DHS Inconsistency Muddies Detained Cubans’ Path to Green Card

Georgianna Pisano Goetz, Nov. 24, 2023

"The Department of Homeland Security has been pushing inconsistent arguments about the meaning of parole under the Cuban Adjustment Act of 1966, needlessly complicating the naturalization process for Cubans in the US.

When a Cuban enters the US “without inspection”—not at a designated port of entry, such as an airport or international bridge—the DHS can detain them. If the DHS places the Cuban individual in removal proceedings before an immigration judge, DHS determines whether the individual remains in custody or is released.

One form of release is “parole,” and parole is a required element for adjustment of status under the Act, which allows Cuban natives or citizens living in the US who meet certain eligibility requirements to apply to become lawful permanent residents and get a green card.

A 2018 Supreme Court case seems to indicate parole is the only release authority the DHS has. Under that understanding, most, if not all, Cubans released from immigration custody have been paroled and are CAA-eligible.

However, an alternative interpretation finds the DHS has various release authorities and not every release—i.e., release on bond or an order on their own recognizance—is parole.

What constitutes “parole” in an immigration context? It doesn’t resemble criminal parole. The Immigration and Nationality Act doesn’t define it. The DHS—the prosecuting authority—doesn’t have a consistent internal definition.

In immigration court, attorneys from the USCIS Office of the Principal Legal Advisor argue respondents not explicitly paroled by the DHS aren’t eligible for adjustment under the CAA.

On the other hand, US Citizenship and Immigration Services—the federal agency that adjudicates immigration relief applications when the immigration court doesn’t have jurisdiction—indicates it will accept applications from respondents who were detained and subsequently released on bond or an order on their own recognizance.

Yet, both the OPLA and USCIS are components of DHS. How can the immigration court fulfill its mission to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administrating the nation’s immigration laws when the DHS itself pursues conflicting arguments?

Cuban Adjustment Act

Under the Cuban Adjustment Act, the attorney general may, at their discretion, adjust the status of any noncitizen who complies with all of the following:

• Has been admitted or paroled into the US subsequent to Jan. 1, 1959
• Has been physically present in the US for at least one year
• Has applied for adjustment to permanent resident status
• Is eligible to receive an immigrant visa Is admissible to the US for permanent residence

The CAA’s first element has been a subject of debate for years already. In 2018, the Supreme Court considered the proper interpretation of the DHS’ detention and release/parole authority under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) in Jennings v. Rodriguez.

The US Supreme Court stated aliens detained under INA § 2359(b)(1) or (b)(2) may only be released from DHS custody under a parole issued pursuant to INA § 212(d)(5)(A).

Post-Jennings Split

Jennings spawned a split among the immigration courts. Cuban respondents now argue their release from DHS custody—be it on bond or an order on their own recognizance—necessarily constitutes parole under Jennings.

The respondent may then request the immigration court make a prima facie finding of the respondent’s eligibility for adjustment or terminate so the respondent can pursue relief before the USCIS.

While some immigration courts—namely in Miami and Houston—accept this argument, other immigration courts have dismissed the argument as merely dicta from Jennings and require an explicit showing of parole, usually in the form of an I-94 stamp. Thus, Cuban applicants may or may not be found eligible for adjustment depending on the immigration court they appear before.

And how did DHS respond to Jennings? In immigration court, DHS attorneys from OPLA have consistently argued against the Cuban respondents’ reading of Jennings.

The DHS argues it has other statutory authority to detain and release respondents so that not all releases constitute parole. Respondents released on bond or their own recognizance are not eligible for relief under the CAA.

At the USCIS, the DHS indicated it will accept bond or release on recognizance as parole, even if the respondent was prior denied on those exact grounds.

The immigration courts’ mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administrating the nation’s immigration laws.

There will always be legal conundrums to be addressed at the appellate level. The immigration court can’t be expected to carry out DHS’s inconsistent outcomes by rejecting the Jennings argument if the USCIS is accepting bond and recognizance as parole.

Regardless of the proper legal interpretation of Jennings, immigration courts must dismiss removal proceedings against potentially CAA-eligible respondents until the DHS adopts a consistent policy.

On Sept. 11, the Board of Immigration Appeals ruled in Matter of Cabrera-Fernandez, that “conditional parole” is legally distinct from “humanitarian parole,” and only the latter renders an applicant CAA-eligible.

The slight, four-page opinion didn’t address any other arguments raised by respondents post-Jennings, nor did the decision address the DHS’ inconsistent policies or the immigration courts’ role in enforcing the DHS’ inconsistent policies. Rather than resolve the issue, the BIA decision places further barriers to justice before Cuban applicants."