The immigration provision in the Democrats’ reconciliation bill doesn’t make sense

House Democrats approved Rebuild better act, HR 5376, in November 19th, without a single Republican vote. Title VI of the bill would grant parole status to more than 7 million undocumented immigrants who have resided in the United States continuously for more than 10 years.

This is not a good idea.

First, it doesn’t make sense. Congress would be establishing a parole program that would grant a blanket concession of parole to undocumented aliens solely on the basis of the fact that they have resided illegally in the United States for more than a decade. And it would be doing this despite the fact that the statutory provision authorizing parole explicitly prohibits such blanket concessions.

Second, Congress knows, or should know, that the current administration could not handle such a large increase in applications for immigration benefits.

Third, it potentially endangers the immigrants themselves.

Restrictions on parole authority

Section 1182 (d) (5) of the Immigration and Nationality Act (INA) provides the Secretary of DHS with broad and discretionary authority to allow aliens who would not otherwise be admissible into the country under our immigration laws to enter and remain in the United States temporarily – parole.

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

The relevant part of the parole authority’s provision reads as follows:

“The Attorney General [or DHS Secretary] May …. parole to the United States temporarily under conditions that he may prescribe only case by case for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States…. (Emphasis added.).”

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

DHS offices in general they have interpreted “Humanitarian” probation in relation to urgent medical, family and related needs; and “significant public benefit” has generally been limited to the admission of persons of concern to law enforcement.

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

Former president Donald trumpTrump Organization executive does not expect to face charges, lawyer says Marjorie Taylor Greene introduces bill to award Congressional Gold Medal to Rittenhouse Drones are a strategic responsibility for the US MORE tried to end this practice. On Executive Order 13767, directed his DHS Secretary to “take appropriate steps to ensure that parole authority … is exercised only on a case-by-case basis in accordance with the plain language of the statute.”

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

The probation program

Probation program provisions of the bill can be found on pages H6456 and H6457 from the Congressional Registry of November 18; state that the Secretary of DHS will “grant” a blanket grant of parole status to undocumented aliens who have continuously resided in the United States since before January 1, 2011.

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

However, applicants are not eligible if they are inadmissible under paragraphs (2), (3), (6) (E), (8), (10) (A), (10) (C), or (10) (D) in section 1182 (a) of the INA.

During the period of probation, participants would receive an employment and travel authorization and would be deemed eligible for a driver’s license. The extensions would be available from the date the initial probation period expires until September 30, 2031.

Implementation is not feasible

USCIS would have to process the majority of the 7 million parole applications, and has not been able to keep up with the cases it is already receiving: 40 members of Congress recently wrote a letter to the Director of USCIS Ur Jaddou expressing concern about the accumulation of affirmative asylum, which in April 2021 had reached a record: almost 400,000 applications.

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

USCIS officials told GAO that competing priorities were helping agencies increase the number of cases. For example, an increase in the number of asylum seekers arriving at the southwestern border was increasing the number of credible scary exams USCIS must act, and prioritizing credible fear assessments was delaying USCIS efforts to process asylum applications and to Suspension of expulsion.

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

This would become a much bigger problem if 7 million parole applications were added to the USCIS case load. It is not realistic to expect USCIS to be able to process so many additional applications.

Frankly, I don’t think Democrats are serious about trying to establish this probation program. It will almost certainly be challenged in court, and the fact that it directly contradicts the plain language of the parole provision on which it is based does not bode well.

Even if it is upheld in court, the immigrants who participate have no guarantee that everything will not be disturbed if the Republicans take control of Congress. A Republican-controlled House will not fund implementation of the program, and a strong enough Republican majority could overcome Biden’s veto and rescind the provision.

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

Nolan rappaport He was inducted into the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration attorney for the Subcommittee on Immigration, Border Security, and Claims for four years. Before working on the Judicial Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog to

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