Biden Administration Opens Parole Pathway While Restricting Border Access

In January, the Biden administration announced a series of policy changes related to parole applications for individuals from Haiti, Cuba, Nicaragua, and Venezuela, allowing up to 30,000 individuals from all countries to obtain parole into the United States each month. The expansion of parole was coupled with an announcement that the Biden administration would expand Trump-era restrictions to rapidly expel migrants from those countries apprehended at the Southern Border. The move has been met with criticism by immigration advocates and legal action by conservative states hoping to block the program. According to USCIS, individuals from Cuba, Haiti, Nicaragua, and Venezuela may apply for parole to enter the United States in a “safe and orderly way.” The program will consider applications on a case-by-case basis for authorization to enter the United States and obtain a work permit for two years for “urgent humanitarian reasons or significant public benefit.”  USCIS notes that applicants must:

• Have a supporter in the United States;

• Undergo and clear robust security vetting;

• Meet other eligibility criteria and

• Warrant a favorable exercise of discretion.

The announcement comes as the Biden administration continues to double down on rhetoric designed to discourage migrants from journeying to the Southern Border and create what the administration claims are alternative and safer pathways. "This new process is orderly, it's safe, and it's humane," President Biden said in a speech at the White House. The President reiterated that the message he hoped to send to individuals from Cuba, Haiti, Venezuela, and Nicaragua is: "Do not just show up at the border."The program is the latest move in a saga that has placed the Biden administration in between Republicans who continuously file legal challenges to any move the administration makes on the immigration front and advocates who decry the Biden administration for failing to live up to its campaign promises to undo Trump era policies that undermine access to asylum and safety. 

Republican Opposition

The parole program has been met with opposition from Republican states, with twenty states, led by Texas, coming together to file suit to halt the program. In a press release, Texas Attorney General Ken Paxton’s office claimed the program "unlawfully creates a de facto pathway to citizenship for hundreds of thousands of aliens." The lawsuit is just the latest in a series of lawsuits filed by Republicans against the Biden administration designed to limit progressive immigration policies under the pretext that the arrival of migrants unfairly burdens border states. The suit has been dismissed by Democrats and immigrant rights advocates as a political stunt, with many pointing out that Republican states failed to oppose a similar program designed to provide parole opportunities for Ukrainians fleeing war and seeking refuge. While the Republican states present legal arguments citing concerns about the Biden administration creating pathways to citizenship normally reserved for Congress, some advocates believe the concerns stem more from who is being let in as opposed to how. As a result, many advocates note that opposition seems to be centered on communities of color rather than procedure and practice. In an interview with Desert News, Utah immigration lawyer Carlos Trujillo shared his sentiments on the Republican opposition. "It's purely a political act. ... At the time Ukraine was being invaded by Russia and the war was starting, I guess it was not a good PR move to oppose something like that. But they don't have the same concerns for the other countries."

Program Criticized by Refugee Advocates 

The policy has been met with criticism by advocates who point out that the parole pathway comes with a concurrent limitation posed on border crossings. As a result, the policy actually undermines the ability of individuals to seek asylum at the Southern Border, despite their right under international law to do so. Seeking asylum is a fundamental human right under international law. “Opening up new limited pathways for a small percentage of people does not obscure the fact that the Biden administration is illegally and immorally gutting access to humanitarian protections for the majority of people who have already fled their country seeking freedom and safety,” International Refugee Assistance Project Policy Director Sunil Varghese said in a statement. Other advocates have noted that specifically precluding individuals from the listed countries from applying for asylum at the Southern Border results in confusing and contradictory policies that exclude certain nationalities from accessing their fundamental human rights. In a commentary, the Washington Office on Latin America criticized the recent announcement as creating a double system of ineligibility and imposing additional requirements for individuals to obtain safety in the United States. “In essence, the new parole program, apart from providing only temporary permission to reside in the United States, would establish a double system of ineligibility for people to seek asylum: access to asylum would be denied to individuals from eligible countries who are unable to use the parole program, and the parole program would be restricted to those who meet certain requirements and would be closed to those who have crossed borders without authorization.” Advocates have also pointed out that the program doubles down on the Biden administration's use of Trump-era border policies designed for rapid deportations and expulsions. This includes Title 42, a policy developed by the Trump administration to prevent migrants from accessing international protections under the pretext of stopping the spread of COVID-19. Many advocates have noted that Title 42 is illegal and should end. The Biden administration has continually shifted its stance on the program, following a decision by the Supreme Court which allowed the program to remain in place while legal challenges play out. The Department of Homeland Security has touted the new parole program's effectiveness and claimed that it has resulted in a 97% decrease in border crossings by individuals from the countries covered by the program. While the program is sure to face legal and political challenges, even those who support it are forced to acknowledge that it does not address the root causes of migration. “We welcome the humanitarian parole,” Commissioner Marleine Bastien of Miami’s District 2 told a local ABC News affiliate. “But this is not the full solution… because as long as we don’t address the root causes of migration in these nations, including Haiti, the refugees, there will be pressure for refugees to come here.” 

About the California Legal Immigration Fellowship

Immigrant Legal Defense provides mentorship for new immigration attorneys in rural California as part of the California Immigration Legal Fellowship – a historic partnership with the state of California, which increasingly recognizes immigration legal access as a fundamental equity issue. To date, ILD has supported ten fellows at organizations in California’s Central Valley and the Central Coast – locations historically limited in their capacity to provide pro-bono direct representation and who have never before been able to represent clients in detention.

Clients of ILD & the Immigration Legal Fellowship recently wrote this letter of thanks to supporters of this program:

As a husband and wife with two children and deep ties to California, we are writing to share our story with you and to tell you how big of an impact the California Immigration Legal Fellowship has made on our family.

We met and fell in love in 2016. L is a U.S. citizen who was born and raised in Bakersfield, California, but her husband, H, had recently immigrated from El Salvador to the United States because gangs had threatened him back home. He was facing deportation, which terrified the both of us. The possibility of him being sent back to danger in El Salvador was even more terrifying once we had children.

We tried everything we could to get a lawyer to help H apply for protection here. In Bakersfield there aren’t many immigration attorneys, and we’d heard that we had to be really careful because attorneys might charge you a lot of money but not do a good job on your case. The idea that we’d hire the wrong person was scary to us, but in the end we couldn’t find any local attorneys who could take our case. We spoke to a few notarios, and one told us to go to Fresno or Los Angeles. We did everything we could to find help for H’s case in the Central Valley, but nothing panned out. We started to give up.

Then, when L was a student at California State Bakersfield, she started getting emails from the
school administration announcing a new program: students with immigration legal questions could sign up for a free consultation with Immigrant Legal Defense (ILD) because of a program paid for by the state of California. She signed up and told the attorney about our family’s situation. Soon, we were connected to an attorney, Irving, a California Legal Immigration Fellow from Coalition for Human Immigrant Rights (CHIRLA who was supervised by an attorney, Laura Polstein, at ILD). Laura and Irving didn’t charge us any money, and we immediately felt comfortable with them and saw they would fight for our family. They helped us apply for every option available to protect H from being deported back to danger and to
keep our family together.

We are a family that values community and works to help others. L graduated from Cal State Bakersfield in 2021 with a degree in Psychology and now works for the local school district, helping connect bilingual families to early education opportunities. L’s brother joined the National Guard and is currently deployed in Poland, where he is helping Ukrainian refugees fleeing war. Once he secures legal status, H is eager to work in support of our community, too.

Our family needed an immigration attorney, someone to reach out their hand and help. We knocked on so many doors, and are so grateful that we finally found the California Immigration Legal Fellowship. Without this program, we don’t know where we’d be. We spent years walking around in fear that we’d be separated, that H would be killed back home. We have deep roots in California and want to stay here, safely and together. None of this would be possible without the California Immigration Legal Fellowship, and we are so grateful to you for your continued support of this program, making sure families like ours receive this same support throughout California.

Thank you, from the bottom of our hearts.

As Omicron Spreads in ICE Detention, Advocates Call for Action

Immigrants in detention facilities throughout the United States are facing a rapid increase in COVID-19 infections as the Omicron variant spreads throughout the country and rips through congregate settings. Immigrants held in detention facilities run by Immigration and Customs Enforcement (ICE) have experienced an increased risk of COVID-19 throughout the pandemic, with an infection rate three times as high as the overall US infection rate, with most being held in congregate settings where social distancing is virtually impossible. The latest wave of Omicron reiterates a concern that has been long-standing for this population, that the only way to safeguard these individuals and save lives is to release people from detention. 

The COVID-19 pandemic has highlighted just how dangerous immigrant detention is, with more than 31,000 cases of COVID-19 reported in ICE detention. ICE and private detention operators have taken turns blaming each other for woeful conditions and lack of planning or oversight. Advocates and attorneys have spent the last two years demanding more releases in order to protect the health and safety of those in detention and have highlighted the lack of sanitation and safety in these facilities, as well as inadequate vaccine access. 

In California, advocates coordinated a campaign to demonstrate that ICE had refused to provide immigrants in detention with life-saving vaccines and had denied responsibility for the lives of those they detained. Despite coordinated efforts, many immigrants in other states were unable to obtain access to vaccines as federal and state authorities each did little to assert responsibility over-vaccination plans for those detained. In fact, ICE has apparently admitted that they have no official nationwide plan to roll out boosters to those who are medically vulnerable. 

To further complicate matters, it seems that ICE has relied primarily on the Johnson and Johnson vaccine, which is no longer recommended by the CDC, as the primary shot for most immigrants in detention. In addition to issues with efficacy, those who received the Johnson and Johnson shot are much more likely to immediately require a booster, further compounding the danger posed by ICE’s inaction.  

On January 26, two medical advisers for the Department of Homeland Security (DHS) came forward as whistleblowers against the spread of COVID-19 in ICE detention, releasing a letter calling on the Biden administration to take drastic steps to curtail the spread of COVID. “In our own inspections of ICE facilities, for example, we have seen and documented inconsistent enforcement of mask use in detention centers, inconsistent testing and surveillance, and a failure to develop facility-level infection control plans – all critical measures to control the spread of what we know is a highly transmissible, life-threatening illness,” the letter states.

California Advocates Demand Release and Closure of Facilities 

More than one year into the Biden presidency, advocates have expressed frustration and disappointment with the administration, which at one time campaigned on a platform that promised to end the use of for-profit detention facilities and Trump-era immigration practices. Despite these promises, the population of detained immigrants has grown 45 percent during the first year of Biden’s term. This fact is compounded by stunning estimates that the Omicron variant has led to a 520 percent increase in COVID-19 cases in detention.

The frustration over broken promises and the continued danger posed by the pandemic was particularly palpable in California during a recent battle to end a contract between ICE and the Yuba County Jail. For months, advocates, organizers, and attorneys led a campaign focused on releasing the last group of immigrants from detention in the notorious Yuba County Jail, a facility known for its dreary conditions and remote location.

Following the release of the last immigrant detainee in the facility on October 27, 2021, advocates hoped that the Biden administration would end the contract with the facility and worked with members of Congress to send a letter to the administration urging this resolution. The letter was signed by more than 20 members of Congress and called on the administration to end its contract with the facility over its abysmal conditions and record.

Despite the coordinated efforts of advocates and congress members and the momentum of freeing everyone from the facility, advocates were disappointed with the announcement that ICE was moving to repopulate the facility. 

“We’ve known for decades that Yuba County Jail has a horrific record of mental and medical care that has unfortunately resulted in tragic deaths and lots of pain for lots of families,” said Laura Duarte Bateman in an interview with the San Francisco Chronicle. Bateman works with the California Collaborative for Immigrant Justice, which organized last month’s protest against Yuba accepting new detainees.

The decision, partly made by the refusal of the Biden administration to end the contract for a facility that was no longer needed, underscores the sense of frustration and betrayal felt by advocates. Many have noted that the COVID-19 pandemic paved the way for thousands of people to be released from custody, underscoring how truly unnecessary immigration detention is. 

Notwithstanding this opportunity to change the course of detention, it appears the Biden administration is focused on keeping these structures intact, even at the expense of the lives of those detained.  

Border Images Spark Outrage, Condemnation of Biden Policies

Images from the southern border have sparked outrage over the Biden administration's stance on immigration, with many critics accusing the President of breaking campaign promises and carrying over Trump-era enforcement policies. The images included U.S. Customs and Border Patrol (CBP) officers mounted on horseback chasing Haitian migrants near the Rio Grande in Texas were described as “horrific” by democratic lawmakers and led to a wave of condemnation and outcry.

One of the photographs depicted a mounted officer wielding the reins of his horse and using it to strike migrants in a whipping fashion. Vice President Kamala Harris quickly denounced the images as “horrible” and “deeply troubling,” noting that they invoked images of slavery and called for a full investigation. 

More than 10,000 migrants had been camped in the Rio Grande area, including many asylum seekers from Haiti. The administration has moved swiftly to deport many asylum seekers back to Haiti, where political instability and natural disasters have driven many to seek safety abroad. Following the deportations, the U.S. special envoy to Haiti, Daniel Foote, resigned, calling the deportations inhumane.

“The people of Haiti, mired in poverty, hostage to the terror, kidnappings, robberies, and massacres of armed gangs and suffering under a corrupt government with gang alliances, simply cannot support the forced infusion of thousands of returned migrants lacking food, shelter, and money without additional, avoidable human tragedy,” Foote said in his resignation letter.

The images have led many advocates to decry not only the use of mounted officers but also the systematic discrimination faced by black migrants coming to the United States. Haitian Bridge Alliance, a leading organization advocating on behalf of Haitian migrants, wrote a letter to the administration condemning not only the images but the continued deportation of Haitian migrants. 

“No Haitian should be subjected to expedited removal or reinstatement of removal given the lives at stake and the Biden administration’s own assessment of the dangerous conditions in Haiti.”

The letter included a list of immediate demands to address the crisis and was co-signed by dozens of other organizations. 

The treatment of Haitians at the border is just one of many issues that advocates pointed to in their criticism of the Biden administration, many of them believing that the President has not done enough to keep campaign promises to move towards a more humane immigration process. Chief among these complaints is the ongoing use of private detention facilities, as well as the continuing inhumane treatment of all migrants at the southern border. 

Meanwhile, the Biden administration's use of a Trump-era policy to exclude migrants at the border remains a source of contention and legal battles. On September 16th, a federal judge ruled that the administration had to stop using the controversial Title 42 public health order to remove migrants with children from the U.S.-Mexico Border quickly. The Judge granted a preliminary injunction in a lawsuit filed by the ACLU, ruling that they were likely to succeed in their challenge to the use of the program. 

Title 42 led to at least 16,000 expulsions in the month of August alone, and many have cited the law as a disappointing continuation of the Trump-era policies by the Biden administration. The program allows border agents to expel migrants without allowing them to present a legal claim.

Advocates have argued that Title 42 was an illegal move by the Trump administration to deny migrants the right to seek lawful asylum in the United States. “President Biden should have ended this cruel and lawless policy long ago, and the court was correct to reject it today,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.

The judge in the case seemingly agreed, noting that the law seemed “likely unlawful” and also unnecessary “in view of the wide availability of testing, vaccines, and other minimization measures.”

The ruling was quickly appealed, resulting in a federal appellate court temporarily granting the Biden administration permission to continue using the law as a basis for expulsions. 

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said he was disappointed by the ruling. “Nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” he said. “If the administration is making the political calculation that if it acts inhumanely now, it can act more humanely later, that calculation is misguided and of little solace to the families that are being sent to Haiti or brutalized in Mexico right now.”

In September, former CDC officials wrote an open letter to the Biden administration condemning Title 42 as “scientifically baseless and politically motivated.” 

A press release on the letter noted that the Biden administration was continuing Trump’s policy of weaponizing public health against migrants. “Since the Trump administration first exploited the COVID-19 pandemic to implement this xenophobic policy in March 2020, public health experts have repeatedly objected to the policy’s specious public health justifications and recommended rational science-based measures to safely process asylum seekers and migrants at the border while promoting public health and upholding U.S. and international obligations to refugees.”

A senior State Department official joined the chorus of criticism on the use of Title 42. Harold Koh, the sole political appointee on the State Department’s legal team, penned a scathing resignation memo in which he called the use of Title 42 “illegal,” “inhumane,” and “not worthy of this Administration that I so strongly support.”

“I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” the memo states. 

Koh joined advocates in arguing that the administration could do better, noting that “lawful, more humane alternatives plainly exist.”

California Advocates Search for Solutions to Protect Unaccompanied Minors

Advocates in California are exploring new ways to prepare for a wave of unaccompanied children entering the United States as the Biden administration scrambles to find proper care for hundreds of new arrivals each day. The administration has come under increasing scrutiny in recent weeks from advocates decrying the use of influx shelters and prison-like facilities used to house minors. 

California receives more unaccompanied children than any other state in the country, with an estimated 30,000 children being released to sponsors in the state since 2014. The recent wave of unaccompanied minors means the state is likely to receive hundreds of new arrivals, with the federal government planning to open an emergency shelter in Long Beach to house up to 1,000 immigrant children. 

The Long Beach City Council voted unanimously to allow the city to lease a convention center to the federal government to house minors as young as three years old. The move has sparked a debate, with some viewing the move as a sign of “welcoming” immigrant children, while critics, including immigration activists, have questioned whether such facilities are humane. 

“In spite of purporting to try to provide an alternative to the kids in cages, the city is becoming complicit in the warehousing of children,” Lauren Heidbrink, an assistant professor at Cal State Long Beach, said in an interview with the LA Times. “While there is a Democratic president and a Democratic administration in Long Beach, from the perspective of migrant children, they continue to experience more of the same — family separation and detention.”

Gaby Hernandez, with the Long Beach Immigrant Rights Coalition, was also critical of the move, telling the Times, “What we are hearing is we should just be fine that this is a better choice than what we are seeing right now — which is kids in cages on the floor...We shouldn’t have to pick between those two bad choices.”

The criticism in California comes as more than 180 organizations signed a letter to the federal government criticizing the use of “influx facilities” and demanding a more humane solution with respect to relocating unaccompanied children.

While federal authorities search for locations in various states to house immigrant children, advocates in California are exploring policy solutions that offer increased protections for this vulnerable population.

One strategy pursued by advocates is pushing for greater oversight by the state of California for unaccompanied minors placed in the care of state-licensed facilities. Unaccompanied minors who are not able to be reunited with family are often placed in long-term foster care. The federal government is required to find foster homes that are licensed by the state in which they are located. As a result, states can exercise a certain degree of oversight over the conditions of care for unaccompanied children. 

AB 1140, by Assemblymember Robert Rivas (D-Hollister), is a state bill that seeks to ensure uniform and clear oversight for unaccompanied minors in state-licensed facilities. The bill focuses on the role the California Office of the Foster Care Ombudsperson can play in offering protection to unaccompanied minors in foster facilities. 

“Thousands of unaccompanied children cross our border fleeing poverty and violence, and many of them are temporarily taken into federal custody in state-licensed childcare facilities,” Asm. Rivas said in a press release introducing the bill. “California’s foster care system lacks explicit protections for unaccompanied immigrant children, which leaves them particularly vulnerable. AB 1140 addresses this vulnerability and guarantees that this group of children will not be overlooked and underserved by the State during a time of desperate need.”

Some key examples of how the Ombudsperson’s can assist unaccompanied children through AB 1140 include:

• Investigating complaints made by or on behalf of unaccompanied children about treatment in state-licensed childcare settings 

• Educating childcare program staff about their state licensing obligations and children’s personal rights under California state law

• Ensuring that children can exercise their right to communicate with family members, including children, co-parents, and their own parents

• Ensuring children have access to resources in their own languages

• Assisting children with finding flexible and alternative educational options suitable for their specific needs

The bill is an example of important ways in which advocates can leverage state resources and infrastructure to address immigration issues and protect unaccompanied children. The bill also serves as a potential model for other states to follow as they prepare to receive and house unaccompanied children.

The bill recently passed the Assembly Judiciary and Health and Human Services Committees and is set to be heard on the Assembly floor before moving to the California Senate. The bill is co-sponsored by Immigrant Defense Advocates, along with Kids in Need of Defense (KIND), Youth Law Center (YLC), Legal Services for Children (LSC), Vera Institute of Justice, and National Center for Youth Law.

“Even though immigration is a federal issue, we have to ensure that as a state, we’re setting the national example when it comes to protecting our children, even our undocumented immigrant children,” Rivas said in an interview with the Sacramento Bee.