Trump Should Categorically Rescind All Categorical Parole Programs

I have on a longstanding basis bemoaned the executive branch’s abuse of the statutory parole power granted it by a naïve Congress in 1952. 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 as 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. Thankfully, in one of his initial series of executive orders, President Trump has 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 this does not go far enough. President Trump should direct the secretary to take all appropriate action to terminate all categorical parole programs, as these programs are 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 doesn’t have the statutory authority to create or perpetuate these atrocities against our nation’s constitutional separation of powers between the legislative and executive branches.

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.¹

It only took a few years for abuse of this quite modest privilege to arise. The abuse began 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.²

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 United States, 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 professor Rodriguez have concluded that “the 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.”³

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.]”.

The House Judiciary Committee’s report explained 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 as 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 Fifth 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. One of the bases upon which the U.S. House of Representatives impeached President Biden’s DHS Secretary Alejandro 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 [U.S.], including for certain Central American minors, Ukrainians, Venezuelans, Cubans, Haitians, Nicaraguans, Colombians, Salvadorans, Guatemalans, and Hondurans, which enabled hundreds of thousands of inadmissible aliens to enter the [U.S.] in violation of the laws enacted by Congress.

The House Committee on Homeland Security’s accompanying report stated that:

Secretary Mayorkas uses parole as a default tool to bring large populations of specific demographics into the [U.S]. He has created, reopened, or expanded a series of categorical parole programs never authorized by Congress for foreign nationals outside of the [U.S.], 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, which have enabled hundreds of thousands of inadmissible aliens to enter the [U.S] in violation of the terms of the parole statute.

As to the scale of Mayorkas’s abuses, the report concluded that:

• Secretary Mayorkas has allowed hundreds of thousands of inadmissible aliens to enter the [U.S.] 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.⁴

  As a point of comparison, for FYs 1992 through 1996 and FYs 1998 through 2003, the INS and then DHS reported annually on the number of grants of parole. The most comparable types of parole are [as DHS described]: (1) ‘‘humanitarian parole,’’ which … is for ‘‘‘urgent humanitarian reasons’ … [and] is used in cases of medical emergency and comparable situations;’’ (2) ‘‘public interest’’ parole, for ‘‘‘significant public benefit’ … [and] is generally used for aliens who enter to take part in legal proceedings;’’ and (3) ‘‘overseas’’ parole ‘‘while the alien is still overseas . . . designed to constitute long-term admission to the United States.’’ DHS also noted that ‘‘[i]n recent years, most of the aliens the DHS has processed through overseas parole have arrived under special legislation or international migration agreements.’’ The INS and DHS granted parole in such categories 47,571 times in fiscal year 1992, 32,323 times in 1993, 28,837 times in 1994, 43,212 times in 1995, 30,136 times in 1996, 46,736 times in 1998, 49,783 times in 1999, 41,915 times in 2000, 39,947 times in 2001, 38,441 times in 2002, and 28,866 times in 2003.⁵ Thus, Secretary Mayorkas is unlawfully granting parole pursuant to categorical parole programs created by Secretary Mayorkas at a level approximately 10 times the historic grant level of similar paroles.

As my colleague Mark Krikorian has recently 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.”

President Trump should direct DHS to terminate all categorical parole programs, yes, even all those involving Cuba. To those who recoil at such an idea, direct your energies at persuading Congress to pass a law. For a refresher course on this old school method of governance, see School House Rock.

Oh, and as Krikorian asks, “But what’s stopping the next Democratic administration from just starting [abusive parole programs] up again, or using parole as a pretext for something even worse? We’ll know the new administration is serious about locking in change if it makes a push in Congress to restrict the use of parole by future presidents.” Well, there was once this bill, H.R. 2, that the House passed in the last Congress …

End Notes

¹ H.R. Rep. No. 82-1365, at 51-52 (1952).

² Edward Kennedy, “Refugee Act of 1980”, 15 Int’l Migration Rev. 141, 146 (1981).

³ Stephen Legomsky & Cristina Rodriguez, Immigration and Refugee Law and Policy at 886 (5th ed. 2009).

⁴ Committee analysis of DHS data available here, here, and here.

⁵ See here and here.