Statutes of Liberty: Parole, expedited removal — the new Biden strategy at the border

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The Biden Administration’s new policy sends mixed messages to migrants

All Presidential administrations struggle with unauthorized migration, and the Biden Administration is no exception.

The Biden administration has taken a new approach to stymie immigration via the southern border. This approach uses the classic “carrot and stick” to discouraging border crossers. The “stick” is increasing the use of Expedited Removal to discourage illegal border-crossing.

The “carrot” is increasing the use of Advance Parole to encourage migrants to choose legal pathways instead. In this explainer, we’ll provide some background on both of these aspects of the Biden Administration’s new approach.

The increased use of expedited removal — which some advocates have (in our view, correctly) described as reminiscent of Trump-era policy — is targeted at Cuban, Nicaraguan, and Haitian nationals, for now. Under plans announced this month, Mexico has agreed to accept up to 30,000 expelled migrants from those three countries, and any additional migrants from those three countries will be subject to expedited removal directly home.

Expedited removal allows the administration to deport migrants more quickly, because expedited removal proceedings — unlike ordinary removal proceedings — do not occur before an Immigration Judge; instead, a CBP or ICE officer typically issues an order of removal without a hearing.

What, then, are asylum seekers from Cuba, Haiti, and Nicaragua supposed to do? The Biden Administration’s answer is Parole.

Humanitarian parole is a longstanding tool in U.S. immigration law which has, traditionally, been used on a case-by-case basis to permit individuals to enter the United States for exceptional or emergent reasons, like emergency medical treatment.

Under the Biden administration, the use of parole has expanded — in a form reminiscent of Temporary Protected Status, or TPS — to embrace nationalities, rather than individuals.

The first program the Biden Administration announced was Uniting for Ukraine. That program allowed Ukrainians with a supporter in the United States to obtain parole, so that those approved under the program could come to the United States legally and work for two years. The primary purpose behind this program was to assist Ukrainians escape the Russian invasion.

More recently, the government announced a similar program for Venezuelans. Due to the long-term economic and political strife in Venezuela, many of its citizens have been fleeing to search for safety and security in the United States. Again, due to a major influx of Venezuelan nationals at the border, the government created a program like Uniting for Ukraine for Venezuelans.

As of January 6, 2023, the Biden Administration has opened similar programs for citizens of three more countries: Cuba, Haiti, and Nicaragua. Just like the other programs, the noncitizen wishing to come to the United States must have a supporter in the United States who is willing to provide financial support during the time period that the noncitizen is parole into the United States.

The person must also undergo robust security checks and warrant a favorable exercise of discretion. Like Ukrainians and Venezuelans, nationals from these countries who qualify will also be paroled into the United States for a period of two years and permitted to legally work during that time.

While one of the main goals of this program is to reduce immigration and unlawful entry at the southern border, another goal is to keep migrants safe. As Department of Homeland Security Secretary Alejandro Mayorkas stated, “We can provide humanitarian relief consistent with our values, cut out vicious smuggling organizations, and enforce our laws.”

We welcome the expansion of this program for Haitians, Cubans, and Nicaraguans, as those countries have been suffering from violence, political strife, and poverty for many years.

Although this is a poor substitute for comprehensive immigration reform, this is, for the time being, a step in the right direction. We look forward to helping our clients bring their loved ones here safely, even if it is for a short period of time.

As always, we welcome your comments and will do our best to respond.