The Wall Street Journal earlier this week reported that the White House is mulling a plan to amnesty up to 1.1 million alien spouses of U.S. citizens through a maneuver called “parole in place”. If President Biden is successful — and wins reelection — expect the administration to do something similar with the 11-million-plus other aliens unlawfully in the United States. Don’t say I didn’t warn you already about this — because I did, back in 2019, when the seeds for this scheme were planted.
“Biden Weighs Giving Legal Status to Immigrant Spouses of U.S. Citizens”. The article is headlined “Biden Weighs Giving Legal Status to Immigrant Spouses of U.S. Citizens”, and it begins with a human-interest story about a U.S. citizen named Allyson Batista, who’s been married for two decades to an alien here illegally. The couple, we are told, are now the parents of three children and run a “successful construction business in Philadelphia”.
The story then turns dark and ominous, with the couple fearing that the husband will be removed from the country before he can “see his children become adults”.
I’m sympathetic to their plight, which is likely why the reporter opened with this tale. But, as a lawyer who started practicing immigration law a decade before the couple married, I know that the odds of the husband being deported in his or his children’s lifetimes are somewhere approximating zero percent.
Note that the piece never identifies the husband, logically to ensure ICE won’t immediately open an investigation and send Homeland Security Investigations agents in flak jackets with guns drawn to the couple’s house at dawn, to whisk Mr. Batista away from his family and off to an awaiting plane.
That, of course, only happens in the movies. Even under the Obama and Trump administrations, no one would come looking for him, and under the restrictions on immigration enforcement that DHS Secretary Alejandro Mayorkas issued in September 2021, any ICE officer who even peered into this alien’s story would face a better chance of banishment than the husband himself would.
But that looming threat of separation from hearth, home, and construction business is a must if the reporter is to add any sense of urgency, let alone legitimacy, to the scheme it suggests the Biden administration is considering.
“Adjustment of Status”. The article goes along for a few thousand words like this, describing similar fears in what the reporter calls “mixed-status families”, the lobbying efforts Ms. Batista and others have engaged in to prod the administration to action, and the political calculations of such an action before it ever mentions what this amnesty entails or how it would work.
Then, toward the end, we get this:
The most popular idea inside the administration is to use an immigration tool known as “parole in place,” similar to the humanitarian parole the administration has used to admit hundreds of thousands of Afghan and Ukrainian refugees, along with migrants at the border who make appointments using a mobile app called CBP One.
Officials favor parole in place because a smaller version of the program already exists for undocumented spouses of military veterans.
Granting undocumented spouses parole in place would make many of them immediately eligible for work permits. Perhaps more significantly, it would clear the administrative cobwebs preventing spouses from being granted green cards, meaning the move could ultimately offer them a path to citizenship.
There’s a lot to unpack there, not least of which is that what the Journal describes as “administrative cobwebs preventing spouses from being granted green cards” is instead federal statute, passed by Congress and in place before the Batistas ever got married.
The statute in question is section 245 of the Immigration and Nationality Act (INA), which allows aliens to adjust their status to that of a lawful permanent resident (LPR) — that is, to receive a “green card”. So far, so good.
The problem for the Batistas and other “mixed-status couples” is that there are four conditions that adjustment applicants must meet to get those green cards under section 245 of the INA.
Two-and-one-half of those conditions shouldn’t pose much of an issue: The alien must file an adjustment application, the alien must be eligible to receive an immigrant visa, and that visa must be immediately available.
Allyson Batista, as a U.S. citizen, can seek a visa for her husband by filing a Form I-130, “Petition for Immediate Relative” on his behalf, and her husband can file a Form I-485, “Application to Register Permanent Residence or Adjust Status” to apply for the green card. If that were it, all they’d have to do is wait for the adjudication process. Except for two additional requirements.
The first is that in addition to being eligible to receive an immigrant visa, the husband must also be admissible to the United States, which he is not.
While the article never says that he entered illegally (only that he is here illegally), that’s certainly what the rest of the story suggests, and I’ll assume he crossed without permission for purposes of analysis.
If that is correct, as an alien who entered illegally 20 some years ago, he would be barred from admission under section 212(a)(9)(B) of the INA for 10 years even if he left today, and remaining illegally isn’t an option because he would already be inadmissible under section 212(a)(6)(A) as an illegal entrant.
“Parole in Place”. Which brings me to the second requirement. Adjustment of status is only available to aliens who have been either admitted to the United States or to aliens who have been paroled. Assuming the husband has never been admitted, that brings me to “parole in place”.
"Parole" under section 212(d)(5) of the INA is a tightly restricted authority Congress granted to DHS to allow aliens “applying for admission to the United States”, that is, seeking admission at a port of entry, into this country. I say, "tightly restricted" because, by its terms, it can be granted "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit".
Parole in place, however, is different from parole because it’s not just for aliens seeking to enter at a port of entry. In fact, up until 2019, it was an administrative quasi-amnesty divorced from statute that provided beneficiaries with no real benefit, aside from protection from removal.
The genesis for this Biden "parole in place" proposal can be found in a policy memorandum issued by USCIS in November 2013, captioned "Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)".
That policy memorandum, in turn, rested on legal determinations made by the general counsel of the former Immigration and Naturalization Service (INS) during the Clinton administration. The gist of all of these contortions of the INA is summarized in one sentence in the 2013 document: “An alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).”
NDAA 2020. Which leads me deep into the bowels of the 3,444 pages of S. 1790, the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020) to a curiously placed and carefully worded immigration provision, section 1758, which codified that Obama-era parole program. It reads:
PAROLE IN PLACE FOR MEMBERS OF THE ARMED FORCES AND CERTAIN MILITARY DEPENDENTS.
(a) IN GENERAL.—In evaluating a request from a covered individual for parole in place under section 212(d)(5) of the [INA] , the Secretary of Homeland Security shall consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit.
(b) SENSE OF CONGRESS.—It is the sense of Congress that—
(1) parole in place reinforces the objective of military family unity;
(2) except as required in furtherance of the missions of the Armed Forces, disruption to military family unity should be minimized in order to enhance military readiness and allow members of the Armed Forces to focus on the faithful execution of their military missions and objectives, with peace of mind regarding the well-being of their family members; and
(3) the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed.
(c) COVERED INDIVIDUAL DEFINED.—In this section, the term ''covered individual'' means an alien who—
(1) is a member of the Armed Forces;
(2) is the spouse, son, or daughter of a member of the Armed Forces;
(3) is the parent of a member of the Armed Forces who supports the request of such parent for parole in place; or
(4) is the widow, widower, parent, son, or daughter of a deceased member of the Armed Forces. [Emphasis added.]
That section grants protection to a very sympathetic group of individuals: alien members of the armed forces and the spouses, widows, widowers, parents, sons, and daughters of such aliens. It would be difficult to find any member of Congress or senator (or many in the American public at large) who is not grateful for the sacrifices of our men and women in uniform, and the sacrifices of their families.
In fact, as I asked at the time President Trump signed that bill in 2019, given how sympathetic this class of aliens is, why didn't Congress just grant them lawful immigration status and be done with it? And the conclusion that I came to was that the proponents of this provision were banking parole in place for some future amnesty, of the exact same sort the Journal describes.
You see, up until NDAA 2020, parole in place had no legislative sanction at all. Section 1758(a)(3), which “reaffirmed” the importance of DHS’s parole in place authority, really gave it the sort of statutory gloss advocates playing the long game would need. The Journal just reaffirms my cynicism.
Why was I so cynical to begin with? Because six months before that bill became law, in June 2019, then-Sen. Kamala Harris (D-Calif.) — who was running for the Democratic nomination against her future boss at the time — floated the idea of using parole in place as a way to grant amnesty to two million “Dreamers”, aliens brought here illegally as children.
In fact, after Biden named Harris as his running mate in August 2020, I posited that his reason for the choice was to implement just such a parole-in-place amnesty. And, it appears I may have been correct.
The Right Option. The Journal article indicates that there is more than a little politics behind this proposal:
Officials . . . view the idea as a potential antidote to rising tensions from within immigrant communities, particularly from many Mexicans and Central Americans who resent that large populations of newly arriving asylum seekers mostly from South America have been authorized to work legally through a range of administration efforts at the scale under discussion inside the White House.
It's quick to add: “Republicans have grown increasingly agitated by Biden’s use of administrative tools to offer more immigrants a quasi-legal status. They are also likely to oppose any effort.”
Notice how I didn’t say “It’s quick to add, however,” because there are likely many in the administration who view both courting “immigrant communities” though such a plan and spurring GOP backlash as a win-win, as it would create a wedge issue between Hispanic voters and Republican candidates.
That said, Republicans would likely have to oppose such a plan, because if it were successful, the Biden administration would have no reason to stop at aliens married to U.S. citizens. Some combination of Dreamers and illegal aliens married to LPRs would be next for parole in place, followed by illegal alien parents of U.S. citizen children, and so on, until only hard-core criminals remained without status.
If this is any more than simply a cynical election-year ploy, and if those “mixed-status” couples are as sympathetic as the Journal implies, the right option for the president would be the legal one, that is to propose a bill allowing long-term illegal alien spouses of U.S. citizens to apply for adjustment of status.
It would be a simple legislative fix because section 245(i) of the INA already waives the impediments to adjustment that I have described above. The problem is that section 245(i) sunset back during the turn of the millennium, but the fix could just move the dates therein forward.
If the president were to propose a “section 245(i) fix”, however, congressional Republicans would likely oppose it, as the Journal suggests they would oppose the likely Biden amnesty plan. That would mean the White House would have to agree to major immigration reforms to garner GOP support.
The problem is that regardless of what Biden himself may claim, his administration opposes legislative reforms that actually prevent aliens from entering the United States illegally.
The so-called “bipartisan” Senate bill that quickly died in February would simply have codified the very Biden policies that have brought chaos to the Southwest border — it wouldn’t have fixed anything, and the GOP-supported H.R. 2 (which passed the House and would be effective) is such a non-starter for this White House that it’s not even an afterthought.
Not that I am proposing or would even support such a plan, but: If the president really cares about the plight of U.S. citizens married to unauthorized aliens, he should address it with Congress, not through an administrative amnesty of questionable legality. That said, remember I told you this all was coming — back in 2019.