Biden’s Parole Abuses on Trial in the Senate
Published reports suggest that the president’s abuses of DHS’s “parole” authority have come under the microscope for Senate negotiators attempting to hammer out an agreement to trade military funding for Ukraine for some modicum of security at the Southwest border. That’s great, except few in the press or public understand what parole is and how it’s being abused. Here’s what the public and decision-makers should know about parole, including the welfare costs taxpayers will end up paying for decades.
Inadmissible Arriving Aliens. In section 212(a) of the Immigration and Nationality Act (INA), Congress defined the classes of aliens who are inadmissible or ineligible for visas, including aliens barred on medical grounds (paragraph 1), criminals (paragraph 2), and national security risks (paragraph 3).
The most common ground of inadmissibility, however, is paragraph 212(a)(7) of the INA — aliens who lack proper admission documents. Aliens barred from admission under that section of the act run the gamut, from lawful permanent residents (LPRs) who forgot to bring their green cards with them when they left to migrants who have entered the United States illegally.
The Inspection Protocol in Section 235 of the INA. In section 235 of the INA, Congress established the procedures immigration officers (both CBP officers at the land, sea, and air ports of entry and Border Patrol agents between the ports) must follow in determining whether an alien seeking to enter the United States is admissible.
Under section 235(a)(1) of the INA, immigration officers are required to treat every alien who has not been admitted to the United States or who appears at a port of entry as an “applicant for admission”, while section 235(b) of the INA is the inspection protocol that governs how immigration officers are supposed to process those aliens for admission or removal.
If the immigration officer determines that an alien is “not clearly and beyond a doubt entitled to be admitted” — that is, the alien appears to be inadmissible under any of the grounds in section 212(a) of the INA — section 235(b) requires the inspecting immigration officer to detain that alien until the alien is either admitted or removed.
Parole for Alien Applicants for Admission. There is an exception to the rule in section 235(b) of the INA requiring aliens to be detained until they are admitted or removed, and it is “parole” under section 212(d)(5)(A) of the INA. That provision states, in pertinent part, that the DHS secretary:
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, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [DHS secretary], have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
Parole has been a part of the INA since it was first enacted in 1952 (when it codified an ad hoc process that had been used by the attorney general prior to that date), but as I will explain below it has undergone significant amendments since that time.
Parole also provides aliens who have been granted that status significant benefits, including the opportunity (by regulation) to seek work authorization and the ability (by statute) to apply for a green card.
The 1996 Parole Amendments. There are a lot of modifiers in the text of section 212(d)(5)(A) of the INA — the DHS secretary may grant parole “only on a case-by-case basis”, and then only “for urgent humanitarian reasons or significant public benefit” — and those modifiers reflect Congress’s conclusion that it could not trust the executive branch to use its parole power properly.
For good reason. The 1952 version of section 212(d)(5) was much more permissive, giving the attorney general (as head of the Department of Justice with jurisdiction over the then-Immigration and Naturalization Service) power to parole any alien deemed excludable at a port of entry “for emergent reasons or for reasons deemed strictly in the public interest”.
In the report language for that act, Congress offered examples of what constituted “emergent reasons” (a need for immediate medical attention) and “reasons deemed strictly in the public interest” (where an alien’s appearance was required as a witness or defendant in a criminal case). Similar report language was included in amendments to the INA in 1965.
Despite Congress’s clarity about the limits on the parole authority, various administrations ignored them, such as when President Ford paroled tens of thousands of refugees from Indochina in 1975 following the fall of Saigon and when President Carter paroled similar numbers of Cubans and Haitians in 1980 during the Mariel boatlift.
As I have explained recently, it was only when President Reagan attempted to end that Carter-era parole program that the INS implemented the attorney general’s parole authority in section 212(d)(5) of the INA by regulation, and even then it only did so in a slapdash manner under threat of judicial sanction.
By the mid-1990s, Congress had finally had enough, and in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the representatives and senators attempted to curb the executive branch’s parole authority by adding the modifiers above.
As the House explained those amendments:
Parole should only be given on a case-by-case basis for specified urgent humanitarian reasons, such as life-threatening humanitarian medical emergencies, or for specified public interest reasons, such as assisting the government in a law-enforcement-related activity. It should not be used to circumvent Congressionally-established immigration policy or to admit aliens who do not qualify for admission under established legal immigration categories.
Despite Congress’ clear intentions in IIRIRA to limit the parole authority, the Clinton administration failed to subsequently amend the Reagan-era regulations governing parole. It is those regulations that the Biden administration is exploiting today.
How Many Parolees? In that congressional report, the House also complained that:
the Attorney General has not kept accurate records in the past of the way in which parole authority is used. Consequently, Congress has no way to effectively exercise its oversight authority over the use of parole. Without an effective control mechanism, the Attorney General can continue to use the parole authority to implement immigration policy without Congressional knowledge or approval.
At least the executive branch took that admonition to heart — for a while. In its 2003 Yearbook of Immigration Statistics, the then-nascent DHS Office of Immigration Statistics (OIS) published figures on the number of aliens who had been paroled under various categories between FY 1998 and FY 2003. Those numbers may be surprising, at least at first blush.
In that six-year period, between 6,722 (in FY 2002) and 11,154 aliens (in FY 2003) were paroled for “deferred inspection”; between 6,039 (in FY 2000) and 38,235 (in FY 2003) were granted “advance parole”; and between 169,357 (in FY 1998) and 241,625 (in FY 2000) were “port of entry” paroles.
As the Congressional Research Service (CRS) has explained:
Port-of-entry parole is authorized at the port of arrival and can be provided in a variety of situations. These include permitting the entry of an LPR returning to the United States who is not carrying proper documents. Port-of-entry parole also can be used to allow foreign nationals to enter for short stays, such as to attend a family funeral or assist in a natural disaster.
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Deferred inspection is a form of parole that is used when an alien appears at a port of entry with documentation but questions remain about his or her admissibility to the United States. In such cases, parole can be granted to enable the individual to appear at another immigration office to resolve the issue.
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As suggested by its name, advance parole is authorized prior to an individual’s arrival at a U.S. port of entry. The term is most commonly used to describe the issuance of a document to a foreign national (other than an LPR) residing in the United States who needs to depart and wants to return, and whose conditions of stay do not otherwise allow for re-entry into the country.
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Among the categories of individuals in the United States that need to request advance parole to be able to return to the country after traveling abroad are most applicants for LPR status, holders of and applicants for TPS, and individuals with parole.
Nearly 242,000 is a lot of LPRs who forgot their green cards, but it’s also important to note that a lot of aliens — particularly near the Canadian and Mexican borders — cross back and forth every day. And, from my experience, a number of those aliens paroled for deferred inspection never actually left DHS custody — they just weren’t stuck waiting in the ports.
“Humanitarian, Public Interest, and Overseas Parolees”. The last parole class mentioned in the 2003 Yearbook is “humanitarian, public interest, and overseas parolees”, and they accounted for a high of nearly 50,000 annual paroles (in FY 1999) to just fewer than 29,000 (in FY 2003, the last reporting year).
According to CRS:
Although all parole authorizations are required to be for urgent humanitarian reasons or significant public benefit, humanitarian parole is often used to describe a narrower category of parole grants. These are grants to persons residing outside the United States who apply for parole from abroad to enter the United States temporarily for urgent humanitarian reasons, such as to receive medical treatment.
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A counterpart to the humanitarian parole category, [the public interest] category similarly takes its name from the text of the INA provision and reflects the underlying reason for the grant of parole. As used here, it includes parole grants to persons residing outside the United States who apply for parole from abroad to enter the country temporarily for significant public benefit, such as to participate in a legal proceeding.
Unfortunately, that 2003 Yearbook is the last one I can locate that includes statistics on each of these parole categories. On the flip side, however, CBP and the new Office of Homeland Security Statistics (OHSS) — successor to OIS — offer a window into the Biden administration’s use of its “humanitarian and public interest” parole authority.
CBP Southwest Border Paroles Under Biden. According to CBP statistics, Border Patrol agents at the Southwest border released 378,232 aliens on “Parole+ATD” in FY 2022 and nearly 304,000 others under that program and a similar one in FY 2023. Court disclosures in Texas v. Biden — a state effort to force the Biden administration to reinstate the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico” — reveal that Border Patrol agents at the Southwest border paroled more than 35,000 other aliens in the last two months of FY 2021.
By the way, the only reason why that Border Patrol parole figure isn’t much higher is that U.S. district court Judge T. Kent Wetherell II ordered DHS to stop releasing illegal migrants on parole, not once, but twice: in a March opinion in Florida v. U.S. and in a separate May opinion in Florida v. Mayorkas. Since Judge Wetherell issued that May order, agents have released just 24 illegal entrants on parole at the Southwest border.
Picking it up from there, OHSS reports that CBP officers at in the agency’s Office of Field Operations (OFO) paroled nearly 24,000 aliens at the Southwest border ports under the Biden administration in FY 2021, 92,321 in FY 2022, and an eye-popping 370,191 in FY 2023.
To understand how extraordinary Biden’s use of that limited parole authority has been, compare those OFO Southwest border port paroles to prior years under the Obama and Trump administrations.
Between the beginning of FY 2014 (the first year for which OHSS provides statistics) and January 2017 (Obama’s last month in office), OFO released a total of 138,687 inadmissible aliens at the Southwest ports on parole, just fewer than 3,470 per month on average.
During Trump’s presidency, from February 2016 to January 2021, CBP officers in OFO released 67,492 inadmissible Southwest border aliens on parole, at an average rate of just over 1,400 per month. In FY 2023, Biden’s OFO at the Southwest border paroled nearly 30,850 inadmissible aliens per month, roughly 22 times the monthly average under the prior administration.
Neither OHSS nor CBP provides statistics on Southwest border migrants paroled by Border Patrol under either Obama or Trump, but there’s no reason to believe that more than a handful — all in need of emergency medical treatment — were. In my experience, mass Border Patrol paroles under section 212(d)(5)(A) of the INA are a strictly Biden phenomenon.
“CHNV Parole”. Returning to President Biden, the total is now up to more than 1.2 million aliens paroled for so-called “humanitarian” and “public interest” reasons under his administration, but I am not done yet. That’s because OHSS reports that CBP also paroled in more than 234,000 aliens under “CHNV parole” in FY 2023.
CHNV parole is a scheme the Biden administration created in October 2022 to bring up to 30,000 otherwise inadmissible nationals of Cuba, Haiti, Nicaragua, and Venezuela into the United States per month on two-year periods of parole, ostensibly to keep them from crossing the border illegally.
By definition, that’s an attempt to “admit aliens who do not qualify for admission under established legal immigration categories”, directly contrary to Congress’ restrictions.
Given that Border Patrol agents apprehended more than 416,000 nationals of those four countries who had entered illegally at the Southwest border in FY 2023, CHNV parole has failed to deliver on the administration’s promises, but Biden’s DHS keeps the program chugging along, nonetheless.
That brings the grand total to 1,434,798 aliens who have been paroled on supposed humanitarian or public interest grounds. And that figure does not even include paroles under those other grounds in the 2003 Yearbook, or some 135,000 Ukrainian nationals paroled under the administration’s “Uniting for Ukraine” program, or the 89,000 Afghan nationals who came here under Biden’s “Operation Allies Refuge”, most of whom were also paroled. That’s nearly 1.7 million so-called “case-by-case” paroles.
Again, by regulation, each of those aliens is immediately eligible to apply for work authorization, and USCIS reports that the agency is cranking out work permits at a yeoman’s rate, with the processing time for I-765s (Applications for Employment Authorization) for parolees at the National Benefits Center down to just 3.5 months.
If you’re an alien with a pending family-based adjustment application at the USCIS Baltimore Field Office, where 80 percent of applications are adjudicated in just over two years, that may be cold comfort, of course. But then you are not a Biden administration priority.
Means-Tested Public Benefits. Plus, as I have explained in the past, all of those aliens who were paroled for a year or more have started the five-year clock for eligibility for means-tested public benefits, things like welfare, food stamps, and Medicaid.
Except for the 49,208 Cubans and 83,294 Haitians who came in on CHNV parole in FY 2023, and the untold number of other nationals of those two countries who were otherwise paroled by CBP. Those aliens are immediately eligible for means-tested public benefits.
Given that few of those aliens are going anywhere in the next five years, that is a massive parole deficit President Biden is leaving for his successors, and one that doesn’t even include the hundreds of billions of dollars in municipal costs that his migrant-release policies have foisted on U.S. cities and states.
Assuming news reports are correct, GOP Senate negotiators are on the right track in attempting to rein in the president’s extra-statutory abuse of the executive branch’s parole authority. Parole is not simply a release from custody — as illegal as that is in nearly all these instances — but it’s also a benefit for aliens with no right to be here, and a cost that will be inflicted on taxpayers for decades to come.
