The “magic” of parole is the latest in Trump-Russia saga.

Sunday, July 16th, 2017
By: Jonathan MontagJ.D.

It is hard not to be partisan these days. Current events are just too mind boggling and arguments too “out there” to be able to take most of what President Trump partisans say, write, and broadcast seriously. There is an old addage that the more you know about a subject, the more what you read about it in the media is wrong. A biologist who reads an article in the newspaper about some biological breakthrough cringes about something. As a former (briefly) military journalist, every time I read an article involving the military and see the writer refer to Marines or sailors or airmen as soldiers, or a writer discuss when an officer enlisted, I cringe. This was in the olden days when journalists at least meant to be fair and balanced and accurate, rather than use these terms as slogans. Now, you can be quite certain that some sources are just making it up.

The newest cringe-worthy article is the immigration wrinkle in the Natalia Veselnitskaya / Donald Trump Jr. Trump Tower “we have Russian government-sourced dirt on Hillary” meeting. Conservative media and the Conservative blogosphere is rife with articles about how it was the “Obama administration” that allowed Ms. Velenitskaya into the country. Reports are that she was denied a visa but then was paroled. The fact that she was paroled is “proof” that she was villainously allowed into the country so she could set up the unsuspecting, naive Donald Trump Jr.

Parole, as I explain to clients nearly daily, is when the government allows someone to come into the country even though they are not admitted. Admission and parole both allow a live human body into the United States. Admission affords more rights, so in essence, an admitted person is legally and physically in the country while a paroled person is merely physically present.

Apparently, Ms. Veselnitskaya could not get a visa to come to the United States. A person she was helping to represent in a money-laundering case in New York required her presence and the U.S. Attorney’s Office interceded to help her get paroled by Customs and Border Protection so she could assist in the case. Apparently she subsequently got a visa.

Media, like Fox News, also gets some details all wrong. Some media report that while paroled, she got a visa to stay longer. Customs and Border Protection (CBP) admits and paroles people. The State Department, from abroad, issues visas. Visas are essentially “get into the United States cards.” Once in the United States, one has a status provided by the visa. At the border, CBP decides how long you can stay in that status. CBP’s decisions are part regulatory and part discretionary. A person may have a visa good for ten years to come to the United States, lets say as a visitor, B-1 visitor for business, or B-2 visitor for pleasure (tourist). At the border, CBP, as laid out by regulation, usually allows a visitor a six month period of stay. However, if the CBP officer feels a person has been here too often in the past, or their purported reason for visiting seems sketchy, the officer may allow less time for the visit. Lets say a person has been in the United States for several lengthy visits in the past couple of years and shows up at the airport again. The officer may ask why the person is coming. The perennial visitor may say, “Oh, this time I am coming for my niece’s graduation which is next week.” The officer may then decide to admit the person but allow her to stay just two weeks instead of six months. People come to me all the time and tell me they are legally present in the United States after having been here for several years because their visa is good for ten years. I have to explain that their visa validity does not define their period of stay – the CBP officer at the border does.

Some news reports also indicate that the U.S. Attorney extended parole for Veselnitskaya. Again, wrong. CBP issues and extends paroles, not the U.S. Attorney. Certainly, if the U.S. Attorney vouches for the need for someone to be in the United States, it influences the decision to grant or extend parole, but the decision is CBP’s. Finally, stories find something nefariousness in Ms. Veselnitskaya’s having been denied a visa and then later getting one. She was certainly fortunate to get the visa, but it is not rare. It happens all the time. Suppose, for example, Ms. Veselnitskaya went to the consulate and asked for a  B-1 visitor for business or B-2 visitor for pleasure visa to come to the United States. A consular officer, who spends about two minutes per applicant, asks why she wants the visa. She might explain how she is representing someone in a court case in the United States or she is coming to lobby for poor Russian orphans who cannot come to the United States because her President (Putin) won’t let them out of Russia because he is upset about a law Congress passed after someone was murdered in jail. The consular officer may be concerned that she has come to the U.S. too often or for too long to really be a visitor or that she is coming for remunerative purposes (she will be paid for her work). Visa denied. However, if she goes back to the consulate a few months later and shows that she was paroled for specific purposes and departed as required and brings proof she will not be working in the United States, including, say, letters from prominent people that her presence in the United States is not in violation of B-1/B-2 purposes, she could get a visa. This would be ust like if your foreign sister is initially denied a visa to the United States because a consular officer thinks she wants to live in the United States, but she goes back later with a letter from you explaining that you haven’t seen her in five years and want to take her to Disneyland and she brings proof she is a wealthy brain surgeon in her country, the officer can change his mind.

Finally, the articles discuss how parole is rare, as if to be paroled it requires divine provenance or President Obama’s intercession to make it happen. The reality is asylum seekers, criminals and witnesses to crimes, people with emergency medical needs, and people coming for special events are paroled all the time. The authority for it is statutory, found at INA § 212(d)(5). That is not to say that some paroles are not controversial. In past years, paroling asylum seekers was more or less routine and now has become nearly impossible pursuant to recent executive orders and agency memoranda. A dark tale for another day.

In coming days we will learn a lot more about Ms. Veselnitskaya and what she has been up to. We will learn details about how the Russian government influenced our election and how much (or little) the Trump campaign and President Trump was involved in this. What we will not learn more about is nefarious use of parole or visa-issuance authority to let Ms. Veselnitskaya into the United States. There was nothing magical about Ms. Veselnitskaya being paroled or subsequently issue a visa. The slight of hand is the fake news story of something nefarious having happened to allow Ms. Veselnitskaya’s presence in the United States to have you take your eye off the ball – Russians, President Trump, and our election. Post July 16, 2017.


 

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