An October 14 New York Times article by Nina Bernstein “A Contest of Suffering, With the U.S. as a Prize” sheds light on humanitarian parole, the authority vested in the Secretary of Homeland Security, to grant foreign citizens entry to the United States for “urgent humanitarian reasons.” The article reports that since January, 2000 only about 20% of the 6,718 requests received for humanitarian parole were approved. According to Michael W. Gilhooley, a spokesperson for the Bureau of Immigration and Customs Enforcement (ICE), the agency deciding requests for humanitarian parole, each request is considered independently by two ICE officers and then their (presumably collective) decision is reviewed by an ICE supervisor. The Times article, though helpful in shedding light on the parole authority, does not address an important legal question. Why, after all, does ICE – an immigration enforcement agency – exercise the Secretary’s authority within the Department of Homeland Security (DHS) to adjudicate requests for the immigration benefit of humanitarian parole? By law – § 452(b)(5) of the Homeland Security Act of 2002 – all decisions on immigration-benefits requests previously adjudicated by the now-abolished Immigration and Naturalization Service (INS) must be decided by another DHS unit, U.S. Citizenship and Immigration Services (USCIS).
The USCIS website describes the procedure for requesting humanitarian parole, and provides a USCIS form (Form I-131) whose instructions direct the applicant to send the request to:
USCIS Office of International Affairs Parole and Humanitarian Assistance Branch 425 "I" Street, N.W. Attn.: ULLICO Building, 3rd Floor Washington, DC 20536
So why does DHS give the public the impression that USCIS will adjudicate the application when ICE’s Office of International Affairs, a police agency, in fact makes the decision? The delegation of humanitarian parole decision-making power is particularly strange in light of the legislative history of the HSA. In enacting the HSA, Congress intentionally divided the former INS into separate enforcement and benefits branches in order to avoid the inherent conflict of interest that would otherwise arise when cops must choose between border protection and applications for immigration benefits. The conflict involved in the enforcement-minded ICE being tasked with exercising humanitarian compassion is readily seen in the mission statement for ICE’s Office of International Affairs (OIA):
Mission The Office of International Affairs (OIA) is the overseas investigative arm of the Department of Homeland Security's Immigration and Customs Enforcement (ICE). OIA works closely with all elements of ICE, and serves as a key component in the President’s international crime control strategy.
Roles and Responsibilities ICE's Office of International Affairs provides operational and programmatic management of ICE attachés at foreign embassies and consulates worldwide;
OIA also coordinates and supports all foreign investigative activities of ICE. OIA works with foreign counterparts in combating transnational crimes involving national security, financial, smuggling, illegal arms exports, forced child labor, child pornography, human trafficking, intellectual property rights, commercial and immigration fraud violations.
OIA assists host-country counterparts in the development and implementation of legislation and regulations; provides training to foreign officials; responds to government and public requests for trade, travel and business information; supports the implementation of treaties, agreements and international cooperative programs.
Acquiring and developing intelligence related to cross-border criminal activity is also important to OIA's mission. [Bolding in original.]
This fox-in-the-henhouse conflict of interest is also apparent from a look at OIA’s positioning on ICE’s organizational chart as a unit of the Office of Investigations. Yet elsewhere on the pages of the ICE site, OIA meekly acknowledges its humanitarian parole authority in text nestled within its power to issue entry documents to snitches and criminals:
The [unit known as] PHAB [the Parole and Humanitarian Assistance Bureau] supports [ICE’s] Border Security Mission by bringing to the United States criminal informants, wanted criminals and other inadmissible aliens in an organized and carefully monitored manner using the Secretary’s parole authority. They are responsible for authorizing significant public benefit paroles in accordance with the Significant Public Benefit (SPBP) Protocol, an interagency clearing process.
Is this blogger’s concern about the power to decide humanitarian parole applications just a bureaucratic tempest in a teapot? No. When a dying U.S. citizen wants to have a final few days with a foreign relative from abroad, and the U.S. Consular Officer in the relative’s home country has denied a visitor’s visa, humanitarian parole is the only avenue. The Times article offers other heart-rending examples of initially denied applications for humanitarian parole:
Some involved pleas for temporary admission for medical reasons, like the Ecuadorean mother of a 6-year-old Bronx boy hit by a car and in a coma, who was at first refused a visa to come to her son's bedside, or the case of Federico Rodriguez, dying of kidney-related complications in New York, whose sister in El Salvador was at first denied a visa to come donate her kidney.
Other applicants, like Raisa, who has been formally adopted by her grandmother, were eligible to join close relatives in the United States for good. But because of backlogs, they were living out a damaging childhood.
In such a case last spring, a 5-year-old boy stuck since birth in an African refugee camp won humanitarian parole to join his family in Minnesota after a senator learned that his father, a Liberian refugee in the National Guard, faced deployment to Iraq.
Why should it take Congressional intervention to grant humanitarian parole? Why should the requests of deserving citizens for governmental compassion be denied by police officials when the legislature, in enacting the HSA, clearly intended that USCIS, the agency with benefits-adjudication expertise, make the call? On October 18, Michael Chertoff, the Secretary of DHS is slated to testify before the Senate Judiciary Committee on immigration reform. Before focusing on immigration reforms, perhaps the senators can ask Mr. Chertoff why his agency flouts the law as written and tasks police officers to exercise humanitarian compassion. Or perhaps the better question is whether ICEd compassion can ever be truly humanitarian.