A FAIR Research Issue Brief | March2024
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Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security to grant immigration parole to foreign nationals who otherwise do not have legal permission to enter the United States. The parole authority is powerful, as aliens paroled into the U.S. may obtain work authorization and are eligible to adjust their status and eventually gaincitizenship.
Congress intended parole as a discretionary tool, to be used only in exceptional cases and for a temporary period of time. Indeed, since its creation in 1952, Congress has amended the parole statute multiple times to provide guardrails for its use. Even so, the parole authority has been abused time and time again, most notably by Presidents Obama and Biden, who turned immigration parole into a backdoor for illegal aliens to enter and remain permanently in the United States, bypassing the normal requirements forimmigration.
Figure 1: The Parallel System: Parole vs. Legal Admissions[1]
Now, immigration parole is granted so broadly, it has reached the scale of our legal immigration system. In just the first nine months of Fiscal Year (FY) 2023, 876,577 paroles were granted by Secretary Mayorkas, sure to be the highest year on record.[1]In fact, in the first two quarters of 2023, the number of paroles granted surpassed the number of green cardsapproved.
This issue brief explains what Congress intended parole authority to be and how various administrations have distorted it beyondrecognition.
Parole is an authority set forth in statute that allows otherwise inadmissible aliens to enter the United States for a limited time and purpose. Section 212(d)(5)(A) of the INA provides that the Secretary of Homeland Security may 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 (emphasis added). An alien may be granted parole, at the discretion of the Department of Homeland Security, either at a port of entry or while in their home country, granting them permission to be inspected and enter theU.S.
Immigration parole is different than the parole used to release prisoners in the U.S. correctional system. Under the Immigration and Nationality Act, parole is a way of allowing entry into the United States without a visa or other documentation. Immigration parolees are not monitored or required to check in with the government, but may eventually have a hearing before an immigration judge, ifordered.
Parole is currently being exercised by the Department of Homeland Security in three main ways: 1) at the border, upon encounter, allowing the alien to be released to eventually claim asylum; 2) at ports of entry, using the CBP One Mobile Application to schedule appointments and be evaluated and released by Customs and Border Protection officials; and 3) through categorical, or nation-based parole programs whereby foreign nationals fly into the UnitedStates.
Foreign nationals who seek parole via the categorical programs such as the Cubans, Haitians, Nicaraguans and Venezuelans (CHNV) process or Uniting for Ukraine require a sponsor in the United States to file a Declaration of Financial Support form with U.S. Citizenship and Immigration Services (USCIS). The sponsor, who must be located in the United States at the time of filing, must be an immediate family member. However, that sponsor can be an illegal alien. The sponsor can be awaiting removal proceedings or can be the recipient of deferred action or parole. If the sponsor cannot financially support the illegal alien seeking parole, he or she can obtain a non-related co-sponsor. Access to the parole process is free.
Foreign nationals granted parole through categorical parole programs typically do not undergo the normal screening and vetting process required for most foreign nationals in the process of obtaining a visa or visa waiver. Parole applicants do not submit for in-person interviews before entering the United States. Further, to obtain permission to travel to the U.S., foreign nationals are only required to submit limited and often unverifiable biographical information and a photo through the CBP One app and only need a passport if arriving by air.[2][3]
Upon arrival in the United States, aliens seeking parole through the CHNV programs or at land ports of entry only receive the same scrutiny as tourists (which includes fingerprinting) when they arrive at our ports of entry, whereas nonimmigrant visa applicants submit much more detailed information in advance and often appear for an interview with consulatesabroad.
Moreover, the ability of Customs and Border Protection to use this basic information to determine whether an alien seeking parole is a public safety or national security threat is only as good as the information to which CBP has access. Many foreign countries do not share information on their nationals with the U.S. This is especially true for countries like Venezuela, which has no diplomatic relations with the United States and Haiti, where the government has collapsed or is in turmoil. When an illegal alien is from such countries, it is not likely that Customs and Border Protection can run adequate background checks on those they release on parole into theinterior.
Because parole is discretionary, it may be revoked at any point, at which point the alien must be returned to custody or be removed. The Department of Homeland Security informs parolees that it may decide to terminate parole at any time, including for violating any laws of the United States. In practice, however, parole has become a tool to allow millions of foreign nationals who are not legally eligible to enter the U.S. to remain in the country without fear ofremoval.
Parole offers multiple benefits to the alien. First and foremost, the parole process allows an alien to enter the U.S. quicklymuch faster than by obtaining a visa. In addition, by circumventing the regular visa process, the alien generally does not have to establish s/he meets the eligibility criteria of our family-based, employment-based immigration programs, or even our humanitarian immigration programs set forth in statute. Further, those paroled into the U.S. may obtain work authorization documents almost immediately and are eligible to adjust their status and eventually gaincitizenship.
As discussed more below, parole was intended to be used in ways that are limited in nature and temporary in duration, like emergency medical care. Today, however, the Biden administration is using parole to release huge numbers of illegal aliens caught crossing into the U.S. or arriving at the border and allowing them to stay indefinitely. This takes place despite federal laws that require detention and removal of those aliens. Specifically, Section 235(b) of the INA requires that when the government apprehends illegal aliens at the border, those aliens shall be detained pending removal proceedings, whether it be through expedited removal or regular removal proceedings.[4] This includes asylumseekers.
The number of otherwise inadmissible aliens who have been paroled into the U.S. has skyrocketed under President Biden. According to the Department of Homeland Security (DHS), in just the first nine months of FY2023, 876,577 paroles were granted by Secretary Mayorkas.[5] DHS has three agencies that have authority to grant parole: Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). In just the first three quarters of FY23, CBP granted 802,764 paroles, including 498,628 paroles by the Office of Field Operations and 304,136 paroles by the U.S. Border Patrol.[6]
In addition to aliens paroled into the U.S. at the border, hundreds of thousands of illegal aliens have been invited into the U.S. through the Biden administrations categorical, or nationality-based, parole programs. These parole programs operate under the same Section 212(d)(5) legal authority, the only difference being that these foreign nationals fly directly into interior ports of entry (i.e. international airports). Immigration parole is the only tool the government has to actively invite foreign nationals en masse to enter the U.S. without granting them a visa. Secretary Mayorkas has created parole programs for nationals of Cuba, Haiti, Nicaragua, Venezuela, and Afghanistan, amongothers.
Its important to note that despite claims by open-border advocates and the media who wrongly refer to parole as legal immigration, those granted parole are not in the U.S. with a valid, legal immigration status. Lawful presence is a term of art in immigration law designed to clarify that although an alien has no legal status, he or she is not accruing unlawful presence under INA Section 212(a)(9) for purposes of the three- and ten-yearbars.
The parole statute was created by Congress during a time of Cold War tensions. As written in the Immigration and Nationality Act, Congress intended that it be used only in limited circumstances, such as for people needing urgent medical care that is unavailable in their home countries.[7] The legislative history makes this abundantly clear by emphasizing that the intention was 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.[8] As is evident, the language here is very individualistic, reflecting the case-by-case intent of the paroleprovision.
It did not take long before the executive branch began abusing this authority created by Congress. In 1956, the Eisenhower administration used the parole authority en masse for the first time to allow 30,000 Hungarians fleeing the active Soviet invasion to enter the U.S. In 1958, Congress passed a law allowing these Hungarians to become legal permanent residents because that parole was not a long-term status. However, subsequent presidential administrations, both Republican and Democrat, began abusing parole to accommodate various groups of would-be immigrants, allowing migrants entry or allowing them to remain in the country, rather than using the proper tools: the existing family, employment and humanitarian programs created byCongress.
Parolees vs. Refugees. With an influx of Cubans fleeing the communist takeover of their homeland in the 1960s, the Cuban population in the U.S. grew from under 80,000 in 1960 to 439,000 in 1970.[9] A huge number of these individuals intended to apply for asylum, which would have been a significant burden on the system. Then, as now, granting so many inadmissible Cubans immigration parole was possible, but Congress recognized that parole is intended as a case-by-case authority for rare instances of public benefit and should not be generally applied. Partially to avoid a misuse of parole on an even grander scale, Congress enacted the Cuban Adjustment Act in 1966 to forestall this possibility.[10] That act granted legal status to Cubans living in the U.S. for a year and took into account the unique circumstances of Cubas revolution and proximity toAmerica.
The danger of the executive conducting mass paroles remained a clear threat throughout the 1970s. In 1975, as the Vietnam War was ending, President Ford authorized granting parole to up to 200,000 Vietnamese refugees with the goal of resettling them in the United States.[11] Congress subsequently passed a law providing funding for over 130,000 paroled refugees who arrived.[12] Nevertheless, Congress was dismayed by the executive branchs use of parole to bypass the then-current refugee framework. This mass parole of Vietnamese refugees, the largest up to that point, was the last straw. With the Refugee Act of 1980, Congress reaffirmed limitations on the parole authority by establishing a uniform refugee system.[13] It also generally prohibited the government from paroling refugees into the U.S., to prevent the executive branch from bypassing this refugeeprogram.
However, under President Reagan, the executive branch began to misuse parole by allowing foreign nationals (illegal aliens and legal residents alike) already in the United States to leave the country for certain reasons and apply to be paroled in upon return without undergoing the normal visa process required for foreign nationals. This was informally titled advance parole and operates as an exercise of discretion by the government because there is no statute that creates or enables this process. Advance parole was created by regulation in 1982 and has been left largely unmodified since.[14]
Today, even though there is no statutory authority for advance parole and no mention of it in law, millions of people apply for and are granted advance parole to leave and re-enter the country as if it were an established right. The result is that immigration parole, through categorical abuses like this, began to morph from a limited-use tool to a broadly-used method for facilitating the entry of entire classes of aliens outside of the programs created byCongress.
Temporary Protected Status. In the next decade, Congress passed the Immigration Act of 1990 and created Temporary Protected Status (TPS) for disaster-stricken countries to serve as an alternative to parole.[15] This law empowered the Attorney General (now the Secretary of Homeland Security) to grant the citizens of foreign nations TPS if they are unable to return safely to their homeland due to ongoing warfare (.e.g. civil war), a natural disaster, or other extraordinary and temporary conditions. TPS beneficiaries are shielded from deportation and can obtain work permission (an Employment Authorization Document, or EAD) and advance parole to travel abroad.[16]
As its name suggests, the intent of TPS is that it is supposed to be temporary in nature, intended to last short periods of time (generally 6 to 18 months), with evidence-based extensions. However, like parole itself, the TPS program also succumbed to massive abuse by the executive branch and has become an endlessly-renewed quasi-amnesty of its own[17] with more than 610,000 people in the country (as of December 2023)[18] as TPS holders and a further 470,000 standing to gain from President Bidens September 2023 redesignation of Venezuela.[19]
TPS was intended to replace the blanket use of parole for foreign nationals in the U.S. who could not qualify for asylum but were facing emergency situations in their home countries. By passing the TPS statute Congress intended to assert more supervision over the process.[20] The vast majority of TPS holders are illegal aliens, and TPS, like parole, is not a legal status. Moreover, TPS is broadly applied to individuals from certain countries, rather than granted on a case-by-case basis as parole is intended to operate. TPS holders are among the classes of illegal aliens who can leave the U.S., even paradoxically on trips to the countries they were granted TPS from, and then be paroled in upon their return through a process nearly identical to advanceparole.
1996 Changes. In 1996, Congress again attempted to rein in abuse of parole by passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).[21] An important catalyst was the Cuban raft crisis of 1994, a surge in migration precipitated by communist dictator Fidel Castro allowing anyone to leave Cuba. As the House Judiciary Committee report noted, [a]n example of a recent abuse of the parole authority 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.[22] As the report made abundantly clear, [t]he text [of the parole statute] is clear that the parole authority was intended to be used on a case-by-case basis to meet specific needs, and not as a supplement to Congressionally-established immigration policy. IIRIRA thus reinforced the limited intent of parole authority by inserting the words only on a case-by-case basis for urgent humanitarian reasons or significant public benefit into the parolestatute.
Cuban Family Reunification. Since the creation of parole, Congress repeatedly waged an uphill battle to limit its use in order to retain its prerogative to define who may be allowed to enter and remain in the U.S. and under which conditions. However, the restrictions have so far been unable to stop abuses of parole. In spite of the changes and congressional concern, executive branch parole abuse has only worsened since the turn of the millennium. In 2007, the George W. Bush administration implemented the Cuban Family Reunification Parole Program, to provide a minimum of 20,000 travel documents annually to aspiring Cuban emigrants.[23] This program was created as a result of an agreement with Cuba wherein that country would accept the return of criminal aliens whom the Cuban government previously refused to repatriate. While it may have had a well-meaning motive, family reunification is not contemplated by the statute and this program was anything butindividualized.
Obama Era. Under the Obama administration, it became commonplace for the vast majority of illegal border crossers to be released directly into American communities, often using parole. Also, amid a Congressional stalemate on immigration legislation, a leaked memo for then-U.S. Citizenship and Immigration Services Director Alejandro Mayorkas outlined administrative alternatives to circumvent Congress.[24] The memo outlined a number of ways that parole could be used to extend benefits or protections to aliens in the country illegally. President Obama continued to misuse the parole authority by creating specific parole programs for various populations, ethnicities andcountries.
Central American Minors. President Obama established the Central American Minors (CAM) program by executive fiat in 2014 in the wake of a surge of unaccompanied alien children (UACs) at the southern border.[25] CAM allowed individuals from El Salvador, Guatemala, and Honduras residing in the U.S. to petition to have their unmarried children under the age of 21 still living in those three Central American nations to be paroled into the United States. Eligibility to be a sponsor was open not only to lawful permanent residents (LPRs, also known as green card holders), but also to illegal aliens benefitting from various deferred deportation programs such as DACA and TPS, and even paroleesthemselves.
Haitians. President Obama also set up the Haitian Family Reunification Parole Program the same year, which enabled Haitian migrants to bring into the United States certain family members who were not eligible to immigrate under the existing family-based green card categories.[26] Parole was a perfect way to circumvent existing immigration programs because unlike most illegal aliens, parolees are allowed by law to obtain legal permanent resident status (i.e. a green card). Indeed, open-borders advocates support the use of parole precisely because it allows illegal aliens paroled into the U.S. to more easily obtain legal permanentresidence.
Entrepreneurs. In 2016, the Obama administration began expanding the use of parole to circumvent federal immigration laws by creating the International Entrepreneur Rule (IER) to allow certain foreign investors to buy their way into the U.S. The rule allowed the government to parole into the country foreign investors with an ownership interest in a startup company that attracted either investment capital from U.S. investors and/or awards or grants from certain federal, state, or local government entities. The Rule was a clear abuse of parole because it allowed the executive branch to circumvent Congress and create a new immigration program for a relatively broad class of aliens.[27] As drafted, with few rules and weak requirements, the program was a recipe for fraud and abuse, as FAIR has explained in detail.[28]
Trump Era. The Trump administration attempted to rein in parole abuse by issuing an executive order directing agencies to severely restrict their use of parole.[29] The executive order read: The Secretary shall take appropriate action to ensure that parole authority is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from suchparole.
As a result, USCIS attempted to terminate both the IER and CAM programs. Federal courts prohibited the termination of the IER but allowed the CAM program to be ended. CBP and ICE similarly limited their use of parole to release illegal aliens apprehended at the border.[30] However, categorical use of parole authority for releases in the case of family units and individuals subject to expedited removal continued because of overcrowding in immigration detention facilities and court orders like the Flores settlement agreement.[31]
Once Joe Biden was sworn in as president in January 2021, his administration immediately set out to restore Obama-era parole abuses while simultaneously creating newones.
In May 2021, the Biden administration reinstated the entrepreneurial parole program that was created during the Obama administration but then terminated by the Trump administration.[32] The Biden administration claimed, at the time, that the program goes hand-in-hand with our nations spirit of welcoming entrepreneurship and USCIS encourages those who are eligible to take advantage of theprogram.
The Biden administration also restarted and then expanded the CAM program.[33] In June 2021, eligibility was expanded to legal guardians as well as parents/legal guardians with a pending asylum application or a pending U visa petition filed before May 15, 2021. In April 2023, the list of individuals allowed to sponsor Central American minors was further revised to include parents/legal guardians with asylum or U visa applications (for victims of crime) filed before April 11, 2023 and those with pending T visa applications (for victims of human trafficking).[34] Because any parolee can file an asylum application the moment they enter, the change allows illegal aliens from those countries who filed for asylum before April 11, 2023, to petition for their children to join them in the U.S. via the illegal abuse of parolebefore their asylum application is even adjudicated. As FAIR detailed, the CAM expansion was another effort to circumvent our immigration laws and create a functional amnesty program.[35]
The Biden administration also began to use abuse parole to advance its foreign policy goals. After the disastrous and tragic collapse of Kabul in 2021, the Biden Administration paroled in tens of thousands of Afghan nationals (Operation Allies Welcome) without proper screening. In 2022, after it failed to deter the Russian invasion of Ukraine, the Biden Administration also paroled in tens of thousands of Ukrainians (Uniting for Ukraine). Both programs were launched despite the general ban on paroling refugees. As noted above, the Refugee Act of 1980 specifically includes a ban on parole for refugees, except in compelling cases for a particular individual alien, and nationality-based parole programs that circumvent this ban by entirely bypassing refugee status. These cheapen the legal refugee process while skipping vital national security vetting and public health checks that protect Americancitizens.
The administrations largest entirely new parole initiative takes place at the southern border through CBP One. This poorly designed smartphone application was originally intended to ease travel and trade. However, its primary function is now serving as a portal through which thousands of illegal aliens a day can make appointments to enter the United States. Pursuant to DHS directive, 1,450 daily appointments (over a half-million per year) are available to illegal aliens who can schedule a timeslot to arrive at a border crossing with no visa or other significant vetting.[36] According to Congressional sources, after a cursory interview, 99 percent of individuals who show up for these appointments are then released into the U.S. under humanitarian parole authority.[37] The Biden administration claims they allow these entries so that the illegal aliens paroled into the U.S. have the chance to apply for asylum, but illegal aliens who are paroled in from appointments made using CBP One are not actually required to apply. However, as parolees, these illegal aliens have nearly full access to benefits and may immediately apply for workpermits.
Very few of these illegal aliens paroled into the U.S. as asylum-seekers actually show up for their asylum hearings (if they even actually file formal applications), and even fewer are removed if their cases, like most, are rejected.[38] However, according to the Department of Justice, almost all border crossers who are properly detained (as the law requires) show up for their hearings and, if ordered removed, comply.[39] Parole thus creates a system where anyone claiming fear of persecution can simply cross, declare fear, and disappear into American communities without effective monitoring or being required to file for asylum. CBP One represents the largest single organized use of humanitarian parole under the Biden administration, at over 43,000 individuals processed per month, and shows no signs of slowing down.[40]
In addition to this mass use of parole at our southern border, the Biden Administration has created a new parole program to allow certain foreign nationals to bypass the southern border altogether. In January 2023, the Biden administration launched a new program to parole up to 360,000 otherwise inadmissible migrants annually from Cuba, Haiti, Nicaragua, and Venezuela.[41] This program allows 30,000 illegal aliens every month from these countries to book a spot and fly right into the interior of the U.S., where they are granted parole in renewable two-year increments, and released with minimal oversight.[42] Their sponsors for this program can even be other parolees, and there is no requirement that they apply for asylum or check in at any point once they have flown into theU.S.
Since November 2023, the Biden administration has added Ecuadorians to its Family Reunification Parole Process, which already included nationals of Cuba, Colombia, El Salvador, Guatemala, Haiti and Honduras.[43] This parole process allows individuals with pending legal immigration petitions from family members in the U.S. to simply be paroled in. This process completely subverts the limits of the existing family petition process established by law by letting individuals waiting to legally immigrate simply cut the line and fly to theU.S.
The various country-specific parole programs created by the Biden administration have let in over 710,000 illegal aliens in Fiscal Year 2023 alone.[44] That figure is in addition to over 300,000 more paroled in from the border after crossing illegally in the same time period.[45] In the previous fiscal year (FY2022), the administration granted another 795,000 illegal aliens parole.[46] Thus, in total, the Biden administration paroled in at least 1.8 million individuals between October 2021 through October 2023, giving them nearly the same benefits as a green card holder, while imposing a huge burden on American society at large.[47]
Biden administration statements and the media alike call these parole programs legal immigration and claim that the process is lawful and orderly, both of which are absolutely untrue as detailedabove.
The abuse of parole by the executive branch is problematic and harmful for several reasons, most notably because parole undermines the power and prerogatives of the American peoples democratically elected representatives in Congress. It also circumvents immigration law by creating de facto new immigration streams, consisting of hundreds of thousands of foreign nationals, and making immigration policy unaccountable to the people. Congress set numerical limits on temporary and permanent immigration programs to keep immigration at sustainable levels and ensure that it benefits the nation as a whole. For example, Congress provided a limit of 366,000 green cards for extended family and employment-based immigrants and annual Lawful Permanent Resident (green card holder) admissions are already close to historical highs.[48] In Fiscal Year 2022, for example, new green card holders numbered just over one million.[49] The more than 795,000 paroles granted in that same fiscal year are almost equivalent to doubling overall legal immigration. Mass parole abuse is thus the ultimate abuse of executive authority and an outright rejection of the rule oflaw.
There are many other reasons why parole, as utilized in recent years, is problematic and counter to the intentions ofCongress.
The intent of immigration parole has been twisted since its inception in 1952, by Democratic and Republican administrations alike. The use of immigration parole has grown so dramatically, that it has now reached the scale of the entire legal immigration system without any kind of Congressionalauthorization.
The parole authority is a blank check for open-borders administrations to let in millions of illegal aliens every year, working as a quasi-amnesty program with no limits. The Biden administration has engineered the largest abuse of parole authority in the history of immigration to the United States. The abuse of parole has created chaos both at our borders and in cities like New York that are straining under the financial and social stress that the unlawful mass parole of aliens creates. These unlawful actions undermine the integrity of Americas borders and dilute our nationalsovereignty.
Congress can easily rein in parole abuses by passing clearly worded legislation that curtails executive discretion and explicitly defines the specific, and limited, circumstances under which an alien may be paroled into the United States. Parole in its original, extremely limited, concept can be used appropriately. However, those limits need clear definition and a means of enforcement so that parole, like similarly unlimited TPS and prosecutorial discretion, cannot continue to function as the quasi-amnesty it has become. Without such action, Congress is implicitly consenting to the ongoing abuses of parole authority, and in particular the Biden administrations shameless abuse of immigration parole to send millions of aliens into American communities now being forced to pay theprice.
Read the rest here:
Immigration Parole: The Executive Branch's Shadow Immigration System | FAIRUS.org - Federation for American Immigration Reform