Introduction and summary
In January 2023, the Biden administration initiated a series of measures to improve border security, reduce irregular migration, and promote safe and orderly pathways for people to come to the United States.1 These measures were in part launched in anticipation of the end of entry restrictions under Title 42, the public health authority first invoked during the Trump administration that has now been used to quickly expel millions of border crossers without going through procedures required under immigration law.2 The new measures advance an approach consistently taken by the Biden administration—using both new and existing migration pathways to reduce the pressures of irregular migration by channeling people through orderly alternatives.3 These pathways are sound policy in their own right, but they also are a lynchpin of the administration’s broader set of January measures: Many of the border enforcement measures announced by the administration depend on the migration pathways’ successful operation.
One new pathway—a series of processes utilizing the statutory authority to “parole” certain people seeking admission into the United States—builds upon measures the Biden administration assembled in 2022 to address the increasing numbers of Ukrainian and Venezuelan nationals appearing at the U.S.-Mexico border.4 The parole authority, which allows individuals to enter the United States for a limited period of time for urgent humanitarian reasons or for significant public benefit, has existed in immigration law for more than 70 years and has been variously and extensively used by both Democratic and Republican administrations.5 The administration has committed to use the parole authority to facilitate the entry of up to a combined 30,000 nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) into the United States each month, known collectively as the CHNV parole processes.6 The CHNV parole processes are contingent on an agreement by Mexico to accept the return or removal of a similar number of nationals from these four countries each month,7 an agreement that in turn is contingent on the Biden administration’s use of parole.8
A second new pathway builds upon the Biden administration’s enhanced use of a mobile application process—an app called CBP One.9 The app, among other things, previously allowed certain nongovernmental organizations to schedule appointments at select U.S. land ports of entry for individuals to be considered for humanitarian exceptions under the Title 42 order. In January, the administration expanded the ability for any person within a geofenced area in central and northern Mexico to independently use the app for that purpose and announced that once Title 42 is ended—likely on or around May 1110—individuals will continue to be able to use the app to schedule appointments, including to request protection at a port of entry.11
If the lawsuit is successful, the situation at the border will become increasingly chaotic, and it will undermine the president’s ability to conduct foreign relations and promote regional solutions to migration challenges common throughout the Western Hemisphere.
In response to President Joe Biden’s new border security measures, 20 Republican state attorneys general—led by Texas and including Florida, Louisiana, and even Alaska, which is thousands of miles from the U.S. southwest border—filed a lawsuit with the U.S. District Court for the Southern District of Texas challenging the CHNV parole processes.12 The lawsuit is meritless; the parole processes are legally valid applications of the statutory parole authority, and the thoroughly reasoned justifications published in the Federal Register are more than sufficient to sustain challenge under the Administrative Procedure Act. Although the court should have quickly dismissed the case, it appears to be headed toward a June trial date before a judge selected by the state of Texas.13 If the lawsuit is successful and the court blocks the Biden administration from employing these processes, the situation at the border will become increasingly chaotic, and it will undermine the president’s ability to conduct foreign relations and promote regional solutions to migration challenges common throughout the Western Hemisphere.
Not only must the District Court judge reject the lawsuit, but the administration should further expand these pathways. President Biden must use the tools of executive authority to assemble a more fair, humane, and workable immigration system that helps to restore the rule of law.14
The CHNV parole processes are legal
There should be little question that the CHNV parole processes are legal. Section 212(d)(5)(A) of the Immigration and Nationality Act grants the U.S secretary of homeland security the discretionary authority to “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 [noncitizen] applying for admission to the United States.”15 The terms “urgent humanitarian reasons” and “significant public benefit” are not defined by statute and are therefore left to the agency’s reasonable interpretation. In fact, when Congress amended the immigration parole statute to replace prior language that authorized parole for “emergent reasons or for reasons deemed strictly in the public interest” with these terms, a narrow definition for the language—which would have allowed parole for an extremely restrictive and specific set of reasons—was included in the version of the legislation that moved out of the U.S. House Judiciary Committee. However, the restrictive language was stripped before the legislation was placed before the U.S. House of Representatives for a vote.16 That limiting language was also omitted from the Senate version of the bill,17 as well as from the final piece of legislation that ultimately was signed into law—all strong indications that Congress rejected the constraints that such language would have placed on the executive’s authority and approved the agency’s use of its expertise and judgment to give further meaning to the terms.18
In the Federal Register Notices (FRNs) describing the implementation of the CHNV parole processes, the administration explains in painstaking detail its reasons for adopting these measures and why granting parole on a “case-by-case” basis to certain individuals consistent with broad policy guidance would provide a significant public benefit and address urgent humanitarian concerns.19 Therefore, the use of this discretionary authority is amply “reasonable and reasonably explained.”20 Importantly, the parole processes were integral to securing commitments by Mexico following bilateral negotiations; were intended to aid ongoing bilateral negotiations with Cuba to reactivate a series of migration accords struck in the 1990s; and advance commitments made by the United States and 20 heads of state in the Western Hemisphere following multilateral negotiations that culminated in the Los Angeles Declaration on Migration and Protection.21 Because the administration adopted the parole processes in accordance with the executive branch’s Article 2 authority in the U.S. Constitution to conduct foreign relations, the secretary of homeland security’s judgment that such processes will advance a significant public benefit is entitled to substantial deference by the courts.22
In their U.S. District Court challenge, the plaintiff state attorneys general complain that the CHNV parole processes were adopted without going through notice-and-comment rulemaking.23 But except for the international entrepreneur rule, which requires adjudicators to make far more complicated individual eligibility determinations,24 that appears to have been the case with every programmatic use of parole to facilitate entry into the United States for more than 70 years.25 For much of this time, such parole processes were implemented through simple policy guidance without anything resembling the robust, country-specific justifications in each of the four CHNV parole process FRNs.26
The state plaintiffs also argue that the number of individuals granted parole will be so large that grants will not be done on a case-by-case basis, as required by statute. Rather, “entire categories” of people will be paroled.27 In addition to speculating entirely about how such parole requests will be adjudicated, the lawsuit purports to speak to what Congress intended when it amended the parole statute in 1996. But in doing so, the plaintiffs rely on House Judiciary Committee report language relevant to legislative text that never passed a single chamber of Congress. Indeed, since immigration parole was first authorized by statute in 1952—including on many occasions since the 1996 amendments—categories of individuals frequently have been identified by the executive as generally deserving of parole, subject to case-by-case scrutiny during the adjudication process.28 Rather than eliminating or clearly circumscribing the parole authority, Congress has repeatedly—both before and after 1996—demonstrated its acquiescence or outright approval of various administrations’ use of the authority, including with respect to large numbers of individuals who were considered for the discretionary use of parole due to their membership in a defined category of persons.29 Congress has done this by enacting legislation to allow groups of parolees to adjust their status to permanent residence and provide refugee and other benefits to parolees, frequently in a prospective manner for individual members of a group who had not yet been paroled into the country.30
U.S. Solicitor General Elizabeth Prelogar made this point last year when she explained to the U.S. Supreme Court that the parole statute has both procedural and substantive criteria and that the procedural element—the requirement for a case-by-case adjudication—is satisfied when the agency gives individualized attention to each noncitizen to assess whether there are reasons not to grant parole (for example, in the case of a request for parole from custody, whether the individual is a flight risk or security concern).31 Moreover, although each parole decision must be based on an individualized review, Congress “nowhere suggested that there is a numerical cap on the number of people who can receive parole.”32
Solicitor General Prelogar’s understanding of the statute is consistent with the Department of Homeland Security’s long-standing legal interpretation, as well as that of its predecessor agency, the Immigration and Naturalization Service (INS). In 2001, during the George W. Bush administration, then-INS General Counsel Bo Cooper analyzed whether parole could continue to be used for certain former Soviet nationals denied refugee status. Analyzing the text of the statute and its legislative history, Cooper explained:
Designating, whether by regulation or policy, a class whose members generally would be considered appropriate candidates for parole does not conflict with a ‘case-by-case’ decision requirement, since the adjudicator must individually determine whether a person is a member of the class and whether there are any reasons not to exercise the parole authority in the particular case … So long as individual consideration is given to parole decisions, the Service’s determination—that it is generally in the public interest to parole denied refugee applicants from Moscow who belong to [certain groups]—does not violate the case-by-case requirement.33
What Cooper described is precisely how individual parole determinations are made under the CHNV parole processes.34 First, each FRN identifies a class of individuals—defined not only by nationality, but also by whether a fully vetted financial supporter in the United States has demonstrated the willingness and means to support the applicant for the duration of the parole—whose members generally would be good candidates for parole. Applicants must then satisfy criminal and security background checks and be evaluated on the basis of additional requirements—including their immigration history in the United States and whether they adhered to prohibitions on irregular migration into the United States, Mexico, or Panama following publication of the notice—to determine whether they should be granted advance travel authorization to fly to a port of entry within the United States for inspection by a U.S. Customs and Border Protection (CBP) officer. Having satisfied those requirements, and only once the individual arrives at a port of entry for inspection, CBP evaluates the individual to determine whether parole is warranted as both a matter of law and a favorable exercise of discretion.
The CHNV parole processes are working
Preliminary data suggest that the parole processes have effectively reduced irregular migration and directed people to use the newly available pathways for entry into the United States. For example, after the Biden administration first implemented the Venezuela parole process with a 24,000-person cap on October 12, 2022,35 U.S. Border Patrol encounters of Venezuelan nationals dropped sharply and immediately, from more than 1,100 daily encounters from October 5 to October 11, 2022, to less than 200 daily encounters from October 18 to October 24, 2022. Moreover, that number continued to decrease over a three-month period—from 67 per day the week ending November 29, 2022, to just 28 per day the week ending January 22, 2023—including after the numerical cap was lifted as part of the January announcement.36 With respect to Cuban, Haitian, and Nicaraguan nationals, a similar decrease was observed in the 16 days after the administration announced its package of reforms in January; Border Patrol encounters dropped 92 percent over that period, from 928 per day to 92.37 New CBP data released on April 17 show that encounters of Cuban, Haitian, Nicaraguan, and Venezuelan nationals between ports of entry at the southwest border remained low through March—from a seven-day average of 1,231 on January 5, to a seven-day average of 339 on March 31.38
In order to appreciate how these parole processes enhance border management and show fidelity to the legal authority on which parole is based, it is critical to understand the alternative to these measures. When CBP personnel encounter greater numbers of individuals at the border than DHS can safely and efficiently process and—when necessary—detain, such people are lawfully considered for parole from custody and into the United States on a case-by-case basis using the same statutory authority the CHNV parole processes rely on. According to the final set of monthly reports filed with the U.S. District Court judge presiding over a challenge to the administration’s efforts to terminate the Migrant Protection Protocols program, between October 2021 and June 2022, DHS paroled into the country an average of nearly 38,000 applicants for admission under 8 U.S.C. § 1225 each month and released into the United States, through parole or otherwise, an average of nearly 77,000 applicants for admission.39
U.S. Border Patrol encounters with Cuban, Haitian, Nicaraguan, and Venezuelan nationals have plummeted since the implementation of the parole processes. Therefore, the CHNV parole processes are best understood not as facilitating the entry into the United States of 30,000 additional individuals per month, but rather enhancing the parole-determination process for some number of individuals who likely would have been considered for parole without these processes anyway—potentially even more. Rather than having parole determinations made in CBP holding facilities and Immigration and Customs Enforcement detention centers of people who have not previously undergone any advanced consideration by DHS, these processes control who from these four countries will be considered for parole (that is to say, individuals with qualified financial supporters who already have been vetted); how many people will be considered for parole (up to 30,000 per month from four countries); and where parole determinations will be made (at airports throughout the country that are largely free of the immediate pressures attendant to enforcement settings).
Indeed, it appears that the parole processes are working in precisely this manner. According to data published by CBP describing the processing outcomes for noncitizens encountered by U.S. Border Patrol agents at the southwest border, the number of noncitizens granted parole and placed into an alternatives to detention (ATD) government supervision program increased from nearly 70,000 in October 2022, to more than 90,000 in November 2022, to more than 130,000 in December 2022, before dramatically declining in 2023 once the CHNV parole processes were in effect.40 Although the so-called Parole+ATD policy was not the only manner through which noncitizens encountered at the border were considered for parole, it was used much more extensively than others for a period of time, including during the months leading up to the January announcement. After the parole processes were implemented in early January 2023, the number of individuals processed through this parole mechanism decreased to slightly more than 5,000 in January to just 28 in February and seven in March.41 Although a U.S. District Court judge in a lawsuit brought by the state of Florida recently vacated the Border Patrol’s Parole+ATD policy, the government’s reliance on it appears to have been largely waning because of the success of the CHNV parole processes.42
If the plaintiff states succeed in blocking the CHNV parole processes and closing this pathway, it will significantly increase pressure once more on CBP personnel who are responsible for encountering and processing individuals at and between land ports of entry. Mexico has also made clear that the suspension of the CHNV parole processes would prompt its government to cease accepting the expulsion, return, or removal of tens of thousands of nationals from the CHNV countries each month, as that agreement was “predicated, in primary part, on the implementation of these processes.”43 And as the United States is presently unable to effectively repatriate most or all Cuban, Haitian, Nicaraguan, and Venezuelan nationals under Title 42 or pursuant to a final order of removal, this would also likely increase the irregular migration of people from these countries to the United States, which would place additional strain on Mexico and other countries of transit in South and Central America. Additionally, if courts continue to interfere in the case-by-case use of parole at the border to facilitate safe and orderly processing and avoid dangerous overcrowding in DHS facilities—as the U.S. District Court recently did in the case brought by Florida—DHS will be left with few options. In short, court intervention in response to the CHNV lawsuit would start a chain reaction of policy changes that would undermine important U.S. foreign policy interests and border management efforts. Moreover, it would undo the significant public benefits that the parole processes were designed to achieve—and that are being realized—when they were created by the secretary of homeland security, the very official to whom Congress granted the discretionary parole authority.
Court intervention in response to the CHNV lawsuit would start a chain reaction of policy changes that would undermine important U.S. foreign policy interests and border management efforts.
The United States needs more migration pathways, not fewer
The importance of expanded and more accessible lawful pathways is further highlighted by the Biden administration’s newly proposed rule that would impose broad restrictions on the ability of most people at the southwest border to meaningfully request asylum protections.44 For the proposal to relieve the pressures it would predictably place on Mexico45 and countries further south, the measure relies on parole processes and appointments at ports of entry facilitated by the CBP One app. Under the proposal, nearly every person requesting protection after crossing the U.S.-Mexico land border would be subject to a rebuttable presumption of asylum ineligibility unless they met one of three exceptions:
- They were granted authorization to travel to the United States to request parole pursuant to a DHS-approved parole process.
- They came to a land port of entry after successfully making an appointment using the CBP One app or were able to demonstrate by a preponderance of the evidence significant problems making such an appointment.
- They applied for asylum or protection in a country of transit and were denied.46
Aside from the significant legal and ethical concerns with the proposed rule,47 the severe penalty it imposes on the “circumvention of lawful pathways” is troubling given the limitations imposed on the pathways themselves. For instance, although the recent parole processes provide an opportunity for many Cuban, Haitian, Nicaraguan, and Venezuelan nationals to enter the United States in a safe, humane, and orderly fashion so that they may apply affirmatively for asylum or pursue other pathways to durable protection, they provide nothing for nationals from other countries who make up a sizable share of asylum-seekers. Additionally, they provide nothing for nationals from the target countries who may have a compelling humanitarian need for parole but who may be unable to meet eligibility requirements such as having a passport or securing a financial supporter. Only the two remaining exceptions to the presumption of asylum ineligibility are ostensibly relevant for those categories of individuals.
Unlike the parole processes, anyone can use the CBP One app regardless of nationality. However, DHS has chosen to limit its use for land port of entry appointments to people who are in central and northern Mexico.48 As a result, to even use the CBP One app, individuals must first undertake precisely the dangerous, irregular journey through Central America and parts of Mexico—including, for some, through South America and the perilous Darién Gap—that U.S. officials claim they are trying to disincentivize. Although a spokesperson for DHS claims the app “cuts out the smugglers, decreasing migrant exploitation, and improving safety and security,”49 unless meaningful access to the app and safe travel to a U.S. port of entry is available throughout the region, this would be true only for the final steps across the border and not for the hundreds—if not thousands—of miles of travel that precede them.
With respect to the final exception, the proposed rule acknowledges Mexico and many countries to its south are still developing the ability to offer protection and recognizes that some of the very countries where people are expected to remain while seeking protection are themselves source countries for large numbers of asylum-seekers.50 There are many reasons that an asylum-seeker may believe that requesting protection and waiting for months or years to receive a final decision in any of these transit countries would be futile at best—and dangerous at worst.51 This is especially true given that the violence and discrimination many migrants experience during the journey—particularly those from marginalized communities—is well documented.52 However, the proposed rule gives no weight to such considerations.
Without robust and meaningful lawful pathways to the United States, the countries that are already feeling the greatest strain from irregular migration throughout the Americas—Mexico, Panama, Colombia, and Costa Rica, to name a few—will only experience greater strain if and when this proposal is finalized. Former Costa Rican President Carlos Alvarado Quesada recently warned that the proposed rule could “deepen polarization around migration” in the country and “make the country less welcoming, fueling xenophobia and further displacement.”53 For this reason, the Biden administration should consider how to make parole processes accessible to individuals from a greater number of countries. And in addition to troubleshooting problems that have already appeared with the use of CBP One,54 the administration should think creatively about ways to allow people further south to use the app to make appointments and to travel safely to an appropriate port of entry for inspection and processing. One possible option would be for DHS to grant advance travel authorization to some individuals so that they could fly to a port of entry for their appointment. Another option would be for the Biden administration to work with transit countries and international organizations to facilitate the safe transit of people who have secured appointments through the CBP One app to certain designated land ports of entry at the U.S.-Mexico border.
In his January remarks on border security, President Biden rightly stressed that the new border enforcement measures and pathway reforms would not fix the immigration system or the challenges at the border.55 Rather, the purpose of the measures was to help manage these challenges until further changes can be implemented to build a fair, orderly, and humane immigration system either through legislative or administrative action. If past is prologue, however, changes of that scale may not be coming soon. If the administration’s proposed rule takes effect when the Title 42 expulsion authority is terminated, alternative lawful pathways will have to be expanded and improved—and exceptions to or exemptions from the presumption of asylum ineligibility used generously—to ameliorate the harmful effects it will have on asylum seekers to the greatest extent possible.56
Such mitigating actions would also reduce the heavy burdens the rule will place on Mexico and Central and South American countries to host still greater numbers of migrants.
The administration should continue to build upon its smart and successful parole processes, consistent with the requirements in statute and in furtherance of its various partnerships with leaders throughout the Western Hemisphere, to channel migration through this orderly and humane process. Moreover, greater creativity is needed to ensure that CBP One—a safe and orderly appointment process for people presenting for inspection at a port of entry—can genuinely expand the opportunity for people to seek protection from persecution without having to undertake a dangerous journey—and without punishing those who took such a journey out of necessity.
Congress granted the secretary of homeland security the discretionary authority to parole individuals into the country under certain circumstances and entrusted the executive to make reasoned and reasonably explained judgments regarding whether those circumstances have been met in individual cases. The CHNV parole processes are valid exercises of that statutory authority. Moreover, they are currently helping the administration realize the significant public benefits anticipated by the secretary when the processes were created. Conversely, litigation designed to limit the administration’s legal or practical authority to use parole robustly undermines U.S. leadership in the region and jeopardizes effective efforts at enhancing border management by restricting the executive’s ability to use, improve, and expand lawful migration pathways for people in the Western Hemisphere. Combined with other litigation designed to curtail the lawful use of parole, where necessary, to address processing challenges and detention constraints at the border, these lawsuits—if they succeed—will take badly needed options off the table for the executive and create more chaos and dangerous conditions at the border and beyond.