On June 18, President Biden announced a "parole in place" program to bring peace of mind and stability to Americans living in mixed-status families — that is, families where one spouse is a U.S. citizen and the other an undocumented immigrant.
Parole in place is humanitarian parole for undocumented migrants who are already in the United States, as opposed to migrants who are arriving at the border. The program will permit them to remain in the U.S. for up to three years, obtain work authorization and apply for lawful permanent resident status without leaving the country.
An applicant must establish that he or she is an immigrant who entered illegally and was not admitted or paroled into the United States previously; has been continuously present in the United States for at least 10 years as of June 17, 2024; had a legally valid marriage to a U.S. citizen as of June 17, 2024; and does not pose a threat to national security or public safety.
The Department of Homeland Security estimates that this program will be available to the undocumented spouses of 500,000 U.S. citizens.
That sounds great — if the courts don’t invalidate the program.
Last week's announcement may help Biden in the upcoming elections, but it could end badly for those 500,000 American families.
The Immigration and Nationality Act of 1952 granted the attorney general a limited ability to parole otherwise inadmissible immigrants into the U.S. The House Judiciary Committee at the time made clear that this parole authority was for "emergency cases, such as the case of an alien who requires immediate medical attention....and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as, for instance, a witness or for purposes of prosecution.”
This parole provision, INA section 1182(d)(5)(A), states that the attorney general may “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 United States.”
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act made it possible to parole undocumented migrants who are already in the U.S. by expanding the definition of “seeking admission” from just applying to migrants who are arriving at the border to including migrants who are already in the U.S. but weren’t admitted or paroled into the country.
The legitimacy of granting of parole in place to undocumented spouses of American soldiers was subsequently acknowledged in the National Defense Authorization Act for fiscal 2020, which stated: “the Secretary of Homeland Security shall consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit.”
Looking at Biden’s parole in place program today, the main benefit is that it allows eligible spouses of U.S. citizens to adjust their status to that of lawful permanent residents under INA section 1255(a) in the U.S. instead of having to leave the country to apply for an immigrant visa at a consulate or embassy abroad. This is important because the migrants who are the subject of Biden’s program have been in the U.S. unlawfully for more than a year. If they were to leave the U.S. to get an immigrant visa, a separate provision of immigration law would by that very fact prevent them from getting back into the U.S. for 10 years.
Parole also would free eligible migrants from the threat of deportation, but that is not much of a benefit while Biden is in the White House. His administration’s enforcement guidelines limit deportation to deportable immigrants who are a threat to national security or public safety; they are not eligible for his parole in place program in the first place if they pose such a threat.
Here’s where a court challenge may come in. As immigration expert Andrew R. Arthur points out, it’s "‘firmly imbedded in the legislative and judicial tissues of our body politic’ that Congress gets to decide how many new aliens can come here....The Biden administration [is] running its own alternative immigration program using its extremely narrow parole power — completely divorced from congressional limits, and thus from the say of the American people.”
In other words, Biden may have gone too far.
Parole in place has never been made available to such a large group of immigrants before. This isn’t the first time Biden has stretched the limits of parole authority; as of Feb. 29, 2024, he has paroled 2,062,441 immigrants into the country. His new program will add half a million to that total, and as Thomas Homan, former acting director of Immigration and Customs Enforcement, has pointed out, it could lead to an uptick in marriage fraud.
Biden can’t get away with paroling an unlimited number of undocumented migrants into the country. It might be wise to hold off on using Biden’s new program until the courts decide whether it is a permissible use of the parole provision.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
