Dear Immigration Director: Let Our Dreamers Go!
I was escorted to the woodshed on January 15, a very public woodshed, and deservedly so. Alejandro (Ali) Mayorkas, the Director of U.S. Citizenship and Immigration Services (USCIS), politely took me to task at a Public Engagement during the Q & A session when I raised two points. One involves the subject of a future post. The other -- today's topic -- challenged an aspect of the agency's program for DREAMers known as Deferred Action for Childhood Arrivals (DACA).
As noted below, I criticized USCIS's stricter eligibility requirements for DACA recipients than other foreign citizens present in the U.S. who wish to travel abroad and be allowed back into the country. Mr. Mayorkas rejected my criticism (as also discussed below), but then offered one of his own.
He noted that in my recent blog post, "The 2012 Nation of Immigrators Awards - The IMMIs," USCIS received the "Not Especially Nimble" IMMI for its lack of agility on matters of employment-based immigration. Mr. Mayorkas suggested that if nimbleness is the measure of performance, then glaring by its omission was my failure to mention the speed with which USCIS introduced the DACA program -- a scant two months from President Obama's Rose Garden announcement.
Ali Mayorkas is right and I was wrong. In lightning speed for a federal agency, USCIS launched DACA and, on its first day of implementation, was prepared to act on all requests from qualified applicants. Rather than just wagging a finger at the slow pace of USCIS action on business-related immigration, I should also have tipped my hat to the phenomenally acrobatic DACA roll-out, for it showed what the agency's people can do when they roll up their sleeves and swing into action, notwithstanding naysayers like me. For this, I offer sincere "parole di scuse" (words of apology, in Italian).
But there is another species of DACA-related "parole" for which I offer no "scuse." This is a form of foreign-travel-and-reentry authorization known in immigration parlance as "parole." Unlike the use of that word in the criminal law context, however, immigration parole has nothing to do with conviction of a crime.
Rather, the discretionary power to grant parole arises under Immigration and Nationality Act (INA) § 212(d)(5)(A). By statute, it is the power to allow a foreign citizen into the United States "temporarily under such conditions as [formerly, the Attorney General, but now, USCIS, as delegate of the Homeland Security Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit . . ."
Parole is a grant of permission to travel to the U.S. and be granted entry in lieu of presenting a visa or overcoming or waiving a ground of visa ineligibility. It comes in four flavors:
- Humanitarian Parole (available to persons outside the U.S. who seek letters of travel permission to present to an airlines or common carrier and entry to the U.S., usually for emergent reasons),
- Public Interest Parole (available to persons outside the U.S. who come for a reason the government believes is in the public interest, e.g., to testify at a criminal trial),
- Advance Parole (available to persons inside the U.S. who wish to travel abroad and be reasonably assured of being allowed back in) and
- Parole-in-Place (an administrative mechanism permitting an individual in the U.S., often a member of the U.S. military or a relative, to overcome an obstacle to adjusting status here and being awarded a green card).
During the Q & A portion of the January 15 Public Engagement, a member of the audience identifying himself as a DREAMer who'd been granted DACA designation asked why USCIS required DACA recipients seeking advance parole to provide compelling humanitarian evidence. (For details, see Travel Requirements and Restrictions.) He noted that many DREAMers have been separated from family abroad for many years and just wanted to visit them and then return here.
Mr. Mayorkas responded that parole is an extraordinary remedy requiring powerful evidence of an emergent nature.
When my turn came, I challenged that assertion, and suggested that DACA grantees should be treated no differently than applicants for adjustment of status seeking advance parole while their green card applications remained in process. Adjustment applicants seeking parole need only cite a reason, or perhaps no reason at all, other than a desire to travel.
Besides diplomatically escorting me into the woodshed for my sin-by-omission grant of the IMMI award to USCIS, Mr. Mayorkas also disagreed emphatically on the grounds for parole, stating that the agency's eligibility criteria for "Humanitarian Parole" was well established by precedent decisions and judicial case law. Then, he moved on to the many other questioners.
Had time permitted (as it now does), I would have responded that Mr. Mayorkas was conflating Advance Parole and Humanitarian Parole. A glance at the instructions to the parole application (Form I-131), shows that persons outside the U.S. must establish that they seek to enter the U.S. "for emergent humanitarian reasons" (Humanitarian Parole) but those already in the U.S. applying for adjustment of status must show that you they seek to travel abroad "for emergent personal or bona fide business reasons" (Advance Parole) and then return to await the outcome of their green card application.
Although the instructions on the Advance Parole application require a showing of "emergent personal or bona fide business reasons," immigration practitioners and historians of the immigration process know that current USCIS practice is to accept any personal reason for foreign travel offered by an adjustment applicant. No proof of "emergen[cy]" is now required because the agency found long ago that when such evidence was demanded, applicants flooded the agency's offices with such evidence, personnel resources were diverted substantially from other tasks, and some number of deserving applicants departed the building crestfallen because their reason was not found sufficiently emergent, while others left gleefully for the opposite reason. Any reason now will do.
But you say, DACA beneficiaries are out-of-status immigrants while adjustment applicants must show proof that they maintained lawful immigration status. Certainly, one would think, USCIS is right in differentiating between the two groups. Not really.
DACA grantees -- by definition -- entered the U.S. as minors before age 16. They are faultless in the eyes of the law, given that their tender age absolved them of culpability (and they must have proven that they "[h]ave not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety" to be granted DACA relief). Moreover, some adjustment applicants are allowed to apply even if they have not maintained lawful status for "technical reasons" or reasons other than "through the fault" of the applicant.
While it makes sense to insist on compelling humanitarian reasons to let someone outside come to the U.S., it is hard to fathom a reason to require no such evidence of one (largely) faultless group of similarly situated persons in the U.S. (adjustment applicants) and yet require it of another entirely innocent group residing here (DACA recipients).
Perhaps the real reason has less to do with adherence to old case law on Humanitarian Parole, and more to do with a recent decision of the Board of Immigration Appeals (BIA) in Matter of Arrabally and Yerrabelly. There, the BIA held that an adjustment applicant's departure from the U.S. on a grant of advance parole does not trigger the three- or ten-year "unlawful presence" bar on reentry that usually applies to persons who stay more than six months or one year beyond the period granted by the government.
The significance of Arrabally and Yerrabelly is that once a person is paroled back into the U.S., most prior failures to maintain status are purged and the person is adjustment-of-status eligible through the usual family- and employment-based sponsorship avenues, as my scholarly colleagues, Messrs. Endelman and Mehta, explain. The BIA's reasoning in Arrabally and Yerrabelly would seem to apply not just to adjustment applicants but to DACA grantees as well. This is the conclusion reportedly reached by USCIS's Chief Counsel, Stephen Legomsky, according to this tweet of Ben Winograd, Staff Attorney at the American Immigration Council.
Maybe the real pragmatic and political reason to be inferred from the strict DACA rules on Advance Parole is the fear that entry on parole will facilitate the mass legalization of DREAMers through the usual adjustment process -- a backdoor "amnesty" to those opposing a path to citizenship for the undocumented.
Back to the Public Engagement: I also suggested that the denial of equal treatment to DACA beneficiaries may be a violation of Equal Protection. Mr. Mayorkas rightly noted that Equal Protection is a principle of constitutional dimension with strict requirements not necessarily applicable in all situations of disparate treatment. Yet, in another context during the Public Engagement (involving the need for written rather than telephonic communications between the bar and USCIS personnel), he noted that he is a big believer in people being on an equal footing or level playing field (and that therefore adjudicator/attorney oral exchanges are not allowed because lawyers can be overbearing).
While denial of Advance Parole to DACA beneficiaries who want to visit Grandma in the old country (unless she is certified by a doctor as at death's door) may not rise to the level of an Equal Protection violation, it surely undermines the principle of an equal footing and leveling of the playing field that the Director espouses. I therefore hope he and his agency reconsiders and -- when definitive requirements are published -- issues the same easily satisfied Advance Parole eligibility criteria for DACA designees as now exists for adjustment applicants.
No woodshed visit or apology would be required.
Render unto Caesar the things which are Caesar's ... 
Sens. Durbin and Grassley display a rare, though 
