Jorge M. Magdaniel Manzur, 'Parole Under INA 212(D)(5)(A): Balancing Humanitarian Needs and Legal Boundaries' (2024)

 

I wanted to take this opportunity to re-post a quite marvelous short essay written by one of my students, Jorge M. Magdaniel Manzur. Entitled   'Parole Under  INA 212(D)(5)(A): Balancing Humanitarian Needs and Legal Boundaries' (2024), it first appeared on the Penn State Immigration Law Blog (December 2024). Its abstract gives a nice sense of its objective:

This article examines how various uses and interpretations of parole under INA § 212(d)(5) have shaped immigrants' access to benefits, highlighting the balance between executive discretion and statutory limits within recent political and humanitarian contexts.

Pix credit here

As a child I recalled adults invoking the word "parole" like some magical spell that made life possible where we were. In high school translating for the INS in one of its waves of Cuban "status adjustment" was itself also magical, a performance with its own incantations and ceremonies, one requiring a mysterious sacrifice of time in make shift offices put together for that purpose and enveloping oneself in the cour des miracles of the INS bureaucratic realms. its wizards and the grimoires to which they referred from time to time. It was, in a sense, something of a cour de miracles with its performers, charlatans and hangers on all seeking to help, entertain, or exploit the residents whose lives were in a sense wholly dependent on the operation s occurring in that space performed by some sort of abstraction in a bewildering process for transforming them from one word to another.  Still, the alternatives were worse, and one learned provide what was expected. That was the side I saw; one could look at the other side the equation--the army of officials--lawyers and others--deployed by the State to undertake the transformational tasks--some nice, many just  working, some less nice. But the rest of it--the magic--remained a mystery.  And it does so today--one that requires a whole society of actors hovering around and invoking weighty abstractions (that might as well have been cuneiform memorials of Babylonian rites) the effects of which on the paroled was mostly that they all eventually went away.

Jorge Magdaniel Manzur takes us behind the magic in a clear and straightforward way. What was magic turns out to be the structures of a system of discretionary decision making that is itself parsed among a hierarchically arranged techno-bureaucracy charged with implementing objectives and approaches that at least at some level, represent the wishes of the hierarchically arranged elected political element of the State. From the ground, this still sounds ike magic--like the stuff of immanent gods and spirits who must be placated or appeased through appropriate rituals and sacrifices. And, indeed, that certainly might please the lawyers and bureaucrats who increasingly style themselves the priests (some high, some less so) of the cult of law as it has come to be fashioned. That cult has its orthodoxies as well as its factional contests among the priestly castes and their claques, of course. And that is the subtext ably indicated in the essay. And, indeed, even those who work their magic on the object population, must make the necessary sacrifices and adhere to the orthodoxy of ritual. In the case of the modern American rules-driven textual-state over which judges perform feats miraculous from time to time (but then so does everyone else)the miracles occur within the camera obscura of text itself, which is as remote from its objects as the mysterious of sub-atomic particles.

The essay in its entirety may be accessed at the Penn State Immigration Law blog and follows below.

PAROLE UNDER INA 212(D)(5)(A): BALANCING HUMANITARIAN NEEDS
AND LEGAL BOUNDARIES
By: Jorge M. Magdaniel Manzur1

ABSTRACT
This article examines how various uses and interpretations of parole under INA §
212(d)(5) have shaped immigrants' access to benefits, highlighting the balance between
executive discretion and statutory limits within recent political and humanitarian
contexts.

INTRODUCTION

Under INA § 212(d)(5), at the discretion of the Secretary of Homeland Security,
noncitizens may be temporarily paroled into the United States “on a case-by-case basis
for urgent humanitarian reasons or significant public benefit, any noncitizen applying for
admission to the United States.”2 It is such an invaluable tool that “every administration
beginning in the late 1990s has relied heavily on the parole option, including the Clinton,
Bush, Obama, Trump, and Biden administrations.”3

Parole under 212(d)(5)(A), unlike other forms of relief,4 does not provide an immigrant
with legal status. However, its use by the executive branch in certain situations,
particularly those involving a balance between legal restrictions and executive discretion,
allows it to serve as a pathway toward Adjustment of Status.

THE TEMPORARY BENEFIT OF PAROLE UNDER 212(D)(5) CAN LEAD TO MORE
PERMANENT RIGHTS

INA § 245(a) requires a noncitizen to have been “inspected and admitted or paroled” in
order to adjust his or her status to that of a lawful permanent resident.5 Parolees can satisfy
this requirement for certain types of Adjustment of Status (“AOS”) if they meet all other
criteria.6

One example of how parole impacts substantive rights is Military PIP, which “gained
traction during the Bush administration and the Iraq war.”7 USCIS issued policy

1 Jorge M. Magdaniel Manzur is a Colombian lawyer and specialist in commercial law, a graduate of Universidad del Norte in Barranquilla, and currently an LL.M. candidate at Penn State Law. In addition to his work in commercial law, he is dedicated to advocating for vulnerable populations, positively impacting thousands of lives through roles ranging from senior legal assistant to supervising teams of legal assistants at immigration law firms.
2 INA § 212(d)(5), 8 U.S.C. § 1182(d)(5).
3 Biden v. Texas, 597 U.S. 785, 815 (2022).
4 Such as asylum, VAWA, Special Immigrant Juveniles (“SIJS”), T-visas, and U-visas.
5 Immigration and Nationality Act § 245(a), 8 U.S.C. § 1255(a).
6 8 U.S.C. § 1255(a) (2024) (Other criteria consist of: (1) making an application for such adjustment; (2) being eligible to receive an immigrant visa and being admissible to the United States for permanent residence; and (3) having an immigrant visa immediately available when the application is filed).
7 Lisa Kobayashi, The Immigration Benefits of Military Parole in Place, NCBarBlog (May 8, 2018), https://www.ncbarblog.com/the-immigration-benefits-of-military-parole-in-place/.

memoranda in 20138 and 20169 to clarify the framework of this program, which was
designed to assist the mixed-status families of U.S. military personnel. Through this
program, “USCIS encourages applicants to continue on a path toward lawful permanent
resident status whenever applicable” by filing family-based petitions,10 including
immigrants who entered the United States unlawfully. While parole is “most frequently
used to permit an alien outside the United States to enter U.S. territory,” its application to
military mixed-status families is made possible by the provision that “parole may also be
granted to aliens physically present in the U.S. without inspection or admission.”11
The authority for advance parole stems from the general “parole” authority under INA §
212(d)(5)(A).”12 Therefore, not only Military PIP but also advanced parole has the
potential to serve as a bridge to AOS. Similarly, the Cuban parole program13 can serve as
a pathway to AOS through the submission of family-based petitions, or by complying
with the other requirements of the Cuban Adjustment Act.14

Without parole, individuals who had not been inspected and admitted would not be
eligible for AOS. Thus, a "temporary" benefit granted through executive discretion
effectively provides a path to permanent legal status. Executive discretion has effectively
stretched the statute’s plain language, allowing humanitarian needs and public interests
to precede a stringent application of the law.

LIMITS ON EXECUTIVE DISCRETION

On June 18, 2024, the DHS publicized actions to “promote family unity in the
immigration process, consistent with the Biden-Harris Administration’s commitment to
keeping families together.”15 This initiative, referred to as the Keeping Families Together
(“KFT”) process, aimed to benefit hundreds of thousands of stepchildren and noncitizen
spouses of U.S. citizens currently present in the U.S. without admission or parole.16
KFT was announced leading up to the 2024 presidential election to “expand[]
opportunities for Latino communities and ensure every family has a fair shot at the

8 U.S. Citizenship & Immigration Servs., Policy Memorandum: Parole of Spouses, Children, and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Veterans, U.S. Dep’t of Homeland Sec. (Nov. 15, 2013),
https://www.uscis.gov/sites/default/files/document/memos/2013-1115_Parole_in_Place_Memo_.pdf.
9 U.S. Citizenship & Immigration Servs., Policy Memorandum: Parole in Place and Deferred Action for Certain Family Members of Military Personnel, U.S. Dep’t of Homeland Sec. (Nov. 23, 2016), https://www.uscis.gov/sites/default/files/document/memos/PIP-DA_Military_Final_112316.pdf.
10 Id. at 4.
11 U.S. Citizenship & Immigration Servs., supra note 6.
12Immigrant Legal Resource Center, Advance Parole Under DACA (Aug. 31, 2021),
https://www.ilrc.org/sites/default/files/resources/8-31_advance_parole_under_daca.pdf.
13 U.S. Embassy in Cuba, Cuban Parole Programs, U.S. Dep't of State, https://cu.usembassy.gov/cuban-parole-programs/ (last visited Nov. 26, 2024).
14 Cuban Adjustment Act, Pub. L. No. 89-732, 80 Stat. 1161 (1966) (Other requirements are: (1) filing an application for adjustment of status; (2) being a native or a citizen of Cuba; (3) being physically present in the United States for at least one year before applying for adjustment of status under CAA; (4) being eligible to receive an immigrant visa and be admissible to the United States for permanent residence).
15 Fact Sheet: DHS Announces New Process to Promote Unity and Stability for Families, U.S. Dep’t of Homeland Sec. (June 17, 2024), https://www.dhs.gov/news/2024/06/17/fact-sheet-dhs-announces-new-process-promote-unity-and-stability-families.
16 Implementation of Keeping Families Together, 89 Fed. Reg. 56,632 (Aug. 20, 2024).

American dream.”17 The initiative was met with immediate opposition. Texas and fifteen
other states filed a complaint on August 23, 2024, arguing that the PIP program is ultra
vires and exceeds the government’s statutory parole authority.18

On November 7, 2024, the U.S. District Court for the Eastern District of Texas struck
down the program on several grounds.19 First, the Court noted that the authority under
212(d)(5) allows parole “into the United States," which “is a prepositional phrase with
the ordinary, natural meaning of a physical movement from a point outside the United
States to a point within the United States,” not PIP.20 At the same time, the Court noted
that “other laws may, of course, specially deem such an entry to have occurred,” referring
to military PIP.21 The court distinguished the two programs, finding that, although both
initiatives resulted from exercises of executive discretion, they differ in that Congress
codified military PIP through the National Defense Authorization Act (“NDAA”) for
Fiscal Year 2020 § 1758.22

The Court concluded that KFT exceeded statutory authority because it had “an invalid
focus.”23 The Court asserted that the public benefit or humanitarian need must derive
from the noncitizen becoming physically present in the country; therefore, “[e]ven if
family unity is a ‘significant public benefit,’ . . . [i]t is not a benefit created by parole ‘in
place’ because aliens granted that relief are already present here.”24 Therefore, since the
public benefit or humanitarian need “must come from an alien's movement into the
country, as opposed to merely from changing a present alien's legal status, the Rule's
claim of public benefits here is misdirected.”25 This decision exemplifies a limit to the
executive’s discretion, in which legal formalities curtail the expectation of fulfilling
humanitarian needs.

CONCLUSION

While executive discretion under this authority has expanded immigrants' substantive
rights in the past, effectively incorporating this discretionary power into a phenomenon
resembling immigration relief, the incoming administration will likely enforce stricter
interpretations. This shift may narrow the scope of available humanitarian relief as the
definition of "significant public interest" aligns with the political objectives of the new
administration. Only time will tell if this authority will eventually be wielded in a manner
to preserve and strengthen immigrant rights.

17 The White House, Fact Sheet: Biden-Harris Administration Announces New Actions to Expand Opportunities for Latino Communities and Ensure Every Family Has a Fair Shot at the American Dream (July 17, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/07/17/fact-
sheet-biden-harris-administration-announces-new-actions-to-expand-opportunities-for-latino-
communities-and-ensure-every-family-has-a-fair-shot-at-the-american-dream/.
18 State of Texas v. U.S. Dep’t of Homeland Sec., No. 6:24-cv-00306, at 37 (E.D. Tex. Aug. 23, 2024).
19 State of Texas v. U.S. Dep't of Homeland Sec., No. 6:24-cv-00306, slip op. at 62 (E.D. Tex. Nov. 7,
2024).
20 Id.
21 Id. at 61.
22 Id.
23 Id. at 101-02.
24 Id.
25 Id. (emphasis added).