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Washington, D.C. (December 20, 2023) – The Biden administration has used a narrow regulatory exception to parole 1.4 million aliens—none of whom had a right to be admitted into the United States. A Center for Immigration Studies analysis explains how the then-INS quickly issued that regulation, 8 C.F.R. § 212.5, over a two-week period in 1982 “under protest” in response to a district court order, and how that order continues to shape Biden’s release policies. That regulatory authority—and Biden’s parole policies—are at the heart of ongoing Senate border negotiations.
Andrew Arthur, the Center’s fellow in law and policy, highlights the origins and subsequent invalidation of this regulation stemming from Louis v. Nelson, a case stemming from Reagan administration policy changes INS applied to Haitian migrants who had arrived in Florida by boat.
He emphasizes that this regulation is no longer valid, as amendments to the parole statute in 1996 rendered it ultra vires when the statutory language upon which it was based was rescinded and revoked. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) restricted the executive’s authority to parole aliens, allowing DHS to parole aliens only on a case-by-case basis and even then, only for “urgent humanitarian reasons” or “significant public benefit”.
Congress is presently debating whether it should again amend that statute, section 212(d)(5)(A) of the INA, again to curb the administration’s abuses of its parole authority. Arthur argues that “legislative action is not necessary; rather, all Congress needs to do is require DHS to do what it should have done prior to” the effective date of IIRIRA, April 1, 1997: “amend its now-invalid parole regulation, which was issued in a slapdash manner under court order during two short weeks in July 1982. It is time for the DHS to rectify this oversight and bring parole decisions in line with current statutory provisions.”
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