President Biden announced on January 5, 2023 that the Department of Homeland Security (DHS) would be creating new programs for Venezuelans, Haitians, Cubans, and Nicaraguans that would grant parole—a temporary discretionary status—to qualified applicants with U.S. sponsors for up to 2 years. Now several states are suing to stop the programs, which will lead to more illegal immigration. Without getting into the states’ various administrative law claims, my view is that there is little support for the states’ narrow view of the parole power in the legislative history or judicial precedent.[1]

1. Parole is committed to agency discretion.

Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) provides that the Secretary of the Department of Homeland Security (DHS):

may, except [for refugees absent a compelling reason], in his discretion parole into the United States 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 United States. [emphasis added]

The parole statute “exudes deference … in every clause.” Hawaii v. Trump, No. 17–965, 585 U.S. ___ (2018) (upholding similar discretion in INA section 212(f)’s power to exclude). The parole statute entrusts the DHS Secretary with the decisions of whether and when to parole (“may … in his discretion parole”), whose entry to permit (“any alien applying for admission”), for whatever period (“temporarily … as he may prescribe”), on what conditions (“under such conditions as he may prescribe”), and on whatever bases (“as he may prescribe … for urgent humanitarian reasons or significant public benefit”).

Because section 212(d)(5)(A) commits grants of parole to agency discretion, grants of parole are not subject to judicial review under the Administrative Procedures Act, 5 USCS §§ 701(a)(1).[2] Moreover, INA section 242(a)(2)(B)(ii) explicitly prohibits judicial review of any discretionary immigration action:

Notwithstanding any other provision of law … no court shall have jurisdiction to review … any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security …

Thus, grants of parole are not subject to judicial review. As Romero v. Garland, 999 F.3d 656 (9th Cir. 2021) concluded:

the jurisdiction‐​stripping provision of § 1252(a)(2)(B)(ii) applies to discretionary parole decisions under § 1182(d)(5).… [T]he BIA’s conclusion that it lacked authority to review the government’s discretionary decision to parole a returning LPR into the United States in this case is consistent with congressional intent.

On revocations of parole, Hasan v. Chertoff, 593 F.3d 785 (9th Cir. 2010)[3] and New Mexico v. McAleenan, 450 F.Supp 3d 1130 (D.N.M. 2020)[4] also found that parole decisions are not subject to judicial review. These grants of parole are legal according to the statute, but even if the grants of parole were unlawful, they are not challengeable in court.

2. DHS can decide “urgent humanitarian reasons or significant public benefit”

Courts may still deem the policy subject to judicial review by distinguishing the “policy” from the actual grants of parole under it. Nonetheless, Congress committed to agency discretion to decide the situations that will be considered “urgent humanitarian reasons” or a “significant public benefit.” In 1996, when Congress created these two parole standards, it explicitly removed language from the original bill that would have tightly defined these terms to a congressionally defined set of rare situations.[5] Congress dropped these restrictions from the bill after concerns were raised about it not allowing “flexibility to deal with compelling immigration situations.”[6] This means that Congress left the authority to define “urgent humanitarian reasons or significant public benefit” to DHS.

Congress has also specifically limited the potential recipients of parole for two groups: refugees absent “compelling reasons in the public interest with respect to that particular alien” and crewmembers during a labor dispute (INA section 214(f)(2)(A)). These specific prohibitions demonstrate that Congress otherwise intended the Secretary to have the unrestricted ability to wield the parole authority in INA section 212(d)(5)(A) for any other person. Hawaii v. Trump, No. 17–965, 585 U.S. ___ (2018) (noting, “When Congress wishes to condition an exercise of executive authority … it knows how to say just that.”)[7]

Therefore, the DHS Secretary has authority to define urgent humanitarian reasons or significant public benefit outside of those contexts. The Supreme Court has said that parole decisions need only to be “reasonable and reasonably explained,” Texas v. Biden, 597 U. S. ____ (2022). In other words, this program must only meet the lowest possible standard of judicial review. Any application of that standard would conclude that Biden’s basis for granting parole in these instances are reasonable (rationally directed to a legitimate government interest in reducing illegal migration) and reasonably explained (see the lengthy Federal Register notices).[8]

3. DHS can decide classes of parole applicants to adjudicate on a “case‐​by‐​case” basis

In 1996, Congress required grants of parole to be provided on a “case‐​by‐​case” basis, but a case‐​by‐​case basis means an individualized evaluation of each applicant. It has never precluded the Secretary establishing class‐​based baseline eligibility or ineligibility criteria for individuals to apply for parole. Eligibility to request consideration for parole can be stated positively or negatively as either “everyone can apply except for…” or “no one can apply except for.” If DHS could not specify class‐​based eligibility or ineligibility to request parole, it would implausibly imply that DHS must accept parole applications from anyone.

Clearly, the Secretary can define classes of eligible or ineligible applicants (Samirah v. Holder, 627 F.3d 652 (7th Cir. 2010), a parole case noting “it would actually curtail his discretionary authority if he could not limit his discretion” on parole.) In the original version of the 1996 legislation, Congress specifically specified the only classes that it wanted to see considered for parole on a “case‐​by‐​case” basis, but then removed the list of classes, leaving that decision explicitly to the agency’s discretion except in the case of refugees. The Conference Report stated “[t]he Conferees, in accepting the House limitation on the parole of refugees, recognize that it does not affect the Attorney General’s authority [later transferred to DHS] under section 212(d)(5) to parole aliens who are not deemed to be refugees.”[9]

Far from cabining agency discretion, “the drafting history suggests the opposite.”[10] Hawaii v. Trump, No. 17–965, 585 U.S. ___ (2018) (noting that the removal of limiting language implies an intention to permit discretion).[11] At the time that the 1996 legislation passed, the regulations listed specific categories eligible to apply for parole.[12] The full expectation of Congress was that class‐​based eligibility requirements would continue as they were before the deliberations on the legislation, throughout them, and afterwards. In the National Defense Authorization Act for Fiscal Year 2020, Congress explicitly recognized the “importance” of, in part, the authority to make class‐​based parole eligibility rules.[13]

In January 2022, the State of Texas filed a similar lawsuit challenging the use of parole under the Central American Minors program—whose beneficiaries are all outside of the United States—but its complaint (like this new lawsuit) did not identify a single precedent finding that class‐​based eligibility requirements for parole are illegal. It also has not yet been forced to respond to the congressional history.

In a recent lengthy analysis that criticized the use parole power, a former‐​Trump administration DHS official also failed to identify any precedent limiting grants of parole. Here are the cases that analysis cited:

1. Amanullah v. Nelson, 811 F.2d 1, 6 (1st Cir. 1987) includes dicta about how Congress believed it would be used narrowly, but the decision was about upholding discretion in the statute to not to grant an individual applicant parole and includes the line: “The scope of the parole authority is close to plenary.” In other words, the administration can use parole how it decides.
2. Ortega‐​Cervantes v. Gonzales, 501 F.3d 1111, 1119 (9th Cir. 2007) is a case about “conditional parole”—which is essentially just a release from custody under section 236 of the INA, not section 212(d)(5) parole. It does mention that Congress limited section 212(d)(5) by statute in 1996, but it does not challenge the discretion of the administration to grant parole under that section.
3. Cruz‐​Miguel v. Holder, 650 F.3d 189, 199, 199 n.15 (2nd Cir. 2011) is also a case about “conditional parole” and just quotes Ortega‐​Cervantes on the difference between the types of parole.
4. Texas v. Biden, 20 F.4th 928 (5th Cir. 2021) (also cited by the suing states) found that DHS must return immigrants subject to mandatory detention to Mexico and not parole them “en masse” into the United States (though it did not actually limit the use of parole when detention or return to Mexico was unavailable). Moreover, even in this case, the court described the creation of categorical eligibility to apply as “quintessential modern uses of the parole power” (citing, for instance, people seeking medical care or for people waiting for visas). Regardless, the Supreme Court vacated this decision, Texas v. Biden, 597 U. S. ____ (2022), specifically upholding parole in the context of border releases. Indeed, the majority of the Supreme Court rejected the plaintiff’s and the dissent’s contention that establishing basic eligibility criteria in order to even be considered for parole was “an unlawful categorical basis rather than case‐​by‐​case, as the statute prescribes.”

In other words, these cases provide more support for the parole programs in question than they do support for limiting them.

4. The parole program has no numerical limit

The fact that President Biden’s new parole program may include up to 360,000 individuals per year does not violate the terms of the statute. Unlike other immigration programs, the parole statute has no numerical limitation. If Congress wanted a numerical cap, it had dozens of prior experiences with them. It knew how to impose a numerical limit, and it refused to do so, despite amending the parole statute in multiple other ways since its creation. Hawaii v. Trump, No. 17–965, 585 U.S. ___ (2018) (noting “When Congress wishes to condition an exercise of executive authority … it knows how to say just that.”)[14] The fact that a larger number of people qualify does not mean that officers are not making individual evaluations on a case‐​by‐​case basis.[15]

5. Congress supports parole programs focusing on specific populations

The former DHS official’s analysis also focused on the history of congressional general opposition to expansive uses of parole. He cites (as do the suing states) extensively the House Judiciary Committee’s 1996 report stating that parole was not “a supplement to Congressionally established immigration policy” to “admit entire categories of aliens.”[16] But this report accompanied changes and limitations discussed above that Congress explicitly rejected. In other words, this was the position not adopted by Congress. Instead, they preserved the ability to create classes of people eligible to apply for parole on a case‐​by‐​case basis.

Moreover, the official and the states do not mention the many situations where Congress seemed to support those uses, including:

1. The Cuban Adjustment Act of 1966 (P.L. 89–732), granting permanent residence to Cuban parolees (large numbers of whom have been paroled into the United States nearly continuously since then).
2. The Refugee Education Assistance Act of 1980 (P.L. 96–422), providing for refugee benefits for Haitian and Cuban parolees.
3. Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1989 (P.L. 100–461), providing for adjustment of status of parolees from Soviet Union, Vietnam, Laos, or Cambodia.
4. P.L. 104–208, providing for adjustment of status of Polish and Hungarian parolees.
5. Help HAITI Act of 2010 (P.L. 111–293), providing for adjustment of status of Haitian orphan parolees.
6. The National Defense Authorization Act of 2020 (P.L. 116–92), expressing congressional support for an ongoing parole program for relatives of U.S. military members.
7. The Extending Government Funding and Delivering Emergency Assistance Act of 2021 (P.L. 117–43), providing refugee benefits to Afghan parolees, explicitly appropriating money for those benefits, and directing the creation of a plan to process Afghan parole applications.
8. The Additional Ukraine Supplemental Appropriations Act of 2022 (P.L. 117–128), providing refugee benefits to Ukrainian parolees.

Except for the Poles, Hungarians, and Haitian orphans, these statutes provided benefits to these paroled populations both retrospectively and prospectively (that is, to Haitians, Cubans, Afghans, Soviets, Vietnamese, Laotians, Cambodians, and Ukrainians admitted in the past as well as in the future). In the cases that were only retrospective, the parole programs had already ended. These provisions provide much more direct and tangible congressional support for the use of parole in this manner than vague statements expressing the broad desire that it be used less frequently than other immigration authorities.

The DHS former official also noted the congressional history that deleted the proposed parole eligibility restrictions in 1996, and he proposed that Congress needs to enact those restrictions to stop the “abuse” of the parole power. But if the absence of those restrictions permits the supposed “abuse,” then the so‐​called “abuse” is permitted under the statute.

6. Parole from abroad reduces litigation risk

The 5^th Circuit found that “the Government’s proposal to parole every alien it cannot detain is the opposite of the “case‐​by‐​case basis” determinations required by law,” Texas v. Biden, No. 21–10806, (5^th Cir. Dec. 13, 2021). This analysis mistook the class‐​based baseline eligibility requirement for consideration for parole with the actual case‐​by‐​case grant of parole, and it incorrectly characterized the parole decisions. The court did not find that DHS lacked the discretion to define “urgent humanitarian reasons or significant public benefit” on a categorical basis as has been done repeatedly. Indeed, it described those cases as “quintessential modern uses of the parole power.”

Instead, the 5^th Circuit found that the government could not use INA section 212(d)(5)(A) parole solely as a way to void the statutory requirement to detain aliens subject to the INA section 235(b)(2)(A) requirement to detain. Thus, grants of parole from abroad (for individuals not subject to any detention requirement) greatly eliminate this concern because those applicants are not subject to a detention requirement.

Regardless, the Supreme Court vacated the ruling and explicitly repudiated the Fifth Circuit’s analysis, Texas v. Biden, 597 U. S. ____ (2022). It concluded:

[T]he INA expressly authorizes DHS to process applicants for admission under a third option: parole. See 8 U. S. C. §1182(d)(5)(A). Every administration, including the Trump and Biden administrations, has utilized this authority to some extent. Importantly, the authority is not unbounded: DHS may exercise its discretion to parole applicants “only on a case‐​by‐​case basis for urgent humanitarian reasons or significant public benefit.” Ibid. And under the APA, DHS’s exercise of discretion within that statutory framework must be reasonable and reasonably explained. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). But the availability of the parole option additionally makes clear that the Court of Appeals erred in holding that the INA required the Government to continue implementing [the Migrant Protection Protocols].

In other words, even when certain noncitizens are subject to a provision requiring them to be detained, the administration has discretion to grant parole to them at least if the government lacks capacity to detain them. Since the parole applicants from Cuba, Haiti, Venezuela, and Nicaragua are not in the United States, the (possible) condition that there not be capacity to detain them would disappear.

7. Parole for non‐​Mexicans in Mexico meets the statute’s requirements

A parole program for Venezuelans, Haitians, Nicaraguans, and Cubans meets the requirements of INA section 212(d)(5)(A):

1. Applicant for admission: The Federal Register notices creating the program provide that only non‐​citizens who are nationals of Cuba, Nicaragua, Haiti, and Venezuela may apply. A noncitizen, non‐​legal permanent resident outside of the United States would be considered an applicant for admission to the United States, meeting this statutory requirement.
2. Temporarily: The Federal Register notices have defined the term of the initial grant of parole for a period of 24 months, meeting the temporary statutory requirement.
3. Case‐​by‐​case basis: The Federal Register notices provide that applicants will be “considered for a grant of discretionary parole for a period of up to two years on a case‐​by‐​case basis.”
4. Urgent humanitarian reason or significant public benefit: The federal register notice for Cuban parole states:

The temporary, case‐​by‐​case parole of qualifying Cuban nationals pursuant to this process will provide a significant public benefit for the United States, by reducing unauthorized entries along our SWB, while also addressing the urgent humanitarian reasons that are driving hundreds of thousands of Cubans to flee their home country.[17]

The other notices all provide similar justifications.[18] These reasons—given in extensive detail in the Federal Register notices—are more than sufficient to justify a discretionary grant of humanitarian parole.

Notes