In just the latest example of the Biden administration riding roughshod over existing U.S. immigration law, the Department of Homeland Security recently announced it would grant 100,000 Ukrainians “public interest parole” admissions into the United States. We all have deep sympathy for Ukrainian victims of Putin’s aggression, but Biden’s DHS, blowing past legal limitations set in current visa and refugee law, has arrogated to itself an illicit power to legalize any migrant or refugee, from anywhere at any time. This is not the rule of law.
Granting admission to our country to foreign nationals, much like appropriating federal funds, is supposed to be a process tightly controlled by statute and congressional oversight. It is ironic that the president will go to Congress to appeal for further funding to assist Ukraine, but his decision to admit Ukrainian migrants, regardless of its merits as a policy, will not be put to a vote on Capitol Hill. Presidents are legally required to consult with Congress on refugee numbers and follow existing visa law. But by twisting the original intent of public interest parole authority, Biden can snap his fingers and create a massive foreign admission program. This is not the way the system is supposed to work.
The rationale behind Biden’s legal sleight of hand is embedded in the main U.S. migration law, Section 212(d)(5)(A) of the Immigration and Nationality Act (INA), which permits foreigners to be temporarily paroled into the United States. The original congressional intent was to restrict this extraordinary power to provisionally admit only single individuals who could not otherwise get a visa, on a case-by-case basis, for “urgent humanitarian reasons” including the need for medical treatment, or “significant public benefit” such as participation in a judicial hearing.
Congress never expected this limited, exceptional parole authority to morph into vast fiat power for presidents to create massive refugee programs or entirely new visa categories by decree, without legislative approval. However, presidents of both parties have selectively pumped up this obscure public interest parole clause to get around the visa and refugee limits set by Congress. The Biden administration is now surpassing all of its predecessors, turning parole into carte blanche authority to “solve” all migrant dilemmas, whether welcoming war refugees, creating new quasi-visa categories, or legalizing border jumpers. In fact, Biden’s DHS has quietly used the parole mechanism to regularize more than 80,000 illegal entries on our chaotic southern border since October of last year.
Several presidents before Biden, namely Clinton, Bush, and Obama, seized on this sketchy legal authority to create their own patchwork of special admission programs: the Cuban Family Reunification Parole Program (launched by Clinton, formalized by Bush); the Haitian Family Reunification Parole Program (Obama); Filipino World War II Veterans Parole Program (Obama); and Central American Minors Refugee and Parole Program (Obama).
These programs have provided the equivalent of visa or refugee benefits never authorized by Congress to groups often tied to communities in the U.S. that the White House wants to court for political advantage. Typically, these programs never end, bringing in hundreds of thousands of migrants who successfully adjust their status to remain indefinitely in the country. Not surprisingly, congressional efforts to control this presidential abuse have fallen short.
President Clinton initiated stretching this parole authority in the mid ’90s to respond to a huge influx of Cuban rafters, a human maelstrom Castro manipulated to rid himself of regime opponents and pressure Washington. Clinton understandably sought to avoid loss of life at sea, but instead of using stronger measures to defend our borders, the president accommodated Castro’s blackmail and cut a deal to accept 20,000 Cuban migrants per year, made possible only by twisting parole authority into a special immigration quota for the island. This Faustian bargain has continued for more than 25 years, bringing some 400,000 Cubans to the U.S. and ironically helping to prop up the island’s struggling regime.
President Obama stretched this authority even further. In addition to the programs already listed, Obama also conjured up the so-called “International Entrepreneur” parole in 2014, blatantly abandoning any humanitarian or emergency element, and claiming this parole brought a public benefit by inviting more foreigners to start businesses in the U.S. In fact, a congressionally approved investor visa category already existed, but the Obama White House wanted more, and since Congress refused to act, it resorted to executive fiat to create an immigration program out of thin air.
To its credit, Donald Trump’s administration nixed Obama’s entrepreneur parole, while also trying to put an end to the Haitian, Central American, and Filipino parole programs. Trump did not formally try to end the Cuban parole, but its implementation was hindered due to concerns about “sonic attacks” at the U.S. embassy in Havana.
Not surprisingly, President Biden has now revived all of these programs that Trump tried to kill, and he is actively looking to expand them. Biden’s DHS recognizes few limits to using parole authority to legalize any migrant, either at the border or already in the country (DHS invented “parole in place” to regularize undocumented migrants already here). Biden’s open-border advocates appear determined, with apparent Congressional acquiescence, to transform this Frankenstein parole authority into a powerful tool that can radically overturn the normal functioning of U.S. immigration and refugee and asylum law.
Biden’s ability to restart these programs after Trump ended them demonstrates that only Congressional action to amend the INA can stop the abuse of parole authority. The Trump experience proves that leaving this legal mess to be repaired by future conservatives in the executive branch is too risky. In fact, even the Trump presidency experienced at least one flirtation with expanding parole authority to launch its own invented immigration program.
In the summer of 2018, Ambassador Gordon Sondland, Trump’s envoy heading the U.S. Mission to the European Union (USEU), announced that the president had tasked him with devising a “European Immigration Plan.” This was during the time when Trump was famously quoted as saying he wanted “more immigrants from places like Norway.” Sondland’s assignment was to engineer a new wave of European migration to America.
I was posted to USEU in Brussels at the time, and the ambassador asked me to come up with details that would make such a plan feasible. Personable and persuasive, Sondland explained that he and the president had discussed the value of renewing European interest in immigration to the United States. Sondland believed that if a simplified, less bureaucratic immigration pathway could be designed, it could inspire significant numbers of ambitious Europeans to seek their future in the United States.
I stressed to the ambassador that immigrant visa matters were statutory, exclusively the prerogative of Congress to create. But Sondland, fully aware of all the immigration chicanery during Obama’s eight years in the White House, knew there must be more options available for him to recommend to Trump, since the president had no intention of quixotically asking Congress to create a new visa category. Thus, Sondland’s draft plan included the suggestion that the administration could resort, like its predecessor, to ramping up parole authority to bring in the sought-after European migrants.
Inside the State Department, Sondland’s draft plan ran into a brick wall. Parole was something that Obama could use to advance his immigration policies, many bureaucrats doubtless believed, but in Trump’s hands it represented an unwarranted presidential power grab. To their credit, some observers at State rightly advocated that the bureaucracy should work to limit, not expand, parole, which they thought the Obama administration had also improperly used to bypass Congress. Mostly, however, Foggy Bottom condemned the Sondland plan because it was viewed as illegitimately favoring “rich and white” immigrants.
Sondland finally went to the White House to present his plan, which despite State Department skepticism firmly recommended the use of parole to revitalize European migration. The ambassador later said that the president had only cursorily considered the plan before giving it to Chief of Staff John Kelly to review, and to my knowledge, nothing again was ever heard of it.
More than anything, this anecdote illustrates why parole power, which has been distorted and expanded beyond recognition from its original congressional intent, must simply be taken away from the executive. It is toxic to the rule of law, and its current application is equivalent to giving a wrecking ball to open-border activists who would demolish all restraints at our frontiers. When conservatives in Congress have a majority, they must work to end parole authority as one of the highest priorities in tackling long overdue immigration reform.
Phillip Linderman is a retired Foreign Service officer who served in a variety of diplomatic postings including in Cuba, Mexico, and the U.S. Mission to the European Union in Brussels.