The senate’s passage of S.744 last year was a major step in a movement toward comprehensive immigration reform. However, there has since been little to no momentum in congress toward a broad reform – a posture that has become sadly familiar to reform advocates since the last major attempt at an overhaul in 2007. We applaud the administrative steps the Obama administration has taken in the face of congressional inaction, having seen first-hand how our clients and their families benefit from programs like DACA. We also support recent proposals put forth by advocates and legal service providers outlining additional administrative options available to the administration, such as an expanded deferred action program and more specific guidance limiting removals. It is our hope that President Obama and the Department of Homeland Security (“DHS”) pursue reform of our ill-functioning immigration system on as many fronts as possible. The potential avenues for administrative action are diverse and would benefit varied segments of the immigrant population. As direct legal service providers, it is our recommendation that the administration move to provide permanent relief to upwards of 1 million currently undocumented immigrants with strong family and community ties in the United States by extending the use of an under-employed administrative mechanism commonly referred to as “parole in place.” The Obama administration has already used its discretion to promote family unity for these individuals by offering a provisional waiver for their unlawful presence, allowing them to remain in the U.S. for a portion of the process that previously had to be done abroad. This change has proven advantageous for a select few; however, due to the requirement to return to one’s country of origin in order to complete the process many otherwise eligible individuals have not applied – often due to lack of resources or fear of persecution (based on sexual orientation, political beliefs, et cetera).
Alternatively, a discretionary grant of parole in place to individuals who are currently present in the United States and have a United States citizen immediate relative (a spouse of a U.S. citizen, a parent of a U.S. citizen child who is over the age of 21, or an unmarried minor (under 21 years of age) child of a U.S. citizen) would allow a multitude of immigrants who entered the country without inspection, but who have an otherwise clean record and strong family and community ties in the U.S. to proceed towards a more permanent and sustainable life here without leaving the country first. The benefits of parole in place, to be described in greater detail below, are myriad: (1) it is a tool already at the disposal of immigration authorities and therefore requires no legislative action; (2) it is politically viable, in that it could not be classified as “amnesty” as it can be limited in use to only the most deserving of immigrant groups and does not in itself confer any new status upon those who would benefit from it; (3) it would come at little to no financial or administrative cost to the Federal government, and in fact would allow those immigrants who benefit from the program to contribute more significantly to the national economy as lawful permanent residents; and (4) it would foster greater family unity amongst immigrant groups and address aspects of current immigration laws which create enormous hardships for those implicated by them.
As noted, parole in place is a policy which the United States Citizenship and Immigration Services (“USCIS”) has already established as a means to address issues of inadmissibility. A November 13, 2013 Policy Memorandum (hereinafter “parole in place memo”) published by USCIS addresses parole for “aliens who are present without admission or parole and who are spouses, children, and parents of those” serving, or who have served, in the U.S. Armed Forces – however, its guidance is duly applicable to immigrants who do not fit this narrow definition.
In discussing the source of the parole in place doctrine and how it is used in practice the memo relates:
INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.” Parole in Place Memo at 2.
The memo goes on to note that “[t]he basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.” INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”” Id.
As detailed in the memo, parole in place is rooted in clear statutory language and creates a situation where an individual who is already physically present in the U.S. is subsequently “paroled” into the U.S. For those who entered the U.S. without inspection, this parole would supersede their initial entry, thereby making them admissible and eligible to obtain a green card through an immediate relative. However, other bases of inadmissibility, such as criminal or security-related grounds, would not be automatically waived by the parole. Further, the granting of adjustment of status is discretionary and that discretion would not be altered by the parole.
With this legal framework already in place, we urge USCIS to expand parole in place and to use its inherent powers of prosecutorial discretion to parole individuals (1) who are physically present in the United States on the date of publication/enactment; (2) who on the date of publication/enactment have a provable relationship to a United States citizen immediate relative; and (3) who merit a favorable exercise of discretion. In so doing, they would advance their long championed goal of promoting family unity, which when combined with other humanitarian, economic, and political ramifications, would certainly create a “significant public benefit.”
While we would encourage the adoption of a parole in place policy which adheres to the parameters we have set forth above, the policy may be applicable to as large or as narrow a group as USCIS sees fit. Flexibility in implementation is just one of many benefits that make this relatively simple administrative fix not only politically viable, but also politically beneficial to the administration and any legislators who may champion it. As mentioned before, as a matter left to the discretion of DHS, parole in place would require no legislative or administrative action to amend or in any way modify current law or regulations; thus avoiding the pitfalls of broader “amnesty” or legalization efforts, which often raise the ire of conservative interest groups. Also noteworthy, parole in place applications could very well be adjudicated using the process and form already utilized to seek parole of other stripes (USCIS Form I-131), which would cover the adherent implementation and adjudication costs incurred by the program. Further, by allowing now undocumented immigrants to legalize their status, the national economy would benefit from increased tax revenue and other financial stimuli that others have already documented in far greater detail. Finally, the human costs of our current system, as it relates to those who entered without inspection, are immeasurable. Families are torn apart as, under current law, family members of U.S. citizens seeking to become green card holders must leave the United States and have their applications adjudicated through U.S. consulates in their country of origin, leading to great financial and emotional strain for those who make the journey, or often a choice to forego these risks and accept the struggles of being undocumented to keep one’s family intact. As a nation of immigrants, our citizenry deserves better than to be forced into such impossible decisions.
“What stops one branch of government from becoming too powerful?” a question from the current naturalization exam asks, with one of the accepted responses being “checks and balances.” It is clear that congressional action is needed to update and repair our immigration laws. But, while congressmen calculate the political ramifications of comprehensive reform, those of us who work with immigrants and their families on a daily basis see the human cost of inaction that at times seems to be missing from our representatives’ calculus. It is our hope that with those people in mind, along with concern for the strength and character of our nation, this administration moves swiftly to check congress by embracing administrative action such as parole in place.
 See Center for American Progress, Robert Lynch and Patrick Oakford, “The Economic Effects of Granting Legal Status and Citizenship to Undocumented Immigrants, March 20, 2013, available at http://www.americanprogress.org/wp-content/uploads/2013/03/EconomicEffectsCitizenship-1.pdf.