Tag Archive for: Humanitarian Parole

Cyrus Mehta

As Texas Has Been Smacked Down Twice for Lack of Standing in Challenges to Federal Immigration Policies, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions

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On March 8, 2024, Judge Tipton in Texas v. DHS dismissed a lawsuit brought by Texas and 20 other states challenging President Biden’s humanitarian parole program. Judge Tipton, who was appointed by Trump,  has otherwise been receptive to challenges to Biden’s immigration policies but not this time. Texas filed the lawsuit in his court thinking that Judge Tipton would again issue a favorable decision but Judge Tipton held that Texas did not have standing to bring the lawsuit.

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukrainian and Venezuelan nationals all0wed 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela (CHNV) to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

In Texas v. DHS  the challengers asserted that the program exceeded the parole authority given to the administration under INA 212(d)(5) as it can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. They also asserted that the program failed to include a notice and comment period and the program was arbitrary and capricious. Judge Tipton’s order did not address the merits because the plaintiffs did not demonstrate they had standing to bring the lawsuit.

Judge Tipton gave short shrift to Texas’s claim that the parole of CHNV nationals  would impose additional health care costs on the state or additional incarceration costs or an increase in education costs since the CHNV program has resulted in the decrease of migrants entering the US irregularly through the southern border. Judge Tipton also found that an increase in CHNV nationals seeking driver’s licenses would not impose additional costs on Texas, in fact the increased applications would result in a profit for Texas.  Prior to the CHNV program DHS released an average of 2,356 CHNV nationals per day but after the implementation of the program there were a total of 1,326 arrivals per day, which was a 44% reduction.

As a result, Texas was unable to show an “injury-in-fact” that the CHNV program increased the   costs on Texas. In fact, to the contrary, the CHNV parole program has reduced the total number of individuals from the four countries and Texas has spent less money after the implementation of the parole program. Texas counter argued that even if there are fewer apprehended CHNV nationals, the court should consider the money Texas would spend on CHNV nationals under the parole program. Judge Tipton emphasized that the court must consider the “actual injury – not the labels put on the injury” as otherwise plaintiffs will engage in “artful pleading” to make an end run around the standing requirement under Article III of the Constitution. To determine whether actual injury exists the raw numbers need to be looked at in context rather than in a vacuum. The CHNV program reduced the overall numbers of CHNV nationals that the United States admitted prior to the implementation of the program.

The CHNV program, which will continue for now,  has been a spectacular success thus far and is built on the US historically using parole to respond to immigration crises.  The CHNV parole program has “redirected many migrants away from risky journeys through Mexico into a lawful framework. By allowing sponsors to financially support beneficiaries, the programs have facilitated safe and orderly migration, reducing the strain on government resources,” according to the Cato report in the link.

Texas and the other states may appeal Judge Tipton’s decision, but this is the second time that Texas’s challenge has been smacked down due to lack of standing. Last June 2023 in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Judge Tipton readily agreed by vacating the Mayorkas Memo. The Fifth Circuit affirmed but the Supreme Court reversed holding  that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.”

As a result of Texas losing twice on standing, the enforcement priorities under the Mayorkas Memo continue to be applied and the CHNV parole program will also allow CHNV nationals to enter the US through parole in an orderly manner and relieve the strain on the Southern border. It remains to be seen whether Texas’s challenge to DACA can also be denied based on standing. Currently, the Fifth Circuit is reviewing Judge Hanen’s ruling in September 2023 holding that DACA is illegal.  Judge Hanen also affirmed that Texas had standing to challenge DACA notwithstanding the Supreme Court decision in United States v. Texas, where Justice Kavanaugh also stated  that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Judge Hanen seized upon this sentence from Justice Kavanaugh’s decision by holding that DACA involved  “non prosecution with benefits” and so it was distinguishable from the enforcement priorities in the Mayorkas Memo. Judge Hanen also seized upon another part in Justice Kavanaugh’s opinion stating that the “standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Judge Hanen thought that DACA was such an example where the administration has abandoned its statutory responsibility to make arrests and bring prosecutions and thus violated the “Take Care Clause” of the Constitution.

Both Texas v. DHS and United States v. Texas should serve as templates for either the Fifth Circuit or the Supreme Court to once again deny Texas standing to challenge DACA and Texas’s other serial challenges to Biden’s immigration programs. Texas lacks standing  because DACA like the CHNV parole program has been widely successful and it can be shown that it has not injured Texas. In his order Judge Tipton contrasted Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised, (Nov. 25, 2015), aff’d by equally divided Court, 597 U.S. 547 (2016), where President Obama’s Deferred Action for Parents of Americans (DAPA) was found to be unlawful, with the CHNV program. The Fifth Circuit held that Texas demonstrated injury in fact because “DAPA would enable at lest 500,000 illegal aliens in Texas” and the extended DACA program  would also cause “pocketbook injuries on the State in the form of healthcare, education, and social service costs.” However, if DACA is viewed independently from DAPA, it can be demonstrated that the benefits from DACA recipients since 2012 in the form of tax contributions to Texas and increased profits from the issuance of driver’s licenses, among other benefits,  have not resulted in injury-in-fact to Texas. Using the comparative analysis of Judge Tipton in Texas v. DHS, it can also be argued that the number of DACA recipients did not increase after the implementation of DACA in 2012 as they were already in the US prior to its implementation.

Moreover, in  Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Although Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would. It is also worth mentioning that In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. As with the Mayorkas Memo, the DACA program also involves prosecutorial discretion and so Texas’s challenge to DACA may suffer the same redressability problem identified by Justice Gorsuch.

As the latest order to Judge Tipton in Texas v. DHS and Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through parole initiatives  and other executive actions without fear of being sued by these states. As a fitting coda, it is worth mentioning that the Judicial Conference of the United States, the policy arm of the judiciary, has  strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit. This new policy would make it more difficult for states like Texas to file a lawsuit in courts where the judge might rule more favorably in a challenge to a Biden federal immigration policy. However, after receiving intense backlash from conservative lawmakers, judges and judicial experts, the Judicial Conference issued a revised policy making clear that the policy is a recommendation and district courts cannot be forced to follow it.  Although Texas’s choice of filing its lawsuit against the CHNV program in the United States District Court Southern District of Texas, Victoria Division, where Judge Tipton presides, backfired, even if this policy is non-binding guidance, it would still make it more difficult for Texas to try this strategy repeatedly in courts where other friendly judges preside like the United States District Court for the Southern District of Texas, Brownsville Division,  where Judge Hanen presides.

Cyrus Mehta & Kaitlyn Box

Emerging Immigration Issues Arising from Violence in the Middle East

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The violence and loss of life in the Middle East this week are unspeakably tragic, and it is innocent Israeli and Palestinian citizens who stand to suffer the most in the escalating conflict. Hamas’ condemnable attack of Israeli civilians, as well as Israel’s subsequent preparations to invade Gaza to destroy Hamas, are likely to result in many Israeli and Palestinian civilians becoming displaced. Noncitizens from affected areas who are currently in the United States may be unable or unwilling to return as the violence intensifies and the region becomes increasingly unsafe. The conflict poses a number of immigration challenges for those impacted by the conflict. The Biden administration can take measures to ensure that noncitizens from the region who are already in the United States are not obliged to return to unsafe areas, and to facilitate the process for those who are applying for an immigration benefit to come to the United States.

As recommended by the American Immigration Lawyers Association in a statement titled “AILA Calls on Biden Administration to Help Those Displaced By Recent Violence in Middle East”, the Biden administration can extend deferred action, humanitarian parole, or Temporary Protected Status (TPS) to individuals from regions impacted by the conflict who are in the United States to ensure that they may remain safely in the country. Further, the administration can suspend removals to areas impacted by violence to ensure that Israeli and Palestinian nationals in the United States will not be returned to unsafe locations. Additionally, deadlines and other requirements can be relaxed for individuals from the region who are currently applying for an immigrant benefit before the Department of Homeland Security, Justice Department, or Department of State to ensure that their cases will not be impacted by delays or difficulties resulting from the conflict. See AILA Doc. No. 23101002 (Oct. 10, 2023).

The conflict may could also result in immigration-related consequences for those would support the actions of Hamas. Senator Marco Rubio has called on the Biden administration to “cancel and rescind visas for foreign nationals who endorse or espouse terrorist activity, including those who defend or support Hamas”. Senator Rubio went on to state that the administration “has the authority and an obligation under existing law to immediately identify, cancel the visas of, and remove foreign nationals already here in America who have demonstrated support terrorist groups”, and expressed an intention to introduce legislation to force the Biden administration to take action accordingly.

A coalition of student organizations at Harvard University published a letter stating that they “hold the Israeli regime entirely responsible for all unfolding violence”, and swiftly faced backlash from Harvard faculty and alumni, as well as the public at large. A Columbia Law School student similarly had their job offer from a prominent firm rescinded after emailing a letter to students which stated in part “Israel bears full responsibility for this tremendous loss of life”. These incidents raise the question of whether student leaders who are in the United States on an F-1 visa could be found inadmissible under INA § 212(a)(3)(B)(i)(IV)(bb) as representatives of “a political, social, or other group that endorses or espouses terrorist activity”. INA 212(a)(3)(B)(v) defines “representative” as “an officer, official, or spokesman of an organization, and any person who directs, counsels, or induces an organization or its members to engage in terrorist activity”. Although it may be unlikely that the provision would be enforced against a university student, there is a potential for troubling consequences for a noncitizen leader of a student organization who speaks out about the conflict in a way that seems to endorse terrorist activity. INA 237(a)(4)(B) also renders a noncitizen who is described in INA 212(a)(3)(B) and INA 212(a)(3)(D) removable. Similarly, INA § 212(a)(3)(B)(i)(I) renders inadmissible noncitizens who “have engaged in terrorist activity”, which can include commission of “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” to a terrorist organization. INA § 212(a)(3)(B)(iv)(VI). The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peacefully express an opinion or assemble is likely to involve the violation of immigration law. However, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court held that First Amendment protections do not apply to “political speech or expressive conduct that materially supports foreign terrorist organizations”. The Supreme Court’s holding in this case seems to apply only to those who have had contact with a terrorist organization, not individuals who speak independently, so a student who writes a letter or protests on campus would likely be able to avail of the protections of the First Amendment, and should not face repercussions for providing material support to a terrorist organization.

In the wake of the 9/11 terrorist attacks, noncitizens from predominantly Muslim countries were covertly detained and removed from the United States due to purported ties to terrorism, as detailed in our prior blog. This week, a Chicago landlord shockingly and senselessly attacked his tenant and murdered her six-year-old son because they were Muslim. A well-known Palestinian restaurant in Brooklyn has been inundated by fictitious negative reviews, though it has persevered in serving Palestinian and Israeli customers in the community alike. These incidents indicate that the type of xenophobic backlash that arose after September 11, 2001 may be materializing again.

Although the conflict in the Middle East poses a number of immigration-related challenges, the Biden administration is uniquely positioned to assist both Israeli and Palestinian civilians impacted by the violence. The administration should adopt protections that allow noncitizens from impacted regions who are currently in the United States to remain here until the conflict abates, and institute flexibilities for those currently navigating an immigration process. The Biden administration should also make every effort to tamp down xenophobic backlash here in the US, and should never impose a travel ban against regions or countries like the way Trump did.

Historically, when people immigrate from countries or regions that have been enemies seem to get along in the United States. They bury their historic differences and find commonalities in their cultures in the new country. A case in point are people who have immigrated to the US from India and Pakistan that the authors have anecdotal experience. In the US they seem to co-exist peacefully and even patronize each other’s businesses and share culture. The communities have a tendency to come together in the new country to provide a unified front to oppose racial hostility, stereotyping and xenophobia. It is hoped that the displaced people from the Middle East who come to the US or remain will co-exist in harmony upon the Biden administration providing benefits such as TPS, deferred action and humanitarian parole.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Texas’s Legal Challenge to Biden’s Humanitarian Parole Program is Both Flawed and Inhuman

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By Cyrus D. Mehta and Kaitlyn Box*

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukranian and Venezuelan nationals will allow 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

But alas, on January 24, 2023, Texas and nineteen other states filed a suit challenging the Biden administration’s implementation of the program. The plaintiff states argue that the “Department’s parole power is exceptionally limited, having been curtailed by Congress multiple times, and can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. The complaint further alleges that the program “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so”, and asserts that the Biden Administration failed to engage in notice-and-comment rulemaking under the Administrative Procedure Act (APA).

Notably, the complaint refers to individuals entering the United States under humanitarian parole as “illegal aliens”. Page 3 of the complaint, for example, asserts that “[t]he Department does not have the authority to invite more than a third of a million more illegal aliens into the United States annually as it has announced with this program.” However, the plaintiff states’ characterization of parolees as “illegal aliens” is entirely erroneous. INA § 212(d)(5) provides the legal authority for humanitarian parole, Biden’s expansion of the program notwithstanding. This provision authorizes humanitarian parole on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit” for individuals who present neither a security risk nor a risk of absconding. Because humanitarian parole is a longstanding program authorized by the INA, individuals who enter the U.S. pursuant to this program cannot thus be accurately characterized as “illegal aliens”.

The complaint also refers to the Migration Policy Institute (MPI) Noncitizen Respondents in U.S. Census Bureau Survey Data, which provides demographic information about unauthorized immigrants living in each state. The complaint relies on this data to support the idea that the humanitarian parole program would impose a financial burden on the plaintiff states due to the costs involved in supporting undocumented immigrants. However, the MPI survey includes TPS recipients, DACA recipients, and individuals who entered the United States without authorization but have since applied for asylum. The MPI figures regarding unauthorized populations each state include noncitizens who may also be authorized to remain in the U.S., and may have work authorization, even if they were previously undocumented. The complaint’s reliance on this data to illustrate the burden that the humanitarian parole program would impose on states thus appears to be misplaced.

Further, the complaint asserts that the humanitarian parole program violates the requirements laid out in INA § 212(d)(5) that the benefit be granted only “on a case-by-case basis for urgent humanitarian reasons or for a significant public benefit”. However, even a narrow reading of this provision does not indicate that there is a numerical limit on the benefit. Even if a large group of noncitizens, in this case 360,000 individuals, are granted humanitarian parole, this does not mean that the benefit will not be granted on a case-by-case basis, or that the justifications of “urgent humanitarian reasons” or “a significant public benefit” will not be present. Each applicant can still be reviewed on an individual basis, and their applications can denied if they do not meet the requirements for humanitarian parole.

The humanitarian parole program is based on the Uniting for Ukraine program, which has not been challenged by this lawsuit. The programs bear many similarities, as well. The Uniting for Ukraine program also requires that individuals who are granted parole can be supported by a U.S. sponsor who files an I-134. We thus question whether Texas and the other plaintiff states’ true objection is not a perceived violation of INA § 212(d)(5), but rather the fact that the expanded program will benefit Cuban, Nicaraguan, Haitian, and Venezuelan noncitizens rather than Ukrainians. Other humanitarian programs intended to benefit large groups of noncitizens have also not been challenged, including the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the U.S. pursuant to INA § 212(d)(5), and the Filipino World War II Veterans Program, which also benefits direct and derivative beneficiaries of I-130 petitions.

In addition to being consistent with the “case by case basis” requirement, there is clearly an urgent humanitarian reason for this program given the large number of people from these countries who have been coming to the U.S. to seek asylum. The humanitarian parole program provides an orderly path for people from these countries to come to the U.S. legally without being aided by smugglers and without needing to take perilous paths to the U.S. that can result in death. Though not without flaws, namely the fact that it stands to be implemented alongside the draconian Title 42 policy, the program provides a model for paroling large groups of noncitizens into the U.S. in an organized manner and providing them with work authorization. Even if the Biden administration’s humanitarian parole program is ultimately struck down, the Biden administration has the authority to continue to grant the benefit to individuals pursuant to INA § 212(d)(5). It is hoped that the Supreme Court will ultimately uphold the federal district court’s  lifting of Title 42 restrictions in this scenario, and allow noncitizens to apply for asylum under Title 8, pursuant to the Immigration and Nationality Act, and be able to utilize the CBP One app to schedule an appointment to make a claim for asylum at the border in an orderly manner.

Texas has been serially challenging Biden’s executive actions that have been designed to provide relief to hundreds of thousands of people. These lawsuits are designed to hurt human beings from DACA recipients to those fleeing persecution under the new humanitarian program. While plaintiffs claim that the administration has no authority to implement these programs on a mass scale, they have never claimed that exercising discretion on an individualized basis is unlawful. If it is lawful for the government to exercise discretion in paroling one person into the U.S. or deferring the removal of that person, then it seems illogical to deny the administration the ability to exercising its discretion in relation to a large group. How big should the size of the group be before the government’s valid exercise of discretion is no longer deemed valid? Is the Uniting for Ukraine program that has remained unscathed thus far too big or the right size?  According to a Migration Policy Report, “[m]idway through its term,  the Biden administration, midway through its term,  has notched some significant advances. The quiet transformation of immigration enforcement in the U.S. interior, use of parole and other mechanisms to grant humanitarian protection, and restoration of legal immigration to pre-pandemic levels will have a lasting legacy.”  It is hoped that at some point five justices in the Supreme Court will see through the absurdities of these lawsuits and preclude states like Texas from running and ruining federal immigration policy!

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

How the Humanitarian Parole Program at the Border Can Serve as a Template for Further Relief Under the Broken Immigration System

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By Cyrus D. Mehta & Manjeeta Chowdhary*

Restive people at the U.S.- Mexico border for entry into the United States is not the new norm for the United States government. The usual procedure is to seek humanitarian relief through asylum under Title 8 of the United States Code citing a credible fear of persecution or other threats in their home country regardless of the wait period. However, in fiscal year 2020 with the outbreak of the coronavirus, the number of encounters at the border declined. As Covid became less acute, encounters at the border rebounded sharply in fiscal year 2021 and increased in fiscal year 2022 according to recently published data from U.S. Customs and Border Protection (CBP), the federal agency that encompasses the Border Patrol.

In March 2020, the Department of Health and Human Services (HHS) implemented Title 42 through the Centers for Disease Control and Prevention (CDC) under the Trump administration after the coronavirus outbreak. Title 42 of the United States Code is the code that addresses public health, social welfare, and civil rights. It grants the government the ability to take emergency action to stop the “introduction of communicable diseases.” But the purpose to invoke Title 42 under the Trump administration was not to control the virus but to use the health ground as a pretext for depriving people of their right to apply for asylum when they came to the United States.

Title 42 has been implemented poorly and widely criticized by immigration and humanitarian groups. It is being continued pursuant to a court order even though President Biden tried to end it.  People expelled are usually driven by bus to the nearest port of entry without their luggage or their belongings. Lateral flights are limited for families with young children. Opportunity to seek asylum has been denied not only to individuals crossing the border between ports of entry, but also applies equally to individuals seeking asylum at ports of entry. Cases of kidnapping, torture, rape or other violent attacks on people have increased. Nevertheless, the Biden administration has continued to expel migrants under Title 42, though to a lesser extent than the Trump administration. Although the Supreme Court has currently stayed the district court’s decision setting aside Title 42, the following extract from Justice Gorsuch’s dissent is worth noting:

But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

Depriving asylum seekers of their right to apply for asylum by blocking them under Title 42 has been roundly criticized by asylum rights advocates, although one positive initiative of  President Joe Biden has been to expand the parole program initially launched for  Ukraine and Venezuela   last year. The expansion of the parole program will allow 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela per month to be admitted to the United States for up to two years and will be eligible for work authorization. They must have a U.S. based supporter who agrees to provide them with financial support for the duration of their parole in the United States. Individuals and representatives of organizations seeking to apply as supporters must declare their financial support, and they must pass security background checks to protect against exploitation and abuse. For additional information on the process and eligibility requirements, please see the Processes for Cubans, Haitians, Nicaraguans, and Venezuelans page. Also, the applicants must apply through an online CBP One app. Applicants will be considered on a case-by-case basis at the discretion of immigration officers and must pass rigorous biometric and biographic national security and public safety screening and vetting; and complete vaccination and other public requirements. Individuals who enter the United States, Mexico, or Panama without authorization will generally be ineligible for these processes. It further confirms that nationals from Venezuela, Cuba, Haiti, and Nicaragua who do not avail themselves of this process, attempt to enter the United States without authorization, and cannot establish a legal basis to remain will be removed or returned to Mexico, which will accept returns of 30,000 individuals per month who fail to use these new pathways.

This expansion has not ruled out the existence of Title 42 public health order. It will be used alongside the provisions of the Immigration and Nationality Act (INA) under Title 8 of the United States Code for those migrants who cannot be expelled pursuant to Title 42.  INA § 235 allows for the prompt removal of those who do not claim a fear of persecution or torture or are determined not to have a credible fear after an interview with an Asylum Officer, in accordance with established procedures. Also, the CBP One app can be accessed on or after January 12,  2023 to all asylum seekers claiming Title 42 exemption. Each day at a set time, new appointment slots will be released, and one can schedule appointments fourteen (14) days in advance. Access to making an appointment will be “geofenced” to individuals who are physically located at the U.S.-Mexico border and in some major population centers in Central and Northern Mexico. Although the process is free, that’s too short a period for booking the slots, maybe it will end up in jamming the network. Further, some Title 8 relief such as asylum may not be available for those who have significant criminal history, prior removals under Title 8, or could pose a risk to national security. The objective is to have an improved removal process in existence when the Title 42 public health order is lifted.

Further, this expansion proposes a transit ban to those asylum seekers who had not previously applied for asylum in a third country before reaching the United States, as well as those who sought asylum without going through a new process at a port of entry. Individuals who cannot establish a valid claim to protection under the standards set out in the new rule will be subject to prompt removal under Title 8 authorities, which carries a five-year ban on reentry pursuant to INA § 212(a)(9)(A)(i). This rule will take some time to come in action as DHS and DOJ will invite public comment on the proposed rule.

Though the expansion through humanitarian parole has indubitably created some legal pathways for migrants from four countries, it has failed to address many questions such as:

  • Will the migrants from these four countries be subject to Title 8 or Title 42, if there is no financial supporter for them in the United States or a financial supporter is reluctant in supporting them or if they fail to pass the test of other requirements?
  • The parole program confirms that one should apply for parole through the CBP One app, but it fails to contemplate what should be done in cases where someone does not have technological access to download CBP one app, or where access to the app will be tough for those who does not know English or speak indigenous dialects beyond Spanish as well as for those who cannot obtain legal representation to help them navigate the process.
  • On being asked if the requirement to buy an airline ticket could prejudice or lean it toward wealthier migrants and make it harder for poorer migrants, President Biden replied yes and also said that “but there’s also ways to get to ports of entry along the border as well”. This is unclear. Did Biden mean that travelling by air is not essential and can be waived?
  • Will this really protect asylum seekers? How does this program help those individuals who left their countries in rush, rescuing their lives, and without any resources? How will they apply for parole through the app?
  • The proposed rule has been subject to criticism as this is the new version of the Trump version of the transit-ban on asylum seekers if they failed to seek protection in a third country before reaching the United States and if they “circumvent available, established pathways to lawful migration.” A similar transit ban was introduced by the Trump administration which was blocked by the Ninth Circuit Court of Appeals and was ruled as unlawful, holding that failure to apply for asylum in a transit country “has no bearing on the validity of a person’s claim for asylum in the United States;”
  • No legal pathways for migrants from other countries have been explained, they will either face removal proceedings under Title 8 or be expelled under Title 42.
  • Will this not suggest discrimination as humanitarian parole only applies to a narrow group of countries?

 

Despite all the flaws in the new process and Title 42 still being used, the humanitarian parole program under INA 212(d)(5) provides a template for President Biden to continue to expand his executive authority to provide relief when the immigration system has broken and the current Congress is too polarized to fix it. Within days of the announcement, the first group of migrants have already come into the US. More than 600 additional migrants from these four crisis-stricken countries had been vetted and approved to come to the U.S. One noted commentator Ilya Somin who sponsored refugees from the Ukraine has reported that the results were astonishing. “Nine days after my wife and I submitted the sponsorship forms, the U.S. government authorized admission to three Ukrainian refugees — Ruslan Hasanov, his wife, Maya, and their 2‑year‐​old daughter, Melissa. Less than five weeks after that they were here. This is little short of a miracle to those of us who have long lamented the sclerotic state of the U.S. refugee system.” Although those who have entered the US under humanitarian parole can only remain for two years, they can apply for asylum once they have been paroled in the US. The humanitarian parole program allows private sponsors backed by business organizations to also support nationals from the designated countries to legally work in the US. The program thus creates a pathway for noncitizens from the designated countries to  enter the US and work legally thus alleviating labor shortages in the US economy.

The possibilities of expanding parole to other immigrants also exist. For instance, beneficiaries of approved I-130, I-140 and I-526 petitions who are outside the US can be paroled into the US while waiting for their priority date under State Department Visa Bulletin to become current.  However, due to a quirk in the law, beneficiaries of I-130 petitions should be able to file I-485 applications upon being paroled into the US since parole is considered a lawful status for purpose of filing an I-485 application. See 8 CFR 245.1(d)(1)(v). On the other hand, beneficiaries of I-140 petitions will not be eligible to file an I-485 application, even if paroled, since INA 245(c)(7) requires one who is adjusting based on an employment-based petition to be in a lawful nonimmigrant status. Parole, unfortunately, is not considered a nonimmigrant status.  Such employment-based beneficiaries may still be able to depart the US for consular processing of their immigrant visa once their final action dates become current.

The parole of beneficiaries of approved petitions can be modelled on the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the US pursuant to INA 212(d)(5). The Filipino World War II Veterans Program also has a liberal parole policy for direct and derivative beneficiaries of I-130 petitions. Once the beneficiaries of I-130 petitions are paroled into the US, they can also apply for an EAD, and adjust status once their priority date becomes current. The HFRPP concept can be extended to beneficiaries of all I-130, I-140 and I-526 petitions, and parole eligibility can trigger when either the petition is approved or at least when the Date for Filing (DFF) under the State Department Visa Bulletin is current for each petition. As proposed in a previous blog, the administration has the ability to move the DOF to close to current so long as it preserves one visa in each category.  Beneficiaries of I-130 petitions may file adjustment of status applications, as under the HFRPP, once they are paroled into the US. On the other hand, Beneficiaries of I-140 and I-526 petitions, due to the limitation in INA 245(c)(7) would have to proceed overseas for consular processing once the FAD become current.

Similarly, a program similar to humanitarian parole can be devised for those who have not been selected under the H-1B lottery under INA 212(d)(5). An employer could be able to sponsor a beneficiary who was not selected under the H-1B lottery and whose OPT may have expired by submitting I-134. There is no reason why the  programs similar to humanitarian parole cannot be deployed for those who were not able to successfully come to the US under the H-1B visa but who still have the same job offer for a temporary period of time. INA 212(d)(5) provides authority to parole a noncitizen on a “case-by-case basis  for urgent humanitarian reasons or significant public benefit.” Allowing a potential noncitizen who would have otherwise qualified for an H-1B visa parole into the US would potentially qualify as a significant public benefit.

The Biden administration’s authority to provide relief to backlogged beneficiaries of I-140 petitions in the US through parole or other administrative actions can also be explored. The concept of parole in place has been applied to those who have entered without inspection and have been able to adjust status as immediate relatives. Most beneficiaries of I-140 petitions have been admitted in the US and are in valid status. However, deferred action may be considered for certain vulnerable beneficiaries. In May 2022, USCIS considered deferred action and related employment authorization for noncitizens classified as SIJs who are ineligible to apply for adjustment of status to LPR status solely because a visa is not immediately available. Deferred action and employment authorization will provide invaluable assistance to these vulnerable noncitizens who have limited financial and other support systems in the United States while they await an available visa number. The DHS has also recently made available deferred action and  work authorization  to  noncitizen workers who are victims of, or witnesses to, the violation of labor rights, Similarly, there is no reason why backlogged beneficiaries of I-140 petitions cannot avail of deferred action and work authorization on a case by case basis. How about allowing aging our and aged out children of beneficiaries of I-140 petitions who cannot seek the protection of the Child Status Protection Act to seek deferred action? This group of vulnerable noncitizens are deserving of relief through executive action.

Under 8 CFR § 204.5(p), an EAD may be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. “Compelling circumstances” have never been precisely defined, but DHS suggested some examples of compelling circumstances in the preamble to the high skilled worker rule, which include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid are examples of scenarios that might constitute significant disruption to the employer. Historically, USCIS has rarely issued EADs under compelling circumstances. Given the precarious situation that nonimmigrant workers who are impacted by layoffs will find themselves in, the Biden administration could instruct USCIS to employ this authority to generously grant EADs to individuals who have lost their jobs. Nonimmigrant workers who are laid off will be forced to uproot their lives on very short notice if they cannot find new employment within 60 days. Many nonimmigrant workers have lived and been employed in the United States for many years. Some have U.S. citizen children and spouses who have also built careers in the United States. Such individuals will face serious hardship if they are forced to abandon their lives in the United States and return to the countries of which they are citizens, a devastating situation that should be interpreted to readily constitute compelling circumstances. Noncitizens who can demonstrate compelling circumstances under 8 CFR § 204.5(p) should also be able obtain deferred action so that they can apply for advance parole to travel overseas.

There is much that the Biden administration can do in the next two years through humanitarian parole, deferred action and other administrative actions to provide relief to noncitizens while Congress remains paralyzed.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice)

*Manjeeta Chowdhary is a Junior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence

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By Cyrus Mehta and Kaitlyn Box*

In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. On March 16, 2022, the Department of Homeland Security also announced the designation of Afghanistan for TPS for a period of 18 months.

Generally, TPS provides a temporary immigration status to nationals of countries fraught with armed conflict or other disasters. In order to be eligible for TPS, an individual must be a national of a country designated for TPS, have been continuously present in the U.S. since the date of the designation, have continuously resided in the U.S. since a date specified by the Secretary of Homeland Security, and not be inadmissible to the United States. In the case of Ukraine, the requirement that applicants must have continuously resided in the United States since April 11, 2022 will render many  Ukrainian nationals ineligible for TPS, as many individuals fleeing the war would not have arrived in the United States by that date. Individuals who are granted TPS receive a stay of deportation and temporary authorization to work in the United States.

The Uniting for Ukraine program that would allow Ukrainians to enter the US under humanitarian parole was announced on April 21, 2022. Thus, those who will get paroled into the US under Uniting for Ukraine will not be eligible for TPS.  However, several thousand Ukrainians who came to Mexico  after the Russian invasion in February 20, 2022 and got paroled into the US from the Southern border prior to April 11, 2022 will be eligible for TPS.

On the other hand, Afghans have been applying for  humanitarian parole prior to and  after the US withdrew from Afghanistan on August 30, 2021. A recent New York Times report states that of the 43,000 humanitarian parole applications received by USCIS since July 2021, the agency has processed less than 2,000. Of those processed applications, 1,500 were denied and 170 were approved as of February 11, 2022. While the humanitarian parole program for Afghans has been a disappointment, those who have been paroled into the US already prior to March 16, 2022 can apply for TPS.

Though it provides an important temporary form of relief for some nationals of countries experiencing a crisis, TPS is, by its very nature, temporary and does not provide foreign nationals with a pathway to permanent residence or citizenship in the United States. Thus, one must look for other alternatives for individuals who wish to seek permanent residence in the United States. Foreign nationals who have a U.S. citizen or lawful permanent resident relative may be able to file a family-based adjustment of status application, but some family preference categories are extremely backlogged. Skilled TPS recipients who can find a U.S. employer to sponsor them may instead be eligible to file an employment-based adjustment of status application. There are no backlogs for most TPS-designated countries, and spouses and minor children of the primary applicant may also file adjustment of status applications. In addition, foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa, which does not require employer sponsorship or a Labor Certification.

However, complications arise when a TPS recipient who entered the U.S. without inspection wishes to apply for permanent residence. Pursuant to INA § 245(a), an individual must have been inspected and admitted  or paroled into the United States in order to be eligible to apply for adjustment of status. A foreign national who was inspected and paroled into the United States would be eligible for adjustment of status, but an individual who entered without inspection would not. In a previous blog, we analyzed the Supreme Court’s decision in Sanchez v. Mayorkas, which holds that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. However, the decision seems to leave open whether a grant of TPS could “cure” a short lapse in the status of an individual who was inspected and admitted to the U.S., but later fell out of status. In her opinion, Justice Kagan gives the example of an individual who was out of status for a few months before receiving TPS, potentially implying that receiving TPS ends an individual’s time out of status, if this duration would otherwise have exceeded 180 days and rendered the individual unable to adjust under INA § 245(k). Additionally, the decision could imply that a grant of TPS could qualify as a “lawful nonimmigrant status”, which could assist individuals who would otherwise have been ineligible to file and adjustment of status application under INA § 245(c)(7).

While TPS is no doubt an important tool for aiding individuals who have fled Ukraine or Afghanistan, not all nationals of these countries will be eligible and a grant of TPS does not provide a path to permanent residence in the U.S. Thus, some TPS recipients, or individuals from TPS-designated countries who are ineligible, may be able to utilize employment-based immigrant visa petitions as a path to permanent residence.  Thus, one who was initially paroled into the US and then was granted TPS would be able to apply for adjustment of status if he or she became the beneficiary of an employment based I-140 petition after an employer obtained labor certification. The parole would fulfill the requirement  under INA 245(a) that the applicant have been inspected and admitted or paroled into the US. The subsequent grant of TPS would then confer “lawful nonimmigrant status” to that applicant and thus render him or her eligible for adjustment of status under INA §245(c)(7).  However, TPS recipients who entered without inspection will be ineligible to apply for adjustment of status. For individuals who were inspected and admitted to the U.S., though, but later had a lapse in status, a grant of TPS could render them again eligible for permanent residence.

There will be large numbers who will enter the US on humanitarian parole under Uniting for Ukraine but will not be eligible to receive TPS as they would have entered the US well after the cut off date of April 11, 2022. If a parolee is sponsored by an employer through labor certification, he or she will not be eligible for adjustment of status as parole is not considered a lawful nonimmigrant status under INA  § 245(c)(7).  This person will have to process at a US Consulate overseas after the I-140 petition is approved. Fortunately, Ukrainian nationals can have their cases processed at the US Consulate in Frankfurt rather than in Kiev. On the other hand, a parolee would still be able to adjust status under 245(a) as an immediate relative. Similarly, a parolee who becomes the beneficiary of an I-130 petition under a family preference category will also be able to adjust status as the requirement to be in “lawful nonimmigrant status” under 245(c)(7) only applies to beneficiaries of employment-based petitions and not family-based petitions. Indeed, one in parole status would be considered  to be in a lawful status under 8 CFR 245.1 (d)(1)(v) for purposes of adjusting status under a family-based petition but not an employment-based petition.

There are pathways for people who have been paroled to become permanent residents, and even more  pathways for those who have subsequently received TPS. Given the low unemployment rate and shortage of workers in the US, employers should look to not just be hiring Ukrainians and Afghans as parolees or in TPS status, but must also endeavor to sponsor people with parole and TPS for permanent residence through a labor certification, an I-140 petition and the filing of an I-485 adjustment of status application. Those who may not be eligible for adjustment of status because they are parolees can still proceed to a US Consulate for an immigrant visa following the approval of the I-140 petition.

The sponsoring of  workers based on their true worth skills would allow them to pursue better jobs and careers. Presently, people on TPS or parole may have employment authorization, but many are in jobs that may not match their skills. How many times has one been driven by a taxi driver who was a doctor or engineer in their own country or received groceries from a delivery person who may have previously been an accountant?   An employer who commits to hiring and then sponsoring a foreign national worker on parole or TPS based on their real skills creates a win-win situation for both.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.