The Strange Case of the 119,009 Missing Ukrainians
Each month, CBP updates its “Nationwide Encounters” page, showing how many aliens the agency “encountered” in the prior month. “Encounters” in this context are the sum of illegal entrants apprehended entering illegally by Border Patrol agents plus aliens deemed inadmissible at U.S. ports of entry by CBP officers. Under the Biden administration, most of those CBP encounters have been Border Patrol apprehensions at the Southwest border. Reviewing the numbers since FY 2022, however, reveals that nearly 120,000 Ukrainians were “encountered”, but are otherwise missing. Or, are they?
The Statistics. According to CBP, its officers and agents encountered 97,377 Ukrainians in FY 2022, and an additional 48,863 others in the first four months of FY 2023 — 146,240 in total.
Of that FY 2022 total, 25,364 were encountered at the Southwest border (585 Border Patrol apprehensions and nearly 25,000 Ukrainian nationals stopped at the Southwest border ports of entry), and 1,319 were encountered at the Northern border (five of whom were apprehended by agents and 1,314 deemed inadmissible by CBP officers at the ports of entry along that border). That equals 26,683 total land border encounters, and leaves 70,694 others unaccounted for last fiscal year.
In the first four months of FY 2023, CBP encountered an additional 48,863 Ukrainian nationals. Just 74 of them were stopped at the Southwest border (34 Border Patrol apprehensions and 40 aliens deemed inadmissible at the land border ports) and 474 were encountered at the Northern border (two apprehended, both in November, and 472 deemed inadmissible at the ports there). That’s a total of 548 encounters at the two land borders, and leaves 48,315 unaccounted for in FY 2023.
Add them up, and you have 119,009 Ukrainian encounters since October 2021 that did not occur at either the Southwest or Northern borders.
The Coastal Border and the Interior Airports. Another possibility is that those unaccounted-for Ukrainian encounters occurred at the coastal border (South Florida, Louisiana, Puerto Rico, etc.), but there haven’t been any news reports of tens of thousands of aliens of any nationality landing illegally in the past two years. (Although seaborne entries are increasing, they almost exclusively involve Cubans and Haitians.)
That means that those Ukrainian encounters must have occurred at interior U.S. international airports — which raises its own set of questions.
It’s not uncommon for foreign nationals to “arrive foreign” at U.S. airports and be deemed inadmissible by CBP officers — in fact, that’s why international arrival gates are staffed by such officers. If you have ever landed at JFK, LAX, Dulles, DFW, or any other airport from abroad, you likely have gone through that inspection process.
Still, airlines do their utmost to screen passengers before they board flights to the United States from abroad to ensure that they have documents allowing them to be admitted into this country. (The airlines can be on the hook for fines otherwise.)
Many, if not most foreign nationals who arrive and are deemed inadmissible are barred from admission either because they’re travelling with fraudulent documents (which is less common as visa and passport security has improved since September 11th), or because they’re intending immigrants travelling on nonimmigrant documents, or because they have criminal histories.
Ukrainians travelling to the United States as nonimmigrants would need passports and U.S. visas to get on planes to come here, and would obtain those visas at a U.S. consulate abroad. Department of State consular officers are usually fastidious about not issuing nonimmigrant visas to intending immigrants, but again CBP officers still stop their fair share of intending immigrants presenting tourist visas.
Given the current war with Russia, I have to presume that consular officers are double-checking visa applications from Ukrainian nationals who contend they’re taking a quick two-week trip to the United States. That makes it less likely that CBP officers are finding hundreds of intending Ukrainian immigrants during the brief inspection period at airport inspection kiosks, let alone thousands of them.
So either the United States has a significant airport security issue or something else is going on.
The something else — “Uniting for Ukraine”. The something else is almost definitely a Biden administration program known as “Uniting for Ukraine”, which the president announced in April 2022.
As my colleague Nayla Rush has explained, that program followed up on a commitment President Biden made at NATO Headquarters in Brussels, Belgium, on March 24, 2022, where he stated: “Many Ukrainian refugees will wish to stay in Europe, closer to their homes. But we’ve also — will welcome 100,000 Ukrainians to the United States with a focus on reuniting families.”
According to DHS:
Uniting for Ukraine provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily, with a period of parole up to two years. Ukrainians participating in Uniting for Ukraine must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States.
A couple of points are in order. The president of the United States has many powers, but unilaterally allowing the entry of 100,000 foreign nationals who otherwise don’t have any right to come to the United States isn’t one of them. As the Supreme Court has held:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies 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. [Emphasis added.]
Congress never passed legislation that would have authorized the Biden administration to allow 100,000 Ukrainians into this country before he spoke last March and announced that fact to the world, nor has it done so since then.
To be fair, December’s federal omnibus funding bill did include about $620 million to be “made available to address humanitarian needs in, and to assist refugees from, Ukraine”, but (1) Ukrainians who entered under Uniting for Ukraine aren’t “refugees” as defined in U.S. law; and (2) providing funding for a population of foreign nationals who have come here isn’t the same as allowing them in to begin with.
How Many Ukrainians? In a December 21 press conference with Ukrainian President Volodymyr Zelenskyy, President Biden asserted: “The United States has been proud to welcome more than 221,000 Ukrainians seeking refuge since March of 2022, including as part of Uniting for Ukraine.”
More recently, on February 20, USA Today reported that 110,000 Ukrainians have entered under the program, and 151,000 others have come to the United States “through other immigration channels since March 24 last year”.
The outlet never explains what those “other immigration channels” are, but presumably they’re ones Congress actually authorized (like student visas, for instance, or family-based green cards), plus the 27,000 or so encountered by CBP at the Southwest and Northern borders.
Given the fact that CBP’s encounters stats don’t cover February, that figure — 110,000 — is close enough to 119,009 to conclude that CBP itself concedes that those aliens paroled into the country through Uniting for Ukraine are not actually admissible to the United States. Because of course, they’re not.
“Parole” in this context is a confusing term, and the administration is deliberately mudding the issue. In section 212(d)(5)(A) of the INA, Congress gave DHS the power to allow inadmissible aliens to enter the United States on parole without being formally admitted, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
The Biden administration has used that tightly limited authority so lavishly to release apprehended illegal border migrants into the United States that it’s being challenged in two separate federal cases brought by state plaintiffs, Texas v. Biden and Florida v. U.S.
Moreover, state plaintiffs have also filed a federal court challenge (Texas v. DHS) to the administration’s recently announced effort to extend entry on parole to nationals of Venezuela, Nicaragua, Haiti, and Cuba — essentially an effort to bribe would-be migrants from crossing the border illegally. The White House contends that this program will “expedite legal pathways for orderly migration”.
Notably, DHS admits that the administration’s parole program for nationals of those countries is “modeled on” Uniting for Ukraine.
What’s most important to understand about parole is that aliens paroled into the United States are still inadmissible. Most parolees lack documents that would allow them to be admitted, while some are inadmissible on medical grounds, or because they have criminal histories, or on some other basis. If they weren’t inadmissible, they wouldn’t need parole. And all inadmissible aliens are “removable” by definition.
That’s likely why — assuming I am correct in my review of CBP’s Nationwide Encounter numbers — the agency is counting Ukrainians who arrive on parole under Uniting for Ukraine as “encounters” — they’re inadmissible aliens who have presented themselves after arriving foreign at international airports in the United States for admission who are deemed inadmissible, i.e., removable.
The removable status of aliens who enter on parole doesn’t change simply because they have been paroled, and wouldn’t change until they are granted some status Congress has authorized, such as green cards or asylum. When it comes to alien admissions, Congress sets the rules, not the president — a fact the White House should keep in mind when it trumpets its “legal pathways” for inadmissible aliens.
