Meredith Gillespie
Introduction
On March 8, 2024, Judge Drew B. Tipton of the United States District Court for the Southern District of Texas dismissed a lawsuit brought by twenty-one states[1] arguing that the CHNV Parole Program (“CHNV Program”) should be repealed.[2] The CHNV Program, established in January 2023, allows individuals from Cuba, Haiti, Nicaragua and Venezuela (“CHNV nationals”) to enter the United States for a temporary period of two years.[3]
Plaintiffs’ complaint was “based on allegations that the CHNV processes were likely to increase the number of CHNV nationals in the State and thus increase the State’s costs.”[4] Judge Tipton dismissed the complaint, concluding that plaintiffs lacked standing because they had not suffered any harm under the CHNV Program.[5] Specifically, the trial record indicated that “the number of CHNV nationals entering the United States since the CHNV Program’s implementation . . . dramatically decreased by as much as 44 percent.”[6] Therefore, there was no evidence to suggest that plaintiffs were burdened financially or logistically as a result of the CHNV Program.
This challenge by largely conservative states is emblematic of the greater controversy surrounding the use of humanitarian parole, a program established by federal statute that allows noncitizens to enter or stay in the U.S. for a temporary period without formal admission. Opponents of the CHNV Program allege that this system is unprecedented and an abuse of power by the Executive. However, despite the controversy that surrounds the CHNV Program, it is consistent with federal statute and acts as a key tool in addressing the ever-growing border and immigration crises affecting the U.S.
What is Humanitarian Parole?
Humanitarian parole, implemented in 1952, allows noncitizens to enter or remain on U.S. soil without formal admission “for urgent humanitarian reasons or significant public benefit,” according to the Immigration and Nationality Act (INA).[7]
Humanitarian parole is distinct from other programs, such as asylum, because it does not provide a route to any lawful status.[8] Humanitarian parole programs also may be withdrawn at any time at the discretion of the new presidential administration, requiring parolees to return to their country of origin.[9] Further, parole is not conferrable to parolees’ immediate family members[10] and is not available to noncitizen refugees without a compelling reason.[11]
One of the most recent iterations of humanitarian parole is the CHNV Program. President Biden created this program to provide a way for CHNV migrants to enter the U.S. lawfully, rather than entering illegally by other means.[12] As of January 2024, more than 357,000 people have been granted parole under the CHNV Program.[13]
The CHNV Program has specific requirements and features in addition to those instituted by federal statute. Notably, only those who have a U.S. sponsor and are able to pass a background check before coming to the U.S. are eligible.[14] Additionally, those who have crossed without authorization into Panama, Mexico, or the United States after the announcement of the CHNV Program, as well as Cubans and Haitians interdicted at sea while attempting to cross the Caribbean to the U.S. without authorization, are ineligible.[15]
Finally, the CHNV Program only allows for a maximum of 30,000 noncitizens each month to seek parole.[16] Mirroring this statutory cap, the Mexican government has agreed to accept up to 30,000 CHNV migrants who do not use the CHNV Program or attempt to enter the U.S. without authorization each month.[17]
Historical Use of Humanitarian Parole
The CHNV is far from the first humanitarian parole program implemented by the Executive Branch. In fact, humanitarian parole has been used by every president in U.S. history except for former President Trump.[18] Historical examples of humanitarian parole point to the effectiveness of such programs and how critical they can be in addressing global conflict.
Humanitarian parole provisions were first used in a significant way in 1956 by President Eisenhower. In this program, called “Operation Safe Haven,” Eisenhower paroled over 30,000 Hungarians fleeing the Hungarian Revolution.[19] Later, between 1965 and 1973, the Johnson administration implemented a program in which it paroled over 280,000 Cubans in daily “Freedom Flights” from Cuba to Miami.[20]
Not long after, following the U.S. evacuation from Vietnam following the Vietnam War in 1975, President Gerald R. Ford implemented “Operation New Life,” which allowed for the parole of over 130,000 Vietnamese nationals.[21] And in 1996, President Bill Clinton implemented a program where over 6,500 Iraqi Kurds were airlifted to Guam and granted parole.[22]
These examples, and over 100 others,[23] show the consistent use of humanitarian parole since its inception.
Humanitarian Parole during the President Biden Administration
Biden has used humanitarian parole more than any other president.[24] This wide use of humanitarian parole, though seen as highly controversial, is a direct response to global conflict and growing rates of migration.
The Biden administration’s first major humanitarian parole program was unveiled in August of 2021, when it paroled the Afghans evacuated from Kabul during America’s exit from Afghanistan.[25] Approximately 80,000 Afghans[26] entered the U.S. under this program and have recently become eligible for re-parole at the end of the two-year parole period.[27] Later, in April 2022, President Biden extended parole to 166,000 Ukrainians fleeing the Russian invasion.[28]
The CHNV Program is the most recent, and most controversial, program of President Biden’s tenure. This is due to the unique nature of its mission – to assist in lawful admissions of Central and South Americans who are victims of ongoing, systemic conflict, as opposed to a specific catalytic event.
However, compared to historical humanitarian parole programs, the CHNV Program uses the powers afforded to the Executive branch much more conservatively. It does so by imposing significant limitations on eligibility, establishing statutory caps, and instituting a policy to expel the same amount of CHNV individuals each month.[29]
Despite the controversy and limitations of the CHNV Program, it has been largely successful. The U.S. Department of Homeland Security views the CHNV Program as a “tremendous success,” indicating that between October 2022 and June 2023, it “has adjudicated 194,683 applications” with “an approval rate of 97.5 percent.”[30] Secretary of Homeland Security Alejandro Mayorkas noted in a statement provided soon after Judge Tipton’s Order that the CHNV Program was “a safe and orderly way to reach the United States” and “a key element of our efforts to address the unprecedented level of migration throughout our hemisphere . . . .”[31]
The Future of Humanitarian Parole
Humanitarian parole is a flexible tool for the executive branch to admit noncitizens fleeing global conflict and turmoil. Moving forward, it will continue to act as a critical tool in addressing the ever-growing immigration crisis in the U.S. as a result of such conflict.
As the 2024 presidential election looms, the state of the CHNV Program only grows more precarious. However, a distinction must be drawn between the existence of political polarization and illegality. Though the CHNV Program may spark controversy, it is nonetheless authorized by federal statute and has now been upheld by the federal judiciary. Therefore, it is within the discretion of the Executive Branch to institute–as well as repeal–such programs as it deems fit.
[1] See Texas v. United States Dep’t of Homeland Sec., No. 6:23-CV-00007, 2024 WL 1021068, at *3 (S.D. Tex. Mar. 8, 2024) (“Plaintiffs in this suit are a group of twenty-one states—Texas, Alabama, Alaska, Arkansas, Florida, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming.”).
[2] Id. at *1.
[3] District Court in Texas Allows CHNV Parole Program to Continue, Immigr. Impact (Mar. 15, 2024), https://immigrationimpact.com/2024/03/15/district-court-cuba-haiti-nicaragua-venezuela-parole-program/.
[4] Texas v. United States Dep’t of Homeland Sec., 2024 WL 1021068, at *13 (quoting Defendant’s Post-Trial Brief, Texas v. Dep’t of Homeland Sec., No. 6:23-CV-00007, 2024 WL 1021068 (S.D. Tex. Sept. 29, 2023)).
[5] Id.
[6] Id. at *1 (emphasis added).
[7] See INA § 212(d)(5)(A) (“The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien . . . .”). See also The Biden Administration’s Humanitarian Parole Program for Cubans, Haitians, Nicaraguans, and Venezuelans: An Overview, Am. Immigr. Council (Oct. 31, 2023), https://www.americanimmigrationcouncil.org/research/biden-administration%E2%80%99s-humanitarian-parole-program-cubans-haitians-nicaraguans-and.
[8] Explainer: Humanitarian Parole, Nat’l Immigr. Forum (Mar. 24, 2022), https://immigrationforum.org/article/explainer-humanitarian-parole/.
[9] INA § 212(d)(5)(A) (“[W]hen the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”).
[10] Nat’l Immigr. Forum, supra note 8.
[11] See INA § 212(d)(5)(B) (“The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee . . . .”).
[12] Am. Immigr. Council, supra note 7.
[13] Juan A. Lozano, Program That Allows 30,000 Migrants from 4 Countries into the US Each Month Upheld by Judge, AP (Mar. 8, 2024), https://apnews.com/article/immigration-biden-haiti-cuba-nicaragua-venezuela-trial-fac9dc853231ba04ff0ea4e7442057ef.
[14] Am. Immigr. Council, supra note 7.
[15] DHS Notice: Implementation of a Change to the Parole Process for Haitians, 88 Fed. Reg. 26327 (Apr. 28, 2023); DHS Notice: Implementation of a Change to the Parole Process for Cubans, 88 Fed. Reg. 26329 (Apr. 28, 2023).
[16] Process for Cubans, Haitians, Nicaraguans, and Venezuelans, USCIS (last updated Apr. 1, 2024), https://www.uscis.gov/CHNV.
[17] DHS Continues to Prepare for End of Title 42; Announces New Border Enforcement Measures and Additional Safe and Orderly Processes, Dep’t of Homeland Sec. (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
[18] David J. Bier, Parole Sponsorship Is a Revolution in Immigration Policy, Cato Inst. (Sept. 18, 2023), https://www.cato.org/briefing-paper/parole-sponsorship-revolution-immigration-policy.
[19] See Operation Safe Haven: The Hungarian Refugee Crisis of 1956, USCIS (last updated Dec. 14, 2022), https://www.uscis.gov/about-us/our-history/stories-from-the-archives/operation-safe-haven-the-hungarian-refugee-crisis-of-1956.
[20] David J. Bier, 126 Parole Orders over 7 Decades: A Historical Review of Immigration Parole Orders, Cato Inst. (July 17, 2023), https://www.cato.org/blog/126-parole-orders-over-7-decades-historical-review-immigration-parole-orders.
[21] Nat’l Immigr. Forum, supra note 8.
[22] Bier, supra note 18.
[23] Bier, supra note 20.
[24] Muzaffar Chishti & Kathleen Bush-Joseph, In the Twilight Zone: Record Number of U.S. Immigrants Are in Limbo Statuses, Migration Pol’y Inst. (Aug. 2, 2023), https://www.migrationpolicy.org/article/twilight-immigration-status.
[25] Michelle Hackman, What Is Humanitarian Parole? How an Obscure Biden Immigration Policy Became So Controversial, WSJ (Mar. 11, 2024), https://www.wsj.com/politics/policy/humanitarian-parole-immigration-border-policy-controversy-eb4d63a9.
[26] Id.
[27] Re-Parole Process for Certain Afghans, USCIS (Oct. 27, 2023), https://www.uscis.gov/humanitarian/information-for-afghan-nationals/re-parole-process-for-certain-afghans.
[28] Maria Sacchetti, Explaining Immigration Parole, One Sticking Point in Ukraine Aid-Border Deal, Wash. Post (Jan. 25, 2024), https://www.washingtonpost.com/immigration/2024/01/25/immigration-parole-border-deal-ukraine-aid/. See also Muzzafar Chishti, Kathleen Bush-Joseph & Colleen Putzel-Kavanaugh, Biden at the Three-Year Mark: The Most Active Immigration Presidency Yet is Mired in Border Crisis Narrative, Migration Pol’y Inst. (Jan. 19, 2024), https://www.migrationpolicy.org/article/biden-three-immigration-record (noting that 166,000 Ukrainians were paroled under Uniting for Ukraine).
[29] See Nat’l Immigr. Forum, supra note 8.
[30] Texas v. United States Dep’t of Homeland Sec.,2024 WL 1021068, at *2.
[31] Statement by Secretary Mayorkas on Federal Court Decision to Allow Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans to Continue, Dep’t of Homeland Sec. (Mar. 8, 2024), https://www.dhs.gov/news/2024/03/08/statement-secretary-mayorkas-federal-court-decision-allow-parole-processes-cubans.
