House Republicans took a bold first step on Tuesday in the unveiling of H.R. 2, the Secure the Border Act, a flagship package that unequivocally rejects the Biden administration’s open-borders policies, including one of its go-to tools for unending illegal immigration: mass parole.
After two years of a self-inflicted, unprecedented border crisis, Homeland Security Secretary Alejandro Mayorkas created yet another pathway for migrants attempting to enter the United States illegally by unilaterally and unlawfully authorizing the Department of Homeland Security (DHS) to parole 30,000 Cubans, Haitians, Nicaraguans, and Venezuelans per month. The law is clear—only Congress has this power.
Congress provided the secretary of Homeland Security authority to “parole into the United States temporarily … only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S.” Despite congressional intent that this was an extraordinary measure, and twice amending this authority to express the intended narrowness of immigration parole, Mayorkas has created, re-created, and retained several types of mass parole programs in violation of this law.
The executive branch has used parole on many occasions to allow large populations of aliens to enter the U.S. ever since the benefit was created in 1952 as part of the Immigration and Nationality Act (INA). Congress amended the statute in the Refugee Act of 1980 to state that the attorney general could not parole a refugee into the U.S. unless “compelling reasons in the public interest with respect to that particular alien require that the alien be paroled … rather than be admitted as a refugee.”
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After Congress’s amendment, administrations still abused parole to bring large numbers of aliens into the U.S. for lengthy or even indefinite periods of time. Congress again amended the parole statute in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act to add the current “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit” language. Administrations have not only ignored Congress’ second clarification, but the Biden administration has brazenly acted in defiance of the courts.
The Biden administration’s 30,000 monthly Cuban/Haitian/Nicaraguan/Venezuelan parole flow is the most recent and egregious demonstration that parole abuse is clearly their preferred tool to bring large numbers of illegal immigrants into the U.S.
In addition, the administration provides work authorization for these populations as a default. While the DHS parole guidance states the benefit is for two years, the administration’s practice is to extend “temporary” benefits and automatically renew work authorization.
Add the administration’s extremely low deportation numbers, and there is no expectation of an end to this benefit for an illegal alien. This is a clear violation of the “temporarily” requirement of the parole statute.
This mass parole practice also violates the case-by-case basis. The administration insists that it grants parole on this basis, but these numbers belie that claim. Nor can the administration credibly say that each alien should be paroled for an urgent humanitarian reason or significant public benefit. They have the time to seek a visa or to apply for protection using the refugee admissions process.
Fortunately, in December 2021, the Fifth Circuit Court of Appeals rebuked DHS’s abuse of parole in Texas v. Biden, stating “Deciding to parole aliens en masse is the opposite of case-by-case decision making.” The court further stated that “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” (emphasis in original).
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Then, just last month, the U.S. District Court for the Northern District of Florida likewise found in Florida v. U.S. that the Biden administration’s frequent use of a particular parole tool violates the law because it does not contemplate a return to custody once the purposes of parole have been served; it does not comply with the case-by-case requirement; and it does not limit parole to urgent humanitarian reasons or significant public benefit.
To properly address the Biden administration’s lawless parole abuse and the border crisis as a whole, Congress needs to reclaim its statutory authority from the executive branch and further narrow the scope of the parole statute to expressly match congressional intent.
The package that House Republicans will soon send to the floor contains the House Judiciary Committee’s Border Security and Enforcement Act, which significantly limits the secretary’s parole authority so that broad, categorical parole programs cannot be established to circumvent Congress. The bill strongly reiterates that parole be determined on a true case-by-case basis, based on new definitions of “significant public benefit” and “urgent humanitarian reasons.” It also limits parole to just one year and prohibits those on parole from working, with limited exceptions.
Parole should never be used to circumvent normal visa processes and timelines. Ending abuse of this authority is a key step to addressing the border crisis and it is encouraging to see the House majority step up to the plate.
This piece originally appeared in The HIll on 5/03/2023