subcommittee at the time, explained shortly after the enactment of IIRIRA in a law review article:
Usually, a non-detained alien who is ordered removed faces no greater restraint on his or her liberty than existed prior to entry of the order. This lack of restraint is the critical reason why only 11% of these aliens actually depart from the United States.
[A] decision made in the mid-1990s demonstrate[s] the wisdom of making, and sticking to, policy choices that draw clear lines ... the INS’s change in detention policy. The previous "revolving door" practice, under which excludable arriving aliens were detained (if at all) for several days and then released, was replaced by a policy under which excludable aliens would be detained until the completion of their hearings. In practice, limited resources prevented all excludable aliens from being detained under this new policy, but those who were detained knew that they would have no access to the American job market or public benefits. In addition, the INS, with appropriations from Congress, increased its detention space — a process that is still underway.
IIRIRA codifies these reforms. ... [It] establishes the first system for expedited processing of all asylum claims made by individuals who arrive in the United States with no valid entry documents. ... called "expedited removal".
On July 27, 1993, President Clinton sent a message to Congress explaining that:
I am pleased to transmit today for your immediate consideration and enactment the “Expedited Exclusion and Alien Smuggling Enhanced Penalties Act of 1993.” This legislative proposal is designed to address the growing abuse of our legal immigration and political asylum systems by illegal aliens holding fraudulent documents and by alien smugglers. ... The expedited exclusion procedures would apply to an alien who ... attempted to use a fraudulent passport to enter the United States. ... To apply for asylum, these aliens would first have to establish that they had a credible fear ... of persecution. ... If an asylum officer determined that the alien had such a credible fear, the alien then could apply for asylum. If the alien did not have the requisite fear of persecution, the alien would be subject to an immediate order of exclusion. ... Alien smuggling not only violates our criminal and immigration laws, but it also takes a terrible toll on the lives of the aliens illegally brought into this country.
President Clinton’s proposal, introduced in the Senate by Sen. Ted Kennedy (S. 1333) and in the House by Judiciary Committee Chairman Jack Brooks (H.R. 2836), did not provide for mandatory detention — there was no “shall” to be found. In fact, it did not even mention detention in the context of aliens making fear claims in the expedited exclusion process. A few months later, in October of 1993, Romano Mazzoli, the Democratic Chairman of the House Judiciary Committee’s immigration subcommittee, introduced similar legislation (H.R. 3363). Again, the legislation did not provide for mandatory detention and did not even mention detention in the context of aliens making fear claims in the expedited removal process. Mazzoli’s bill provided in part that:
(B) The examining immigration officer shall refer for immediate inspection at the port of entry by an asylum officer ... any alien who (i) does not present the documentation required (if any) to obtain legal entry to the United States, and (ii) has indicated an intention to apply for provisional asylum or a fear of persecution.
(C) (i) If an asylum officer determines that an alien has a credible fear of persecution, the alien shall be entitled to apply for provisional asylum. ... (ii) [I]f an asylum officer determines that an alien does not have a credible fear of persecution the officer shall order the alien excluded from the United States without further hearing or review.
Had this legislation been enacted, the government would have retained the discretionary power found elsewhere in the INA to detain aliens.
The House Judiciary Committee report on H.R. 2202 specifically noted that its expedited removal provision was “based upon legislation [H.R. 3363] approved by the Subcommittee on International Law, Immigration, and Refugees during the 103rd Congress”. The only plausible reason for the drafters of H.R. 2202 to modify the expedited removal language from H.R. 3363 to specify that aliens “shall” be detained would be to make crystal clear that detention was indeed mandatory. Otherwise, the language would be superfluous.
Another indication that Congress meant detention to be mandatory is that Congress specifically provided for a waiver of mandatory detention in a separate section of IIRIRA — a waiver absent from the expedited removal detention mandates. Section 303(b) of IIRIRA provides that:
If the Attorney General, not later than 10 days after the date of the enactment of this Act, notifies in writing the Committees on the Judiciary of the House of Representatives and the Senate that there is insufficient detention space and [INS] personnel available to carry out section 236(c) [regarding mandatory detention for certain criminal aliens] ... the [transition period custody rules] shall be in effect for a 1-year period beginning on the date of such notification, instead of such section or such amendments. The Attorney General may extend such 1-year period for an additional year if the Attorney General provides the same notice not later than 10 days before the end of the first 1-year period. After the end of such 1-year or 2-year periods, the [detention mandate] of such section 236(c) shall apply.
This language makes two important points. First, when the IIRIRA says that aliens “shall” be detained, its drafters meant this to constitute a binding mandate. Why would there have been any need to set forth a process to lift the mandate if it wasn’t in fact a mandate? Second, as the U.S. District Court for the District of Columbia has stated:
It is a well-recognized canon of statutory interpretation that "[where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 ... (1983); see also Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341 ... (2005) ("We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.").
If the drafters of the IIRIRA intended for detention in the expedited removal provisions to be waivable, why did not it simply copy and paste the waiver from §303 that appears just a few pages later in the legislative text? As the saying goes, “Congress knows how to say ...”.
I should state at this point that it seems remarkable that I can find absolutely no discussion of the expedited removal detention provisions (quite apart from whether the detention was mandatory) in either the committee and conference reports on H.R. 2202 and the associated Anti-Terrorism and Effective Death Penalty Act, or the House and Senate floor debates on both bills — other than declaratory statements in the reports that aliens “shall” be detained. There is no discussion of the merits or demerits of detention, no discussion of whether detention is mandatory or discretionary. Contrast this with the lengthy and often animated discussion regarding the credible fear standard and the extent to which it might risk sending aliens back to persecution. I can only conclude that at that period of time, the detention of aliens apprehended at the border was not an especially contentious subject.
Finally, though not qualifying as legislative history, additional evidence for the fact that Congress meant for detention to be mandatory can be found in post-enactment sources. The U.S. Commission on Immigration Reform (chaired by Barbara Jordan until her death in 1996) concluded in 1997 that:
[IIRIRA] specifies that even those applicants who meet the “credible fear” standard shall be detained until their full asylum hearing before an Immigration Judge. Detaining asylum seekers who have met an initial threshold demonstrating their likelihood of obtaining asylum is not a good use of scarce detention resources.
And, in 2005, House Judiciary Committee Democrat Sheila Jackson Lee, who had been a quite vocal participant in the House debate over H.R. 2202, introduced two “comprehensive” immigration reform bills (H.R. 257 and H.R. 2092), both of which included a provision titled “Elimination of Mandatory Detention in Expedited Removal Proceedings”. It seems that both the commission and Jackson Lee listened to what the man said.
The Availability of Detention Beds
But what is the meaning of mandatory detention if Congress does not appropriate enough funding for the detention capacity necessary to hold all relevant aliens? As the Biden administration argues in a case currently before the Supreme Court, “how [can] it ... be a statutory violation for an agency to fail to do something that Congress has not funded it to do[?]” And as Smith stated regarding the Clinton policy, “[i]n practice, limited resources prevented all excludable aliens from being detained.”
The Biden administration argues before the Supreme Court that Congress couldn’t have really meant “shall detain” to be a mandatory requirement because:
When developing IIRIRA, Congress was well aware that INS lacked the capacity to detain all removable noncitizens. The House Judiciary Committee’s report for IIRIRA observed that, “[d]ue to lack of detention space and overcrowded immigration court dockets, many” of the “[t]housands of smuggled aliens [who] arrive in the United States each year with no valid entry documents and declare asylum immediately” “have been released into the general population.” ... And the General Accounting Office had informed Congress of the “astronomical” cost that would be required to detain “all detainable aliens.”
Congress chose not to provide the hundreds of millions of dollars that would have been needed for expansive detention.
Texas and Missouri readily agree that:
Congress has not provided DHS with sufficient appropriations to detain all the noncitizens the agency encounters who are subject to detention under Section (b). ... DHS’s lack of appropriations for universal detention is not a recent development: The agency has explained that, since Section  was revised ... the Executive Branch “has never had” “sufficient detention capacity to maintain in custody every single person described in” Section .
However, the States go on to argue that:
[F]ailure to appropriate adequate funds to completely fulfill a statutory obligation [does not] mean that “Congress had no intent ... that an agency should execute a command “expressly and clearly” conveyed to the best of its ability.[”] Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 198 n.21 (1946).
My response is twofold. First, as Texas and Missouri argue, an agency faced with limited resources still needs to attempt to comply with a resource-intensive legislative mandate “to the best of its ability”. An administration that does not make use of all available detention beds and does not ask Congress for sufficient resources is not acting in good faith, is not attempting to comply to the best of its ability. According to these criteria, the Biden administration is neither acting in good faith nor attempting to comply to the best of its ability. As Andrew Arthur has just reported:
The Biden administration complains that — despite the detention mandate — it is forced to release illegal migrants on parole because Congress has failed to give it adequate detention space to hold them. A series of court-ordered disclosures in ongoing litigation, however, reveals that ICE detention beds are going empty while the Biden administration is releasing tens of thousands of aliens monthly on parole.
[M]ore than 31.5 percent of ICE detention beds (9,118) ... went empty. ... The Biden administration is not even attempting to use its authorized bed space for detaining illegal migrants. No wonder that the president is asking Congress to cut funding for detention beds by more than a quarter — from the current level of 34,000 beds to just 25,000 — in FY 2023.
Second, maybe Congress actually thought that expedited removal might be ... expedited! Merriam-Webster’s top two definitions of the transitive verb “expedite” are 1) to accelerate the process or progress of: speed up, and 2) to execute promptly. Congress indeed meant for expedited removal to accelerate the removal process, speed it up and make it more prompt:
- The House Judiciary Committee report for H.R. 2202 stated that “[u]nless ... aliens [placed into expedited removal] claim to be U.S. nationals, or state a fear of persecution, there is no requirement ... to do anything other than return them, as promptly as possible, to where they boarded the plane to come here.” (Emphasis added.)
- House Judiciary Committee Chairman Henry J. Hyde stated on the House floor during consideration of IIRIRA’s conference report that “[t]he conferees also struggled with the issue of how to fairly and expeditiously adjudicate asylum claims [while at the same time including] major safeguards against returning persons ... to conditions of persecution.” While the conference committee modified the expedited removal provisions of the bill to enhance such safeguards, this was not intended to sacrifice expedition, but rather challenged Congress as to “how” to enhance safeguards while still ensuring expedition.
- Bill McCollum, then-Chairman of the House Judiciary Committee’s Subcommittee on Crime, stated during House floor consideration of the conference report that expedited removal “is a very, very positive provision, because it you do not qualify, you are going to be shipped right back out again, and do not get caught up in our system.” (Emphasis added.)
Even the Biden administration admits that the goal of expedited removal is expedition, arguing to the Supreme Court that:
[Instead of mandatory detention,] Congress sought to address the flow of inadmissible noncitizens in large part through IIRIRA’s new expedited-removal procedure ... which Congress crafted with the goal of “weeding out patently meritless claims [for admission] and expeditiously removing the aliens making such claims from the country.”
The Supreme Court found in DHS v. Thuraissigiam in 2020 that:
Even without the added step of judicial review, the credible-fear process and abuses of it can increase the burdens currently “overwhelming our immigration system.” . . . If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims . ... [o]nce a fear is asserted, the process would no longer be expedited.
We have regrettably come to the point where the credible fear process has indeed increased the burdens overwhelming our immigration system. Contrary to the expectations of its authors, the expedited removal process can now by no stretch of the imagination be considered expedited.
What point am I trying to make? My point is that the drafters of IIRIRA believed that mandatory detention could be achieved without the need for an extravagant expenditure on detention beds. If expedited removal worked as intended to promptly remove the bulk of aliens apprehended at the border who qualified for expedited removal, there would be no conflict between IIRIRA mandating detention and Congress not writing a blank check for detention beds. The fly in the ointment, of course, is that expedited removal ceases to be expedited as soon as aliens claim a fear of return. It is not that the credible fear process (including an asylum officer interview and possible review by an immigration judge) takes a particularly long time. It is that when asylum officers end up finding aliens who make credible fear claims to have a credible fear, the aliens will be placed into §240 removal proceedings in immigration court, proceedings that may not begin for years. So, when a large percentage of aliens placed into expedited removal claim a fear of return, and a large percentage of such aliens are found to have a credible fear, expedited removal ceases to be expedited. If relatively few aliens claim a fear and/or a small percentage are found to have a credible fear, mandatory detention would be eminently doable.
Detention after IIRIRA
So, what happened to immigration detention policy after the enactment of IIRIRA specifically with regard to aliens placed into expedited removal? Helpfully, the Haitian Refugee Immigration Fairness Act (P.L. 105-277) provides that “[t]he Attorney General shall regularly collect [and report to Congress] data ... with respect to asylum seekers in detention ... including [importantly for our purposes, t]he rate of release from detention of detainees.” I dug out of storage paper copies of the reports for fiscal years 1999-2002 (which are not very helpfully missing from ICE’s website). The 1999 report states that of the 6,289 “asylum seekers at a port of entry claiming credible fear of persecution” who were ever detained, 97 percent (6,118) were released, with 59 percent (3,595) of those released being released on parole. In 2000, 99 percent were released (9,890 of 10,030), with 54 percent (5,346) being released on parole; in 2001, 98 percent were released (12,438 of 12,650), with 68 percent (8,477) being released on parole; and in 2002, 96 percent were released (8,850 of 9,260), with 67 percent (5,942) being released on parole. You can find reports on ICE’s website for fiscal years 2006, 2007, 2008, and 2009-10. Not very helpfully, the more recent reports do not contain the data described above.
Additionally, in 2000, the now U.S. Government Accountability Office (GAO) concluded that:
Recent INS ... Intelligence Assessments reported that smuggling people from the People’s Republic of China is an ongoing and growing phenomenon ... According to the assessments, the vast majority of the illegal entrants who were caught appeared to have been coached and instructed to claim fear of persecution. Almost all were found by asylum officers to meet the standard for credible fear of persecution and were released pending a removal hearing. However, only a few of these aliens actually showed up for their scheduled removal hearings, according to the assessments. [Emphasis added.]
Further, GAO found that:
INS[’] ... policy favors releasing [aliens from detention determined to have a credible fear] provided it determines the aliens are likely to appear for the removal hearing and do not pose a risk to the community. In response to our survey, 29 of 33 INS district offices reported that in fiscal year 1999, an estimated 78 percent of such aliens were released to await their hearing before an immigration judge. [Emphasis added.]
INS released 5,320 aliens who were determined to have a credible fear of persecution or torture between April 1, 1997, and September 30, 1999. As of February 22, 2000, of the 5,320 aliens, 2,351 aliens also had received a decision from an immigration judge. Of the 2,351 aliens, 1,000 aliens (42 percent) did not appear for their removal hearings before an immigration judge and were subsequently ordered removed in absentia.
The GAO concluded that:
INS’ recent policy that favors releasing aliens from detention contributed to some of the 1,000 aliens not appearing for their removal hearings. These data suggest that many aliens may be using the credible fear process to illegally remain in the United States.
As we have seen, most aliens placed into expedited removal who claim a fear of return and are then released are released on parole. I have written:
As the parole statute talks in terms [of] “parole into the United States [of] any alien applying for admission to the United States,” one might assume that only aliens outside of the U.S. can be paroled. Well, that would have been a valid assumption, until IIRIRA. As the House Judiciary Committee report explained:
[The bill replaces] the definition of “entry” with a definition for “admission” ... the entry of an alien into the United States after inspection and authorization by an immigration officer.
Currently, aliens who have entered without inspection are deportable. ... Under the new “admission” doctrine, such aliens will not be considered to have been admitted, and thus, must be subject to a ground of inadmissibility, rather than a ground of deportation, based on their presence without admission.
What does this have to do with the ability to parole into the U.S. aliens already here? In 1998, the [INS’s] general counsel explained that:
[A]liens who are present in the United States without having been admitted or paroled are now deemed to be applicants for admission. ... Before [IIRIRA] ... aliens who had entered the United States without having been inspected were amendable to deportation, rather than to exclusion, proceedings. ... Congress has [also] now provided for an expedited removal proceeding. ... The Service may invoke this procedure if an alien “who is arriving in the United States” is inadmissible. ... The consequence of these two [provisions] is that there are now two categories of applicants for admission, those who are arriving aliens, and those who are not. ... [A]liens who were once deportable for having entered without inspection are now considered in law to be applicants for admission. ... As [such], they are within the scope of the statutory parole authority.
OK, I don’t think the authors of IIRIRA had this result in mind, called “parole in place”, that aliens already in the U.S. are eligible for parole. But to be fair, it is the upshot of IIRIRA’s reboot of the entry doctrine. IIRIRA dramatically altered the meaning of “admission” without at the same time modifying the language providing that parole applies to “any alien applying for admission to the United States”. The INS reached the legally appropriate conclusion.
However, even if it is assumed to be generally the case that aliens present in the United States are eligible for parole, that does not mean that aliens present in the United States, placed into expedited removal proceedings and who claim a fear of return are eligible for parole. This is because the statutory parole power (itself modified by IIRIRA) runs up against the statutory detention mandates of IIRIRA. The application of a standard canon of statutory interpretation makes clear that such aliens may not be paroled. The Supreme Court has explained that:
[It is a] well established canon of statutory interpretation ... [“]that the specific governs the general.” ... That is particularly true where ... “Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.”
The general/specific canon is perhaps most frequently applied to statutes in which a general permission or prohibition is contradicted by a specific prohibition or permission. To eliminate the contradiction, the specific provision is construed as an exception to the general one. ... [As we have said,] “[g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment.” ... [A]s we said in a much earlier case:
It is an old and familiar rule that, where there is, in the same statute, a particular enactment, and also a general one, which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. This rule applies wherever an act contains general provisions and also special ones upon a subject, which, standing alone, the general provisions would include.
Of course the general/specific canon is not an absolute rule, but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. The [petitioners] point to no such indication here.
And there is no such indication here. There is no statement anywhere in the text of IIRIRA (or to be found in its legislative history) that aliens subject to its mandatory detention provisions may evade such detention through parole. The text says nothing about the use of parole to allow for the release of aliens from mandatory detention. The specific — mandatory detention of aliens placed in expedited removal proceedings who claim a fear of return — trumps the general parole power. Thus, pursuant to this longstanding canon of statutory interpretation, aliens subject to IIRIRA’s mandatory detention may not be released on parole.
I must note that the Supreme Court does not seem to agree. It stated in Jennings v. Rodriguez in 2018 that “applicants for admission may be temporarily released on parole ‘for urgent humanitarian reasons or significant public benefit.’” Even William Barr agreed when he was serving as attorney general under President Trump:
[T]hat section 235 requires detention does not mean that every transferred alien must be detained from the moment of apprehension until the completion of removal proceedings. ... [The INA] expressly states that aliens applying for admission — which includes aliens originally placed in expedited proceedings — may be released on parole.
Why the Court has never subjected this claim to analysis under a standard test of statutory interpretation is beyond me.
As the states of Texas and Missouri argue to the Supreme Court:
[T]he Executive’s longstanding disregard for the law provides an additional compelling reason to enforce that law, not to allow the Executive to keep disregarding it “by a sort of intellectual adverse possession.” ... The Executive’s longstanding disregard for duly enacted statutes does not repeal those statutes.
It is long overdue for the Executive Branch to honor IIRIRA’s mandate that aliens placed into expedited removal who claim a fear of return be detained until removed or until the completion of immigration court proceedings. Taking this step would go a long way toward ending the reality of large numbers of inadmissible aliens skipping their hearings and remaining at large in the United States unlawfully. And taking this step would dramatically reduce the incentive for making spurious claims of fear and, more fundamentally, dramatically reduce the incentive for illegal immigration to the United States. For the prospect of long-term release into the United States along with access to the American job market would go from assured to illusory.