Immigration provision in Democrats' reconciliation bill makes no sense

The House Democrats passed the Build Back Better Act, H.R. 5376, on Nov. 19, without a single Republican vote. Title VI of the bill would grant parole status to more than 7 million undocumented immigrants who have resided in the United States continuously for more than 10 years.

This is not a good idea.

First, it makes no sense. Congress would be establishing a parole program that would make a blanket grant of parole to undocumented aliens solely on the basis of the fact they have resided in the United States illegally for more than a decade. And it would be doing this despite the fact that the statutory provision which authorizes parole explicitly prohibits such blanket grants.

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Second, Congress knows — or should know — that the current administration wouldn’t be able to handle such a large increase in immigration benefit applications.

Third, it potentially puts the immigrants themselves in jeopardy.

Restrictions on parole authority

Section1182(d)(5) of the Immigration and Nationality Act (INA) provides the DHS Secretary with broad, discretionary authority to allow aliens who may not otherwise be admissible to the country under our immigration laws to enter and remain in the United States temporarily: parole. 

This authority has been delegated to USCIS, ICE, and CBP. But, with some exceptions, the applications for the proposed program would have to be processed by USCIS.

The pertinent part of the parole authority provision reads as follows:

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“The Attorney General [or DHS Secretary] may …. 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.).”

USCIS grants parole on a case-by-case basis. Moreover, it requires applicants to establish that there are urgent humanitarian or significant public benefit reasons for them to be in the United States as required by the parole provision.

DHS bureaus generally have construed “humanitarian” parole as relating to urgent medical, family, and related needs; and “significant public benefit” usually has been limited to the admission of persons of interest to law enforcement.

Some administrations have made blanket grants, but those grants have been based on specific circumstances, such as refugee related programs and family reunification programs. And they have been very controversial.

Former President Donald TrumpDonald TrumpBiden heading to Kansas City to promote infrastructure package Trump calls Milley a 'f---ing idiot' over Afghanistan withdrawal First rally for far-right French candidate Zemmour prompts protests, violence MORE tried to end this practice. In Executive Order 13767, he directed his DHS Secretary to “take appropriate action to ensure that parole authority ... is exercised only on a case-by-case basis in accordance with the plain language of the statute.”

Congress is not bound by executive orders, but Trump was right that the plain language of the parole provision requires parole determinations to be made on a case-by-case basis.

The parole program

The bill’s parole program provisions can be found on pages H6456 and H6457 of the Congressional Record for Nov. 18; they state that the DHS Secretary “shall” make a blanket grant of parole status to undocumented aliens who have resided continuously in the United States since before Jan. 1, 2011.

Aliens who meet that requirement and want to participate in the program would have to pay an administrative fee in an amount sufficient to cover the cost of processing their applications, and complete security and law enforcement background checks.

Applicants are ineligible, however, if they are inadmissible under paragraphs (2), (3), (6)(E), (8), (10)(A), (10)(C), or (10)(D) in section 1182(a) of the INA.

For the duration of the parole period, participants would be provided with employment and travel authorization and be deemed eligible for a driver’s license. Extensions would be available from the date the initial parole period expires until Sept. 30, 2031.

Implementation isn’t feasible

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USCIS would have to processes most of the 7 million parole applications, and it hasn’t been able to keep up with the cases it is already getting: 40 Members of Congress recently wrote a letter to USCIS Director Ur Jaddou expressing concern about the affirmative asylum backlog, which as of April 2021, had reached a record high — nearly 400,000 applications.

According to an August 2021 report from the Government Accountability Office (GAO), although applications for immigration benefits such as humanitarian relief and naturalization remained between about 8 and 10 million a year from fiscal 2015 through fiscal 2019, the USCIS backlog grew approximately 85 percent during that period. It  increased from 3.2 million cases in fiscal 2015 to 5.8 million in fiscal 2020.

USCIS officials told GAO that competing priorities were contributing to the agencies increasing caseload. For instance, an increase in the number of asylum seekers arriving at the southwest border was increasing the number of credible fear screenings USCIS has to perform, and prioritizing credible fear screenings was delaying USCIS’s efforts to process applications for asylum and for Withholding of Removal.

USCIS has had to divert staff resources from other parts of the agency to assist in processing these screenings.

This would become a much greater problem if 7 million parole applications are added to USCIS’s case load. It is unrealistic to expect USCIS to be able to process that many additional applications.

Frankly, I don’t believe that the Democrats are serious about trying to establish this parole program. It’s almost certain to be challenged in court — and the fact that it directly contradicts the plain language of the parole provision it is based on doesn’t bode well.

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Even if it holds up in court, the immigrants who participate have no guarantee that the whole thing won’t be upended if Republicans take control of Congress. A Republican-controlled House won’t fund the implementation of the program, and a strong enough Republican majority would be able to overcome a Biden veto and rescind the provision.

Worse yet, if the program is terminated, the next Republican president will be able to gather up and deport the aliens who participated in it. Participation establishes unlawful presence, which is sufficient for deportability purposes — and DHS will have the names, addresses, and fingerprints of all of the participants.

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. Follow his blog at https://nolanrappaport.blogspot.com.