DOJ reaches legal settlement declaring Biden’s border ‘parole’ to be unlawful

The Trump administration has quietly struck a legal settlement that ends one of President Biden’s mass migrant “parole” programs and could block future presidents from trying to revive it.

The consent decree, reached in a lawsuit that Florida brought in 2023 and now pending before a federal judge, declares one of the Biden parole programs to be “unlawful.” It also binds the national government not to attempt any repeats for 15 years.

Judge T. Kent Wetherell, a Trump appointee to the court in northern Florida, signed off on the agreement last week.

Parole would be allowed in limited circumstances where it has traditionally been used, such as in medical emergencies or when a foreigner is needed to assist in a criminal investigation.

It could no longer be used in the way Mr. Biden and Homeland Security Secretary Alejandro Mayorkas deployed it, said Andrew “Art” Arthur, a former immigration judge.

“This consent decree will prevent a future administration from abusing DHS’s limited parole authority in the way that the Biden administration did,” Mr. Arthur said.

Parole is a special exception to the regular immigration system that allows the homeland security secretary to admit someone into the U.S. without a legal visa. Parolees don’t have firm legal status. When the authorized parole period expires, they are supposed to be returned to their previous status.

Parole does carry certain benefits, such as a work permit to compete for jobs, and incentives such as the earned income tax credit.

The law requires parole to be used only on a case-by-case basis, and only in the case of an urgent humanitarian need — such as a medical emergency and no time to get a visa — or a “significant” public benefit. That used to mean instances in which someone was needed to serve as a witness or assist in a criminal investigation.

Mr. Mayorkas upended that. He created categorical parole programs that welcomed tens of thousands of Afghans, hundreds of thousands of Ukrainians and millions more people from other countries.

Mr. Arthur calculated that nearly 3 million migrants were paroled into the U.S. during the Biden era. That accounts for a large portion, if not an outright majority, of the illegal immigrants who successfully settled in the U.S. under the previous administration.

The new consent decree likely would limit parole to “maybe a couple hundred a year,” he said.

In reaching the deal, Florida is harnessing a tactic called “sue and settle,” in which a plaintiff files a lawsuit against a friendly administration, and both sides agree to a new, binding policy that circumvents Congress and the usual administrative rulemaking process.

Left-leaning activists have been the most prolific with sue-and-settle deals, particularly in environmental and immigration matters. The Florida settlement suggests conservatives have figured out how to play as well.

Jennifer Coberly, a lawyer with the American Immigration Lawyers Association, said the deal appears to undermine the law.

“The biggest thing about this is it’s directly contrary to law,” she said. “Generally, [the law] does provide discretion to the administration, and this is saying you can’t do that for 15 years.”

Ms. Coberly said the agreement allows room for argument that some Biden parole programs would still be legal, such as the one that allowed Cubans, Haitians, Nicaraguans and Venezuelans to skip the southern border and fly directly into American airports without a visa.

Neither the Justice Department nor the Homeland Security Department responded to requests for comment for this report.

The key part of the decree reads: “Defendants agree not to issue any memorandum or otherwise adopt any policy that uses the Secretary of Homeland Security’s parole authority under Section 1182(d)(5) to create a categorical processing pathway for aliens at the border primarily to alleviate concerns over detention capacity or improve the Department of Homeland Security’s operational efficiency, including any memorandum or policy shifting the initiation of removal proceedings from the border to the interior or otherwise postponing the initiation of removal proceedings.”

The deal is binding on the federal government for 15 years.

Mr. Biden and Mr. Mayorkas turned to parole to try to alleviate pressure at the border. They didn’t want to maintain the stiff controls in place when President Trump left office, but the Homeland Security Department couldn’t handle the massive number of people who started streaming in.

Their answer was catch-and-release, and parole was the chief method.

Upon taking office, Mr. Trump’s administration quickly moved to suspend the Biden parole programs. It is now working to push out those who came through the legally questionable policies.

The consent decree grew out of a 2023 lawsuit filed by Florida Attorney General Ashley Moody and was finalized by her successor, Attorney General James Uthmeier.

“We thank the Trump administration for working with our office to obtain this result, which ensures that the next Democratic administration cannot abuse the parole system to allow another invasion of illegal aliens into our country,” Jae Williams, Mr. Uthmeier’s press secretary, told The Times.

The office of Ms. Moody, now a U.S. senator, didn’t respond to inquiries for this report.

Mr. Arthur said Ms. Moody’s lawsuits against the Biden administration were a major turning point in the immigration debate — in particular, a 2022 deposition of Border Patrol Chief Raul Ortiz, who admitted that Biden policy changes had made it tougher to detain and oust illegal immigrants caught at the border.

Instead, they were released, which in turn encouraged more migrants to come, believing they would also be released.

“When Moody deposed Raul Ortiz, the entire Biden administration catch-and-release scheme, which up to that point had been operating under the wire, was exposed,” Mr. Arthur said.