When you encounter a non-citizen of the United States on an American street, the usual understanding is that he could be one of six things:
1. A person who was admitted to the United States after inspection at a port of entry (border or air or seaport) and is maintaining proper status;
2. A person who was admitted and then overstayed his period of admission or violated his status;
3. A person who was paroled into the United States. Parole is when a person is allowed into the United States while lacking a visa or other valid admission document or status, usually for an emergency or humanitarian reason. Persons paroled into the United States are often asylum applicants allowed into the country after making an asylum claim at a port of entry or people coming to visit a sick relative or bury a dead one or a criminal brought to the United States to stand trial;
4. A person who entered with parole but then overstayed their period of parole;
5. A person who entered the United States without inspection, usually by walking into the country by avoiding inspection points. These are the people the Trump Wall is supposed to stop;
6. A person who was admitted into the United States but should not have been. The most common such admission is waive ins – people in a crowded vehicle that may not have a valid document, but the inspecting officer took the word of another passenger or just concluded that the person could enter without scrutinizing the person’s papers. Before 9-11 this would happen a lot – officers might waive in a car with a sleeping child or a bunch of high school kids with student ID’s from an American high school who crossed into Mexico to party. Since 9-11, there is far less waiving in and more insistence in producing a valid entry document.
It matters how you entered – admission, parole, or without inspection – and how you remain here – in status, overstay or admission, overstay of parole, without lawful status after a waive in, as it effects how to perfect your stay later. For example, to become a permanent resident in the United States, adjustment of status, requires being admitted or paroled. Except for obtaining permanent residence through a United States citizen son or daughter (21 years of age or older), a United States citizen spouse, or a United States citizen parent (for a child up to age 21), the person must also be in lawful status – not overstaying an admission or violating the terms of the visa upon which he was admitted.
So, in the case of applying permanent residence through a United States citizen spouse, the applicant can make the application as long as he was admitted or paroled. In Scenario 6, above, a waive in, he can also apply for adjustment of status as long as the government believes he was waived in. Despite the ubiquitousness of waive-ins before 2001, USCIS has a hard time accepting these entries, called Quilantan entries because of the Board of Immigration Appeals decision, Matter of Quilantan, that allowed these entries to be considered lawful admissions for the purpose of adjustment of status.
Parolees applying for asylum are able to obtain permits to work because they are parolees. This is sensible because an asylum applicant needs to support himself while waiting the years in could take to conclude the asylum adjudication process.
Recently, things have changed. ICE, Immigration and Customs Enforcement, has stopped issuing parole documents to aliens it releases at ports of entry and has stopped extending parole for asylees their sister agency, CBP, Customs and Border Protection (NOT Customs and Border Patrol, for Crissakes!), initially paroled into the country.
When applying for a work permit, USCIS requests a copy of a parole document, a white card, called Form I-94, indicating the person was paroled into the country. A person who was earlier given an I-94 cannot extend it and under the recent change in policy, a person is not provided one when initially released. This precludes obtaining or extending a work permit. But, what is this person who was paroled into the country and not being taken back into custody other than a parolee?
Similarly, an alien released at the border to pursue asylum is not given a parole document and thus cannot satisfy USCIS that he was paroled. He is also not issued an admission document because he lacks a visa or other status allowing for admission. Can such a person adjust status – say he has a United States citizen spouse – without proof of admission or parole? The issue boils down to what the person’s presence in the United States is considered. If he has no parole document, even though he is in the country he may not be considered paroled. If he has no admission stamp in his passport, he may not be considered admitted. If he is here and has obviously be inspected, would he be a Quilantan admittee eligible to a adjust status. No one knows.
Interestingly, ICE asserts that when it releases an arriving alien who is pursuing asylum, that it is doing it under the authority of INA § 236, a section involving those who are present in the United States without inspection or who were admitted but then overstayed or violated immigration or criminal law. The section involving the treatment of arriving aliens is INA § 235. There appears to be no legal authority for ICE to release an arriving alien without deeming the release an admission or a parole.
Here’s my guess of what ICE will say. A large portion of the people released are being released by immigration court order. Recently, courts have concluded that detaining aliens in excess of six months while their cases crawl along in the system without an opportunity to demonstrate they are not a danger to the community or a flight risk is Constitutionally suspect. Rather than mandate that ICE conduct a hearing necessitating the creation of an adjudicatory tribunal within the enforcement agency, it delegated the hearing to the immigration courts, which otherwise have no authority to conduct custody hearings for arriving aliens. Thus, ICE presumably reasons, since we are not responsible for releasing the person, the immigration judge did, we do not have to admit or parole them. Because the courts did not authorize immigration judges (who do not have the legal authority to parole arriving aliens under INA § 235) to parole arriving aliens when it directed them to conduct these custody hearings, and the vast majority are not admissible (or else they would not be detained and not be seeking sylum), there is no one to do it.
Of course this is a canard. When the courts delegated to immigration courts the authority to conduct custody hearings for long-held arriving aliens, it was creating a legal process to lead to the normal treatment under INA § 235 for arriving aliens who should be released. It was not creating a new status by judicial fiat – aliens who pass through the border after being inspected and interrogated – but who are not admitted or paroled. The immigration courts and USCIS need to decide if these people are parolees or Quilantan admittees so they can pursue relief available to them. ICE should not be allowed to re-write the immigration laws and create a new class of entrants. The courts can change the law in the interest of rationalizing and constitutionalizing the law, and Congress can pass new immigration laws, but ICE cannot. If it looks like a parolee or Quilantan entrant and quacks like a parolee or Quilantan entrant, then it should be considered a parolee or Quilantan entrant – an acceptable canard. Published June 26, 2016.