DEL RIO, Texas—U.S. Border Patrol has started to use, on a mass scale, a special “parole” exception that was previously used sparingly to allow tens of thousands of illegal immigrants to stay in the United States for at least a year, The Epoch Times has learned.
Under parole status, illegal immigrants don’t have to provide Border Patrol with evidence of credible fear for asylum and are permitted entry without any preconditions, except a quick background check in the U.S. crime database.
A Customs and Border Protection spokesman said the parole designation allows for overwhelmed Border Patrol stations to process large numbers of illegal aliens “significantly faster” and release them into the country much faster than the more involved current system—which releases an illegal alien with a notice to appear that includes a court date for their first immigration hearing.
Parole should be a “very, very boutique thing,” said Andrew Arthur, resident fellow in law and policy at Center for Immigration Studies and a retired immigration judge.
“This is the exact opposite of what Congress said. This is a misuse and abuse of that immigration authority that borders on malfeasance,” he said.
Through the 1952 Immigration and Nationality Act (INA), Congress mandated that all inadmissible and illegal aliens be detained until their status is determined, after which they are either deported or granted entry with a legal status.
Parole is an exception and, although it’s not a legal status, it permits entry on “a case-by-case basis” for “urgent humanitarian reasons or significant public benefit,” according to the INA.
The status allows foreign nationals “who may not otherwise be admissible to the country under the immigration laws” to live and work in the United States temporarily “without being formally admitted to the country and without having a set pathway to a permanent immigration status,” according to a 2020 Congressional Research Service report.
Arthur said parole should be used, for example, when a family member needs entry into the United States to donate a kidney to his brother, or if a witness to a criminal case is needed to testify. As associate general counsel in the former federal immigration agency, he would see a handful of parole cases a year.
However, in the first seven months of this fiscal year, CBP has mass-released more than 120,600 illegal aliens under the new “Parole+ATD” category. ATD is an Alternatives to Detention program, which is acting as a workaround of the legal requirement to detain illegal aliens.
Under ATD, Immigration and Customs Enforcement (ICE) issues the illegal alien a trackable cell phone (or sometimes an ankle bracelet) that he or she can use to check in with the agency on a regular basis.
The CBP spokesman told The Epoch Times that overwhelmed Border Patrol stations are shifting to processing more illegal aliens as parolees.
“It’s more a functionality of the processing conditions at the location where they are giving out the parole-ATD,” he said.
“It’s a functionality of: How do we deal with the people that we’re encountering and how do we keep our population low for people that we cannot Title 42 back to Mexico? That’s the underlying issue.”
The spokesman said, aside from discovering a criminal record, whether an illegal alien is paroled depends on whether detention or transport space is available, the demographic of the person, as well as if the agent thinks the person is likely to abscond.
CBP didn’t provide historical data on parole numbers, or information on the nationalities of current parolees. A Border Patrol agent in Texas told The Epoch Times, on condition of anonymity, that his station is paroling Venezuelans, Cubans, and Nicaraguans.
Border Patrol agents are currently apprehending more than 7,000 illegal aliens on average per day along the southern border, and the Department of Homeland Security has warned agents to expect up to 18,000 per day in the coming months.
Failure to Show Up
The use of the parole category replaces the notice to report, which wasn’t a legal designation, but an ad hoc designation used heavily last year as Border Patrol stations were overwhelmed. The notice to report was a request to illegal aliens to report to their nearest ICE office within 60 days.
More than 104,000 notices to report were issued in the five months between the end of March and the end of October in 2021. Of those, 47,705 individuals failed to report to ICE by January this year, according to official data received by Sen. Ron Johnson (R-Wis.).
“It was an honor system [and] we got beat over the head with that. So they went back and they looked at the Title 8 law,” a CBP spokesman told The Epoch Times.
“One thing you can do is you can parole somebody who is coming into the United States as an arriving alien, and you can parole them for a year, so that they can take care of whatever humanitarian issue or whatever issue that they have to deal with.”
Parole status effectively kicks the can down the road to ICE, which issues a notice to appear once the illegal alien reports to the agency.
“The thing about parole is it gives them that year to go in and get that done,” the spokesman said.
If no contact is made, at the end of that year, the alien would revert back to the status he or she had upon arriving as an illegal alien and would be removable, he said.
Almost one-third of parolees released between July and December last year have failed to show up to ICE, according to Homeland Security data received by Rep. Chip Roy (R-Texas).
“Mayorkas’s DHS has refused to detain migrants—as required by law—has failed to remove innumerable people who have no right to be here, and are abusing their parole authority to continue to release tens of thousands of migrants,” Roy told The Epoch Times on May 4.
ICE’s stated priorities are such that field agents, when considering an illegal alien for removal, must obtain permission from supervisors, as well as weigh up if the individual “might be suffering from serious physical or mental illness,” or if they have ties to the community, or family members in the United States.
The agency’s available detention space for illegal immigrants has decreased in recent years, going from 51,379 detention beds in 2018 to 30,000 currently. President Joe Biden’s fiscal year 2023 budget asks for Congress to shave a further 5,000 detention beds in ICE facilities, as well as eliminate all 2,500 family beds.
Risks of Mass Parole
Arthur said the mass use of the parole designation is “a huge vulnerability.”
“The likelihood that you are going to release somebody who poses a danger to national security is extremely high. The risk that you are releasing somebody who poses a danger to the community is extremely high,” he said.
“You can run their [fingerprints], but are you going to run their criminal record in San Pedro Sula [in Honduras]? Are you going to be able to run their activities in Yemen? The vetting is only as good as the intel, and the intel isn’t that good.
“But here’s the biggest issue. This becomes a vicious circle. Because the more people who come in, the more overwhelmed you are, the more that you release, the more people are going to come in.”
During April, Border Patrol agents released more than 40,000 illegal aliens as parolees and an additional 21,769 with a notice to appear, according to CBP statistics. That’s 15,000 more parolees released than in March and the first month the parolee number has exceeded the number of those who received a notice to appear.
An amendment published in the Federal Register that will go into effect on May 31 argues the case for parole when detention space is lacking.
“Individuals placed in expedited removal proceedings would be eligible for consideration for parole from custody in accordance with section 212(d)(5) of the Act, if DHS determined, in the exercise of its discretion and on a case-by-case basis, that parole is warranted because, inter alia, detention is unavailable or impracticable (including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities),” the rule states.
Arthur said that interpretation isn’t how Congress intended parole to be used.
“You’re basically allowing the population to drive how you apply the law. That’s not how it works. The law determines how you handle the population,” he said.
The Trump administration used parole as a stop-gap measure before the “Remain in Mexico” program was implemented in January 2019, which then acted as a solution to the lack of detention space.
Remain in Mexico, or the Migration Protection Protocols, allowed for DHS to send illegal immigrants back to Mexico to await their immigration court proceedings—after which they’d either be denied entry or granted legal status in the United States. About 70,000 illegal immigrants had been enrolled in the program by the end of 2020.
Biden paused new enrollments in the program when he took office and, in June 2021, his administration axed the program altogether, despite being sued by Texas and Missouri in April 2021 to keep it in place.
The states argued that the program can’t be rescinded because it’s the only solution that meets the congressional requirement that illegal aliens must be detained until their cases are resolved.
The Supreme Court ruled in August 2021 that the program must continue, at least until the justices make a final ruling. In its deliberations, which began in April this year, the high court is addressing the mandatory detention aspect of immigration law, which may also ultimately determine if mass parole can continue.
Since November 2021, when the administration was forced to resume enrollments, 1,795 illegal aliens have been sent back to Mexico to await their cases, according to CBP data. The DHS has remained vocal about its intention to ultimately end Remain in Mexico.