Mayorkas Flouts Congress, Invents More ‘Legal’ Immigration Pathways

By Jason Richwine on July 18, 2023

National Review, July 18, 2023

Earlier this month the Department of Homeland Security under Secretary Alejandro Mayorkas introduced additional “family reunification parole” programs, which allow certain foreign nationals with relatives in the U.S. to come here immediately rather than wait for a family-based immigrant visa. It’s yet another lawless action taken under the guise of promoting legal immigration.

Family reunification is an important goal of the Immigration and Nationality Act (INA), but Congress also made clear that keeping immigration manageable requires limits to that goal. While immediate family members of U.S. citizens may obtain visas without restriction, all other family-based categories are subject to individual statutory caps, totaling 226,000 green cards per year. Without these caps, family reunification would push overall immigration beyond levels that Congress considers appropriate.

But congressional intent is not exactly top-of-mind for Secretary Mayorkas. He is more concerned that the caps generate waiting lists for family-based visas that can take years to become available. His solution is to use the parole power to allow some applicants to jump the line and enter today.

As I have previously discussed, the secretary may grant inadmissible migrants “parole” — temporary entry, with a possible work permit — “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” This minor provision of the INA, intended for exceptional circumstances, now threatens to swallow the rest of the act. Building on past administrations’ abuses of the power, Mayorkas has used parole to welcome any number of immigrants he wants, from whatever countries he wants, at whatever times he wants.

In this case, Mayorkas is using parole to evade the family-based caps that Congress put into law. He says the program is a “significant public benefit” because, among other things, it promotes family unity and reduces strain on border-patrol resources. But as my colleague Elizabeth Jacobs points out, these are general considerations that apply to whole classes of people, not to individual cases as required by law. If Congress had intended to give the secretary the power to wave through inadmissible migrants en masse, it would have spoken far more clearly.

Judicial help may be on the way. Although the Supreme Court declined to involve itself in the administration’s enforcement priorities in U.S. v. Texas last term, the majority opinion noted that specific grants of legal status and benefits could be reviewable. In addition, Justice Barrett’s concurrence in the student-loan case described a version of the “major questions doctrine” that, if applied to the administration’s use of parole, would clearly seem to invalidate it.

But why wait for the courts? Surely Congress does not believe that it has given away its authority to determine who is allowed to enter the country. The House should continue to push legislation clarifying the limited nature of the parole power, and it should also initiate impeachment proceedings against Mayorkas for violating existing law. If Congress fails to jealously guard its legislative prerogatives, there will be many more parole programs inviting many more inadmissible migrants in the near future.