Immigration Document and Pen

The failure of the Senate bipartisan immigration bill in Spring 2024 coupled with the ongoing crisis at the nation’s southern border and a looming election may for interesting bedfellows in the run-up to the 2024 presidential election. After nearly 3 ½ years of giving only a modicum of attention to the immigration affairs of the country, the Biden Administration has entered the summer months of the election season intent on using presidential muscle where legislative action from the Congress has faltered. Only weeks ago, the President announced a resurrection of a Trump-era initiative to effectively limit the access to asylum for migrants seeking to enter the country at non-designated ports-of-entry. In short, those seeking to enter the country illegally and not at an authorized border crossing point would be turned away and deemed ineligible for asylum protection. However, he balanced this enforcement-forward announcement with a parole policy that may be a game-changer for those already present in the United States.

Biden’s about face (he pillared then-president Trump for almost identical policy) is likely driven by his team’s realization that immigration continues to be a political weakness for the President, while a rallying battle cry for conservatives. The waves of migrants coming to the US have caused Republicans and Democrats alike to recognize the untenableness of the status quo; moreover, the policy of simply allowing everyone to enter to have their claims for protection adjudicated by an under resourced Department of Homeland Security and court system look ridiculous. Migrants and practitioners alike know that the system is ridiculously backlogged and that the adjudication of an actual claim, legitimate or not, could easily take years if not decades to complete. Faced with an obvious political landmine, Mr. Biden’s action was somewhat predictable, although Republicans continue to pound him with the assertion that his move was “too little, too late”, given the crush of migrants that have been allowed in previously. Mr. Biden is also being criticized by his own party’s left flank, which seems to acknowledge the limits of the current broken system, but continues to insist on flooding it nonetheless.

However, the President focus on border enforcement is only half the story – the President also has announced a policy to grant Parole in Place (“PIP”) to those individuals who have been present in the United States without lawful status for a period of 10 years and are married to US citizens or parents of US citizens. Parole is an interesting policy concept – it allows an individual physical entry into the United States, while simultaneously keeping their immigration “soul” at the port-of-entry for further inspection and adjudication as to whether to let their whole being into the country. Parole is commonly used at ports-of-entry by CBP officers that are unable to adjudicate a claim for asylum – in instances were individuals come to an official port and make a viable claim for asylum, such individuals will be granted parole and permitted to enter the country to have their claim heard. If granted, such an individual will be “admitted” into the United States (i.e. their soul is allowed entry), thereby making them whole.

The uniqueness of Mr. Biden’s use of parole authority compared to Mr. Obama’s creation of DACA (Deferred Action for Childhood Arrivals) is that Mr. Biden’s authority is clearly authorized under the Immigration and Nationality Act. INA §212(d)(5) clearly grants the US Department of Homeland Security the ability to parole individuals into the United States. In fact, Parole in Place has been used by DHS for years to grant the parents, spouses and children of US military members parole into the United States. The benefit of doing so is that such paroled family members can then use that grant of parole to apply for permanent residency status. Those entering the United States illegally (also called without admission) are generally prohibited from applying for green cards or nonimmigrant status with few exceptions (asylum, VAWA, U visas, etc.); a grant of parole constitutes a legal recognition of an individual to be in the United States under some color of law, which could help pave the way towards a green card for an estimated 500,000 individuals. If successful, the grant of PIP could be the largest executive action granting immigration benefits since Mr. Obama’s aforementioned DACA rollout over a decade ago.

Critics will likely point to Mr. Biden’s convenient rollout of such an executive action merely months before the election as a cynical ploy to attract the Hispanic vote. While such criticism may be valid (Mr. Biden could have meaningfully rolled this out last year), the likelihood of litigation looms as a threat to the policy’s actual implementation. Mr. Obama unsuccessfully tried to implement a Deferred Action for Parental Arrivals, also known as DAPA, which was successfully challenged by a number of Republican-led Attorneys General, and stopped in the courts. Given the obvious political stakes involved, another challenge is almost a foregone conclusion. Although Mr. Biden’s move may cynically be seen as an obvious political move, even if this is the case, it may prove political deft: if successful, Mr. Biden will have delivered on a major program with a genuine impact on the lives of hundreds of thousands of individuals; if enjoined in the courts, Mr. Biden can at least point to his attempts to enact change and juxtapose that against Republican intransigence. The failure of the bipartisan Senate bill may also provide Mr. Biden some cover – if Congress was willing to tackle the issue, he would not have to act. However, since Congress has repeated failed to pass any meaningful legislation to surge resources to the border, while also addressing the status of those individuals in the United States, Mr. Biden can champion the his idea as someone who gets things done.

Mr. Biden’s likely opponent, Donald Trump, has made immigration a centerpiece of his political identity, running and winning the presidency on the promise to build a wall between the United States and its southern neighbors. Mr. Trump attempted to implement some controversial immigration-based policies while in office (Remain in Mexico, Muslim ban), but did have the aforethought to recognize immigration as a motivating issue for the American populace. The upcoming presidential debate will (hopefully) help to reframe the talking points around immigration as a policy topic. Mr. Trump has indicated that if elected to a second term, he may seek policies aimed at deporting those unlawfully in the United States. While he has conveniently failed to provide any specifics on how such a policy would be implemented, the likelihood is that doing so would likely be politically and practically impossible. Despite the perception of the US government as an all-powerful entity, the government’s ability to identify and physically capture millions of individuals would be Herculean in nature. When coupled with the likely legal challenges that would be met almost immediately by opponents, obvious funding shortfalls and likely public backlash, Mr. Trump’s talk about immigration policy may garner more headlines than his achievements.

Regardless, the recent announcements promise to keep immigration law in the nation’s headlines for months to come, which will undoubtedly make the summer months busy for immigrants, practitioners and commentators alike. While meaningful legislation remains elusive, the President’s attempts on moving the conversation forward, regardless of motivation, holds the promise of delivering actual results to members of our collective American community. While we may disagree as to whether such individuals deserve such benefits, Mr. Biden’s foray into the field may help to turn his fortunes come November.

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