Immigration has been a perpetual source of controversy in the United States for many years. Policymakers have had to consider economic, security, and humanitarian concerns when addressing immigration.[i] Due to the legislature being unable to come up with an inclusive immigration policy, legislative decisions have effectively been thrown to the executive and judicial branches in state governments.[ii] Different states have taken various approaches in their treatment of unauthorized immigrants. For instance, states like California have permitted “undocumented immigrants to get drivers’ licenses, receive in-state tuition at universities, and obtain other benefits.”[iii] While more conservative states have enacted laws that allow law enforcement officers to detain individuals who seem to be undocumented and inquire about their status.[iv]

Recently, Florida has seen a surge in the number of immigrants arriving from Cuba and Haiti. According to the U.S. Customs and Border Protection, Miami has reported a “400% increase in migrant encounters.”[v] The Florida Keys have also seen an increase in migrants arriving by boat and makeshift vessels.[vi] The uptick in migration comes as President Joe Biden unveiled a new migration management scheme that expands the Parole Process for Cubans, Haitians, Nicaraguans, and Venezuelans.[vii] The new Parole Program grants up to 30,000 migrants from each of these countries per month who have an “eligible sponsor and [successfully] pass vetting and background checks.”[viii] After being processed, the individual can come to the United States for a period of two years and receive work authorization.[ix]

The Covid-19 pandemic altered our immigration policy as the Trump administration limited immigration during the pandemic by invoking Title 42 of the Public Health Act.[x] Title 42 curbed traveling to the U.S. by turning migrants away at the Mexican border and suspending green cards and working visas.[xi] The Trump administration framed these modifications as crucial to limit the spread of the virus and safeguard jobs. When the Center for Disease Control and Prevention (CDC) declared that COVID-19 was no longer a serious threat to public health to validate Title 42, several Republican attorney generals filed suit requesting the policy remain in place.[xii] The U.S. Supreme Court issued an order prolonging the policy until the court made a final decision on the matter. To “enhance” former President Trump’s border policies, President Biden enacted the new Parole Program and expanded Title 42.[xiii] The Biden administration believes that the program will diminish irregular immigration patterns from Cuba, Haiti, Nicaragua, and Venezuela.

Despite the administration’s optimism, the announcement has garnered mixed reviews. Specifically, Florida has filed suit against the Department of Homeland Security due to the Biden administration’s parole program contending that it is an abuse of federal immigration regulation and an overreach of the President’s executive power.[xiv] The lawsuit argues that Florida will be adversely affected due to the financial costs to the state and “significant state resources such as education, healthcare, and correctional facilities.”[xv] The suit also alleges that “the presence of these illegal aliens in Florida … violates the State’s quasi-sovereign interest in its territory and the welfare of its citizens.”[xvi]  Florida, as well as 20 other states that have joined this lawsuit, claim that Homeland Security, the entity that supervises U.S. immigration agencies, essentially sidestepped Congress and established a visa program without any legislative support.

Advocates of Biden’s new program argue that there is minimal support for the Plaintiff-States’ limited view of the Department of Homeland Security’s parole power.[xvii] Parole is at the agency’s discretion. Pursuant to Section 212(d)(5)(A) of the Immigration and Nationality Act (INA), the Attorney General:

may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.[xviii]

The parole statute entrusts the Department of Homeland Security with the decisions of when to parole, whose entry is permitted, for what time period, and on what conditions.

Supporters of the program contend that because of section 212(d)(5)(A) of the INA, the grant of parole should not be subject to judicial review as it is within the executive’s authority.[xix] Essentially, even if Biden’s parole program were to be struck down, President Biden has the authority to continue to grant parole to individuals under INA § 212(d)(5). However, critics believe that the President is expanding his limited authority to grant parole by using INA to allow migrants to enter the United States improperly.[xx] Under Article I, Section 8 of the U.S. Constitution, Congress has the sole power to “establish a uniform Rule of Naturalization.”[xxi] In 1952, Congress used its legislative authority to create the Immigration and Nationality Act. This framework established legal immigration standards with a narrow grant to the executive branch.[xxii] Congress’ intent was to address emergency situations, such as a foreigner needing medical attention or appearances in a legal proceeding, and in the end, the parolee would return to their country.[xxiii] Now Biden has opened the door to thousands of immigrants that the legislature and several states claim to fall outside of the Congress’ standards and framework that have been set.

Aside from the political antics, the immigration crisis is a real and very present issue. Many migrants risk their lives on long and dangerous voyages, seeking asylum in the United States. The migrants travel in search of safety from instability, persecution, and even death. Unfortunately, because immigration policies are so fervently contested, upon a migrant’s arrival, they are faced with a complex journey, navigating through U.S. immigration laws and regulations that are becoming increasingly restrictive. This unprecedented crisis demands a compassionate response from our government. The Supreme Court now must address this power struggle between the two branches of government and decide whether Biden’s parole program is usurping congressional authority or is Biden simply creating a new pathway for immigration due to Congress’s inaction amid an unprecedented immigration crisis.

[i] See Claire Klobucista et al.,  The U.S. Immigration Debate, Council on Foreign Rels., https://www.cfr.org/backgrounder/us-immigration-debate-0 (last updated Aug. 3, 2022, 2:30 PM).

[ii] See id.

[iii] Id.

[iv] See id.

[v] Manuel Bojorquez & Analisa Novak, Florida sees spike in migrants coming from Cuba and Haiti by boat, CBS News (Jan. 6, 2023, 10:22 AM), https://www.cbsnews.com/news/florida-migrants-boat-cuba-haiti/.

[vi] See id.

[vii] See id.

[viii] FACT SHEET: Biden-⁠Harris Administration Announces New Border Enforcement Actions, The White House (Jan. 5, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/05/fact-sheet-biden-harris-administration-announces-new-border-enforcement-actions/.

[ix] See id.

[x] See Klobucista et al., supra note i. . a

[xi] See id.

[xii] See id.

[xiii] See id.

[xiv] See Syra Ortiz-Blanes, Florida, other states sue feds over parole program for Cubans, Haitians, Nicaraguans, Miami Herald, https://www.miamiherald.com/news/local/immigration/article271598967.html (last updated Jan. 28, 2023).

[xv] Id.

[xvi] Id.

[xvii] See David J. Bier, What Is the Legal Authority for Biden’s Parole Programs?, Cato Inst. (Jan. 25, 2023, 4:03PM), https://www.cato.org/blog/states-challenge-bidens-new-parole-program-will-they-stop-legal-migration.

[xviii] Immigration and Nationality Act § 212(d)(5)(A), 8 U.S.C. § 1182.]

[xix] See Bier, supra note xvii.

[xx] See Phillip Linderman, Constitution gives Congress, not Biden administration, power to regulate immigration, The Washington Times (Nov. 8, 2022), https://www.washingtontimes.com/news/2022/nov/8/constitution-gives-congress-not-biden-administrati/.

[xxi] U.S. Const. art. I, § 8.

[xxii] See Linderman, supra note xx.

[xxiii] See id.