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Notice2023-00252

Implementation of a Parole Process for Cubans

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Published

January 9, 2023

Issuing agencies

Homeland Security Department

Abstract

This notice describes a new effort designed to enhance the security of our Southwest Border (SWB) by reducing the number of encounters of Cuban nationals crossing the border without authorization, as the U.S. Government continues to implement its broader, multi-pronged and regional strategy to address the challenges posed by a surge in migration. Cubans who do not avail themselves of this new process, and instead enter the United States without authorization between ports of entry (POEs), generally are subject to removal--including to third countries, such as Mexico. As part of this effort, the U.S. Department of Homeland Security (DHS) is implementing a process--modeled on the successful Uniting for Ukraine (U4U) and Process for Venezuelans--for certain Cuban nationals to lawfully enter the United States in a safe and orderly manner and be considered for a case-by-case determination of parole. To be eligible, individuals must have a supporter in the United States who agrees to provide financial support for the duration of the beneficiary's parole period, pass national security and public safety vetting, and fly at their own expense to an interior POE, rather than entering at a land POE. Individuals are ineligible for this process if they have been ordered removed from the United States within the prior five years; have entered unauthorized into the United States between POEs, Mexico, or Panama after the date of this notice's publication, with an exception for individuals permitted a single instance of voluntary departure or withdrawal of their application for admission to still maintain their eligibility for this process; or are otherwise deemed not to merit a favorable exercise of discretion.

Full Text

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[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1266-1279]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00252]

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DEPARTMENT OF HOMELAND SECURITY

Implementation of a Parole Process for Cubans

ACTION: Notice.

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SUMMARY: This notice describes a new effort designed to enhance the
security

[[Page 1267]]

of our Southwest Border (SWB) by reducing the number of encounters of
Cuban nationals crossing the border without authorization, as the U.S.
Government continues to implement its broader, multi-pronged and
regional strategy to address the challenges posed by a surge in
migration. Cubans who do not avail themselves of this new process, and
instead enter the United States without authorization between ports of
entry (POEs), generally are subject to removal--including to third
countries, such as Mexico. As part of this effort, the U.S. Department
of Homeland Security (DHS) is implementing a process--modeled on the
successful Uniting for Ukraine (U4U) and Process for Venezuelans--for
certain Cuban nationals to lawfully enter the United States in a safe
and orderly manner and be considered for a case-by-case determination
of parole. To be eligible, individuals must have a supporter in the
United States who agrees to provide financial support for the duration
of the beneficiary's parole period, pass national security and public
safety vetting, and fly at their own expense to an interior POE, rather
than entering at a land POE. Individuals are ineligible for this
process if they have been ordered removed from the United States within
the prior five years; have entered unauthorized into the United States
between POEs, Mexico, or Panama after the date of this notice's
publication, with an exception for individuals permitted a single
instance of voluntary departure or withdrawal of their application for
admission to still maintain their eligibility for this process; or are
otherwise deemed not to merit a favorable exercise of discretion.

DATES: DHS will begin using the Form I-134A, Online Request to be a
Supporter and Declaration of Financial Support, for this process on
January 6, 2023.

FOR FURTHER INFORMATION CONTACT: Daniel Delgado, Acting Director,
Border and Immigration Policy, Office of Strategy, Policy, and Plans,
Department of Homeland Security, 2707 Martin Luther King Jr. Ave. SE,
Washington, DC 20528-0445; telephone (202) 447-3459 (not a toll-free
number).

SUPPLEMENTARY INFORMATION:

I. Background--Cuban Parole Process

This notice describes the implementation of a new parole process
for certain Cuban nationals, including the eligibility criteria and
filing process. The parole process is intended to enhance border
security by reducing the record levels of Cuban nationals entering the
United States between POEs, while also providing a process for certain
such nationals to lawfully enter the United States in a safe and
orderly manner.
The announcement of this new process followed detailed
consideration of a wide range of relevant facts and alternatives, as
reflected in the Secretary's decision memorandum dated December 22,
2022.\1\ The complete reasons for the Secretary's decision are included
in that memorandum. This Federal Register notice is intended to provide
appropriate context and guidance for the public regarding the policy
and relevant procedures associated with this policy.
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\1\ See Memorandum for the Secretary from the Under Secretary
for Strategy, Policy, and Plans, Acting Commissioner of U.S. Customs
and Border Protection, and Director of U.S. Citizenship and
Immigration Services, Parole Process for Certain Cuban Nationals
(Dec. 22, 2022).
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A. Overview

The U.S. Government is engaged in a multi-pronged, regional
strategy to address the challenges posed by irregular migration.\2\
This long-term strategy--a shared endeavor with partner nations--
focuses on addressing the root causes of migration, which are currently
fueling unprecedented levels of irregular migration, and creating safe,
orderly, and humane processes for migrants seeking protection
throughout the region. This includes domestic efforts to expand
immigration processing capacity and multinational collaboration to
prosecute migrant-smuggling and human-trafficking criminal
organizations as well as their facilitators and money-laundering
networks. While this strategy shows great promise, it will take time to
fully implement. In the interim, the U.S. government needs to take
immediate steps to provide safe, orderly, humane pathways for the large
numbers of individuals seeking to enter the United States and to
discourage such individuals from taking the dangerous journey to and
arriving, without authorization, at the SWB.
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\2\ In this notice, irregular migration refers to the movement
of people into another country without authorization.
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Building on the success of the Uniting for Ukraine (U4U) process
and the Process for Venezuelans, DHS is implementing a similar process
to address the increasing number of encounters of Cuban nationals at
the SWB and at sea, which have reached record levels over the past six
months. Similar to Venezuela, Cuba has restricted DHS's ability to
remove individuals to Cuba, which has constrained the Department's
ability to respond to this surge.
In October 2022, DHS undertook a new effort to address the high
number of Venezuelans encountered at the SWB.\3\ Specifically, DHS
provided a new parole process for Venezuelans who are backed by
supporters in the United States to come to the United States by flying
to interior ports of entry--thus obviating the need for them to make
the dangerous journey to the SWB. Meanwhile, the Government of Mexico
(GOM) made an independent decision for the first time to accept the
returns of Venezuelans who crossed the SWB without authorization
pursuant to the Title 42 public health Order, thus imposing a
consequence on Venezuelans who sought to come to the SWB rather than
avail themselves of the newly announced Parole Process. Within a week
of the October 12, 2022 announcement of that process, the number of
Venezuelans encountered at the SWB fell from over 1,100 per day to
under 200 per day, and as of the week ending December 4, to an average
of 86 per day.\4\ The new process and accompanying consequence for
unauthorized entry also led to a precipitous decline in irregular
migration of Venezuelans throughout the Western Hemisphere. The number
of Venezuelans attempting to enter Panama through the Dari[eacute]n
Gap--an inhospitable jungle that spans between Panama and Colombia--was
down from 40,593 in October 2022 to just 668 in November.\5\
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\3\ Implementation of a Parole Process for Venezuelans, 87 FR
63507 (Oct. 19, 2022).
\4\ DHS Office of Immigration Statistics (OIS) analysis of data
pulled from CBP Unified Immigration Portal (UIP) December 5, 2022.
Data are limited to USBP encounters to exclude those being paroled
in through ports of entry.
\5\ Servicio Nacional de Migraci[oacute]n de Panam[aacute],
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022,
<a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last viewed
Dec. 11, 2022).
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DHS anticipates that implementing a similar process for Cubans will
reduce the number of Cubans seeking to irregularly enter the United
States between POEs along the SWB or by sea by coupling a meaningful
incentive to seek a safe, orderly means of traveling to the United
States with the imposition of consequences for those who seek to enter
without authorization pursuant to this process. Only those who meet
specified criteria and pass national security and public safety vetting
will be eligible for consideration for parole under this process.
Implementation of the new parole process for Cubans is

[[Page 1268]]

contingent on the GOM accepting the return, departure, or removal to
Mexico of Cuban nationals seeking to enter the United States without
authorization between POEs on the SWB.
As in the process for Venezuelans, a supporter in the United States
must initiate the process on behalf of a Cuban national (and certain
non-Cuban nationals who are an immediate family member of a primary
beneficiary), and commit to providing the beneficiary financial
support, as needed.
In addition to the supporter requirement, Cuban nationals and their
immediate family members must meet several eligibility criteria in
order to be considered, on a case-by-case basis, for advance travel
authorization and parole. Only those who meet all specified criteria
are eligible to receive advance authorization to travel to the United
States and be considered for a discretionary grant of parole, on a
case-by-case basis, under this process. Beneficiaries must pass
national security, public safety, and public health vetting prior to
receiving a travel authorization, and those who are approved must
arrange air travel at their own expense to seek entry at an interior
POE.
A grant of parole under this process is for a temporary period of
up to two years. During this two-year period, the United States will
continue to build on the multi-pronged, long-term strategy with our
foreign partners throughout the region to support conditions that would
decrease irregular migration, work to improve refugee processing and
other immigration pathways in the region, and allow for increased
removals of Cubans from the United States and partner nations who
continue to migrate irregularly but who lack a valid claim of asylum or
other forms of protection. The two-year period will also enable
individuals to seek humanitarian relief or other immigration benefits,
including adjustment of status pursuant to the Cuban Adjustment Act,
Public Law 89-732, 80 Stat. 1161 (1966) (8 U.S.C. 1255 note), for which
they may be eligible, and to work and contribute to the United States.
Those who are not granted asylum or any other immigration benefits
during this two-year parole period generally will need to depart the
United States prior to the expiration of their authorized parole period
or will be placed in removal proceedings after the period of parole
expires.
The temporary, case-by-case parole of qualifying Cuban nationals
pursuant to this process will provide a significant public benefit for
the United States, by reducing unauthorized entries along our SWB,
while also addressing the urgent humanitarian reasons that are driving
hundreds of thousands of Cubans to flee their home country, to include
crippling economic conditions and dire food shortages, widespread
social unrest, and the Government of Cuba's (GOC) violent repression of
dissent.\6\ Most significantly, DHS anticipates this process will: (i)
enhance the security of the U.S. SWB by reducing irregular migration of
Cuban nationals, including by imposing additional consequences on those
who seek to enter between POEs; (ii) improve vetting for national
security and public safety; (iii) reduce the strain on DHS personnel
and resources; (iv) minimize the domestic impact of irregular migration
from Cuba; (v) disincentivize a dangerous irregular journey that puts
migrant lives and safety at risk and enriches smuggling networks; and
(vi) fulfill important foreign policy goals to manage migration
collaboratively in the hemisphere.
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\6\ Washington Office on Latin America, U.S.-Cuba Relations: The
Old, the New and What Should Come Next, Dec. 16, 2022, <a href="https://www.wola.org/analysis/us-cuba-relations-old-new-should-come-next/">https://www.wola.org/analysis/us-cuba-relations-old-new-should-come-next/</a>
(last visited Dec. 17, 2022).
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The Secretary retains the sole discretion to terminate the process
at any point.

B. Conditions at the Border

1. Impact of Venezuela Process
This process is modeled on the Venezuela process--as informed by
the way that similar incentive and disincentive structures successfully
decreased the number of Venezuelan nationals making the dangerous
journey to and being encountered along the SWB. The Venezuela process
demonstrates that combining a clear and meaningful consequence for
irregular entry along the SWB with a significant incentive for migrants
to wait where they are and use a safe, orderly process to come to the
United States can change migratory flows. Prior to the October 12, 2022
announcement of the Venezuela process, DHS encountered approximately
1,100 Venezuelan nationals per day between POEs--with peak days
exceeding 1,500. Within a week of the announcement, the number of
Venezuelans encountered at the SWB fell from over 1,100 per day to
under 200 per day, and as of the week ending December 4, an average of
86 per day.\7\
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\7\ Office of Immigration Statistics (OIS) analysis of data
pulled from CBP UIP December 5, 2022. Data are limited to USBP
encounters to exclude those being paroled in through ports of entry.
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Panama's daily encounters of Venezuelans also declined
significantly over the same time period, falling some 88 percent, from
4,399 on October 16 to 532 by the end of the month--a decline driven
entirely by Venezuelan migrants' choosing not to make the dangerous
journey through the Dari[eacute]n Gap. The number of Venezuelans
attempting to enter Panama through the Dari[eacute]n Gap continued to
decline precipitously in November--from 40,593 encounters in October, a
daily average of 1,309, to just 668 in November, a daily average of
just 22.\8\
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\8\ Servicio Nacional de Migraci[oacute]n de Panam[aacute],
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022,
<a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last viewed
Dec. 11, 2022).
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The Venezuela process fundamentally changed the calculus for
Venezuelan migrants. Venezuelan migrants who had already crossed the
Dari[eacute]n Gap have returned to Venezuela by the thousands on
voluntary flights organized by the governments of Mexico, Guatemala,
and Panama, as well as civil society. Other migrants who were about to
enter the Dari[eacute]n Gap have turned around and headed back south.
Still others who were intending to migrate north are staying where they
are to apply for this parole process. Put simply, the Venezuela process
demonstrates that combining a clear and meaningful consequence for
irregular entry along the SWB with a significant incentive for migrants
to wait where they are and use this parole process to come to the
United States can yield a meaningful change in migratory flows.
2. Trends and Flows: Increase of Cuban Nationals Arriving at the
Southwest Border
The last decades have yielded a dramatic increase in encounters at
the SWB and a dramatic shift in the demographics of those encountered.
Throughout the 1980s and into the first decade of the 2000s, encounters
along the SWB routinely numbered in the millions per year.\9\ By the
early 2010s, three decades of investments in border security and
strategy contributed to reduced border flows, with border encounters
averaging fewer than 400,000 per year from 2011-2017.\10\ However,
these gains were subsequently reversed as border encounters more than
doubled between 2017 and 2019, and--following a steep drop in the first
months of the COVID-19 pandemic--continued to increase at a similar
pace in 2021 and 2022.\11\
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\9\ OIS analysis of historic CBP data.
\10\ Id.
\11\ Id.
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Shifts in demographics have also had a significant effect on
migration flows. Border encounters in the 1980s and

[[Page 1269]]

1990s consisted overwhelmingly of single adults from Mexico, most of
whom were migrating for economic reasons.\12\ Beginning in the 2010s, a
growing share of migrants have come from Northern Central America \13\
(NCA) and, since the late 2010s, from countries throughout the
Americas.\14\ Migrant populations from these newer source countries
have included large numbers of families and children, many of whom are
traveling to escape violence, political oppression, and for other non-
economic reasons.\15\
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\12\ According to historic OIS Yearbooks of Immigration
Statistics, Mexican nationals accounted for 96 to over 99 percent of
apprehensions of persons entering without inspection between 1980
and 2000. OIS Yearbook of Immigration Statistics, various years. On
Mexican migrants from this era's demographics and economic
motivations see Jorge Durand, Douglas S. Massey, and Emilio A.
Parrado, ``The New Era of Mexican Migration to the United States,''
The Journal of American History Vol. 86, No. 2, 518-536 (Sept.
1999).
\13\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\14\ According to OIS analysis of CBP data, Mexican nationals
continued to account for 89 percent of total SWB encounters in FY
2010, with Northern Central Americans accounting for 8 percent and
all other nationalities for 3 percent. Northern Central Americans'
share of total encounters increased to 21 percent by FY 2012 and
averaged 46 percent in FY 2014-FY 2019, the last full year before
the start of the COVID-19 pandemic. All other countries accounted
for an average of 5 percent of total SWB encounters in FY 2010-FY
2013, and for 10 percent of total encounters in FY 2014-FY 2019.
\15\ Prior to 2013, the overall share of encounters who were
processed for expedited removal and claimed fear averaged less than
2 percent annually. Between 2013 and 2018, the share rose from 8 to
20 percent, before dropping with the surge of family unit encounters
in 2019 (most of whom were not placed in expedited removal) and the
onset of T42 expulsions in 2020. At the same time, between 2013 and
2021, among those placed in expedited removal, the share making fear
claims increased from 16 to 82 percent. OIS analysis of historic CBP
and USCIS data and OIS Enforcement Lifecycle through June 30, 2022.
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Cubans are fleeing the island in record numbers, eclipsing the mass
exodus of Cuban migrants seen during the Mariel exodus of 1980.\16\ In
FY 2022, DHS encountered about 213,709 unique Cuban nationals at the
SWB, a seven-fold increase over FY 2021 rates, and a marked 29-fold
increase over FY 2020.\17\ FY 2022 average monthly unique encounters of
Cuban nationals at the land border totaled 17,809, a stark increase
over the average monthly rate of 589 unique encounters in FYs 2014-
2019.\18\ These trends are only accelerating in FY 2023. In October and
November 2022, DHS encountered 62,788 unique Cuban nationals at the
border--almost one third FY 2022's record total.\19\ The monthly
average of 31,394 unique Cuban nationals is a 76 percent increase over
the FY 2022 monthly average.\20\ The first 10 days of December 2022 saw
15,657 encounters of Cubans at the SWB.\21\ In FY 2023, Cuban nationals
have represented 16.5 percent of all unique encounters at the SWB, the
second largest origin group.\22\
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\16\ El Pa[iacute]s, The Cuban Migration Crisis, Biggest Exodus
in History Holds Key to Havana-Washington Relations, Dec. 15, 2022,
<a href="https://english.elpais.com/international/2022-12-15/the-cuban-migration-crisis-biggest-exodus-in-history-holds-key-to-havana-washington-relations.html">https://english.elpais.com/international/2022-12-15/the-cuban-migration-crisis-biggest-exodus-in-history-holds-key-to-havana-washington-relations.html</a> (last visited Dec. 17, 2022).
\17\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\18\ Id.
\19\ Id.
\20\ Id.
\21\ OIS analysis of CBP Unified Immigration Portal (UIP) data
pulled on December 12, 2022.
\22\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
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Maritime migration from Cuba also increased sharply in FY 2022
compared to FY 2021. According to DHS data, in FY 2022, a total of
5,740 Cuban nationals were interdicted at sea, the top nationality,
compared to 827 in FY 2021, an almost 600 percent increase in a single
fiscal year.\23\
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\23\ OIS analysis of United States Coast Guard (USCG) data
provided October 2022; Maritime Interdiction Data from USCG, October
5, 2022.
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In addition to the increase of Cuban nationals in U.S. Coast Guard
(USCG) interdictions at sea and U.S. Customs and Border Protection
(CBP) encounters at the SWB, USBP encounters of Cubans in southeast
coastal sectors are also on the rise.\24\ In FY 2022, DHS encountered
2,657 unique Cuban nationals (46 percent of total unique encounters),
an increase of 1,040 percent compared to FY 2021.\25\ This trend also
has accelerated sharply in FY 2023, as CBP has made 1,917 unique
encounters of Cuban nationals in the first two months of the FY--almost
three-quarters of FY 2022's total.\26\ Cuban nationals are 72 percent
of all unique encounters in these sectors in October and November.\27\
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\24\ Includes Miami, FL; New Orleans, LA; and Ramey, PR sectors
where all apprehensions are land apprehensions not maritime.
\25\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\26\ Id.
\27\ Id.
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3. Push and Pull Factors
DHS assesses that the high--and rising--number of Cuban nationals
encountered at the SWB and interdicted at sea is driven by three key
factors: First, Cuba is facing its worst economic crisis in decades due
to the lingering impacts of the COVID-19 pandemic, high food prices,
and economic sanctions.\28\ Second, the government's response has been
marked by further political repression, including widespread arrests
and arbitrary detentions in response to protests.\29\ Third, the United
States faces significant limits on the ability to return Cuban
nationals who do not establish a legal basis to remain in the United
States to Cuba or elsewhere; absent the ability to return Cubans who do
not have a lawful basis to stay in the United States, more individuals
are willing to take a chance that they can come--and stay.
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\28\ The Economist, Cuba is Facing Its Worst Shortage of Food
Since 1990s, July 1, 2021, <a href="https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s">https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s</a>
(last visited Dec. 17, 2022).
\29\ Miami Herald, As Cubans Demand Freedom, President
D[iacute]az-Canel Says He Will Not Tolerate 'Illegitimate' Protests,
October 2, 2022, <a href="https://www.miamiherald.com/news/nation-world/world/americas/cuba/article266767916.html">https://www.miamiherald.com/news/nation-world/world/americas/cuba/article266767916.html</a> (last visited Dec. 17,
2022).
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Further, in November 2021, the Government of Nicaragua announced
visa-free travel for Cubans.\30\ This policy provided Cubans a more
convenient and accessible path into the continent, facilitating their
ability to begin an irregular migration journey to the SWB via land
routes.\31\ Many such Cuban migrants fall victim to human smugglers and
traffickers, who look to exploit the most vulnerable individuals for
profit with utter disregard for their safety and wellbeing, as they
attempt the dangerous journey northward through Central America and
Mexico.\32\
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\30\ Reuters, Nicaragua Eliminates Visa Requirement for Cubans,
November 23, 2021, <a href="https://www.reuters.com/world/americas/nicaragua-eliminates-visa-requirement-cubans-2021-11-23/">https://www.reuters.com/world/americas/nicaragua-eliminates-visa-requirement-cubans-2021-11-23/</a> (last visited Dec.
17, 2022).
\31\ The New York Times, Cuban Migrants Arrive to U.S. in Record
Numbers, on Foot, Not by Boat, May 4, 2022, <a href="https://www.nytimes.com/2022/05/03/world/americas/cuban-migration-united-states.html">https://www.nytimes.com/2022/05/03/world/americas/cuban-migration-united-states.html</a> (last
visited Dec. 17, 2022).
\32\ CNN, Cubans are Arriving to the U.S. in Record Numbers.
Smugglers are Profiting from Their Exodus, <a href="https://www.cnn.com/2022/05/12/americas/cuba-mass-migration-intl-latam/index.html">https://www.cnn.com/2022/05/12/americas/cuba-mass-migration-intl-latam/index.html</a>, May 12,
2022 (last visited Dec. 17, 2022).
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i. Factors Pushing Migration From Cuba
There are a number of economic and other factors that are driving
migration of Cuban nationals. Cuba is undergoing its worst economic
crisis since the 1990s \33\ due to the lingering impact of the COVID-19
pandemic, reduced foreign aid from Venezuela because of that country's
own economic crisis, high food prices, and U.S. economic sanctions.\34\
In July 2022, the

[[Page 1270]]

Government of Cuba (GOC) reported the economy contracted by 10.9% in
2020, grew by 1.3% in 2021, and is projected to expand by 4% in
2022.\35\ However, this projected expansion is unlikely to respond to
the needs of the Cuban people. Mass shortages of dairy and other basic
goods continue to persist, and Cubans wait in lines for hours to
receive subsidized cooking oil or other basic goods.\36\ Deepening
poverty, exacerbated by the COVID-19 pandemic, has led to food
shortages and rolling blackouts, and continues to batter the
economy.\37\ This combination of factors has created untenable economic
conditions on the island that are likely to continue to drive Cubans to
travel irregularly to the United States in the immediate future.\38\
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\33\ The Economist, Cuba is Facing Its Worst Shortage of Food
Since 1990s, July 1, 2021, <a href="https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s">https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s</a>
(last visited Dec. 17, 2022).
\34\ Congressional Research Service, Cuba: U.S. Policy in the
117th Congress, Sept. 22, 2022, <a href="https://crsreports.congress.gov/product/pdf/R/R47246">https://crsreports.congress.gov/product/pdf/R/R47246</a> (last visited Dec. 17, 2022).
\35\ Caribbean Council, Gil Says Economic Recovery Gradual,
Inflation Must Be Better Addressed, Cuba Briefing, July 25, 2022,
<a href="https://www.caribbean-council.org/gil-says-economic-recovery-gradual-inflation-must-be-better-addressed/">https://www.caribbean-council.org/gil-says-economic-recovery-gradual-inflation-must-be-better-addressed/</a> (last visited Sept. 25,
2022).
\36\ Washington Post, In Cuba, a Frantic Search for Milk, May
21, 2022, <a href="https://www.washingtonpost.com/world/interactive/2022/cuba-economy-milk-shortage/">https://www.washingtonpost.com/world/interactive/2022/cuba-economy-milk-shortage/</a> (last visited Sept. 25, 2022).
\37\ New York Times, `Cuba Is Depopulating': Largest Exodus Yet
Threatens Country's Future, Dec. 10, 2022. <a href="https://www.nytimes.com/2022/12/10/world/americas/cuba-us-migration.html">https://www.nytimes.com/2022/12/10/world/americas/cuba-us-migration.html</a> (last visited Dec.
16, 2022).
\38\ Id.
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The GOC has not been able to effectively address these issues to
date, and has instead taken to repressive tactics to manage public
discontent. Cuba remains a one-party authoritarian regime under the
Communist Party of Cuba (PCC) government, which continues to restrict
freedoms of expression, association, peaceful assembly, and other human
rights.\39\ The GOC employs arbitrary detention to harass and
intimidate critics, independent activists, political opponents, and
others.\40\ While the Cuban constitution grants limited freedoms of
peaceful assembly and association, the GOC restricts these freedoms in
practice.\41\ The government routinely blocks any attempts to
peacefully assemble that might result in opposition to, or criticism
of, the government.\42\ This was evident when the human rights
situation in Cuba began to decline significantly in 2020.\43\ In
November 2020, the government cracked down on the San Isidro Movement
(MSI), a civil society group opposed to restrictions on artistic
expression.\44\ This crackdown, coupled with deteriorating economic
conditions (food and medicine shortages and blackouts), led to
demonstrations in Havana and throughout the country.\45\
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\39\ U.S. Department of State, 2021 Country Reports on Human
Rights Practices: Cuba, <a href="https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/cuba/">https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/cuba/</a> (last visited Dec. 17,
2022).
\40\ Id.
\41\ Id.
\42\ Id.
\43\ Congressional Research Service, Cuba: U.S. Policy Overview,
Aug. 5, 2022, <a href="https://crsreports.congress.gov/product/pdf/IF/IF10045">https://crsreports.congress.gov/product/pdf/IF/IF10045</a>
(last visited Dec. 17, 2022).
\44\ Id.
\45\ Id.
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According to a Human Rights Watch report, the GOC also committed
extensive human rights violations in response to massive anti-
government protests in July 2021 with the apparent goal of punishing
protesters and deterring future demonstrations.\46\ The report
documents a wide range of human rights violations against well-known
government critics and ordinary citizens, including, arbitrary
detention, prosecutions without fair trial guarantees, and cases of
physical ill treatment, including beatings that in some cases
constitute torture.\47\ Several organizations reported countrywide
internet outages, followed by erratic connectivity, including
restrictions on social media and messaging platforms.\48\
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\46\ Human Rights Watch, Prison or Exile: Cuba's Systematic
Repression of July 2021 Demonstrators, July 11, 2022. <a href="https://www.hrw.org/report/2022/07/11/prison-or-exile/cubas-systematic-repression-july-2021-demonstrators">https://www.hrw.org/report/2022/07/11/prison-or-exile/cubas-systematic-repression-july-2021-demonstrators</a>.
\47\ Id.
\48\ Human Rights Watch, World Report 2022--Cuba. See <a href="https://www.hrw.org/world-report/2022/country-chapters/cuba">https://www.hrw.org/world-report/2022/country-chapters/cuba</a>.
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Protests over the challenges of obtaining basic necessities have
continued as have heavy-handed government responses. In September 2022,
a prolonged blackout caused by Hurricane Ian led to protests in Havana
and other cities.\49\ Cuban President Miguel D[iacute]az-Canel
denounced the peaceful gatherings as ``counterrevolutionary'' and
``indecent,'' remarking that ``[d]emonstrations of this type have no
legitimacy.'' \50\ Amnesty International received reports of the GOC
deploying the military and police to repress these protests as well as
reports of arbitrary detention.\51\
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\49\ Dave Sherwood, Reuters, Oct. 1, 2022, Banging pots, Cubans
stage rare protests over Hurricane Ian blackouts, <a href="https://www.reuters.com/world/americas/cubans-havana-bang-pots-protest-days-long-blackout-after-ian-2022-09-30/">https://www.reuters.com/world/americas/cubans-havana-bang-pots-protest-days-long-blackout-after-ian-2022-09-30/</a>.
\50\ Miami Herald, As Cubans Demand Freedom, President
D[iacute]az-Canel Says He Will Not Tolerate 'Illegitimate' Protests,
October 2, 2022, <a href="https://www.miamiherald.com/news/nation-world/world/americas/cuba/article266767916.html">https://www.miamiherald.com/news/nation-world/world/americas/cuba/article266767916.html</a> (last visited Dec. 17,
2022).
\51\ Amnesty International, Cuba: Tactics of Repression Must Not
be Repeated, Oct. 5, 2022, <a href="https://www.amnesty.org/en/latest/news/2022/10/cuba-repression-must-not-be-repeated/">https://www.amnesty.org/en/latest/news/2022/10/cuba-repression-must-not-be-repeated/</a> (last viewed Dec. 19,
2022).
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The government's repression and inability to address the underlying
shortages that inspired those lawful demonstrations have generated a
human rights and humanitarian crisis that is driving Cubans from the
country. On June 2, 2022, the Inter-American Commission on Human Rights
(IACHR) in its 2021 Annual Report stated that no guarantees currently
exist for exercising freedom of expression in Cuba.\52\ Although the
forms of harassment of independent journalists, artists, activists, and
any who question government officials are not new, the 2021 Annual
Report notes that they are worsening quickly.\53\ The government
controls formal media and closely monitors and targets perceived
dissidents within the artistic community, mainstream artists, and media
figures who express independent or critical views.\54\ GOC frequently
blocks access to many news websites and blogs and has repeatedly
imposed targeted restrictions on critics' access to cellphone data.\55\
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\52\ IACHR, Annual Report 2021--Chapter IV.B--Cuba, p.678, June
2, 2022, <a href="https://www.oas.org/en/iachr/reports/ia.asp?Year=2021">https://www.oas.org/en/iachr/reports/ia.asp?Year=2021</a> (last
visited Dec. 19, 2022).
\53\ Id.
\54\ Id.
\55\ Id.
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Cuba's deteriorating economic conditions and political repression
continue to increasingly drive Cubans out of their country. As a
result, many have taken dangerous journeys, including through maritime
means, often costing their lives at sea and on land while trying to
reach the United States.
ii. Return Limitations
Due to the global COVID-19 pandemic, the GOC stopped accepting
regular returns of their nationals via U.S. Immigration and Customs
Enforcement (ICE) aircraft after February 28, 2020. The U.S. Government
has been engaged in discussions with the GOC to reactivate the
Migration Accords, which specify that the United States will process
20,000 Cuban nationals--not including immediate relatives of U.S.
citizens--to come to the United States through immigrant visas and
other lawful pathways, such as the Cuban Family Reunification Parole
(CFRP) program, and that the Cuban government will accept the
repatriation of its nationals who are encountered entering the United
States without authorization. A limited number of removal flights will
not, absent other efforts, impose a deterrent to Cuban nationals
seeking to cross, unauthorized, into the United States.

[[Page 1271]]

As a result, the U.S. did not return any Cuban nationals directly
to Cuba in FY 2022. In addition, other countries, including Mexico,
have generally refused to accept the returns of Cuban nationals, with
limited exceptions including Cubans who have immediate family members
who are Mexican citizens or who otherwise have legal status in Mexico.
In FY 2022, DHS expelled 4,710 Cuban nationals to Mexico, equivalent to
2 percent of Cuban encounters for the year.\56\
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\56\ OIS analysis of OIS Persist Dataset and CBP subject-level
data through November 30, 2022.
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Like the Venezuela process, the Cuba process will require a
significant expansion of opportunities for return or removal, to
include the GOM's acceptance of Cuban nationals encountered attempting
to irregularly enter the United States without authorization between
POEs.
Returns alone, however, are not sufficient to reduce and divert the
flows of Cubans. The United States will combine a consequence for Cuban
nationals who seek to enter the United States irregularly at the land
border with an incentive to use the safe, orderly process to request
authorization to travel by air to, and seek parole to enter, the United
States, without making the dangerous journey to the border.
4. Impact on DHS Resources and Operations
To respond to the increase in encounters along the SWB since FY
2021--an increase that has accelerated in FY 2022, driven in part by
the number of Cuban nationals encountered--DHS has taken a series of
extraordinary steps. Since FY 2021, DHS has built and now operates 10
soft-sided processing facilities at a cost of $688 million. CBP and ICE
detailed a combined 3,770 officers and agents to the SWB to effectively
manage this processing surge. In FY 2022, DHS had to utilize its above
threshold reprogramming authority to identify approximately $281
million from other divisions in the Department to address SWB needs, to
include facilities, transportation, medical care, and personnel costs.
The Federal Emergency Management Agency (FEMA) has spent $260
million in FYs 2021 and 2022 combined on grants to non-governmental
(NGO) and state and local entities through the Emergency Food and
Shelter Program--Humanitarian (EFSP-H) to assist with the reception and
onward travel of migrants arriving at the SWB. This spending is in
addition to $1.4 billion in additional FY 2022 appropriations that were
designated for SWB enforcement and processing capacities.\57\
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\57\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of
Homeland Security, to Interested Parties, DHS Plan for Southwest
Border Security and Preparedness (Apr. 26, 2022), <a href="https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf">https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf</a>.
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The impact has been particularly acute in certain border sectors.
The increased flows of Cuban nationals are disproportionately occurring
within the remote Del Rio and Yuma sectors, both of which are at risk
of operating, or are currently operating, over capacity. In FY 2022, 73
percent of unique encounters of Cuban nationals occurred in these two
sectors.\58\ Thus far in FY 2023, Del Rio and Yuma sectors have
accounted for 72 percent of unique encounters of Cuban nationals.\59\
In FY 2022, Del Rio and Yuma sectors encountered over double (137
percent increase) the number of migrants as compared to FY 2021, a
fifteen-fold increase over the average for FY 2014-FY 2019, in part as
a result of the sharp increase in Cuban nationals being encountered
there.\60\
---------------------------------------------------------------------------

\58\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\59\ Id.
\60\ Id.
---------------------------------------------------------------------------

The focused increase in encounters within those two sectors is
particularly challenging. Del Rio sector is geographically remote, and
because--up until the past two years--it has not been a focal point for
large numbers of individuals entering irregularly, it has limited
infrastructure and personnel in place to safely process the elevated
encounters that they are seeing. The Yuma Sector is along the Colorado
River corridor, which presents additional challenges to migrants, such
as armed robbery, assault by bandits, and drowning, as well as to the
U.S. Border Patrol (USBP) agents encountering them. El Paso sector has
relatively modern infrastructure for processing noncitizens encountered
at the border but is far away from other CBP sectors, which makes it
challenging to move individuals for processing elsewhere during surges.
In an effort to decompress sectors that are experiencing surges,
DHS deploys lateral transportation, using buses and flights to move
noncitizens to other sectors that have additional capacity to process.
In November 2022, USBP sectors along the SWB operated a combined 602
decompression bus routes to neighboring sectors and operated 124
lateral decompression flights, redistributing noncitizens to other
sectors with additional capacity.\61\
---------------------------------------------------------------------------

\61\ Data from SBCC, as of December 11, 2022.
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Because DHS assets are finite, using air resources to operate
lateral flights reduces DHS's ability to operate international
repatriation flights to receiving countries, leaving noncitizens in
custody for longer and further taxing DHS resources. Fewer
international repatriation flights in turn exacerbates DHS's inability
to return or remove noncitizens in its custody by sending the message
that there is no consequence for illegal entry.
The sharp increase in maritime migration has also had a substantial
impact on DHS resources. USCG has surged resources and shifted assets
from other missions due to this increased irregular maritime migration.
In response to the persistently elevated levels of irregular maritime
migration across all southeast vectors, the Director of Homeland
Security Task Force-Southeast (HSTF-SE) elevated the operational phase
of DHS's maritime mass migration plan (Operation Vigilant Sentry) from
Phase 1A (Preparation) to Phase 1B (Prevention).\62\ Operation Vigilant
Sentry is HSTF-SE's comprehensive, integrated, national operational
plan for a rapid, effective, and unified response of federal, state,
and local capabilities in response to indicators and/or warnings of a
mass migration in the Caribbean.
---------------------------------------------------------------------------

\62\ Operation Vigilant Sentry (OVS) Phase 1B, Information
Memorandum for the Secretary from RADM Brendon C. McPherson,
Director, Homeland Security Task Force--Southeast, August 21, 2022.
---------------------------------------------------------------------------

The shift to Phase 1B triggered the surge of additional DHS
resources to support HSTF-SE's Unified Command staff and operational
rhythm. For example, between July 2021 and August 2022, Coast Guard
operational planners surged three times the number of large cutters to
the South Florida Straits and the Windward Passage, four times the
number of patrol boats and twice the number of fixed/rotary-wing
aircraft to support maritime domain awareness and interdiction
operations in the southeastern maritime approaches to the United
States. USCG also added two MH-60 helicopters to respond to increased
maritime migration flows in FY 2022.\63\ Moreover, USCG had to almost
double its flight hour coverage per month to support migrant
interdictions in FY 2022. Increased resource demands translate into
increased maintenance on those high demand air and sea assets.
---------------------------------------------------------------------------

\63\ Joint DHS and DOD Brief on Mass Maritime Migration, August
2022.
---------------------------------------------------------------------------

DHS assesses that a reduction in the flow of Cuban nationals
arriving at the SWB or taking to sea would reduce pressure on
overstretched resources and enable the Department to more quickly

[[Page 1272]]

process and, as appropriate, return or remove those who do not have a
lawful basis to stay, or repatriate those encountered at sea while also
delivering on other maritime missions.

II. DHS Parole Authority

The Immigration and Nationality Act (INA or Act) provides the
Secretary of Homeland Security with the discretionary authority to
parole noncitizens ``into the United States temporarily under such
reasonable conditions as [the Secretary] may prescribe only on a case-
by-case basis for urgent humanitarian reasons or significant public
benefit.'' \64\ Parole is not an admission of the individual to the
United States, and a parolee remains an ``applicant for admission''
during the period of parole in the United States.\65\ DHS sets the
duration of the parole based on the purpose for granting the parole
request and may impose reasonable conditions on parole.\66\ DHS may
terminate parole in its discretion at any time.\67\ By regulation,
parolees may apply for and be granted employment authorization to work
lawfully in the United States.\68\
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\64\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 6
U.S.C. 202(4) (charging the Secretary with the responsibility for
``[e]stablishing and administering rules . . . governing . . .
parole''). Cubans paroled into the United States through this
process are not being paroled as refugees, and instead will be
considered for parole on a case-by-case basis for a significant
public benefit or urgent humanitarian reasons. This parole process
does not, and is not intended to, replace refugee processing.
\65\ INA sec. 101(a)(13)(B), 212(d)(5)(A), 8 U.S.C.
1101(a)(13)(B), 1182(d)(5)(A).
\66\ See 8 CFR 212.5(c).
\67\ See 8 CFR 212.5(e).
\68\ See 8 CFR 274a.12(c)(11).
---------------------------------------------------------------------------

This process will combine a consequence for those who seek to enter
the United States irregularly between POEs with a significant incentive
for Cuban nationals to remain where they are and use a lawful process
to request authorization to travel by air to, and ultimately apply for
discretionary grant of parole into, the United States for a period of
up to two years.

III. Justification for the Process

As noted above, section 212(d)(5)(A) of the INA confers upon the
Secretary of Homeland Security the discretionary authority to parole
noncitizens ``into the United States temporarily under such reasonable
conditions as [the Secretary] may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant public benefit.''
\69\
---------------------------------------------------------------------------

\69\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------

A. Significant Public Benefit

The parole of Cuban nationals and their immediate family members
under this process--which imposes new consequences for Cubans who seek
to enter the United States irregularly between POEs, while providing an
alternative opportunity for eligible Cuban nationals to seek advance
authorization to travel to the United States to seek discretionary
parole, on a case-by-case basis, in the United States--serves a
significant public benefit for several, interrelated reasons.
Specifically, we anticipate that the parole of eligible individuals
pursuant to this process will: (i) enhance border security through a
reduction in irregular migration of Cuban nationals, including by
imposing additional consequences on those who seek to enter between
POEs; (ii) improve vetting for national security and public safety;
(iii) reduce strain on DHS personnel and resources; (iv) minimize the
domestic impact of irregular migration from Cuba; (v) provide a
disincentive to undergo the dangerous journey that puts migrant lives
and safety at risk and enriches smuggling networks; and (vi) fulfill
important foreign policy goals to manage migration collaboratively in
the hemisphere and, as part of those efforts, to establish additional
processing pathways from within the region to discourage irregular
migration.
1. Enhance Border Security by Reducing Irregular Migration of Cuban
Nationals
As described above, Cuban nationals make up a significant and
growing number of those encountered seeking to cross between POEs
irregularly. DHS assesses that without additional and more immediate
consequences imposed on those who seek to do so, together with a safe
and orderly process for Cubans to enter the United States, without
making the journey to the SWB, the numbers will continue to grow.
By incentivizing individuals to seek a safe, orderly means of
traveling to the United States through the creation of an alternative
pathway to the United States, while imposing additional consequences to
irregular migration, DHS assesses this process could lead to a
meaningful drop in encounters of Cuban individuals along the SWB and at
sea. This expectation is informed by the recently implemented process
for Venezuelans and the significant shifts in migratory patterns that
took place once the process was initiated. The success to date of the
Venezuela process provides compelling evidence that coupling effective
disincentives for irregular entry with incentives for a safe, orderly
parole process can meaningfully shift migration patterns in the region
and to the SWB.
Implementation of the parole process is contingent on the GOM's
independent decision to accept the return of Cuban nationals who
voluntarily depart the United States, those who voluntarily withdraw
their applications for admission, and those subject to expedited
removal who cannot be removed to Cuba or elsewhere. The ability to
effectuate voluntary departures, withdrawals, and removals of Cuban
nationals to Mexico will impose a consequence on irregular entry that
currently does not exist.
2. Improve Vetting for National Security and Public Safety
All noncitizens whom DHS encounters at the border undergo thorough
vetting against national security and public safety databases during
their processing. Individuals who are determined to pose a national
security or public safety threat are detained pending removal. That
said, there are distinct advantages to being able to vet more
individuals before they arrive at the border so that we can stop
individuals who could pose threats to national security or public
safety even earlier in the process. The Cuban parole process will allow
DHS to vet potential beneficiaries for national security and public
safety purposes before they travel to the United States.
As described below, the vetting will require prospective
beneficiaries to upload a live photograph via an app. This will enhance
the scope of the pre-travel vetting--thereby enabling DHS to better
identify those with criminal records or other disqualifying information
of concern and deny them travel before they arrive at our border,
representing an improvement over the status quo.
3. Reduce the Burden on DHS Personnel and Resources
By reducing encounters of Cuban nationals encountered at sea or at
the SWB, and channeling decreased flows of Cuban nationals to interior
POEs, we anticipate that the process could relieve some of the impact
increased migratory flows have had on the DHS workforce along the SWB.
This process is expected to free up resources, including those focused
on decompression of border sectors, which in turn may enable an
increase in removal flights--allowing for the removal of more
noncitizens with final orders of removal faster and reducing the number
of days migrants are in DHS custody. While the process will also draw
on DHS resources within U.S. Citizenship and Immigration Services
(USCIS) and CBP to process requests for discretionary parole on a

[[Page 1273]]

case-by-case basis and conduct vetting, these requirements involve
different parts of DHS and require fewer resources as compared to the
status quo.
In the Caribbean, DHS also has surged significant resources--mostly
from USCG--to address the heightened rate of maritime encounters.
Providing a safe and orderly alternative path is expected to also
reduce the number of Cubans who seek to enter the United States by sea,
and will allow USCG to better balance its other important missions,
including its counter-drug smuggling operations, protection of living
marine resources, support for shipping navigation, and a range of other
critical international engagements.
In addition, permitting Cuban nationals to voluntarily depart or
withdraw their application for admission one time and still be
considered for parole through the process will reduce the burden on DHS
personnel and resources that would otherwise be required to obtain and
execute a final order of removal. This includes reducing strain on
detention and removal flight capacity, officer resources, and reducing
costs associated with detention and monitoring.
4. Minimize the Domestic Impact
Though the Venezuelan process has significantly reduced the
encounters of Venezuelan nationals, other migratory flows continue to
strain domestic resources, which is felt most acutely by border
communities. Given the inability to remove, return, or repatriate Cuban
nationals in substantial numbers, DHS is currently conditionally
releasing 87 percent of the Cuban nationals it encounters at the
border, pending their removal proceedings or the initiation of such
proceedings, and Cuban nationals accounted for 23 percent of all
encounters released at the border in November 2022.\70\ The increased
volume of provisional releases of Cuban nationals puts strains on U.S.
border communities.
---------------------------------------------------------------------------

\70\ OIS analysis of CBP subject-level data and OIS Persist
Dataset based on data through November 30, 2022.
---------------------------------------------------------------------------

Generally, since FY 2019, DHS has worked with Congress to make
approximately $290 million available through FEMA's EFSP to support
NGOs and local governments that provide initial reception for migrants
entering through the SWB. These entities have engaged to provide
services and assistance to Cuban nationals and other noncitizens who
have arrived at our border, including by building new administrative
structures, finding additional housing facilities, and constructing
tent shelters to address the increased need.\71\ FEMA funding has
supported building significant NGO capacity along the SWB, including a
substantial increase in available shelter beds in key locations.
---------------------------------------------------------------------------

\71\ CNN, Washington, DC, Approves Creation of New Agency to
Provide Services for Migrants Arriving From Other States, Sept. 21,
2022, <a href="https://www.cnn.com/2022/09/21/us/washington-dc-migrant-services-office">https://www.cnn.com/2022/09/21/us/washington-dc-migrant-services-office</a>.
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Nevertheless, local communities have reported strain on their
ability to provide needed social services. Local officials and NGOs
report that the temporary shelters that house migrants are quickly
reaching capacity due to the high number of arrivals,\72\ and
stakeholders in the border region have expressed concern that shelters
will eventually reach full bed space capacity and not be able to host
any new arrivals.\73\ Since Cuban nationals account for a significant
percentage of the individuals being conditionally released into
communities after being processed along the SWB, this parole process
will address these concerns by diverting flows of Cuban nationals into
a safe and orderly process in ways that DHS anticipates will yield a
decrease in the numbers arriving at the SWB.
---------------------------------------------------------------------------

\72\ San Antonio Report, Migrant aid groups stretched thin as
city officials seek federal help for expected wave, Apr. 27, 2022,
<a href="https://sanantonioreport.org/migrant-aid-groups-stretched-thin-city-officials-seek-federal-help/">https://sanantonioreport.org/migrant-aid-groups-stretched-thin-city-officials-seek-federal-help/</a>.
\73\ KGUN9 Tucson, Local Migrant Shelter Reaching Max Capacity
as it Receives Hundreds per Day, Sept. 23, 2022, <a href="https://www.kgun9.com/news/local-news/local-migrant-shelter-reaching-max-capacity-as-it-receives-hundreds-per-day">https://www.kgun9.com/news/local-news/local-migrant-shelter-reaching-max-capacity-as-it-receives-hundreds-per-day</a>.
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DHS anticipates that this process will help minimize the burden on
communities, state and local governments, and NGOs who support the
reception and onward travel of migrants arriving at the SWB.
Beneficiaries are required to fly at their own expense to an interior
POE, rather than arriving at the SWB. They also are only authorized to
come to the United States if they have a supporter who has agreed to
receive them and provide basic needs, including housing support.
Beneficiaries also are eligible to apply for work authorization, thus
enabling them to support themselves.
5. Disincentivize a Dangerous Journey That Puts Migrant Lives and
Safety at Risk and Enriches Smuggling Networks
The process, which will incentivize intending migrants to use a
safe, orderly, and lawful means to access the United States via
commercial air flights, cuts out the smuggling networks. This is
critical, because transnational criminal organizations--including the
Mexican drug cartels--are increasingly playing a key role in human
smuggling, reaping billions of dollars in profit and callously
endangering migrants' lives along the way.\74\
---------------------------------------------------------------------------

\74\ CBP, Fact Sheet: Counter Human Smuggler Campaign Updated
(Oct. 6, 2022), <a href="https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th">https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th</a>.
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In FY 2022, more than 750 migrants died attempting to enter the
United States across the SWB,\75\ an estimated 32 percent increase from
FY 2021 (568 deaths) and a 195 percent increase from FY 2020 (254
deaths).\76\ The approximate number of migrants rescued by CBP in FY
2022 (almost 19,000 rescues) \77\ increased 48 percent from FY 2021
(12,857 rescues), and 256 percent from FY 2020 (5,336 rescues).\78\
Although exact figures are unknown, experts estimate that about 30
bodies have been taken out of the Rio Grande River each month since
March 2022.\79\ CBP attributes these rising trends to increasing
numbers of migrants, as evidenced by increases in overall U.S. Border
Patrol encounters.\80\ The increased rates of both migrant deaths and
those needing rescue at the SWB demonstrate the perils in the migrant
journey.
---------------------------------------------------------------------------

\75\ CNN, First on CNN: A Record Number of Migrants Have Died
Crossing the US-Mexico Border (Sept. 7, 2022), <a href="https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html">https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html</a>.
\76\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal
Year 2022 Report to Congress.
\77\ CNN, First on CNN: A Record Number of Migrants Have Died
Crossing the US-Mexico Border (Sept. 7, 2022), <a href="https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html">https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html</a>.
\78\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal
Year 2022 Report to Congress.
\79\ The Guardian, Migrants Risk Death Crossing Treacherous Rio
Grande River for `American Dream' (Sept. 5, 2022), <a href="https://www.theguardian.com/us-news/2022/sep/05/migrants-risk-death-crossing-treacherous-rio-grande-river-for-american-dream">https://www.theguardian.com/us-news/2022/sep/05/migrants-risk-death-crossing-treacherous-rio-grande-river-for-american-dream</a>.
\80\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal
Year 2022 Report to Congress.
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Meanwhile, these numbers do not account for the countless incidents
of death, illness, and exploitation migrants experience during the
perilous journey north. These migratory movements are in many cases
facilitated by numerous human smuggling organizations, for which the
migrants are pawns; \81\ the organizations exploit migrants for profit,
often bringing them across inhospitable deserts, rugged mountains, and
raging rivers, often with small children in tow. Upon reaching the
border area,

[[Page 1274]]

noncitizens seeking to cross into the United States generally pay
transnational criminal organizations (TCOs) to coordinate and guide
them along the final miles of their journey. Tragically, a significant
number of individuals perish along the way. The trailer truck accident
that killed 55 migrants in Chiapas, Mexico, in December 2021 and the
tragic incident in San Antonio, Texas, on June 27, 2022, in which 53
migrants died of the heat in appalling conditions, are just two
examples of many in which TCOs engaged in human smuggling prioritize
profit over safety.\82\
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\81\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of
Homeland Security, to Interested Parties, DHS Plan for Southwest
Border Security and Preparedness (Apr. 26, 2022), <a href="https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf">https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf</a>.
\82\ Reuters, Migrant Truck Crashes in Mexico Killing 54 (Dec.
9, 2021), <a href="https://www.reuters.com/article/uk-usa-immigration-mexico-accident-idUKKBN2IP01R">https://www.reuters.com/article/uk-usa-immigration-mexico-accident-idUKKBN2IP01R</a>; Reuters, The Border's Toll: Migrants
Increasingly Die Crossing into U.S. from Mexico (July 25, 2022),
<a href="https://www.reuters.com/article/usa-immigration-border-deaths/the-borders-toll-migrants-increasingly-die-crossing-into-u-s-from-mexico-idUSL4N2Z247X">https://www.reuters.com/article/usa-immigration-border-deaths/the-borders-toll-migrants-increasingly-die-crossing-into-u-s-from-mexico-idUSL4N2Z247X</a>.
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Migrants who travel via sea also face perilous conditions,
including at the hands of smugglers. Human smugglers continue to use
unseaworthy, overcrowded vessels that are piloted by inexperienced
mariners. These vessels often lack any safety equipment, including but
not limited to: personal flotation devices, radios, maritime global
positioning systems, or vessel locator beacons. USCG and interagency
consent-based interviews suggest that human-smuggling networks and
migrants consider the attempts worth the risk.\83\
---------------------------------------------------------------------------

\83\ Email from U.S. Coast Guard to DHS Policy, Re: heads up on
assistance needed, Dec. 13, 2022.
---------------------------------------------------------------------------

The increase in migrants taking to sea, under dangerous conditions,
has led to devastating consequences. In FY 2022, the USCG recorded 107
noncitizen deaths, including presumed dead, as a result of irregular
maritime migration. In January 2022, the Coast Guard located a capsized
vessel with a survivor clinging to the hull. USCG crews interviewed the
survivor who indicated there were 34 others on the vessel, who were not
in the vicinity of the capsized vessel and survivor.\84\ The USCG
conducted a multi-day air and surface search for the missing migrants,
eventually recovering five deceased migrants; the others were presumed
lost at sea.\85\
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\84\ Adriana Gomez Licon, Associated Press, Situation `dire' as
Coast Guard seeks 38 missing off Florida, Jan. 26, 2022, <a href="https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019">https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019</a>.
\85\ Adriana Gomez Licon, Associated Press, Coast Guard suspends
search for migrants off Florida, Jan. 27, 2022, <a href="https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239">https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239</a>.
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DHS anticipates this process will save lives and undermine the
profits and operations of the dangerous TCOs that put migrants' lives
at risk for profit because it incentivizes intending migrants to use a
safe and orderly means to access the United States via commercial air
flights, thus ultimately reducing the demand for smuggling networks to
facilitate the dangerous journey to the SWB. By reducing the demand for
these services, DHS is effectively targeting the resources of TCOs and
human-smuggling networks that so often facilitate these unprecedented
movements with utter disregard for the health and safety of migrants.
DHS and federal partners have taken extraordinary measures--including
the largest-ever surge of resources against human-smuggling networks--
to combat and disrupt the TCOs and smugglers and will continue to do
so.\86\
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\86\ See DHS Update on Southwest Border Security and
Preparedness Ahead of Court-Ordered Lifting of Title 42, Dec. 13,
2022, <a href="https://www.dhs.gov/publication/update-southwest-border-security-and-preparedness-ahead-court-ordered-lifting-title-42">https://www.dhs.gov/publication/update-southwest-border-security-and-preparedness-ahead-court-ordered-lifting-title-42</a> (last
visited Dec. 18, 2022).
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6. Fulfill Important Foreign Policy Goals To Manage Migration
Collaboratively in the Hemisphere
Promoting a safe, orderly, legal, and humane migration strategy
throughout the Western Hemisphere has been a top foreign policy
priority for the Administration. This is reflected in three policy-
setting documents: the U.S. Strategy for Addressing the Root Causes of
Migration in Central America (Root Causes Strategy); \87\ the
Collaborative Migration Management Strategy (CMMS); \88\ and the Los
Angeles Declaration on Migration and Protection (L.A. Declaration),
which was endorsed in June 2022 by 21 countries.\89\ The CMMS and the
L.A. Declaration call for a collaborative and regional approach to
migration, wherein countries in the hemisphere commit to implementing
programs and processes to stabilize communities hosting migrants or
those of high outward-migration; humanely enforce existing laws
regarding movements across international boundaries, especially when
minors are involved; take actions to stop migrant smuggling by
targeting the criminals involved in these activities; and provide
increased regular pathways and protections for migrants residing in or
transiting through the 21 countries.\90\ The L.A. Declaration
specifically lays out the goal of collectively ``expand[ing] access to
regular pathways for migrants and refugees.'' \91\
---------------------------------------------------------------------------

\87\ National Security Council, Root Causes of Migration in
Central America (July 2021), <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf</a>.
\88\ National Security Council, Collaborative Migration
Management Strategy, July 2021, <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf?utm_medium=email&utm_source=govdelivery">https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf?utm_medium=email&utm_source=govdelivery</a>.
\89\ Id.; The White House, Los Angeles Declaration on Migration
and Protection (LA Declaration), June 10, 2022, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/</a>.
\90\ Id.
\91\ Id.
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The U.S. Government has been working with the GOC to restart the
Cuba Migration Accords. On November 15, 2022, U.S. and Cuban officials
met in Havana to discuss the implementation of the Accords and to
underscore our commitment to pursuing safe, regular, and humane
migration between Cuba and the United States.\92\ These Migration Talks
provide an opportunity for important discussions on mutual compliance
with the Migration Accords--composed of a series of binding bilateral
agreements between the United States and Cuba signed in 1984, 1994,
1995, and 2017--which establish certain commitments of the United
States and Cuba relating to safe, legal, and orderly migration.
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\92\ Department of State, Migration Talks with the Government of
Cuba, Nov. 15, 2022; <a href="https://www.state.gov/migration-talks-with-the-government-of-cuba-2/">https://www.state.gov/migration-talks-with-the-government-of-cuba-2/</a>.
---------------------------------------------------------------------------

In September 2022, the U.S. Government announced the resumption of
operations under the CFRP program, which allows certain beneficiaries
of family-based immigrant petitions to seek parole into the United
States while waiting for a visa number to become available. Beginning
in early 2023, U.S. Embassy Havana will resume full immigrant visa
processing for the first time since 2017, which will, over time,
increase the pool of noncitizens eligible for CFRP.\93\ Approved
beneficiaries through this process will enter the United States as
parolees but will be eligible to apply for adjustment to lawful
permanent resident (LPR) status once their immigrant visas become
available. Also during this period, Cubans may be eligible to apply for
lawful permanent residence under the Cuban Adjustment Act.\94\
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\93\ USCIS, USCIS Resumes Cuban Family Reunification Parole
Program Operations, <a href="https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations">https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations</a>, Sept.
9, 2022 (last visited Dec. 10, 2022).
\94\ Public Law 89-732, Cuban Adjustment Act of 1966 (CAA), Nov.
2, 1966, <a href="https://www.gpo.gov/fdsys/pkg/STATUTE-80/pdf/STATUTE-80-Pg1161.pdf">https://www.gpo.gov/fdsys/pkg/STATUTE-80/pdf/STATUTE-80-Pg1161.pdf</a> (last viewed Dec. 16, 2022).
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While these efforts represent important progress for certain Cubans
who are the beneficiaries of a family-based immigrant petition, CFRP's
narrow eligibility, challenges faced

[[Page 1275]]

operating in Cuba, and more modest processing throughput mean that
additional pathways are required to meet the current and acute border
security and irregular migration mitigation objective. This new process
helps achieve these goals by providing an immediate and temporary
orderly process for Cuban nationals to lawfully enter the United States
while we work to improve conditions in Cuba and expand more permanent
lawful immigration pathways in the region, including refugee processing
and other lawful pathways into the United States and other Western
Hemisphere countries. It thus provides the United States another avenue
to lead by example.
The process also responds to an acute foreign policy need. Key
allies in the region--including specifically the Governments of Mexico,
Honduras, Guatemala, and Costa Rica--are affected by the increased
movement of Cuban nationals and have been seeking greater U.S. action
to address these challenging flows for some time. Cuban flows
contribute to strain on governmental and civil society resources in
Mexican border communities in both the south and the north--something
that key foreign government partners have been urging the United States
to address.
Along with the Venezuelan process, this new process adds to these
efforts and enables the United States to lead by example. Such
processes are a key mechanism to advance the larger domestic and
foreign policy goals of the U.S. Government to promote a safe, orderly,
legal, and humane migration strategy throughout our hemisphere. The new
process also strengthens the foundation for the United States to press
regional partners--many of which are already taking important steps--to
undertake additional actions with regards to this population, as part
of a regional response. Any effort to meaningfully address the crisis
in Cuba will require continued efforts by these and other regional
partners.
Importantly, the United States will only implement the new parole
process while able to remove or return to Mexico Cuban nationals who
enter the United States without authorization across the SWB. The
United States' ability to execute this process thus is contingent on
the GOM making an independent decision to accept the return or removal
of Cuban nationals who bypass this new process and enter the United
States without authorization.
For its part, the GOM has made clear its position that, in order to
effectively manage the migratory flows that are impacting both
countries, the United States needs to provide additional safe, orderly,
and lawful processes for migrants who seek to enter the United States.
The GOM, as it makes its independent decisions as to its ability to
accept returns of third country nationals at the border and its efforts
to manage migration within Mexico, is thus closely watching the United
States' approach to migration management and whether it is delivering
on its plans in this space. Initiating and managing this process--which
is dependent on GOM's actions--will require careful, deliberate, and
regular assessment of GOM's responses to U.S. actions in this regard,
and ongoing, sensitive diplomatic engagements.
As noted above, this process is responsive to the GOM's request
that the United States increase lawful pathways for migrants and is
also aligned with broader Administration domestic and foreign policy
priorities in the region. The process couples a meaningful incentive to
seek a lawful, orderly means of traveling to the United States with the
imposition of consequences for those who seek to enter irregularly
along the SWB. The goal of this process is to reduce the irregular
migration of Cuban nationals while the United States, together with
partners in the region, works to improve conditions in sending
countries and create more immigration and refugee pathways in the
region, including to the United States.

B. Urgent Humanitarian Reasons

The case-by-case temporary parole of individuals pursuant to this
process will address the urgent humanitarian needs of Cuban nationals
who have fled crippling economic conditions and social unrest in Cuba.
The GOC continues to repress and punish all forms of dissent and public
criticism of the regime and has continued to take actions against those
who oppose its positions.\95\ This process provides a safe mechanism
for Cuban nationals who seek to leave their home country to enter the
United States without having to make the dangerous journey to the
United States.
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\95\ Id.; Congressional Research Service, Cuba: U.S. Policy in
the 117th Congress, Sept. 22, 2022, <a href="https://crsreports.congress.gov/product/pdf/R/R47246">https://crsreports.congress.gov/product/pdf/R/R47246</a>.
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IV. Eligibility To Participate in the Process and Processing Steps

A. Supporters

U.S.-based supporters must initiate the process by filing Form I-
134A on behalf of a Cuban national and, if applicable, the national's
immediate family members.\96\ Supporters may be individuals filing on
their own, with other individuals, or on behalf of non-governmental
entities or community-based organizations. Supporters are required to
provide evidence of income and assets and declare their willingness to
provide financial support to the named beneficiary for the length of
parole. Supporters are required to undergo vetting to identify
potential human trafficking or other concerns. To serve as a supporter
under the process, an individual must:
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\96\ Certain non-Cubans may use this process if they are an
immediate family member of a Cuban beneficiary and traveling with
that Cuban beneficiary. For purposes of this process, immediate
family members are limited to a spouse, common-law partner, and/or
unmarried child(ren) under the age of 21.
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<bullet> be a U.S. citizen, national, or lawful permanent resident;
hold a lawful status in the United States; or be a parolee or recipient
of deferred action or Deferred Enforced Departure;
<bullet> pass security and background vetting, including for public
safety, national security, human trafficking, and exploitation
concerns; and
<bullet> demonstrate sufficient financial resources to receive,
maintain, and support the intended beneficiary whom they commit to
support for the duration of their parole period.

B. Beneficiaries

In order to be eligible to request and ultimately be considered for
a discretionary issuance of advance authorization to travel to the
United States to seek a discretionary grant of parole at the POE, such
individuals must:
<bullet> be outside the United States;
<bullet> be a national of Cuba or be a non-Cuban immediate family
member \97\ and traveling with a Cuban principal beneficiary;
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\97\ Certain non-Cubans may use this process if they are an
immediate family member of a Cuban beneficiary and traveling with
that Cuban beneficiary. For purposes of this process, immediate
family members are limited to a spouse, common-law partner, and/or
unmarried child(ren) under the age of 21.
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<bullet> have a U.S.-based supporter who filed a Form I-134A on
their behalf that USCIS has vetted and confirmed;
<bullet> possess an unexpired passport valid for international
travel;
<bullet> provide for their own commercial travel to an air POE and
final U.S. destination;
<bullet> undergo and pass required national security and public
safety vetting;
<bullet> comply with all additional requirements, including
vaccination requirements and other public health guidelines; and

[[Page 1276]]

<bullet> demonstrate that a grant of parole is warranted based on
significant public benefit or urgent humanitarian reasons, as described
above, and that a favorable exercise of discretion is otherwise
merited.
A Cuban national is ineligible to be considered for advance
authorization to travel to the United States as well as parole under
this process if that person is a permanent resident or dual national of
any country other than Cuba, or currently holds refugee status in any
country, unless DHS operates a similar parole process for the country's
nationals.\98\
---------------------------------------------------------------------------

\98\ This limitation does not apply to immediate family members
traveling with a Cuban national.
---------------------------------------------------------------------------

In addition, a potential beneficiary is ineligible for advance
authorization to travel to the United States as well as parole under
this process if that person:
<bullet> fails to pass national security and public safety vetting
or is otherwise deemed not to merit a favorable exercise of discretion;
<bullet> has been ordered removed from the United States within the
prior five years or is subject to a bar to admissibility based on a
prior removal order; \99\
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\99\ See, e.g., INA sec. 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A).
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<bullet> has crossed irregularly into the United States, between
the POEs, after January 9, 2023, except individuals permitted a single
instance of voluntary departure pursuant to INA section 240B, 8 U.S.C.
1229c or withdrawal of their application for admission pursuant to INA
section 235(a)(4), 8 U.S.C. 1225(a)(4) will remain eligible;
<bullet> has irregularly crossed the Mexican or Panamanian border
after January 9, 2023; or
<bullet> is under 18 and not traveling through this process
accompanied by a parent or legal guardian, and as such is a child whom
the inspecting officer would determine to be an unaccompanied
child.\100\
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\100\ As defined in 6 U.S.C. 279(g)(2). Children under the age
of 18 must be traveling to the United States in the care and custody
of their parent or legal guardian to be considered for parole at the
POE under the process.
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Travel Requirements: Beneficiaries who receive advance
authorization to travel to the United States to seek parole into the
United States will be responsible for arranging and funding their own
commercial air travel to an interior POE of the United States.
Health Requirements: Beneficiaries must follow all applicable
requirements, as determined by DHS's Chief Medical Officer, in
consultation with the Centers for Disease Control and Prevention, with
respect to health and travel, including vaccination and/or testing
requirements for diseases including COVID-19, polio, and measles. The
most up-to-date public health requirements applicable to this process
will be available at <a href="http://www.uscis.gov/CHNV">www.uscis.gov/CHNV</a>.

C. Processing Steps

Step 1: Declaration of Financial Support
A U.S.-based supporter will submit a Form I-134A, Online Request to
be a Supporter and Declaration of Financial Support, with USCIS through
the online myUSCIS web portal to initiate the process. The Form I-134A
identifies and collects information on both the supporter and the
beneficiary. The supporter must submit a separate Form I-134A for each
beneficiary they are seeking to support, including Cubans' immediate
family members and minor children. The supporter will then be vetted by
USCIS to protect against exploitation and abuse, and to ensure that the
supporter is able to financially support the beneficiary whom they
agree to support. Supporters must be vetted and confirmed by USCIS, at
USCIS' discretion, before moving forward in the process.
Step 2: Submit Biographic Information
If a supporter is confirmed by USCIS, the listed beneficiary will
receive an email from USCIS with instructions to create an online
account with myUSCIS and next steps for completing the application. The
beneficiary will be required to confirm their biographic information in
their online account and attest to meeting the eligibility
requirements.
As part of confirming eligibility in their myUSCIS account,
individuals who seek authorization to travel to the United States will
need to confirm that they meet public health requirements, including
certain vaccination requirements.
Step 3: Submit Request in CBP One Mobile Application
After confirming biographic information in myUSCIS and completing
required eligibility attestations, the beneficiary will receive
instructions through myUSCIS for accessing the CBP One mobile
application. The beneficiary must then enter limited biographic
information into CBP One and submit a live photo.
Step 4: Approval To Travel to the United States
After completing Step 3, the beneficiary will receive a notice in
their myUSCIS account confirming whether CBP has, in CBP's discretion,
provided the beneficiary with advance authorization to travel to the
United States to seek a discretionary grant of parole on a case-by-case
basis. If approved, this authorization is generally valid for 90 days,
and beneficiaries are responsible for securing their own travel via
commercial air to an interior POE of the United States.\101\ Approval
of advance authorization to travel does not guarantee parole into the
United States. Whether to parole the individual is a discretionary
determination made by CBP at the POE at the time the individual arrives
at the interior POE.
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\101\ Air carriers can validate an approved and valid travel
authorization submission using the same mechanisms that are
currently in place to validate that a traveler has a valid visa or
other documentation to facilitate issuance of a boarding pass for
air travel.
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All of the steps in this process, including the decision to grant
or deny advance travel authorization and the parole decision at the
interior POE, are entirely discretionary and not subject to appeal on
any grounds.
Step 5: Seeking Parole at the POE
Each individual arriving at a POE under this process will be
inspected by CBP and considered for a grant of discretionary parole for
a period of up to two years on a case-by-case basis.
As part of the inspection, beneficiaries will undergo additional
screening and vetting, to include additional fingerprint biometric
vetting consistent with CBP inspection processes. Individuals who are
determined to pose a national security or public safety threat or
otherwise do not warrant parole pursuant to section 212(d)(5)(A) of the
INA, 8 U.S.C. 1182(d)(5)(A), and as a matter of discretion upon
inspection, will be processed under an appropriate processing pathway
and may be referred to ICE for detention.
Step 6: Parole
If granted parole pursuant to this process, each individual
generally will be paroled into the United States for a period of up to
two years, subject to applicable health and vetting requirements, and
will be eligible to apply for employment authorization under existing
regulations. Individuals may request employment authorization from
USCIS. USCIS is leveraging technological and process efficiencies to
minimize processing times for requests for employment authorization.
All individuals two years of age or older will be required to complete
a medical screening for tuberculosis, including an IGRA test, within 90
days of arrival to the United States.

[[Page 1277]]

D. Scope, Termination, and No Private Rights

The Secretary retains the sole discretion to terminate the Parole
Process for Cubans at any point. The number of travel authorizations
granted under this process shall be spread across this process and the
separate and independent Parole Process for Nicaraguans, the Parole
Process for Haitians, and Parole Process for Venezuelans (as described
in separate notices published concurrently in today's edition of the
Federal Register) and shall not exceed 30,000 each month in the
aggregate. Each of these processes operates independently, and any
action to terminate or modify any of the other processes will have no
bearing on the criteria for or independent decisions with respect to
this process.
This process is being implemented as a matter of the Secretary's
discretion. It is not intended to and does not create any rights,
substantive or procedural, enforceable by any party in any matter,
civil or criminal.

V. Regulatory Requirements

A. Administrative Procedure Act

This process is exempt from notice-and-comment rulemaking and
delayed effective date requirements on multiple grounds, and is
therefore amenable to immediate issuance and implementation.
First, the Department is merely adopting a general statement of
policy,\102\ i.e., a ``statement[ ] issued by an agency to advise the
public prospectively of the manner in which the agency proposes to
exercise a discretionary power.'' \103\ As section 212(d)(5)(A) of the
INA, 8 U.S.C. 1182(d)(5)(A), provides, parole decisions are made by the
Secretary of Homeland Security ``in his discretion.''
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\102\ 5 U.S.C. 553(b)(A); id. 553(d)(2).
\103\ See Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)).
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Second, even if this process were considered to be a legislative
rule that would normally be subject to requirements for notice-and-
comment rulemaking and a delayed effective date, the process would be
exempt from such requirements because it involves a foreign affairs
function of the United States.\104\ Courts have held that this
exemption applies when the rule in question ``is clearly and directly
involved in a foreign affairs function.'' \105\ In addition, although
the text of the Administrative Procedure Act does not expressly require
an agency invoking this exemption to show that such procedures may
result in ``definitely undesirable international consequences,'' some
courts have required such a showing.\106\ This process satisfies both
standards.
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\104\ 5 U.S.C. 553(a)(1).
\105\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T.
1984) (cleaned up).
\106\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.
2008).
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As described above, this process is directly responsive to requests
from key foreign partners--including the GOM--to provide a lawful
process for Cuban nationals to enter the United States. The United
States will only implement the new parole process while able to return
or remove to Mexico Cuban nationals who enter without authorization
across the SWB. The United States' ability to execute this process is
contingent on the GOM making an independent decision to accept the
return or removal of Cuban nationals who bypass this new process and
enter the United States without authorization. Thus, initiating and
managing this process will require careful, deliberate, and regular
assessment of the GOM's responses to this independent U.S. action and
ongoing, sensitive diplomatic engagements.
Delaying issuance and implementation of this process to undertake
rulemaking would undermine the foreign policy imperative to act now. It
also would complicate broader discussions and negotiations about
migration management. For now, the GOM has indicated it is prepared to
make an independent decision to accept the return or removal of Cuban
nationals. That willingness could be impacted by the delay associated
with a public rulemaking process involving advance notice and comment
and a delayed effective date. Additionally, making it publicly known
that we plan to return or remove nationals of Cuba to Mexico at a
future date would likely result in an even greater surge in migration,
as migrants rush to the border to enter before the process begins--
which would adversely impact each country's border security and further
strain their personnel and resources deployed to the border.
Moreover, this process is not only responsive to the interests of
key foreign partners--and necessary for addressing migration issues
requiring coordination between two or more governments--it is also
fully aligned with larger and important foreign policy objectives of
this Administration and fits within a web of carefully negotiated
actions by multiple governments (for instance in the L.A. Declaration).
It is the view of the United States that the implementation of this
process will advance the Administration's foreign policy goals by
demonstrating U.S. partnership and U.S. commitment to the shared goals
of addressing migration through the hemisphere, both of which are
essential to maintaining strong bilateral relationships.
The invocation of the foreign affairs exemption here is also
consistent with Department precedent. For example, DHS published a
notice eliminating an exception to expedited removal for certain Cuban
nationals, which explained that the change in policy was consistent
with the foreign affairs exemption because the change was central to
ongoing negotiations between the two countries.\107\ DHS similarly
invoked the foreign affairs exemption more recently, in connection with
the Venezuela parole process.\108\
---------------------------------------------------------------------------

\107\ See 82 FR 4902 (Jan. 17, 2017).
\108\ See 87 FR 63507 (Oct. 19, 2022).
---------------------------------------------------------------------------

Third, DHS assesses that there is good cause to find that the delay
associated with implementing this process through notice-and-comment
rulemaking and with a delayed effective date would be contrary to the
public interest and impracticable.\109\ The numbers of Cubans
encountered at the SWB are already high, and a delay would greatly
exacerbate an urgent border and national security challenge, and would
miss a critical opportunity to reduce and divert the flow of irregular
migration.\110\
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\109\ See 5 U.S.C. 553(b)(B); id. 553(d)(3).
\110\ See Chamber of Commerce of U.S. v. SEC., 443 F.3d 890, 908
(D.C. Cir. 2006) (``The [``good cause''] exception excuses notice
and comment in emergency situations, where delay could result in
serious harm, or when the very announcement of a proposed rule
itself could be expected to precipitate activity by affected parties
that would harm the public welfare.'' (citations omitted)).
---------------------------------------------------------------------------

Undertaking notice-and-comment rulemaking procedures would be
contrary to the public interest because an advance announcement of the
process would seriously undermine a key goal of the policy: it would
incentivize even more irregular migration of Cuban nationals seeking to
enter the United States before the process would take effect. There are
urgent border and national security and humanitarian interests in
reducing and diverting the flow of irregular migration.\111\ It has
long been recognized that agencies may use the good cause exception,
and need not take public comment in advance, where significant public
harm would result from the notice-and-comment

[[Page 1278]]

process.\112\ If, for example, advance notice of a coming price
increase would immediately produce market dislocations and lead to
serious shortages, advance notice need not be given.\113\ A number of
cases follow this logic in the context of economic regulation.\114\
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\111\ See 5 U.S.C. 553(b)(B).
\112\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94-95
(D.C. Cir. 2012) (noting that the ``good cause'' exception ``is
appropriately invoked when the timing and disclosure requirements of
the usual procedures would defeat the purpose of the proposal--if,
for example, announcement of a proposed rule would enable the sort
of financial manipulation the rule sought to prevent [or] in order
to prevent the amended rule from being evaded'' (cleaned up));
DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct.
App. 1975) (``[W]e are satisfied that there was in fact `good cause'
to find that advance notice of the freeze was `impracticable,
unnecessary, or contrary to the public interest' within the meaning
of section 553(b)(B). . . . Had advance notice issued, it is
apparent that there would have ensued a massive rush to raise prices
and conduct `actual transactions'-- or avoid them--before the freeze
deadline.'' (cleaned up)).
\113\ See, e.g., Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp.
Emer. Ct. App. 1975) (``[W]e think good cause was present in this
case based upon [the agency's] concern that the announcement of a
price increase at a future date could have resulted in producers
withholding crude oil from the market until such time as they could
take advantage of the price increase.'').
\114\ See, e.g., Chamber of Commerce of U.S. v. SEC., 443 F.3d
890, 908 (D.C. Cir. 2006) (``The [``good cause''] exception excuses
notice and comment in emergency situations, where delay could result
in serious harm, or when the very announcement of a proposed rule
itself could be expected to precipitate activity by affected parties
that would harm the public welfare.'' (citations omitted)); Mobil
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct.
App. 1983) (``On a number of occasions . . . this court has held
that, in special circumstances, good cause can exist when the very
announcement of a proposed rule itself can be expected to
precipitate activity by affected parties that would harm the public
welfare.'').
---------------------------------------------------------------------------

The same logic applies here, where the Department is responding to
exceedingly serious challenges at the border, and advance announcement
of that response would significantly increase the incentive, on the
part of migrants and others (such as smugglers), to engage in actions
that would compound those very challenges. It is well established that
migrants may change their behavior in response to perceived imminent
changes in U.S. immigration policy \115\ For example, as detailed
above, implementation of the parole process for Venezuelans was
associated with a drastic reduction in irregular migration by
Venezuelans. Had the parole process been announced prior to a notice-
and-comment period, it likely would have had the opposite effect,
resulting in many hundreds of thousands of Venezuelan nationals
attempting to cross the border before the program went into effect.
Overall, the Department's experience has been that in some
circumstances when public announcements have been made regarding
changes in our immigration laws and procedures that would restrict
access to immigration benefits to those attempting to enter the United
States along the U.S.-Mexico land border, there have been dramatic
increases in the numbers of noncitizens who enter or attempt to enter
the United States. Smugglers routinely prey on migrants in response to
changes in domestic immigration law.
---------------------------------------------------------------------------

\115\ See, e.g., Tech Transparency Project, Inside the World of
Misinformation Targeting Migrants on Social Media, <a href="https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media">https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media</a>, July 26, 2022 (last
viewed Dec. 6, 2022).
---------------------------------------------------------------------------

In addition, it would be impracticable to delay issuance of this
process in order to undertake such procedures because--as noted above--
maintaining the status quo, which involves record numbers of Cuban
nationals currently being encountered attempting to enter without
authorization at the SWB, coupled with DHS's extremely limited options
for processing, detaining, or quickly removing such migrants, would
unduly impede DHS's ability to fulfill its critical and varied
missions. At current rates, a delay of just a few months to conduct
notice-and-comment rulemaking would effectively forfeit an opportunity
to reduce and divert migrant flows in the near term, harm border
security, and potentially result in scores of additional migrant
deaths.
The Department's determination here is consistent with past
practice in this area. For example, in addition to the Venezuelan
process described above, DHS concluded in January 2017 that it was
imperative to give immediate effect to a rule designating Cuban
nationals arriving by air as eligible for expedited removal because
``pre-promulgation notice and comment would . . . endanger[ ] human
life and hav[e] a potential destabilizing effect in the region.'' \116\
DHS cited the prospect that ``publication of the rule as a proposed
rule, which would signal a significant change in policy while
permitting continuation of the exception for Cuban nationals, could
lead to a surge in migration of Cuban nationals seeking to travel to
and enter the United States during the period between the publication
of a proposed and a final rule.'' \117\ DHS found that ``[s]uch a surge
would threaten national security and public safety by diverting
valuable Government resources from counterterrorism and homeland
security responsibilities. A surge could also have a destabilizing
effect on the region, thus weakening the security of the United States
and threatening its international relations.'' \118\ DHS concluded that
``a surge could result in significant loss of human life.'' \119\
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\116\ Eliminating Exception to Expedited Removal Authority for
Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017).
\117\ Id.
\118\ Id.
\119\ Id.; accord, e.g., Visas: Documentation of Nonimmigrants
Under the Immigration and Nationality Act, as Amended, 81 FR 5906,
5907 (Feb. 4, 2016) (finding the good cause exception applicable
because of similar short-run incentive concerns).
---------------------------------------------------------------------------

B. Paperwork Reduction Act (PRA)

Under the Paperwork Reduction Act (PRA), 44 U.S.C. chapter 35, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any new reporting requirements
they impose. The process announced by this notice requires changes to
two collections of information, as follows.
OMB has recently approved a new collection, Form I-134A, Online
Request to be a Supporter and Declaration of Financial Support (OMB
control number 1615-NEW). This new collection will be used for the
Cuban parole process, and is being revised in connection with this
notice, including by increasing the burden estimate. To support the
efforts described above, DHS has created a new information collection
that will be the first step in these parole processes and will not use
the paper USCIS Form I-134 for this purpose. U.S.-based supporters will
submit USCIS Form I-134A online on behalf of a beneficiary to
demonstrate that they can support the beneficiary for the duration of
their temporary stay in the United States. USCIS has submitted and OMB
has approved a request for emergency authorization of the required
changes (under 5 CFR 1320.13) for a period of 6 months. Within the next
90 days, USCIS will immediately begin normal clearance procedures under
the PRA.
OMB has previously approved an emergency request under 5 CFR
1320.13 for a revision to an information collection from CBP entitled
Advance Travel Authorization (OMB control number 1651-0143). In
connection with the implementation of the process described above, CBP
is making multiple changes under the PRA's emergency processing
procedures at 5 CFR 1320.13, including increasing the burden estimate
and adding Cuban nationals as eligible for a DHS established process
that necessitates collection of a facial photograph in CBP

[[Page 1279]]

One<SUP>TM</SUP>. OMB has approved the emergency request for a period
of 6 months. Within the next 90 days, CBP will immediately begin normal
clearance procedures under the PRA.
More information about both collections can be viewed at
<a href="http://www.reginfo.gov">www.reginfo.gov</a>.

Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2023-00252 Filed 1-5-23; 4:15 pm]
BILLING CODE 9110-09-P

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