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Turning Immigration Law on Its Head

Biden says he can let in anyone he wants.

(Photo by JIM WATSON/AFP via Getty Images)

Determining how many, and which, foreigners are allowed to move to the United States is a core responsibility of the legislature. The Immigration and Nationality Act (INA) is constructed such that Congress has given the president broad authority to keep out anyone he thinks should be excluded, but he is authorized to let in only those who are eligible under a complicated set of rules.

Presidents have been encroaching on Congress’s authority in this area—as in others—for some time, but the actions of the Biden administration are so egregious as to be different in kind.


In fact, it is fair to say that the left’s current approach to immigration is a complete inversion of the INA: They now claim that presidents have the authority to let in anyone they like—in whatever number they choose, for any reason whatsoever—but, as we saw during the prior administration, they may only keep foreigners out under very narrow and clearly delineated circumstances.

This is what we have been seeing at the border for two and half years now, with well over 2 million illegal border-jumpers taken into custody but then released into the U.S., ostensibly to apply for asylum. (The law requires that illegals claiming asylum be detained during the entire course of their proceedings.)

This has become so institutionalized that the DHS under Secretary Alejandro Mayorkas has gone beyond turning Border Patrol agents into the equivalent of Wal-Mart greeters at the border to requiring them to actually facilitate illegal border crossings. In the run-up to the end of Title 42, for instance, American border officers were coordinating with Mexican authorities on when to send groups of people illegally across the river.

And the Center for Immigration Studies’ indefatigable Todd Bensman reports that many border-jumpers, blocked from entering the U.S. by Texas state police stationed at the riverbank, are calling out for the Border Patrol to come and get them; as he notes, “They told us, ‘We want American immigración, because they will let us in.”

This executive usurpation of the power of deciding who gets to live here also underlies the latest White House effort to “reduce” illegal immigration by funneling inadmissible aliens through established ports of entry along the border using what might as well be called the OpenBorder app (with apologies to OpenTable). The app, actually named CBP One, is the linchpin of the Biden administration scheme to hide illegal immigration in plain sight by redefining it as “legal” (it’s not). And the administration has increased the daily number of people it admits via this ruse from 1,000 to 1,250 to 1,450, based on nothing but its say-so.


The basis of all these initiatives is something called “parole.” In the immigration context, parole is a narrow authority Congress gave the president to let in the occasional foreigner who has no right to be here in exceptional, temporary circumstances—a medical crisis, for example, or the need to testify at a trial. The Biden administration has abused this circumscribed power to create his own immigration system, untethered to the laws passed by Congress.

And this use of parole to turn the immigration law on its head is not limited to border questions. DHS recently announced it was expanding a made-up policy of “family unification parole” to four more countries, totally without basis in law.

Congress has placed numerical limits on various categories of legal immigration; to give just one example, the number of green cards for adult brothers and sisters of adult U.S. citizens is capped at 65,000 per year. Those caps mean that, when there is more demand than there is supply, which is most of the time, people have to wait for their number to come up. The State Department publishes a monthly document reporting when people in which categories will be able to come in.

This is often derided as a “backlog” by anti-borders activists, wanting you to imagine that lazy bureaucrats haven’t bothered to get to your file yet. On the contrary, these are just waiting lists, little different from standing in line for your turn to get on an amusement park roller coaster.

With the family reunification parole scheme, the Biden administration has decided that it is just going to let in as many people as it wants, Congress’s numerical limits be damned. This isn’t just a matter of cutting in line; instead of simply letting in different people, Biden’s DHS is letting in more people. To use the image of the amusement park line, the administration isn’t just giving a fast-pass to certain favored groups; it is actually stuffing three people into a two-person roller-coaster car.

Specifically, the new policy allows people from Colombia, El Salvador, Guatemala, and Honduras who have a relative in the U.S. that filed an application for them to immigrate to just come in regardless of the numerical caps. They are able to live and work here while they wait for their green card number to come up. (This expands a similar program started under the Obama administration for people from Cuba and Haiti.) It is true the five-year clock for citizenship won’t start until they actually get a green card, but that is a secondary concern for most immigrants. What they want is to get in and be able to work, and that is exactly what Biden is giving them.

But the point to Congress’s immigration limits is to limit—to limit the annual number of newcomers in order to protect American workers, reduce the burden on American taxpayers, and promote assimilation into the American mainstream. The Biden approach of ignoring those limits relegates Congress to the role of merely deciding what color photo ID a foreigner that the president let in gets to have: the pink-ish work permit or the green-ish permanent resident card.

It is time for Congress to take back the power to decide how many people move here from abroad. The most urgent step is to abolish parole and prohibit the president from giving work permits to people who aren’t explicitly eligible for them.

The Biden administration has openly rejected the idea of limits on immigration. Congress must stand our upside-down immigration law back on its feet.