Biden's "Parole in Place" Order to Keep Families Together: Look Before You Leap!

A sincere humanitarian effort to keep families together or a politically motivated wolf in sheep's clothing?

Jun 26, 2024

President Joe Biden, State of the Union, March 7, 2024. Photo credit: Shawn Thew, Getty Images.

I am not an immigration attorney, just a historian who likes to look things up and who has been involved in immigration issues for 20 years. If you are considering applying for President Biden’s “Parole in Place” offer, please, for the love of God, read the Order and talk with an attorney whose specialization is immigration law.

1. Biden’s recent anti-immigrant asylum proclamation

I would not assume Biden has your best interests at heart. After all, this is the same president who on June 4 issued an anti-immigrant proclamation imposing a severe and arbitrary limit on the number of people permitted to seek asylum at the U.S./Mexico border between ports of entry while also making the asylum screening process substantially harder to navigate for those fleeing persecution. Among other things, it makes “fear” of persecution harder to prove. You can read the proclamation here.1

These changes went into effect on June 5 and, according to the National Immigration Justice Center, “will result in the deportation of thousands of people seeking safety.”2

There are other reasons to be suspicious or, at the very least, cautious about the present “parole in place” order. A lot hinges on what the language of the order means—what it means technically and legally.

2. What, exactly, is an “executive order”?

The American Bar Association breaks it down. An “executive order is a signed, written, and published directive from the President of the United States . . . and is published in the Federal Register.” More important to understand is that executive orders are not legislation. Congress can make it difficult to enforce the order, but it cannot just overturn it.

The practical question, then, is: who CAN reverse an executive order? The answer: the next sitting president. With a presidential election scheduled for this coming November and with the reality that it could signal Donald Trump’s second term, or a new Republican’s first term, or a Democratic president who disagrees with the order, caution is well-warranted.3

3. What does this particular order provide?

It changes the requirement that a non-citizen spouse of a U.S. citizen must leave the country for an unspecified and indefinite period of time in order to apply for lawful permanent residence. Instead, the application may be filed while the undocumented spouse remains in the U.S. with his/her family.4

It provides for judicial discretion in deciding whether the applicant will be granted what is called “parole in place” on a case by case basis. Parole in place [PIP] means that the applicant may stay in the U.S. during the application process. Judicial discretion means that the immigration judge may rule in favor of the applicant or he/she may rule against the applicant. There are immigration judges who have a humanitarian orientation. There are others who are notorious for not having a humanitarian bone in their body. Since the applicant has already turned himself/herself in to the Department of Homeland Security [DHS], having admitted he/she entered the U.S. illegally, DHS, i.e. the department oriented to deportation, he/she has made herself available for deportation.

4. To whom does the order apply? Does it apply to all undocumented spouses/children?

This is where it gets sticky. The short answer is “no.”

a.According to the Department of Homeland Security’s fact sheet on the order, it applies to “certain” undocumented spouses of U.S. citizens. Watch out for that word “certain.” Reading further, I see that it applies to “nationals of Colombia, El Salvador, Guatemala, Honduras, and Ecuador” and for “certain” nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) who have a “U.S.-based supporter.”

Read that again: there is no mention of Mexican nationals or Paraguayan nationals or Scottish nationals or Chinese nationals or Sudanese nationals.

b.To be considered, the applicant must have been “present in the United States without admission or parole.” What does that “without admission or parole” mean? Does it mean that an agricultural worker, e.g., who entered legally with a H2A visa, but overstayed his/her visa and is now undocumented was “admitted” for immigration purposes? I would be leery of thinking that it did. What about for one who has already has been granted “parole in place?” The language seems clearly to stipulate that he/she would not be eligible.

c.The applicant must have been “continuously present in the United States for at least 10 years as of June 17, 2024.” What does “continuously” mean? “Continuously” is not the same thing as “continually.” Continuously means, according to Black’s Law Dictionary, “uninterrupted, unbroken, not intermittent or occasional.”5 So, for example, it would seem to me that an H2B non-agricultural worker from Guatemala who came legally on a visa on June 17, 2014, had a child here in 2015, went home to Guatemala, returned on a new H2B visa in 2016 would not be eligible because she would have not been here “continuously” in the legal sense.

d.The applicant must have had a legally valid marriage to a U.S. citizen as of June 17, 2024. What is a “legally valid” marriage? According to Cornell Law School, a legally valid marriage must have certain basic elements: the parties had the legal ability to marry each other, mutual consent of the parties, and a marriage contract.6

In most instances, the individual states determine what constitutes a legal marriage. For example, one state might put the age of consent at 16 years old while another puts it at 18. Suppose, though, a girl from Nicaragua was 14 when she consented to marry a U.S. citizen? Would that constitute a legally valid marriage for “parole in place” purposes?

Or, suppose that prior to the 2015 Obergefell v. Hodges U.S. Supreme Court decision that the states could not deny marriage to gay couples, a gay Salvadoran man entered into a long-term “common law” marriage with a gay U.S. citizen who was ex-military? The couple then decided, in 2015, that they would get married formally in order to protect military protections for spouses? Would that be a legally valid marriage for our purposes?

Or, suppose that the couple were in Alabama where until 2019 it was required that there be an officiant recognized by a religious institution which kept minutes and a marriage certificate signed by a judge but the couple did not know these things and had an unauthorized officiant not recognized by the State of Alabama? Would the immigration judge rule “yay” or “nay” on whether this couple was in a legally valid marriage?

Or, suppose that a man from Venezuela married a U.S. citizen woman in June, 2014, but legally separated in 2016, then resumed their marriage in 2018, would they have been legally married for PIP purposes?

e. The applicant “must have no disqualifying criminal history.” Justicia US Law, a free resource for legal information, warns that whether your crime was in the U.S. or abroad, your criminal record can result in your deportation. This applies to those who “already have a valid non-immigrant visa or even a green card.” What does this mean exactly? Since the Order does not spell it out, we seem to be left to assume what “disqualifying” crimes might be. A have an undocumented friend who had served in the U.S. Army as a parachuter who accidentally discharged a firearm in a vehicle which led to his deportation and separation from his wife and daughter. What, exactly, are we talking about?

f. The applicant must not “constitute a threat to national security or public safety.”

This is the slipperiest of all issues which an applicant could face, especially when we keep in mind that the rationale for the establishment of the Department of Homeland Security was a presumption that undocumented people might be terrorists in the days following the September 11, 2001 Saudi Arabian attacks on New York City’s Twin Towers and the Pentagon. That was not the reality; it was a presumption for marketing purposes.

Beyond that, back on February 7, 2022, during Biden’s second year as president, his Department of Homeland Security issued a memo subsuming those who disseminate misinformation, disinformation, or malinformation into what it called a terrorist threat.7 It defined the terms like this:

Misinformation is false, but not created or shared with the intention of causing harm.

Disinformation is deliberately created to mislead, harm, or manipulate a person, social group, organization, or country.

Malinformation is based on fact, but used out of context to mislead, harm, or manipulate.

In particular, it implicated those who caused people to question the U.S. government because of its response to Covid-19 as part of that terrorist threat.

In other words, if you called into question the Covid-19 vaccinates or use of masking, you potentially could be assigned the label of a “threat to public safety.” If you opposed the NATO/U.S. conflict with Russia over Ukraine or challenged the U.S. government’s support of the Israeli genocide in Gaza, you potentially could be labeled, for PIP purposes, part of a terrorist threat.

To be sure, the period of the memo itself expired on June 20, 2022. However, the ideology behind it continues.

Again, PLEASE, consult an attorney if you are considering applying for PIP. Not just any attorney, you will need to consult one with experience in immigration law. And READ THE ORDER with a suspicious eye. Once you turn yourself in to DHS, you cannot un-turn yourself in.

Ellin Jimmerson

Discussion about this post