Categorical Parole Programs Are Unlawful

Summary

• In 2023 alone, President Biden’s Department of Homeland Security granted parole to over 810,000 inadmissible aliens through unlawful categorical parole programs. As CIS Executive Director Mark Krikorian has said, “Parole was one of the tools the Biden administration used to freelance a parallel immigration system to evade the numerical limits on immigration established by Congress.”
• In one of President Trump’s first executive orders, he directed the secretary of Homeland Security to “take all appropriate action to … [t]erminate all categorical parole programs that are contrary to the policies of the [U.S.] established in my Executive Orders”. As good as that pronouncement was, President Trump should go further and terminate all categorical parole programs, as they are all inherently unlawful. That’s not just my opinion. It is the opinion of the Republican-controlled U.S. House of Representatives, which said so in 2024. It is the opinion of the states of Texas, Alabama, Alaska, Arkansas, Florida, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming, which said so in 2023. It is the opinion of the 5th Circuit Court of Appeals, which said so in 2021.
• But in litigation over the Trump administration’s termination of the Biden administration’s unlawful categorical parole programs for Cubans, Haitians, Nicaraguans and Venezuelans, the administration is taking the position that the reason it terminated Biden’s programs was not because they were unlawful, and that it does not believe that “categorical consideration of humanitarian reasons or public benefit would be legally prohibited in creating a [parole] program”.
• I again express my hope that President Trump will direct Secretary of Homeland Security Noem to terminate all categorical parole programs.

Introduction

In one of President Trump’s initial series of executive orders, he directed the secretary of Homeland Security to “take all appropriate action to … [t]erminate all categorical parole programs that are contrary to the policies of the [U.S.] established in my Executive Orders”. But as I wrote in January, this did not go far enough — President Trump should direct the secretary to terminate all categorical parole programs, as they are all inherently unlawful (unless specifically authorized by Congress). It doesn’t matter whether an administration agrees with any number of categorical parole programs as a matter of policy, it simply does not have the statutory authority to create or perpetuate these affronts to our constitutional separation of powers between the legislative and executive branches.

On March 25, Secretary of Homeland Security Kristi Noem published a notice in the Federal Register titled “Termination of Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans”, “terminating the categorical parole programs for inadmissible aliens from Cuba, Haiti, Nicaragua, and Venezuela [the CHNV parole programs] … that DHS announced in 2022 and 2023”. So far so good.

Of course, the Trump administration was sued over the terminations. In the amended complaint filed with the U.S. District Court for the District of Massachusetts, the plaintiffs stated that “Acting Secretary of Homeland Security Benjamine C. Huffman issued a memorandum entitled ‘Exercising Appropriate Discretion Under Parole Authority’ … in which he authorized pausing and terminating ‘categorical parole programs’ because, in his view, they are ‘blatantly inconsistent with the [parole] statute.’” And the plaintiffs stated in their Plaintiffs’ Memorandum in Support of Emergency Motion for Preliminary Injunction and Stay of Administrative Action that “DHS’s summary termination of ‘categorical’ parole processes … is explicitly based on the erroneous legal conclusion that the historically common use of humanitarian parole authority is not authorized by the statute.”

Fantastic! The plaintiffs were bemoaning the fact that the Trump administration was calling all categorical parole programs inherently unlawful, just as I had hoped it would. But my hopes were dashed when I read the administration’s Defendants’ Memorandum in Opposition to Plaintiff’s Emergency Motion for a Preliminary Injunction. In the memorandum, the administration stated that “Plaintiffs renew their argument that termination is premised on the incorrect legal conclusion that DHS lacks the authority to implement a categorical parole program.” But the administration was quick to tell the court that this was a “false construction of DHS’s rationale”, explaining that DHS’s Federal Register Notice “nowhere asserts that the CHNV programs or grants of parole are being terminated because DHS believes them to violate the parole statute” and nowhere “state[s] that a categorical consideration of humanitarian reasons or public benefit would be legally prohibited in creating a program to receive requests for parole for case-by-case consideration”.¹

Parole and the Abuse Thereof

The Immigration and Nationality Act of 1952 granted the attorney general the ability to “in his discretion parole into the [U.S.] 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 [U.S.]”. 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 [U.S.] 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 [U.S.], such as, for instance, a witness or for purposes of prosecution.²

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 [U.S.] 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 [U.S.]”.

I have on a longstanding basis bemoaned the executive branch’s abuse of the parole power. As I have written, just as there is a “dark” internet populated by websites that cannot be accessed without special software and often used to conceal criminal markets in fake documents, illicit drugs, and far worse, there is also a “dark” immigration codex, one that can be equally 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 put it in 1996). The folks at Saturday Night Live once explained this constitutional farce, quite appropriately, through the use of farce.

Foremost among our dark immigration laws are those founded on abuse of the parole power. It only took a few years for abuse of this quite modest privilege to arise, beginning rather innocuously, as such abuses usually do. Arnold Leibowitz 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.”

Adam Cox, professor at the New York University School of Law, and Cristina Rodríguez, professor at the Yale Law School, have concluded that in 1980 “when 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:

[T]he use of the Attorney General’s “parole authority”…. was of deep concern to many in Congress. … 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.³

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 [U.S.], 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. Stephen Legomsky, professor emeritus at the Washington University School of Law, and Rodríguez have concluded that “[T]he 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.”⁴

The House Judiciary Committee explained in 1996 that:

• The text [of the parole statue] 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. In recent years, however, 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 [U.S.] This contravenes the intent of [the parole statute].

• 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.

The committee pointed out a prime example of such abuse, once again involving Cuba:

To implement th[e September 1994 migration agreement it negotiated with Cuba], the [Clinton] Administration is using the parole authority to admit up to 20,000 Cuban nationals annually 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.

The current statutory language reflects the bicameral goal of IIRIRA, as has been recognized by federal appeals courts as diverse as the 9th Circuit and the 5th Circuit. In 2007, the 9th Circuit concluded in Ortega-Cervantes v. Gonzales that:

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 [U.S.]”.

In 2011, the 2nd Circuit agreed in Cruz-Miguel v. Holder:

IIRIRA struck … the phrase “for emergent reasons or for reasons deemed strictly in the public interest” as grounds for granting parole … 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.

And in 2021, the 5th Circuit concluded in Texas v. Biden that:

• 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].

• DHS cannot … parole aliens en masse; that was the whole point of the “case-by-case” requirement that Congress added in IIRIRA.

The abuse continued with President Biden. In fact, his administration drove the perversion of the parole power to a new low. The House Committee on Homeland Security concluded in 2024 that:

Secretary Mayorkas uses parole as a default tool to bring large populations of specific demographics into the United States. He has created, reopened, or expanded a series of categorical parole programs never authorized by Congress for foreign nationals outside of the United States, including for certain Central American minors, Ukrainians, Venezuelans, Cubans, Haitians, Nicaraguans, Colombians, Salvadorans, Guatemalans, Hondurans, and more generally for inadmissible aliens to be able to schedule appointments at the border through the CBP One application to be considered for (and overwhelmingly granted) parole.

As to the scale of Mayorkas’s abuses, the Committee on Homeland Security concluded that:

• Secretary Mayorkas has allowed hundreds of thousands of inadmissible aliens to enter the United States pursuant to various categorical parole programs, in violation of the terms of the parole statute. In FY 2023 alone, DHS granted parole to 83,294 Haitians, 65,177 Venezuelans, 49,208 Cubans, and 36,334 Nicaraguans under those countries’ categorical parole programs. In addition, CBP officials at Southwest border ports of entry processed 281,148 CBP One appointments just in the January-September 2023 period.

• At the very least, during fiscal year 2023, 266,846 aliens were granted parole through CBP One, according to data provided by DHS to the Committee. Thus, in FY 2023 alone, DHS granted parole to over 810,000 aliens through unlawful categorical parole programs.⁵

As my colleague Mark Krikorian has written, “Parole was one of the tools the Biden administration used to freelance a parallel immigration system to evade the numerical limits on immigration established by Congress. Under Biden’s watch, more foreigners were released into the country via this system than through legal immigration.” Oh, and as Krikorian asked, “[W]hat’s stopping the next Democratic administration from just starting [abusive parole programs] up again, or using parole as a pretext for something even worse?”

Texas v. DHS

Don’t just take my word for it that categorical parole programs are unlawful. The 5th Circuit, which I have quoted, has seemingly come this conclusion. Also, take the word of the U.S. House of Representatives. One of the bases upon which the House impeached Secretary Mayorkas for high crimes and misdemeanors was that:

Mayorkas willfully exceeded his parole authority … in that … [he] created, re- opened, or expanded a series of categorical parole programs never authorized by Congress for foreign nationals outside of the United States … which enabled hundreds of thousands of inadmissible aliens to enter the United States in violation of the laws enacted by Congress.

And take the word of the states of Texas, Alabama, Alaska, Arkansas, Florida, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming.

In 2023, they filed suit against the Biden administration, asking in their amended complaint that the court “enjoin, declare unlawful, and set aside [DHS’s] lawless parole program” because it “exceeds [DHS’s] statutory parole authority”. The complaint said:

The parole program established by [DHS] fails each of the law’s three limiting factors. [They are] not case-by-case … not for urgent humanitarian reasons, and advances no significant public benefit. Instead, [they] amount[] to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so. This flouts, rather than follows, the clear limits imposed by Congress. 

The states argued in the Plaintiff States’ Motion for Preliminary Injunction (States’ Motion) that:

• The new Parole Program they concocted … permits entry based not upon individual circumstances, but upon membership in particular groups.

• Congress makes the laws. U.S. Const. art. I, § 1. One of those laws is a limitation imposed upon the parole of aliens because of past executive abuses. That limitation permits the parole of aliens into the United States only on a “case-by-case basis” for “urgent humanitarian reasons” or “significant public benefit.” … Accordingly, parole cannot be used as an alternative admissions program, nor can it be granted en masse — doing so violates the requirement that it be granted only on a case-by-case basis.

• Congress added each of those restrictions to the parole power in 1996 as part of [IIRIRA] … because [as the House Judiciary Committee report stated] the executive branch had abused that parole power “to admit entire categories of aliens who do not qualify for admission under any other category in immigration law.”

• Congress has expressly and intentionally provided only a narrow path to parole aliens into the United States. … “Congress ‘specifically narrowed the executive’s discretion’ to grant parole due to ‘concern that parole … was being used by the executive to circumvent congressionally established immigration policy.’” [quoting the District Court for the Northern District of Texas’s 2021 decision in Texas v. Biden⁶, which in turn quoted the 2nd Circuit’s decision in Cruz-Miguel].

• As [the District Court for the Northern District of Texas] recently put it [in Texas v. Biden], “Any class-wide parole scheme … would be a violation of the narrowly prescribed parole scheme …”.

The States’ Motion casts the Biden administration’s actions as blows to the Constitution: “[I]nstead of taking care to faithfully execute the limits Congress placed on alien parole, [DHS is] subverting them.”

The states’ lawsuit was ultimately dismissed the following year (in Texas v. DHS), but only because the states were found not to have standing to sue, not on the merits of their claims.

Conclusion

I again repeat my fondest hope that President Trump will direct Secretary of Homeland Security Noem to terminate all categorical parole programs, as they are all inherently unlawful (unless specifically authorized by Congress).

End Notes

¹ On April 14, in Doe v. Noem, U.S. District Court Judge Indira Talwani stayed Secretary Noem’s Federal Register Notice “insofar as it revokes, without case-by-case review, the previously granted parole and work authorization issued to noncitizens paroled into the UNited States pursuant to … the ‘CHNV parole programs’[] prior to the noncitizen’s originally stated parole end date.” On May 5, the 1st Circuit Court of Appeals denied Secretary Noem’s request for it to in turn stay Judge Talwani’s order. The solicitor general, on behalf of Secretary Noem, then filed an Application to Stay the Order Issued by the United States District Court for the District of Massachusetts with the Supreme Court.

² H.R. Rep. No. 82-1365 at 51-52 (1952).

³ Edward Kennedy, “Refugee Act of 1980”, 15 Int’l Migration Rev. 141, 146 (1981).

⁴ Stephen Legomsky and Cristina Rodríguez, Immigration and Refugee Law and Policy, St. Paul, Minn.: Foundation Press, at 886 (5th ed. 2009).

⁵ Committee analysis of DHS data available here, here, and here.

⁶ Biden v. Texas, 554 F.3d 818 (N.D. Tex. 2021), revd. on other grounds by the Supreme Court in 2022 in Biden v. Texas.