Pushing Back Indirectly Against the Biden Administration’s Unlawful CBP One Programs

No ID, no airplane ride

By Elizabeth Jacobs on April 30, 2024

Amid public controversy over inadmissible aliens being permitted to pass through Transportation Security Administration (TSA) checkpoints at airports without proper identification, Sens. Mike Lee (R-Utah) and Rick Scott (R-Fla.) last month introduced the Verifying that all Aliens Have Legitimate Identification Documents Act (VALID Act) (S.4051) in response to the Biden administration’s legally dubious parole programs, which have allowed hundreds of thousands of inadmissible aliens to fly and be released into the United States with work permit eligibility. The bill would curb the administration’s abuse of its limited parole authority.

Parole. To address a dramatic increase in migrants who have crossed the Southwest border illegally from Cuba, Haiti, Nicaragua, and Venezuela specifically that began in late FY 2021, the Biden administration created parole programs that allow nationals of those four countries to apply for parole without leaving home and to receive authorization to fly to, remain in, and work in the United States, despite being inadmissible to the country under federal law. As shorthand, we refer to these programs as “CHNV Parole”.

At the same time it rolled out CHNV Parole, the Biden administration also announced that would-be illegal migrants would be able to schedule their unlawful arrivals at Southwest border ports of entry (POEs) using the CBP One Mobile App and receive parole — a policy that immigration experts now often refer to as the “CBP One App interview scheme”.

Under each of these parole programs, migrants receive temporary authorization to remain in the United States and become eligible to apply for work authorization. This scheme is designed to funnel illegal migrants from between POEs directly to them, without implementing any effective measures to deter such illegal immigration. The combination of quasi-lawful presence and work authorization has added another, strong pull factor for illegal immigration. Using the CBP One Mobile App does not make an inadmissible alien admissible. Rather, it is designed to “meter” inadmissible aliens’ unlawful entry across the border in a manner that the Biden administration imagines the voting public will find more palatable.

Unlike the CNHV program, this arrangement at the land ports of entry is not “nationality specific”, and as of February 2024, the Biden administration has allowed more than 500,000 inadmissible aliens to enter and be released into the country through the CBP One App interview scheme.

There are several problems with these policies. The first is that they unlawfully exceed DHS’s authority under federal law to parole inadmissible aliens into the country. Section 212(d)(5)(a) of the Immigration and Nationality Act (INA) only permits DHS to parole aliens “on a case-by-case basis” for “urgent humanitarian reasons and significant public benefit”. Further, this provision specifies that parole may only be authorized for a limited duration to serve a temporary purpose and must be revoked when that purpose has been completed.

Moreover, section 212(d)(5)(b) of the INA clarifies that the government “may not parole into the United States an alien who is a refugee unless [the DHS secretary] determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee”. In short, Congress was clear that parole may not be used to allow entry en masse and, except in rare and exceptional cases, parole must not be used as a mechanism to circumvent or supplement the U.S. refugee program, which is subject to an annual numerical limit (cap).

The second major problem with the CHNV Parole program is that the Biden administration is expressly using it to circumvent the immigration limits Congress has set. CHNV parole allows inadmissible aliens to “jump the line” ahead of aliens abroad waiting for visas, without most American voters — who largely oppose the Biden administration’s immigration policies — ever realizing that fact.

Airports. The VALID Act seeks to address these abuses of authority indirectly, by prohibiting the TSA from accepting the CBP One Mobile App, Notices to Appear (NTA, charging documents in removal proceedings), or Notice to Report (NTR) as acceptable forms of identification at TSA security checkpoints and when boarding planes.

Under this bill, if a domestic or foreign aircraft accepts any of the three as a legal form of identification, the air carrier will be banned from operating in U.S. airspace. (The bill would be strengthened by clarifying in a future amendment that CBP One, NTAs, and NTRs also may not be used to demonstrate travel authorization to the United States from foreign airports.)

The VALID Act may also provide an ancillary effect of discouraging migrants who enter the United States from discarding their identity and travel documents near the border. This is a common practice that often conceals the fact that a migrant has already been “firmly resettled” in a third country (i.e., other than their home country), which could derail a migrant’s application for asylum under section 208(b)(2)(A)(vi) of the INA. That provision renders any alien who “was firmly resettled in another country prior to arriving in the United States” ineligible for asylum.

The VALID Act strategy is unique in that it does not address DHS’s parole authority or the Biden administration’s general unwillingness to enforce federal immigration laws against most aliens in or attempting to enter the United States without a lawful immigration status.

Instead, the bill targets the very real security concerns inherent in a program like CHNV Parole, which allows over 300,000 inadmissible aliens to enter the United States annually, by limiting what documentation can be presented to board a flight to the United States. The VALID Act would thereby ensure that DHS properly verify the identities of those boarding airplanes in, or headed to, this country.

(The air-travel ID restrictions would also apply to those admitted through the CBP One App Interview Scheme at the land ports of entry, but since they will already have been admitted to the country, they would still be able to travel by bus or other means to their destinations.)

“Every American needs to show ID to enter our country. So why do we make it simpler for illegal immigrants to come in than for our own people?” Lee asked. “[T]he VALID Act resolves to close the loopholes that have allowed 200,000 illegal immigrants into the country unchecked. The Biden administration's policies have blatantly facilitated this crisis, encouraging illegal immigration and compromising our nation's security,” he added.

The introduction of this bill followed a March 8 ruling from the U.S. District Court for the Southern District of Texas, which held that states lacked standing to challenge CHNV Parole. Specifically, the court found that the states failed to show injury because, “Despite the high approval rate of program applications, the record reflects that the Program has resulted in a decrease of CHNV nationals entering the United States.”

As my colleague Andrew R. Arthur explained recently, however, the parole program has actually increased — not decreased — the number of inadmissible aliens entering the United States from those four countries.

Not surprisingly, the state plaintiffs have requested that the federal court reconsider its ruling on standing, arguing, “border crossing numbers . . . show that crossings of aliens from CHNV countries have skyrocketed — and are higher than before the CHNV Program was implemented”.

It’s questionable whether the district court’s judgment will survive appeal, but even if it does, the VALID Act could serve as an alternative that would protect Americans’ safety while curbing the impact of the administration’s parole abuse. This may well come up later this week when Congress considers the Federal Aviation Administration Reauthorization Act.