There is a “dark” web, a dark internet, referring to websites that cannot be accessed without special software. The Congressional Research Service reports that this dark web “may be used ... to conceal criminal or otherwise malicious activities”, with major markets in illicit drugs, pharmaceuticals, fake documents, fraud, hacking, and child sexual abuse/exploitation.
There is also a “dark” immigration codex, one that can be equally as sinister. In contravention of the bedrock constitutional principal of separation of powers, Congress has not passed this shadow Immigration and Nationality Act, rather it has been created out of whole cloth by the executive branch, usually for the express purpose of “circumvent[ing] Congressionally established immigration policy” (as the House Judiciary Committee concluded in 1996).
The abuse continues with President Biden. In fact, his administration has actually driven the megalomaniacal perversion of the executive’s statutory immigration powers to new lows. Just yesterday, Biden’s Department of Homeland Security issued an Orwellian press release announcing “new border enforcement measures to improve border security, limit irregular migration, and create additional safe and orderly processes for people fleeing humanitarian crises to lawfully come to the United States.” Among these are “new parole processes for Cubans, Haitians, and Nicaraguans ... which combine safe, orderly, and lawful pathways to the United States, including authorization to work”. Never mind that these pathways were never approved by Congress. But let me back up.
Professors Adam Cox of the University of Chicago Law School and Cristina Rodriguez of the New York University School of Law concluded that the executive branch had used “powers expressly delegated to [it] by Congress to advance [its] own immigration agenda [in a manner that] accomplish[ed] objectives Congress almost certainly did not intend”, and that perhaps “the best twentieth-century example ... is the President’s use of the parole power ... [to] serve[] as “the central tool of American refugee policy[.]”
The parole power? No, this has nothing to do with getting out of jail ... at least for citizens. It has become a means for aliens to be released en mass from DHS detention. The Immigration and Nationality Act of 1952 granted the attorney general the ability to “parole” aliens into the United States: “[He] may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States.” The House Judiciary Committee at the time made clear that:
[The parole] authority should be surrounded with strict limitations. ... to permit the Attorney General to parole inadmissible aliens into the United States in emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as, for instance, a witness or for purposes of prosecution.
It only took a few years for abuse of this quite modest privilege to arise. The abuse began rather innocuously, as such abuse usually does. Arnold Leibowitz (then special counsel to the Senate Judiciary Committee’s immigration subcommittee and former special counsel to the Select Commission on Immigration and Refugee Policy) explained that: “The phenomenon of mass parole began in 1956 when [President Eisenhower] interpreted very broadly the parole authority ... to permit [Hungarians] to enter en masse as refugees. [P]rior to 1956, the parole authority had been used only to benefit individual aliens.”
Cox and Rodriguez concluded that “When [in 1980] Congress ... creat[ed] a comprehensive regulatory scheme for the admission of refugees, the legislative history ... made clear that Congress sought to constrain the President’s use of parole authority.” As Sen. Edward Kennedy, one of the architects of the Refugee Act, later put it:
[A] concern in Congress was the use of the Attorney General’s “parole authority”. ... [which] was of deep concern to many in Congress, especially in the House of Representatives. One of the principal arguments for the Act was that it would bring the admission of refugees under greater Congressional and statutory control and eliminate the need to use the parole authority.
But Kennedy wrote that “the ink was hardly dry on this historic reform when the new law faced its first test: the massive influx of Cuban refugees to the United States, which began a few weeks after the Act became effective on April 1, 1980.” President Carter proceeded to parole over 100,000 Cubans who arrived during the Mariel boatlift. Kennedy observed that “to many, it was discouraging to see the new tools available to the government ignored” after Congress had worked many years on the act’s reforms. Professors Stephen Legomsky at the Washington University School of Law and Rodriguez concluded that “the grant of parole rather than refugee status [to Cubans in the Mariel boatlift and Haitians at the same time] seems contrary to both the language and the spirit of the 1980 Act.”
The current language of the parole statute was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA): The secretary of DHS “may ... 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”. As to Congress’ intent, the House Judiciary Committee stated that:
In recent years ... parole has been used increasingly to admit entire categories of aliens who do not qualify for admission under any other category in immigration law, with the intent that they will remain permanently in the United States. This contravenes the intent of [the parole statute]. ... Without an effective control mechanism, the Attorney General can continue to use the parole authority to implement immigration policy without Congressional knowledge or approval. An example of a recent abuse ... stems from the September 1994 migration agreement negotiated by the Clinton Administration with Cuba. To implement this agreement, the Administration is using the parole authority to admit up to 20,000 Cuban nationals annually. The paroled Cubans will eventually be entitled to adjust to permanent resident status. In this case, the use of parole to fulfill the terms of the Cuban migration agreement is a misuse and intentionally admits, on a permanent basis, aliens who are not otherwise eligible for immigrant visas. ... Such use of the parole authority has not been authorized by Congress. Indeed, the Clinton Administration did not even attempt to consult with Congress in negotiating the Cuban migration agreement.
Federal courts have recognized Congress’ desire to rein in abuse. As to the Refugee Act, the First Circuit Court of Appeals has concluded that:
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[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.
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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.
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[T]here are clear indicia of a congressional desire to discourage any extravagant — or even generous — use of the Attorney General’s parole authority in connection with both nonrefugee and refugee aliens.
As to IIRIRA, the Second Circuit has recognized that:
Congress, in IIRIRA, specifically narrowed the executive’s discretion ... to grant “parole into the United States”. ... IIRIRA struck ... the phrase “for emergent reasons or for reasons deemed strictly in the public interest” as grounds for granting parole into the United States and inserted “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” ... The legislative history indicates that this change was animated by concern that parole ... was being used by the executive to circumvent congressionally established immigration policy.
The Ninth Circuit has come to a similar conclusion:
In enacting IIRIRA ... 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.”
The Fifth Circuit has more recently concluded that:
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Throughout the mid-twentieth century, the executive branch on multiple occasions purported to use the parole power to bring in large groups of immigrants. ... In response, Congress twice amended [the parole statute] to limit the scope of the parole power and prevent the executive branch from using it as a programmatic policy tool ... in the Refugee Act of 1980 [and in IIRIRA].
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DHS cannot ... parole aliens en masse; that was the whole point of the “case-by-case” requirement that Congress added in IIRIRA.
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DHS’s pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power [is] not nonenforcement; it’s misenforcement, suspension of the INA, or both.
And last June, the Supreme Court stated that the parole “authority is not unbounded: DHS may exercise its discretion to parole applicants ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’” Unfortunately, it also made clear that “we need not and do not resolve the parties’ arguments regarding ... whether the Government is lawfully exercising its parole authorities” by paroling and releasing aliens apprehended at the border en masse into the United States.
As I have alluded to, the abuses have only gotten worse during the Biden administration. Even during the Obama years, U.S. Citizenship and Immigration Services’ own website stated that “[h]umanitarian parole is used sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency.” I can no longer find any such language on the website. In fact, the website now emphasizes that “[n]o one factor determines the outcome” of a parole decision — even a factor such as national security concerns, a criminal history, prior participation in fraud, poor character, or a negative effect on a community in the U.S.
The Biden administration has notoriously used the parole power to release into our communities hundreds of thousands of illegal aliens apprehended at the border. As my colleague Andrew Arthur has reported:
Under the Immigration and Nationality Act ... DHS is required to detain every illegal entrant, as well as all other inadmissible aliens stopped at entry and deemed inadmissible. Due to resource constraints, various administrations have struggled to comply with that congressional detention mandate, but unlike President Biden, at least his predecessors tried. ... [T]he number of illegal migrants released [usually through parole] under the Biden administration totals just fewer than 1.35 million.
Could it get any worse? Well, just yesterday, the Biden administration issued press releases announcing new “border enforcement measures to improve border security” and “create additional safe and orderly processes” for Cubans, Haitians, Nicaraguans, and Venezuelans “fleeing humanitarian crises”. As DHS proclaims:
[T]hese processes will provide a lawful and streamlined way for qualifying nationals of Cuba, Haiti, Nicaragua, and Venezuela ... to seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for a temporary grant of parole. ... These processes will allow up to 30,000 qualifying nationals per month from all four of these countries to reside legally in the United States for up to two years and to receive permission to work here, during that period.
This represents the arrival of up to 360,000 aliens a year. And the administration could up the number with the stroke of a pen. It sure sounds like a categorical parole program intended to flout the immigration laws passed by Congress, the sort of program regarding which Congress thought it had bid good riddance.
What is motivating President Biden? He has decided to conscript parole to fulfill his agenda of, as Mark Krikorian, the Center for Immigration Studies’ executive director, has observed, stigma removal, the conversion of 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. 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”.
Until yesterday, the Biden administration was pursing this agenda under the guise of relative secrecy for Mexicans and Central Americans, as my colleague Todd Bensman has uncovered. Now, post-election, the breathtaking scale of what President Biden is attempting is all out in the open.
The conscription of parole provides President Biden with an additional benefit. As I have written:
[I]f 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.
The administration claims these aliens are “fleeing humanitarian crises”. Why then doesn’t it admit them as refugees? Because it well knows that they wouldn’t qualify — they simply do not face persecution. What they face are low wages and scarce job opportunities (compared to the U.S.) in their home or adopted countries. What they may face are gangs or generalized violence at home. But these are not and have never been grounds for refugee status. Ironically, many will end up in gang-infested U.S. cities with far higher murder rates. As I have written:
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[T]he homicide rate in St. Louis was 65.8, in Baltimore it was 55.5, in New Orleans it was 40.1, and in Detroit it was 39.7 ... placing them among the 50 most dangerous cities in the world.
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[T]he danger that deadly violence poses to illegal aliens in the United States is further highlighted by looking at how many Hispanics aged 15-24 (reflecting the predominant demographic of illegal migrants) are being murdered right here in the U.S. The National Center for Health Statistics at the Centers for Disease Control and Prevention reports that in 2019, Hispanic males aged 15-19 had a death rate from homicide of 12.4 per 100,000 persons, compared to 3.2 for white males — almost four times higher (388 percent). Hispanic males aged 20-24 had a death rate from homicide of 17.8 per 100,000, compared to 4.9 for white males — again, almost four times higher (363 percent).
Conclusion
The Biden administration’s rogue use of parole is undermining the Constitution’s separation of powers between the legislative and executive branches. In 2003, F. James Sensenbrenner, Jr., chairman of the House Judiciary Committee, underscored to the Bush administration that:
[T]he Constitution provides that Congress shall have power to “establish a uniform Rule of Naturalization.” The Supreme Court has long found that this ... grants Congress plenary power over immigration policy. As the Court found in Galvan v. Press [in 1954], [that] “the formulation of policies [pertaining to the entry of aliens and their right to be here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”
And, as I have suggested, “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.”
We can only hope that aggrieved states will once again come to the rescue, like the seven samurai, and seek to enjoin the Biden administration’s pernicious scheme. And we can only hope that the Supreme Court will finally face the rampant abuse of parole head-on.