The senators are closer than ever to reaching a deal on a series of other new restrictions: limiting asylum claims, allowing quick expulsions at the border when crossings are particularly high and speeding up some types of deportations, among other changes, according to senators briefed on the negotiations.
But Republicans’ push to curb the president’s ability to grant parole has always been the deal’s trickiest piece, and the two sides are still far apart on the issue.
“Parole to me sounds like the biggest pivot point as to whether we’re going to get a deal or not,” Sen. Mike Braun (R-Ind.) said as he exited a GOP briefing on the talks Wednesday.
In U.S. immigration law, parole gives the government the authority to allow a foreigner to enter the United States on a temporary or provisional basis. U.S. administrations have used that power broadly during times of crisis to waive in refugees fleeing Vietnam, Cuba, and more recently, Afghanistan and Ukraine. It’s been used to accept a wide range of others, from witnesses in criminal cases to the families of Filipino World War II veterans to Central American children with parents living in the United States.
The Biden administration has wielded parole expansively, using it as the basis for two controversial border initiatives that currently allow in about 50,000 migrants per month.
After record numbers of Cubans, Haitians, Nicaraguans and Venezuelans crossed the U.S.-Mexico border illegally in 2021 and 2022, Biden officials said those groups could travel to the United States lawfully with a U.S. sponsor. Another Biden initiative that relies on parole, CBP One, allows migrants en route to the U.S.-Mexico border a chance to schedule an appointment using a government mobile app.
Cris Ramón, an adviser at UnidosUS, a Hispanic rights advocacy organization, said parole was created to give flexibility to the executive branch, and Biden has used it to reduce border numbers by offering migrants more “legal pathways.”
“You can see why the administration and Senate Democrats are keen to ensure parole remains in place,” he said.
Republicans argue that Biden has abused his parole powers with these programs, which they say have worsened the crisis at the border and attracted more migrants hoping to be allowed in. They say parole is meant to be used sparingly on a case-by-case basis, not as a free pass for tens of thousands to enter each month who haven’t qualified for U.S. visas.
Democrats and Biden officials say the president needs broad parole authorities to relieve pressure at the border and incentivize migrants to use lawful immigration channels. Illegal crossings by Cubans, Haitians and Nicaraguans plunged after the parole program went into effect, government data show.
“I think we are interested as Democrats in providing the administration with tools that will help better manage the border,” Sen. Chris Murphy (D-Conn.) told reporters on Tuesday. “We are not interested in taking away from the administration tools that they use today to better manage the border.”
“So when we talk about this issue of parole it is very important to understand that it is used today as a way that the administration is able to better manage the flow in a planful way,” he added.
Still, some Democrats say they agree the parole authority is a valid subject for debate. “The presidential authority is important from a human dignity and human rights standpoint, but because we have a broken immigration system a lot of people are trying to move through whatever apertures remain,” said Sen. Brian Schatz (D-Hawaii).
“I think there’s a legitimate debate to be had about how to strike the right balance and to make sure that either the parole system or the asylum system doesn’t de facto become the only way that people can enter the country,” Schatz said.
The issue threatens to blow up the months-long negotiations over immigration changes Republicans have demanded to unlock their votes for billions in aid to Ukraine as it fends off a Russian invasion, Israel and other national security priorities that President Biden requested and that Senate Minority Leader Mitch McConnell (R-Ky.) continues to argue are crucial.
House Republicans passed an immigration bill last May that would have drastically scaled back Biden’s parole powers, and many of them say the Senate would need to mirror their approach in order for the agreement to have a prayer in the GOP-controlled House. But Senate Democrats and the White House have made clear the GOP hardline approach is a no-go.
“What the administration is essentially saying is we don’t want you infringing on our Article II executive authorities … if we need for some reason to get people in here with parole,” said Sen. John Thune (R-S.D.), the No. 2 Senate Republican. “We acknowledge that and there have been a lot of ideas thrown out there about how to continue for them to have that authority but to have some limitations around it.”
One of those ideas is to put a limit on the number of people the executive branch paroles into the country per year, similar to the annual refugee cap.
Sen. James Lankford (R-Okla.), the lead Republican negotiator in the talks, said Republicans have a “real problem” with Biden’s use of his parole powers over the past year and have put forward numerous proposals on how to reform them.
He cited Biden’s use of the CBP One app to allow migrants to seek an appointment at a U.S. port of entry along the border. Biden officials offer about 1,500 appointments each day along the Mexico border, using parole to allow in applicants whose asylum hearings may be months or years into the future.
“When you show up they process you and hand you a work permit and you’re on your way,” Lankford said. “That’s not humanitarian parole.”
Still, Lankford said most Republicans believe the president needs the authority to use his parole powers in certain circumstances, and that’s part of what makes it difficult to produce exact proposals that limit the power without going too far.
“It is hard to be able to get the wording right because again we’re not trying to take out every authority from every president on how to use humanitarian parole,” said Lankford.
The issue is a red line for many Senate Republicans, lawmakers said on Wednesday.
Many Senate Republicans also say they want enforcement mechanisms in the deal to ensure the president sticks to its parameters. “I do think there are some enforcement mechanisms and metrics that you can incorporate,” Thune said.