The Past, Present, and Future of Humanitarian Parole

University of Chicago Legal Forum Volume 2023 Article 12 2024 The Past, Present, and Future of Humanitarian Parole Farooq Chaudhry Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Chaudhry, Farooq (2024) "The Past, Present, and Future of Humanitarian Parole," University of Chicago Legal Forum: Vol. 2023, Article 12. Available at: https://chicagounbound.uchicago.edu/uclf/vol2023/iss1/12 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . The Past, Present, and Future of Humanitarian Parole Farooq Chaudhry† ABSTRACT The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for medical care to the establishment of large-scale programs for entire groups of people. The creation and administration of large-scale parole programs have been the focus of recent lawsuits, placing critical questions on the meaning and scope of the provision before judges. This Comment aims to provide a historical overview of humanitarian parole and evaluate controversies and lawsuits challenging large-scale parole programs. Ultimately, it argues that large-scale parole programs play a crucial role in our immigration system, and their creation is a legitimate, legal use of the provision. It ends by making a recommendation on how to amend the parole statute to formally authorize large-scale programs. I. INTRODUCTION Humanitarian parole is a discretionary tool available under the Immigration and Nationality Act (“INA”)1 that allows certain individuals to temporarily enter the United States without an immigrant or nonimmigrant visa.2 Parole is a temporary status during which parolees are protected from deportation for the allotted timeframe of their parole.3 It does not confer a pathway to permanent status, though pa† B.A., University of Illinois at Chicago, 2018; J.D. Candidate, The University of Chicago Law School, 2024. My sincere gratitude and thanks to Professor Nicole Hallett for her support, feedback, and insights; Eliza Martin, Paige Petrashko, and the Legal Forum staff for their diligent work and help throughout the process; and my parents for their never-ending support. Alhamdulilah ‘ala kulli haal. 1 8 U.S.C. §§ 1101–1401. 2 Samantha Howland Zelaya, Explainer: Humanitarian Parole, NAT’L IMMIGR. F., (Mar. 24, 2022), https://immigrationforum.org/article/explainer-humanitarian-parole/ [https://perma.cc /3ENH-HUZM]. 3 Id. 307 308 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2023 rolees are permitted to apply for a work permit.4 The statute authorizing humanitarian parole grants the Attorney General power to use his or her “discretion” to “parole [people] into the United States temporarily under such conditions as [he or she] may prescribe only on a caseby-case basis for urgent humanitarian reasons or significant public benefit . . . .”5 Although the statute grants this authority to the Attorney General, Congress transferred the enforcement of immigration laws to the Secretary of the Department of Homeland Security (DHS) under the Homeland Security Act of 2002.6 Consequently, parole applications are now assessed by Humanitarian Affairs Branch officers7 in the U.S. Citizenship and Immigration Services (USCIS), which sits under the DHS.8 The statute establishing humanitarian parole is sparsely worded, but parole is used in a variety of contexts. While it is often used to allow individuals to enter the United States to visit sick family members, seek medical treatment, or allow a noncitizen to participate in a criminal or civil legal proceeding,9 it has also been used to establish special, large-scale parole programs in the aftermath of political or humanitarian crises in order to provide relief for people affected by those crises.10 Because these programs are authorized by either the Attorney General before 2002 or DHS thereafter, the programs are vulnerable to changes across presidential administrations based on each administration’s views on immigration and the scope of the provision.11 These different approaches to humanitarian parole have created instability in parole-based programs.12 As a result, people have raised litigation challenging the legality of certain parole-based pro- 4 Id. 8 U.S.C. § 1182. 6 Homeland Security Act of 2002, Pub. L. No. 107–296, § 402, 116 Stat. 2178 (2002) (codified and amended at 6 U.S.C. § 101). 7 U.S. CITIZENSHIP & IMMIGR. SERV., PAROLE PROCESSING (2022), https://www.uscis.gov/humanitarian/humanitarian-parole/parole-processing [https://perma.cc /KUP5-FW76]. 8 See U.S. CITIZENSHIP & IMMIGR. SERV., HUMANITARIAN OR SIGNIFICANT PUBLIC BENEFIT PAROLE FOR INDIVIDUALS OUTSIDE OF THE UNITED STATES (2022), https://www.uscis.gov /humanitarian/humanitarianpublicbenefitparoleindividualsoutsideUS [https://perma.cc/9ENDF285]. 9 Zelaya, supra note 2. 10 Id. In Operation Pacific Haven in 1996, parole was used to bring 6,600 people from Iraq; in Operation New Life in 1975, parole was used to bring approximately 130,000 people from Vietnam. 11 Fact Sheet: Central American Minors (CAM) Program, NAT’L IMMIGR. F., (Mar. 19, 2021), https://immigrationforum.org/article/fact-sheet-central-american-minors-cam-program/ [https: //perma.cc/3ZXU-ZZ3B]. 12 Id. 5 307] PAST, PRESENT, AND FUTURE OF HUMANITARIAN PAROLE 309 grams,13 the harm caused when parole programs are cancelled,14 and the harm caused when a program’s adjudication standards are abruptly changed.15 This Comment offers an overview of the history and development of humanitarian parole, recent parole programs either created by or ended under the Obama, Trump, and Biden administrations, and recent lawsuits challenging either the programs themselves or how they have been administered. It will conclude by putting forth a recommendation to amend the statute to expressly authorize the creation of large-scale humanitarian parole programs and provide guidance on how to operate them. Expressly authorizing large-scale parole programs will enable more stability in administering them across presidential administrations and will place challenges to the administration of these programs under the Administrative Procedure Act on equal footing. II. A. THE DEVELOPMENT, USAGE OF, AND CHALLENGES TO HUMANITARIAN PAROLE Historical Background and Development of Humanitarian Parole A statutory provision authorizing parole for humanitarian or public benefit purposes was a part of the original Immigration and Nationality Act of 1952 and has since been amended several times (...truncated)