U.S. announces new sponsorship program for Ukrainian refugees, though only for parole—04-22-22
Immigration news, in context
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This week’s edition:
In The Big Picture, we explore a new plan to allow U.S. people and organizations to financially sponsor Ukrainians for entry via parole.
In Under the Radar, we examine the uncertainty and political pressure around the coming end of the Title 42 policy.
In Next Destination, we discuss the administration’s effort to get the Supreme Court to allow it to terminate the Remain in Mexico policy, with oral arguments next week.
The Big Picture
The news: Yesterday, the Biden administration announced the creation of a new program, dubbed Uniting for Ukraine, that would in theory allow U.S. persons and organizations to provide affidavits of financial support for individual Ukrainian refugees, streamlining their ability to reach the United States. The catch: they would be admitted via humanitarian parole.
What’s happening?
When the Biden administration pledged last month to accommodate 100,000 Ukrainian refugees, we were quick to express skepticism about the logistical feasibility of this claim. At the time, officials touched on humanitarian parole as a possible route to bringing large numbers of refugees in quickly, a tactic we had predicted weeks earlier. Now, the administration is rolling out just such a targeted initiative. While we’d love to claim that we’re soothsayers, in reality this is one of the only approaches that is immediately workable in a chaotic environment where the imperative is speed, not the drawn-out processes of the standard refugee program.
Looking at the program itself, there are still relatively scant details, which will likely get filled out once the program formally launches on April 25, this Monday. What we know from the announcement and a subsequent press call is that the administration will permit “U.S.-based individuals and entities”—a rather open-ended designation that can include U.S. citizens, permanent residents, nonprofits, potentially private businesses—to present some kind of certification of financial support and themselves pass a background check in order to directly sponsor individual Ukrainians.
In practice, the financial sponsorship process will probably go through form I-864, which is currently used by companies and family members to prove financial support for would-be immigrants they are sponsoring, or something very much like it. Applicants would have to present evidence like pay stubs and tax records to prove broadly that they can feed and house Ukrainian arrivals if they do not otherwise have income or assets. The background check requirement is likely an effort to avoid unsavory situations of would-be sponsors intending to exploit refugees, the type of situation which led the U.N. to ask the United Kingdom to stop placing single Ukrainian women and their children with single men.
This isn’t a generalized program matching intended refugees with potential sponsors; officials emphasized that sponsors would have to apply on behalf of specific Ukrainians, meaning that those who do end up benefiting are likely to already have U.S. ties. This might mean a nexus to longstanding Ukrainian-American communities in cities like New York and Philadelphia, via Ukraine’s robust tech sector and its connections to U.S. tech, or through religious affiliation, which has already provided the basis for a surprisingly large Ukrainian refugee resettlement into the United States over the past several years (more on that later).
The main takeaway here should be that the arrivals will not be admitted as refugees. In fact, from a purely legal perspective, they’re arguably not being “admitted” at all. We broke down the humanitarian parole program in detail when discussing widespread parole denials for Afghan applicants, but to recap, 8 USC § 1182(d)(5)(A) allows executive officials to parole people into the country based on “urgent humanitarian reasons or significant public benefit.” It’s one of the more open-ended mechanisms in immigration statutory law, giving administrative personnel the ability to allow almost anyone physical entry into the United States based on a purely discretionary basis. Yet, as the law notes, “parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return.”
In practice, parole can be issued for up to two years in a renewable fashion, but there is no direct path from parole to permanent status that doesn’t run through the existing permanent immigration frameworks—in this case, family, employment, or humanitarian (diversity visa being out given the applicants’ presence in the country already). There’s no clear numerical commitment attached to this Uniting for Ukraine program, but the administration has already somewhat boxed itself in with this overarching 100,000 number, the vast majority of which will probably have to be paroled in given the difficulties in attempting to push large numbers of people through the existing refugee framework.
As we’ve noted before, commitments aren’t the issue here; for fiscal year 2021, Biden was essentially pressured into raising the annual refugee cap from the historically-low 15,000 to 62,500, yet the logistical constraints of a system in disrepair meant that the government ended up resettling 11,411, fewer than even the initial cap. Biden’s newest budget proposal calls for, among other immigration-related expenditures, a massive investment in the refugee resettlement apparatus, but that all still has to go through Congress and even then the results will take months if not years to fully manifest. This doesn’t mean the administration is incapable of processing Ukrainian refugees, but it’s very doubtful that the operational capacity exists, at this moment, to do so in large numbers, which is why it is turning to parole. This also seems like a way of discouraging Ukrainians to attempt to cross the border from Mexico, as they’re being told that they will no longer be allowed in after this program goes into effect.
There is one specific group of applicants that have a more significant shot at resettlement through the standard refugee process: those who fall under the auspices of the so-called Lautenberg Amendment and actually entered the refugee pipeline before the Russian invasion. As we’ll get into below, Congress’ Cold War-era preference towards Soviet refugees paired with Trump’s disgust for nonwhite immigration combined into a situation where, for a few years, Ukrainians were among the most resettled nationalities in the refugee program, ostensibly on religious persecution grounds. State Department officials have now told reporters that they will try to find about 18,000 Ukrainians who were already at some stage in the process by the time the invasion began and help them complete the process. This group would arrive as formal refugees, with the permanent status that that entails.
How we got here
Not long after Russia invaded Ukraine, a new group of migrants began arriving at the U.S.-Mexico border: Ukrainian refugees fleeing the war. Some of the Ukrainian migrants were initially turned away under Title 42, but were ultimately allowed into the U.S. after media reports of their expulsions began circulating. Soon, Ukrainian war refugees began traveling to Mexico by the thousands with the hope of making it to the United States. Coming through Mexico is one of the only avenues for those who don’t have visas to get to the U.S. directly; in this sense, the Ukrainians arriving at the border are no different from the other so-called “extra-continental” migrants who pass through Mexico before asking for asylum in the U.S.
There was one key difference, though: the Ukrainians arriving at the border have largely been allowed into the country, despite the continuation of Title 42. It’s undeniable that turning away Ukrainian war refugees would reflect poorly on the U.S.—but it’s also undeniable that Ukrainian migrants have been welcomed while those from other countries, including Mexico, Guatemala, and Honduras, continue to be turned away. The Biden administration’s decision to effectively exempt Ukrainian migrants from Title 42 is the most egregious example of how the supposed public health policy has turned into a way of granting people from certain countries access to the asylum system while denying those same rights to others. Mexican, Central American, and Haitian migrants have been expelled by the tens of thousands. Until recently, Venezuelans were allowed into the U.S.—until the administration reached a deal with Colombia allowing it to expel certain Venezuelans there.
That’s not to say the process has been easy. Ukrainians are, after all, fleeing a war. The New York Times recently reported on some of the hardships Ukrainian migrants have faced in Tijuana: days-long wait times, uncomfortable and occasionally dangerous living conditions, and even family separation. There have been dozens of instances of Ukrainian children being separated from their adult caregivers—including aunts and uncles, older siblings, or family friends—because those caregivers aren’t their legal guardians.
The separations are a result of the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), a law that outlines how unaccompanied migrant children must be treated in federal immigration custody. Under the TVPRA, children who arrive at the border with any adult who isn’t their legal guardian are considered “unaccompanied” and processed as such. The law is intended to prevent human trafficking, but has for years resulted in the separations of children from their adult caregivers.
Immigrant advocacy groups and legal service providers have helped draw attention to the struggles Ukrainian migrants face at the border—but they have also emphasized that the struggles Ukrainians have had are a feature, not a bug, of the immigration system that tens of thousands of migrants have also dealt with. And unlike Ukrainians, who are being welcomed, migrants from other parts of the world—particularly those from Mexico, Central America, and the Caribbean—have been turned away time and time again under Title 42. These advocacy groups aren’t suggesting that Ukrainian migrants should receive the same treatment as other migrants, but rather that other migrants should be welcomed in the same way Ukrainians have been.
The new processing system, however, could instead further entrench the nationality-based distinctions that have played out at the border thus far. Ukrainians who arrive at the border will no longer be exempted from Title 42; instead, they’ll be turned away like everyone else. Unlike other migrants, though, they’ll have the opportunity to apply for a specific parole program. Migrants fleeing war, instability, and violence in other countries—including Mexico, certain parts of which are being torn apart by cartel turf wars—have no comparable chance at relief. Instead, they must await the much-anticipated (and highly contested) end of Title 42. If and when Title 42 is finally lifted, those migrants will have to apply for asylum—a process stacked against those who are fleeing war or generalized violence, since only those fleeing targeted persecution due to their race, religion, nationality, political opinion, or membership in a particular social group.
The rules are a bit different for refugees from former Soviet countries, including Ukraine. The 1989 Lautenberg Amendment allows religious minorities from countries that used to belong to the USSR to qualify for refugee status without having to prove that they’ve faced persecution due to their religious affiliation. It was later expanded to include religious minorities from other select countries, including Iran, but its primary beneficiaries continue to be religious minorities from Ukraine. After Trump’s ban on travelers from several Muslim-majority countries went into effect, Ukrainians made up a substantial percentage of refugees resettled in the U.S. During fiscal 2019, Ukrainians were the third-most resettled nationality, after those from Congo and Myanmar.
As immigration reporter Dara Lind noted on Twitter, both the asylum and refugee systems are relatively recent inventions. Prior to their creation, people fleeing wars or other conflicts were generally paroled in by the president. That was the case with the hundreds of thousands of Vietnamese, Cambodian, and Laotian refugees who came to the U.S. in the wake of the Vietnam War, for example.
The new program for Ukrainians is most analogous to humanitarian parole for Afghans, which has been notably fraught. Last December, we wrote about how Afghan parole applications were being denied en masse for a bizarre reason: because applicants couldn’t prove that they were “at risk of severe targeted or individualized harm.” Denial letters sent to Afghan applicants said that “parole is not generally intended to be used in place of the international refugee protection regime or resettlement through the U.S. Refugee Admissions Program (USRAP),” even though the parole system was implemented to do just that. As we’ve written about in numerous editions, the refugee resettlement process is slow and laborious—it’s not useful for processing tens of thousands of people who need immediate assistance, which is where parole fits in.
What’s next?
The turn towards parole comes as part of a general trend of the administration using what was supposed to be a narrow and relatively rare program as a catch-all band-aid for populations it wants to easily bring into the country. By the end of this year, the U.S. could have paroled in tens of thousands of Ukrainians, to add to the existing population of about 36,000 Afghans who have been paroled in since last year. That leaves us with perhaps 100,000 or more people who we have collectively determined required some type of protection, but who don’t have a clear path to status and will be forced to exist in some type of immigration limbo.
Many people will say that this is easily solvable by having them all apply for asylum, which unlike the refugee program has no numerical cap and is conducted with an applicant already in the country. That’s certainly possible, but it’s not quite as straightforward as one might imagine. For starters, there are logistical issues here; the U.S. Citizenship and Immigration Services, which would handle such affirmative asylum applications, is about to phase in responsibility for asylum applications at the border, which are currently sent straight to the immigraiton courts. Starting on May 31, a new federal rule will start vesting initial jurisdiction for these asylum seekers with USCIS, just as the border is expected to receive massive increases in arrivals in the aftermath of the termination of the Title 42 order, expected May 23.
USCIS already has enormous backlogs that are hampering the agency’s ability to efficiently carry out its mission. Routine applications for things as simple as work authorization cards are taking two, three, four times as long as they did even a few years ago, and to that milieu we’re adding hundreds of thousands of new asylum applications from the border. Adding another hundred thousand from Afghan and Ukrainian refugees is a somewhat dicey proposition.
Then there’s the legal problem of eligibility. As we have discussed at length before, the refugee and asylum standards are actually pretty narrow. Physical danger, even the real possibility of death, are not in and of themselves considered justifications for asylum. To qualify, an applicant must prove that they are being persecuted specifically as a result of race, religion, nationality, membership in a particular social group, or political opinion, typically either by the authorities or at least with the authorities being powerless to stop it. This is likely a more straightforward argument for Afghans refugees, who can mostly credibly claim that the Taliban-run government will directly persecute them for, for example, their political opposition or membership in a group like “women who want to study.”
It’s a bit more difficult of an argument for Ukrainians to make. Their own government, after all, is not persecuting them, and absent a finding that Russia is specifically targeting particular groups of civilians (which is certainly possible), they are not necessarily being persecuted at all. They are simply caught in the crossfire of a ground war, and while that’s obviously a situation of great personal danger, that’s not necessarily a justification for asylum specifically. In any case, all these applicants would definitely need attorneys to make these cases, and that in itself is going to stretch legal services systems, especially if many of them don’t have the resources to pay.
They will all have the opportunity to be sponsored through family or employment, of course, but this will obviously depend on whether eligible family or employers are available and willing to sponsor them. That all leaves what could conceivably be a ticking time bomb of humanitarian migrants with no clear avenue to remaining permanently in the country, and always a misstep away from removal. At this point, the only entity that might be able to fix this is Congress, and we’re certainly not holding our breath.
Under the Radar
Biden administration may delay Title 42 repeal
After announcing that Title 42 would end on May 23, the Biden administration is now considering delaying the repeal of the pandemic-related border policy, Axios reports. A White House spokesperson told Axios that it will “continue to defer to the CDC” on Title 42—and indeed, the statute authorizing Title 42 clearly states that the Surgeon General (which transferred authority on Title 42 to the CDC) has the power to decide when the policy ends. The CDC has been reviewing Title 42 every 60 days, and has until recently decided to extend the policy, even as other pandemic mitigation measures have been eased or abandoned altogether.
The White House is clearly nervous that ending Title 42 will make Democrats susceptible to attacks of supporting “open borders,” even though lifting the policy would just revert the asylum system to the pre-pandemic status quo. The administration is trying to counter that by saying that ending Title 42 will make it harder for migrants to cross the border, since it would require them to be put in deportation proceedings instead of being quickly expelled to Mexico. Several moderate Democrats have asked the administration to keep Title 42 in place, and a group of senators led by Kyrsten Sinema introduced a bill that would implement Title 42 indefinitely until the pandemic ends. Meanwhile, Republican-led states sued the administration over its plan to end the policy, which could lead to an injunction. All told, everyone seems to have forgotten that Title 42 is ostensibly a public health policy, not a border control measure, even though it has never really been used as such.
Next Destination
Administration takes MPP to the Supreme Court
The Supreme Court will consider whether the Biden administration can end the Remain in Mexico policy, which a federal court required it to resume after a legal challenge from Republican-led states. The Biden administration announced it would end the program, officially called the Migrant Protection Protocols, shortly after taking office. It began by suspending new additions to the MPP docket, then paroled all migrants who had pending cases into the U.S. But it did not officially end MPP until last June.
Texas and Missouri sued in April, before the policy officially ended, saying that the administration’s efforts to end MPP were arbitrary and capricious. Like many immigration-related legal challenges, the lawsuit hinged on the Administrative Procedure Act and was not over whether the administration could do something but rather whether it had done it the right way. A federal judge in Texas ordered the administration to resume the policy in August, which the administration appealed all the way to the Supreme Court. The appeals were all denied. The administration re-attempted to end MPP in October, but an appeals court found that effort insufficient as well.
The administration said that if MPP continues, it will “continue to severely impair the Executive Branch’s constitutional and statutory authority to manage the border and conduct the Nation’s foreign policy.” The Supreme Court will hear arguments in the MPP case in April, and a decision will likely come this summer.