A July 18 CBS News article captioned “U.S. has welcomed more than 500,000 migrants as part of historic expansion of legal immigration under Biden” is more spin than news. Worse, it contains key errors of law and fact about the Biden administration’s massive (and illegal) exploitation of DHS’s limited “parole” authority. The first — and likely most important — error has to do with its egregious undercount of just how many aliens the administration has funneled into the country.
A Quick Taste. Winston Churchill is said to have once dismissed an undistinguished dessert, exclaiming, “Take away this pudding! It has no theme”. The CBS News article referenced above doesn’t suffer from that deficiency, and if you want a quick taste of its theme, read no further than the following paragraph:
The unprecedented use of the parole authority has allowed officials to divert migration away from the southern border by offering would-be migrants a legal and safe alternative to journeying to the U.S. with the help of smugglers and entering the country unlawfully. It has also given the administration a faster way to resettle refugees as it attempts to rebuild a resettlement system gutted by drastic Trump-era cuts.
The article is published under the category of “Politics”, but I’m unsure whether it’s reporting or opinion. One can, of course, write objectively about politics, but that reference to “Trump-era cuts” aside, there's nothing therein that touches on the U.S. electoral system at all — and little that is objective to an informed observer. Let me explain.
Congress’ Plenary Power Over Immigration. First, I’ll start with “the parole authority”, which my colleague, George Fishman, and I have written about extensively of late. To understand the illegality of Biden’s parole schemes, you must first understand where the immigration authority in this country rests.
Article I, sec. 8 of the U.S. Constitution states, in pertinent part: “The Congress shall have Power . . . [t]o establish an uniform Rule of Naturalization [and] [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”.
“Naturalization” is the process by which a foreign national in the United States—defined as an “alien” in section 101(a)(3) of the Immigration and Nationality Act (INA) — becomes a “citizen” (as defined by reference therein and in section 101(a)(22) of the INA). Inherent in Congress’ constitutional authority “to establish a uniform Rule of Naturalization”, therefore, is its power to regulate immigration.
As Congress itself explains: “Long-standing Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals (aliens, under governing statutes and case law) may enter or remain in the United States” (emphasis added).
My colleague Jon Feere has previously explained in-depth just how broad and exclusive Congress’s “plenary power” over immigration is, but two brief Supreme Court excerpts illustrate the point.
In its 1954 opinion in Galvan v. Press, the Court explained:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]
More recently (i.e., in my lifetime), the justices held in their 1972 opinion in Kleindienst v. Mandel that, “The Court without exception has sustained Congress' ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’” (Emphasis added.)
That’s a long way of saying that when it comes to allowing aliens to enter and remain in the United States, Congress makes the rules, and the executive is expected to carry them out.
In section 212(a) of the INA Congress listed the various categories of aliens who are inadmissible to the United States (known collectively as the “grounds of inadmissibility”), and in section 235 of the INA it set forth a protocol the executive must follow in determining whether arriving alien “applicants for admission” (including illegal entrants) fall within any of those categories.
The most prominent of those grounds — and the one most relevant to both the ongoing border disaster and the CBS News article — is section 212(a)(7)(A)(i) of the INA. It bars the admission of any alien “who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document”.
That section of the INA is also directly relevant to Congress’ plenary power over “the admission of aliens”, as well. That’s because, in title II, chapter 1 of the INA, the legislative branch has set tight limits on the number of immigrants the executive may admit to the United States annually.
“The Parole Authority”. All that said, Congress understood there may be extreme situations in which inadmissible aliens should be temporarily allowed to enter the United States. That brings me to the parole authority in section 212(d)(5)(A) of the INA; it states, in pertinent part, that the DHS secretary:
may . . . 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, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [DHS secretary] have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. [Emphasis added.]
Congress provided the executive branch that parole authority when it first enacted the INA in 1952. As Fishman has explained, however, Congress has increasingly restricted that authority in the intervening years as various administrations have abused parole to ignore Congress’ plenary power over immigration and exceed the limits it has set on the annual admission of immigrants.
You don’t have to trust Fishman about Congress’ intentions, however. The current language of the parole statute was included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and its 2011 opinion in Cruz-Miguel v. Holder, the Second Circuit described how IIRIRA amended the law and explained why Congress tightly cabined the executive’s parole power therein:
IIRIRA struck from section 212(d)(5)(A) of the INA] the phrase “for emergent reasons or for reasons deemed strictly in the public interest” as grounds for granting parole into the United States and inserted “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”. . . The legislative history indicates that this change was animated by concern that parole under [section 212(d)(5)(A) of the INA] was being used by the executive to circumvent congressionally established immigration policy. [Citations omitted.]
What CBS News extols as the Biden administration’s “unprecedented use of the parole authority” is, in the Second Circuit’s terms, just the latest (and more egregious) “circumvention of congressionally established immigration policy.” Note that this authority has been in the law for the past 71 years, and yet none of the 13 administrations since then (Truman through Trump) ever used parole as expansively as Biden, even when that statutory authority was much broader than it is now.
In that vein, when CBS News uses the word “unprecedented” to describe the administration’s expansion of parole, it’s a reference to a quote from Doris Meissner, President Clinton’s INS commissioner, who stated in connection with Biden’s current expansive use of the parole power: “At this scale, in this time period, it is unprecedented”.
She never tried to use the limited parole power to waive in hundreds of thousands of inadmissible aliens, likely because she knew the limited statutory language and respected Congress’ authority. In other words, I’m not certain she was using the word as a compliment.
“Urgent Humanitarian Reasons” and “Significant Public Benefit”. Turning back to the language of the statute, the Biden administration interprets the phrase “urgent humanitarian reasons” as unfettered license to allow any group of foreign nationals it views as arguably sympathetic (Afghans; Ukrainians; and Venezuelans, Nicaraguans, Haitians, and Cubans) into the United States at any level it sees fit, as the CBS News article reveals.
Similarly, the administration has concluded that the parole of any alien provides a “significant public benefit” if such action lightens DHS’s migrant detention load without stopping any alien from entering illegally.
Note that two different provisions of law (section 103(a)(5) of the INA and 8 U.S.C. § 1701 note) require the DHS secretary to prevent the unlawful entry of inadmissible aliens, and that paroling hundreds of thousands of them (as current DHS Secretary Alejandro Mayorkas has done) is a clear violation of those mandates, but CBS News either elides those provisions or is ignorant of them.
Those terms, however, have fixed meanings in the law, which every prior administration (including Ms. Meissner as INS commissioner) at least paid lip service to.
Again, as the Second Circuit recognized, Congress amended the parole statute in IIRIRA to curb the executive’s abuse of the parole authority, but by the INS’s own admission in 1982, even the old language was never meant to be interpreted expansively:
The legislative history of the parole provision shows a Congressional intent that parole be used in a restrictive manner. The drafters of the [INA] of 1952 gave as examples situations where parole was warranted in cases involving the need for immediate medical attention, witnesses, and aliens being brought into the United States for prosecution. ... In 1965, a Congressional committee stated that the parole provisions “were designed to allow the Attorney General to act only in emergent, individual, and isolated situations, such as in the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside the limit of the law. [Emphasis added.]
The CBS News article kind of acknowledges the fact that the Biden administration has gone rogue in its use of the parole power, but even then, the outlet is fairly cavalier about the legal and constitutional implications of the president’s actions:
Taken together, the immigration parole programs created by the Biden administration amount to the most significant expansion of legal immigration in three decades. And to the dismay of Republican critics, the administration has done so unilaterally, without explicit consent from Congress, which has not expanded legal immigration levels since 1990 amid decades of partisan gridlock. [Emphasis added.]
That makes the whole parole question sound like a partisan spat, in which both sides — Democrat and Republican, the president and Congress — may have their own view of whether immigration should be expanded, but the executive wins because it controls the reins. Of course, that’s the exact opposite of what the law says. In this debate, only one side does have the power, but it's Congress, not the executive whose side CBS News is openly championing.
That said, even playing along with CBS News’ assertions, imagine Sen. Joe Manchin (D-WV) is the next president, and concludes (1) the air has gotten much cleaner since Congress passed the Pollution Protection Act of 1990 (PPA); (2) “partisan gridlock” has stymied any loosing of the rules in the PPA since that date; (3) the tight restrictions in the PPA are killing the coal industry in his home state of West Virginia and elsewhere; and (4) that he is thus justified in telling the EPA not to enforce the law.
Congress doesn’t even “plenary power” over the environment (it’s not mentioned in the Constitution and wasn’t a major concern in the nascent Republic), but would CBS News honestly treat President Manchin’s blatant executive overreach with respect to the PPA with the same insouciance it treats President Biden’s much more blatant abuse of DHS’s parole authority? It’s a rhetorical question.
Or contrast that excerpt above with CBS News’ express contention that President Trump “gutted” the “refugee resettlement system”. In the real world, Trump did cut the number of refugees admitted into the United States annually compared to prior administrations, but by no definition “gutted it”.
In fact, in the first three years of the Trump administration (before the Covid-19 pandemic was declared in March 2020, shutting down almost all international travel) DHS admitted nearly 80,000 refugees.
It could reasonably be argued that the Trump administration should have admitted more refugees, but note that the 45th president acted in strict accordance with Congress’ delegation of its power to admit refugees in section 207 of the INA, which sets no floor on refugee admissions.
CBS News implicitly condones the administration’s flagrant abuse of its parole authority, suggesting Biden is just making up for the refugees who weren’t admitted under Trump.
Not only is that a transgression of Congress’ plenary power, but it’s explicitly barred under section 212(d)(5)(B) of the INA, which states that the DHS secretary “may not parole” a refugee unless he “determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee under” section 207 of the INA (emphasis added). At least the outlet could have mentioned that.
How Many Parolees? Try 1.4 Million. Which brings me to my last point, which CBS News’ significant undercounting of the aliens whom the Biden administration has paroled into the country.
The outlet reports the total number of Biden parolees is “more than 541,000”: 168,403 Venezuelans, Nicaraguans, Haitians and Cubans paroled under the VNHC parole program; 141,200 Ukrainians paroled under “Uniting for Ukraine”; 133,000 under what it describes as the “CBP One app” process; 77,000 Afghans paroled under what it terms the “Afghan resettlement effort”, and 22,000 Ukrainians who came under what CBS News labels the “Ukrainian border process”.
Setting aside the tens of thousands of Afghans the Biden administration allowed into the United States since the fall of Kabul, I note first that CBP’s Office of Field Operations (OFO, which runs the ports of entry) has encountered more than 178,000 Ukrainian nationals since October 2021 (more than 20,000 at the Southwest border ports in April 2022 alone), and to the best of my knowledge all of them were paroled or otherwise released into the United States.
The “CBP One app process” apparently refers to a program the Biden administration has been running since January 12, to allow would-be illegal migrants to preschedule their illegal entries to the United States using the CBP One app (which at that point was only available to legitimate travelers), which I have termed the “CBP One app port interview scheme”.
Plainly the outlet’s government sources are better than the American people’s, because up to this point DHS has refused to say how many aliens were being paroled at the ports of entry under that scheme.
That total figure doesn’t, however, count the more than 123,000 aliens OFO paroled at the Southwest border ports under an ad hoc precursor to the CBP One app port interview scheme, which enabled NGOs to bring would-be migrants who would otherwise have been expelled under Title 42 through the ports under what was called the “NGO-supported humanitarian exception process”.
That process, and the numbers I cite, came to light thanks to a state challenge to the administration’s attempt to end Title 42 in CDC v. Louisiana.
That said, the number of aliens paroled under the VNHC parole program sounds right.
All of these discrepancies, however, are small beer compared to CBS News’ exclusion of more than 896,000 other migrants from its calculations of Biden administration parolees. That exclusion is notable because all of that figure is publicly available — if you know where to look.
For example, CBP’s Custody and Transfer Statistics FY2022 web page reveals that Border Patrol in FY 2022 paroled 378,000-plus illegal entrants at the Southwest border into the United States in FY 2022 under the agency’s “Parole+ATD” program before it was shut down by court order in Florida v. U.S. in March 2023.
CBP’s FY 2023 year-to-date stats show that this trend continued into this fiscal year, with Southwest border agents paroling more than 304,000 illegal entrants since October 1. Together, that’s more than 681,000 parolees than CBS News included in its figures.
But, the numbers don’t stop there. Court-ordered DHS disclosures in Texas v. Biden reveal that between Biden’s inauguration and September 30, 2021 at the Southwest border, Border Patrol agents paroled more than 35,000 illegal entrants into the country, CBP officers at the ports paroled an additional 40,000-plus aliens, and ICE paroled nearly 32,000 more who had originally been encountered by CBP there — almost 108,000 in just over seven months.
In FY 2022, between October 2021 and June 2022 (when the court-ordered disclosures in Texas stopped), the Biden administration admitted that OFO officers paroled just short of 88,600 aliens they encountered at the Southwest border ports, and you can add more than 40,000 aliens encountered by CBP at that border who were paroled by ICE in that time-period, as well.
More than 48,000 of those OFO paroles occurred in April 2022, when, again, more than 20,000 Ukrainian nationals were stopped at the Southwest border ports, so as to avoid over-counting with the CBS News totals, I will omit them from my calculations.
That’s still more than 896,000 aliens who were paroled into the United States but not included in CBS News’ valuation of the administration’s “unprecedented” use of its statutorily limited parole authority. Including the “at least 541,000” others whose paroles the outlet did tabulate brings the number of aliens paroled into the United States by Joe Biden under section 212(d)(5)(A) of the INA to 1.437 million-plus.
To put it into perspective, 1.437 million parolees is more people than live in Hawaii, the 40th largest state, or greater than the population of Dallas, America’s ninth largest city. Congress never acquiesced to the administration adding a brand new city- or state-sized population to the country using DHS’s tightly limited parole authority. That’s not “unprecedented” — it’s a naked and unconstitutional power grab.