Notice2023-00254
Implementation of a Parole Process for Nicaraguans
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
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 Nicaraguan 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. Nicaraguans 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 Nicaraguan 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
<html>
<head>
<title>Federal Register, Volume 88 Issue 5 (Monday, January 9, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1255-1266]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00254]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Implementation of a Parole Process for Nicaraguans
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This notice describes a new effort designed to enhance the
security of our Southwest Border (SWB) by reducing the number of
encounters of Nicaraguan 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. Nicaraguans 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 Nicaraguan 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--Nicaraguan Parole Process
This notice describes the implementation of a new parole process
for certain Nicaraguan nationals, including the eligibility criteria
and filing process. The parole process is intended to enhance border
security by reducing the record levels of Nicaraguan 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.
---------------------------------------------------------------------------
\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 Nicaraguan
Nationals (Dec. 22, 2022).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ In this notice, irregular migration refers to the movement
of people into another country without authorization.
---------------------------------------------------------------------------
[[Page 1256]]
Building on the success of the successful Uniting for Ukraine (U4U)
process and the Process for Venezuelans, DHS is implementing a similar
process to address the increasing number of encounters of Nicaraguan
nationals at the SWB, which have reached record levels over the past
six months. Similar to Venezuela, Nicaragua has restricted DHS's
ability to remove individuals to Nicaragua, which has constrained DHS'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) for the first time made an independent decision 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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
DHS anticipates that implementing a similar process for Nicaraguans
will reduce the number of Nicaraguans seeking to irregularly enter the
United States between POEs along the SWB 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 Nicaraguans is contingent
on the GOM accepting the return, departure, or removal to Mexico of
Nicaraguan 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 Nicaraguan national (and
certain non-Nicaraguan 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, Nicaraguan 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 Nicaraguans from both 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 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 benefit 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 Nicaraguan
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 Nicaraguans to flee their home
country, to include widespread and violent repression and human rights
violations and abuses by the Ortega regime. Most significantly, DHS
anticipates this process will: (i) enhance the security of the U.S. SWB
by reducing irregular migration of Nicaraguan nationals, including by
imposing additional consequences on those who seek to enter between
POEs; (ii) enhance border security and national security by vetting
individuals prior to their arrival at a U.S. POE; (iii) reduce the
strain on DHS personnel and resources; (iv) minimize the domestic
impact of irregular migration from Nicaragua; (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.
The Secretary retains the sole discretion to terminate the
Nicaragua 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.\6\ Within a week of the announcement, the number of
Venezuelans encountered at the SWB fell from over 1,100 per day to
under
[[Page 1257]]
200 per day, and as of the week ending December 4, an average of 86 per
day.\7\
---------------------------------------------------------------------------
\6\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022.
\7\ 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
The Venezuela process fundamentally changed the calculus for
Venezuelan migrants. Venezuelan migrants who had already crossed the
Dari[eacute]n Gap returned to Venezuela by the thousands on voluntary
flights organized by the governments of Mexico, Guatemala, and Panama,
as well as civil society.\9\ Other migrants who were about to enter the
Dari[eacute]n Gap turned around and headed back south.\10\ Still others
who were intending to migrate north are staying where they are to apply
for this parole process.\11\ 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.
---------------------------------------------------------------------------
\9\ La Prensa Latina Media, More than 4,000 migrants voluntarily
returned to Venezuela from Panama, <a href="https://www.laprensalatina.com/more-than-4000-migrants-voluntarily-returned-to-venezuela-from-panama/">https://www.laprensalatina.com/more-than-4000-migrants-voluntarily-returned-to-venezuela-from-panama/</a>, Nov. 9 2022 (last viewed Dec. 8, 2022).
\10\ Voice of America, U.S. Policy Prompts Some Venezuelan
Migrants to Change Route, <a href="https://www.voanews.com/a/us-policy-prompts-some-venezuelan-migrants-to-change-route/6790996.html">https://www.voanews.com/a/us-policy-prompts-some-venezuelan-migrants-to-change-route/6790996.html</a>, Oct.
14, 2022 (last viewed Dec. 8, 2022).
\11\ Axios, Biden's new border policy throws Venezuelan migrants
into limbo, <a href="https://www.axios.com/2022/11/07/biden-venezuela-border-policy-darien-gap">https://www.axios.com/2022/11/07/biden-venezuela-border-policy-darien-gap</a>, Nov. 7, 2022 (last viewed Dec. 8, 2022).
---------------------------------------------------------------------------
2. Trends and Flows: Increase of Nicaraguan 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.\12\ 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.\13\ 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.\14\
---------------------------------------------------------------------------
\12\ OIS analysis of historic CBP data.
\13\ Id.
\14\ Id.
---------------------------------------------------------------------------
Shifts in demographics have also had a significant effect on
migration flows. Border encounters in the 1980s and 1990s consisted
overwhelmingly of single adults from Mexico, most of whom were
migrating for economic reasons.\15\ Beginning in the 2010s, a growing
share of migrants have come from Northern Central America \16\ (NCA)
and, since the late 2010s, from countries throughout the Americas.\17\
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.\18\
---------------------------------------------------------------------------
\15\ 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. 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 (Sept.
1999): 518-536.
\16\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\17\ 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.
\18\ 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.
---------------------------------------------------------------------------
Historically, Nicaraguans migrated south to Costa Rica, resulting
in relatively few Nicaraguan encounters at the SWB. Consistent with
this trend, the number of Nicaraguans seeking asylum in Costa Rica has
grown rapidly in recent years, putting immense pressure on the
country's asylum system, and causing many asylum seekers to wait years
for an initial interview.\19\ According to United Nations High
Commissioner for Refugees (UNHCR), as of February 2022, ``more
Nicaraguans are currently seeking protection in Costa Rica than all the
refugees and asylum seekers combined, during Central America's civil
wars in the 1980s, when Costa Rica was a sanctuary for those fleeing
violence.'' \20\ The Government of Costa Rica recently announced its
intention to regularize the status of more than 200,000 Nicaraguan
migrants and asylum seekers providing them with access to jobs and
healthcare as part of the process.\21\
---------------------------------------------------------------------------
\19\ AP News, Fleeing Nicaraguans Strain Costa Rica's Asylum
System (Sept. 2, 2022), <a href="https://apnews.com/article/covid-health-elections-presidential-caribbean-52044748d15dbbb6ca706c66cc7459a5">https://apnews.com/article/covid-health-elections-presidential-caribbean-52044748d15dbbb6ca706c66cc7459a5</a>.
\20\ UNHCR, `Sharp rise' in Nicaraguans fleeing to Costa Rica,
strains asylum system, <a href="https://news.un.org/en/story/2022/03/1114792">https://news.un.org/en/story/2022/03/1114792</a>,
Mar. 25, 2022 (last viewed Dec. 9, 2022).
\21\ Reuters, Costa Rica prepares plan to regularize status of
200,000 mostly Nicaraguan migrants, <a href="https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/">https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/</a>, Aug. 10, 2022 (last viewed Dec. 4,
2022).
---------------------------------------------------------------------------
Despite Costa Rica's efforts, increasing numbers of Nicaraguans are
traveling north to the SWB due to renewed unrest in Nicaragua and the
strained asylum system in Costa Rica. As a result, the United States
and Mexico saw surges in migration from Nicaragua, with Nicaraguans
claiming asylum in Mexico at three times the rate through October 31 of
this year than the previous year and with a surge in migration having
significantly contributed to the rising number of encounters at the
SWB.\22\ Unique encounters of Nicaraguan nationals increased throughout
fiscal year (FY) 2021, totaling 47,300,\23\ and increased further--and
sharply--in FY 2022. DHS encountered an estimated 157,400 unique
Nicaraguan nationals in FY 2022, which composed nine percent
[[Page 1258]]
of all unique encounters and was the fourth largest origin group.\24\
Between FY 2021 and FY 2022, unique encounters of Nicaraguan nationals
rose 232 percent while unique encounters of all other nationalities
combined increased just 47 percent.\25\ FY 2022 average unique monthly
encounters of Nicaraguan nationals at the land border totaled 13,113 as
opposed to an average monthly rate of 316 encounters in FYs 2014-2019,
a 41-fold increase.\26\
---------------------------------------------------------------------------
\22\ Boris Cheshirkov, Number of displaced Nicaraguans in Costa
Rica doubles in less than a year, <a href="https://www.unhcr.org/news/briefing/2022/3/623d894c4/number-displaced-nicaraguans-costa-rica-doubles-year.html">https://www.unhcr.org/news/briefing/2022/3/623d894c4/number-displaced-nicaraguans-costa-rica-doubles-year.html</a>, Mar. 25, 2022 (last viewed Dec. 7, 2022).
\23\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022. Unique encounters include encounters of persons at
the Southwest Border who were not previously encountered in the
prior 12 months. Throughout this memo unique encounter data are
defined to also include OFO parolees and other OFO administrative
encounters.
\24\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022.
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------
These trends thus far are only accelerating in FY 2023. In October
and November of 2022, DHS encountered 51,000 Nicaraguan nationals at
the border--nearly one third of the record total of Nicaraguan
encounters in FY 2022.\27\
---------------------------------------------------------------------------
\27\ Id.; OIS analysis of UIP CBP data pulled on November 28,
2022.
---------------------------------------------------------------------------
3. Push and Pull Factors
DHS assesses that the high--and rising--number of Nicaraguan
nationals encountered at the SWB is driven by two key factors: First, a
confluence of political, economic, and humanitarian crises in
Nicaragua--exacerbated by the widespread and violent crackdown on
democratic freedoms by the Ortega regime and the government's numerous
human rights violations against its own population--are causing
thousands to leave the country. This situation is compounded by the
fact that increasingly sophisticated human smugglers often target
migrants in such circumstances to offer them a facilitated opportunity
to travel to the United States--at a cost. Second, the United States
faces significant limits on the ability to remove Nicaraguan nationals
who do not establish a legal basis to remain in the United States to
Nicaragua or elsewhere; absent such an ability, more individuals are
willing to take a chance that they can come--and stay.
i. Factors Pushing Migration From Nicaragua
Current political, economic, and humanitarian crises in Nicaragua
are driving migration of Nicaraguans throughout the hemisphere as well
as to our border.\28\ As conditions have deteriorated in Nicaragua due
to this confluence of factors, the Government of Nicaragua has shown
little tolerance for those who openly criticize their regime and moves
swiftly to brazenly silence dissent.\29\
---------------------------------------------------------------------------
\28\ Voice of America, With Turmoil at Home, More Nicaraguans
Flee to the U.S. (July 29, 2021), <a href="https://www.voanews.com/a/americas_turmoil-home-more-nicaraguans-flee-us/6208907.html">https://www.voanews.com/a/americas_turmoil-home-more-nicaraguans-flee-us/6208907.html</a>.
\29\ Los Angeles Times, Sandinistas Complete Their Political
Domination of Nicaragua Following Local Elections (Nov. 8, 2022),
<a href="https://www.latimes.com/world-nation/story/2022-11-08/sandinistas-complete-political-domination-nicaragua-local-elections">https://www.latimes.com/world-nation/story/2022-11-08/sandinistas-complete-political-domination-nicaragua-local-elections</a>.
---------------------------------------------------------------------------
Since 2007, Daniel Ortega and his party, the Sandinista National
Liberation Front (FSLN), have gradually consolidated control over the
country's institutions and society, including by eliminating
presidential term limits.\30\ Human Rights Watch (HRW) reported in July
2022 that ``[s]ince taking office in 2007, the Ortega administration
has dismantled all institutional checks on presidential power,
including the judiciary.'' \31\ According to the Inter-American
Commission on Human Rights (IACHR), this consolidation of power in the
executive ``has facilitated Nicaragua's transformation into a police
state in which the executive branch has instituted a regime of terror
and of suppression of all freedoms. . . supported by the other branches
of government.'' \32\ The IACHR reported in June 2022 that ``the
state's violent response to the social protests that started on April
18, 2018, triggered a serious political, social, and human rights
crisis in Nicaragua,'' \33\ and that as of late September, ``more than
2,000 organizations of civil society--linked to political parties,
academic, and religious spaces--have been cancelled'' since April
2018.\34\ Further, HRW reported that the shutting down of non-
governmental organizations in Nicaragua ``is part of a much broader
effort to silence civil society groups and independent media through a
combination of repressive tactics that include abusive legislation,
intimidation, harassment, arbitrary detention, and prosecution of human
rights defenders and journalists.'' \35\
---------------------------------------------------------------------------
\30\ Reuters, Ortega's Path to Run for Fourth Straight Re-
election as Nicaraguan President (Nov. 3, 2021), <a href="https://www.reuters.com/world/americas/ortegas-path-run-fourth-straight-re-election-nicaraguan-president-2021-11-03/">https://www.reuters.com/world/americas/ortegas-path-run-fourth-straight-re-election-nicaraguan-president-2021-11-03/</a>.
\31\ Office of the United Nations High Commissioner for Human
Rights (OHCHR), Human Rights Situation in Nicaragua 2 (Sept. 2,
2022), <a href="https://reliefweb.int/report/nicaragua/human-rights-situation-nicaragua-report-united-nations-high-commissioner-human-rights-ahrc5142-unofficial-english-translation">https://reliefweb.int/report/nicaragua/human-rights-situation-nicaragua-report-united-nations-high-commissioner-human-rights-ahrc5142-unofficial-english-translation</a>.
\32\ Inter-American Commission On Human Rights, Nicaragua:
Concentration of Power and the Undermining of the Rule of Law, OEA/
Ser.L/V/II, Doc. 288, 65 (Oct. 25, 2021), <a href="https://www.oas.org/en/iachr/reports/pdfs/2021_nicaragua-en.pdf">https://www.oas.org/en/iachr/reports/pdfs/2021_nicaragua-en.pdf</a>.
\33\ Inter-American Commission On Human Rights, Annual Report
2021, Chapter IV.B--Nicaragua, 775, (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>.
\34\ In light of serious allegations regarding the closure of
civic spaces in Nicaragua, UN and IACHR Special Rapporteurs urge
authorities to comply with their international obligations to
respect and guarantee fundamental freedoms, IACHR, Sept. 28, 2022,
<a href="https://www.oas.org/en/iachr/expression/showarticle.asp?lID=1&artID=1257">https://www.oas.org/en/iachr/expression/showarticle.asp?lID=1&artID=1257</a>.
\35\ Nicaragua: Government Dismantles Civil Society, Human
Rights Watch, July 19, 2022, <a href="https://www.hrw.org/news/2022/07/19/nicaragua-government-dismantles-civil-society">https://www.hrw.org/news/2022/07/19/nicaragua-government-dismantles-civil-society</a>.
---------------------------------------------------------------------------
Since early 2021, the IACHR has observed the escalation of
repression by the Nicaraguan government, characterized by a series of
state actions leading to the elimination of the opposition's
participation in the elections even before they were held.\36\ In
December 2021, the IACHR expressed its concern ``about the increasing
number of people who have been forced to flee Nicaragua and to request
international protection in the context of the ongoing serious human
rights crisis in the country.'' \37\ In August 2022, Ortega had a
bishop, five priests, and two seminarians arrested, claiming that the
bishop ``persisted in destabilizing and provocative activities.'' \38\
Prior to the November 2022 municipalities election, the government
closed 200 nongovernmental groups and over 50 media outlets.\39\
---------------------------------------------------------------------------
\36\ IACHR, Annual Report 2021, Chapter IV.B--Nicaragua, 775
(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>.
\37\ Inter-American Commission On Human Rights, IACHR Calls for
International Solidarity, Urges States to Protect the People Who
Have Been Forced to Flee from Nicaragua (Dec. 20, 2021), <a href="http://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/346.asp">http://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/346.asp</a>.
\38\ The Washington Post, Nicaragua Detains Catholic Bishop in
Escalating Crackdown on Dissent (Aug. 19, 2022), <a href="https://www.washingtonpost.com/world/2022/08/19/nicaragua-bishop-rolando-alvarez-arrest-ortega/">https://www.washingtonpost.com/world/2022/08/19/nicaragua-bishop-rolando-alvarez-arrest-ortega/</a>.
\39\ Politico, Sandinistas Complete Their Political Domination
of Nicaragua (Nov. 8, 2022), <a href="https://www.politico.com/news/2022/11/08/nicaragua-sandinistas-ortega-repression-00065603">https://www.politico.com/news/2022/11/08/nicaragua-sandinistas-ortega-repression-00065603</a>.
---------------------------------------------------------------------------
Exacerbated by political repression, Nicaragua is one of the
poorest countries in Latin America. According to the World Bank,
Nicaragua's gross domestic product (GDP) per capita in 2021 was only
$2,090.80, the second lowest in the region, above Haiti.\40\ According
to the World Food Program, almost 30 percent of Nicaraguan families
live in poverty in the country, ``over 8 percent struggle in extreme
poverty, surviving on less than $1.25 daily,'' and ``17 percent of
children aged under five suffer from chronic malnutrition.'' \41\
Migrants often seek economic opportunities to be able to support their
families that remain in Nicaragua. Remittances from the United
[[Page 1259]]
States to Nicaragua from January-September 2022 have surpassed the
total remittances sent in all of 2021.\42\
---------------------------------------------------------------------------
\40\ The World Bank, GDP per Capita (Current U.S. $)--Latin
America & Caribbean, Nicaragua, <a href="https://data.worldbank.org/indicator/NY.GDP.PCAP.CD?locations=ZJ-NI&most_recent_value_desc=false">https://data.worldbank.org/indicator/NY.GDP.PCAP.CD?locations=ZJ-NI&most_recent_value_desc=false</a> (last visited Dec. 6, 2022).
\41\ World Food Programme, Nicaragua, <a href="https://www.wfp.org/countries/nicaragua">https://www.wfp.org/countries/nicaragua</a> (last visited: Sept. 26, 2022).
\42\ Banco Central De Nicaragua, Remesas Por Pa[iacute]s de
Origen, <a href="https://www.bcn.gob.ni/sites/default/files/estadisticas/siec/datos/remesas_origen.htm">https://www.bcn.gob.ni/sites/default/files/estadisticas/siec/datos/remesas_origen.htm</a> (last visited Dec. 6, 2022).
---------------------------------------------------------------------------
According to the UNHCR, approximately 200,000 Nicaraguans have
sought international protection worldwide.\43\ More than 100,000 filed
asylum applications in 2021; this is a five-fold increase from
2020.\44\ Daniel Ortega's repressive policies, coupled with widespread
poverty, have pushed thousands of Nicaraguans to seek humanitarian
relief in the Western Hemisphere, including increasingly in the United
States.\45\
---------------------------------------------------------------------------
\43\ UNHCR USA, Displacement in Central America, <a href="https://www.unhcr.org/en-us/displacement-in-central-america.html">https://www.unhcr.org/en-us/displacement-in-central-america.html</a>.
\44\ UNHCR, 2021 Global Trends Report, June 16, 2022, <a href="https://www.unhcr.org/62a9d1494/global-trends-report-2021">https://www.unhcr.org/62a9d1494/global-trends-report-2021</a>.
\45\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022.
---------------------------------------------------------------------------
ii. Return Limitations
The Government of Nicaragua is not accepting returns or removals of
their nationals at a volume that allows the United States to
effectively manage the number of encounters of Nicaraguans by the
United States. Additionally, the GOM has generally not allowed returns
of Nicaraguan nationals pursuant to Title 42 authorities, or their
removal from the United States pursuant to Title 8 authorities.\46\
Other countries have similarly refused to accept Title 8 removals of
Nicaraguan nationals. As a result, DHS was only able to repatriate a
small number of Nicaraguan nationals to Nicaragua in FY 2022.
---------------------------------------------------------------------------
\46\ There are some limited exceptions to this prohibition,
including Nicaraguan nationals that have Mexican family members.
---------------------------------------------------------------------------
Moreover, returns alone are not sufficient to reduce and divert
irregular flows of Nicaraguans. The United States will combine a
consequence for Nicaraguan nationals who seek to enter the United
States without authorization 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 Nicaraguan 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. U.S.
Customs and Border Protection (CBP) and U.S. Immigration and Customs
Enforcement (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
organizations (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 irregular 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.\47\
---------------------------------------------------------------------------
\47\ 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>.
---------------------------------------------------------------------------
The impact has been particularly acute in certain border sectors.
The increased flows of Nicaraguan nationals are disproportionately
occurring within the remote Del Rio and Rio Grande Valley sectors, all
of which are at risk of operating, or are currently operating, over
capacity. In FY 2022, 80 percent of unique encounters of Nicaraguan
nationals occurred in these two sectors.\48\ There have also been a
growing number of encounters in El Paso sector since September 2022. In
FY 2023, Del Rio, El Paso, and Rio Grande Valley sectors have accounted
for 88 percent of encounters of Nicaraguan nationals.\49\ In FY 2022,
Del Rio sector encountered almost double (85 percent increase) the
number of migrants as compared to FY 2021. Driven in part by the sharp
increase in Nicaraguan nationals being encountered in this sector, this
was an eighteen-fold increase over the average for FY 2014-FY 2019.\50\
---------------------------------------------------------------------------
\48\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022.
\49\ Id., and CBP UIP data for November 1-27 pulled on November
28, 2022.
\50\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022.
---------------------------------------------------------------------------
The focused increase in encounters within those three 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 without authorization, has
limited infrastructure and personnel in place to safely process the
elevated encounters that CBP is now seeing there. 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, U.S. Border Patrol (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.\51\
---------------------------------------------------------------------------
\51\ Data from SBCC, as of December 11, 2022.
---------------------------------------------------------------------------
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 Nicaraguans and other noncitizens in its custody by
sending the message that there is no consequence for illegal entry. DHS
assesses that a reduction in the flow of Nicaraguan nationals arriving
at the SWB would reduce pressure on overstretched resources and enable
the Department to more quickly process and, as appropriate, return or
remove those who do not have a lawful basis to stay.
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
[[Page 1260]]
significant public benefit.'' \52\ 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.\53\
DHS may set the duration of the parole based on the purpose for
granting the parole request and may impose reasonable conditions on
parole.\54\ Individuals may be granted advance authorization to travel
to the United States to seek parole.\55\ DHS may terminate parole in
its discretion at any time.\56\ Individuals who are paroled into the
United States generally may apply for and be granted employment
authorization.\57\
---------------------------------------------------------------------------
\52\ 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''). Nicaraguans 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.
\53\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
\54\ Id.
\55\ See 8 CFR 212.5(f).
\56\ See 8 CFR 212.5(e).
\57\ 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 Nicaraguan nationals to remain where they are and use a lawful
process to request authorization to travel by air to, and ultimately
apply for a 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.''
\58\
---------------------------------------------------------------------------
\58\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------
A. Significant Public Benefit
The parole of Nicaraguan nationals and their immediate family
members under this process--which imposes new consequences for
Nicaraguans who seek to enter the United States without authorization
between POEs, while providing an alternative opportunity for eligible
Nicaraguan nationals and their immediate family members 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 Nicaraguan 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 Nicaragua; (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. Enhanced Border Security by Reducing Irregular Migration of
Nicaraguan Nationals
As described above, Nicaraguan nationals make up a significant and
growing number of those encountered seeking to cross between POEs
without authorization. Without additional and more immediate
consequences imposed on those who seek to do so, together with a safe
and orderly process for Nicaraguans 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 Nicaraguan individuals along the SWB.
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 this parole process is contingent on the GOM's
acceptance of Nicaraguan nationals who voluntarily depart the United
States, those who voluntarily withdraw their application for admission,
and those subject to expedited removal who cannot be removed to
Nicaragua or another designated country. The ability to effectuate
voluntary departures, withdrawals, and removals of Nicaraguan 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 Nicaraguan 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 authorization to travel under this process 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 Nicaraguan nationals at the SWB, and
channeling decreased flows of Nicaraguan nationals to interior POEs, we
anticipate that the process will 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 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 addition, permitting Nicaraguans to voluntarily depart or
withdraw their application for admission one time and still be
considered for parole through the process also will reduce the burden
[[Page 1261]]
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
Nicaraguan nationals in substantial numbers, DHS is currently
conditionally releasing 96 percent of the Nicaraguan nationals it
encounters at the border, pending their removal proceedings or the
initiation of such proceedings, and Nicaraguan nationals accounted for
18 percent of all encounters released at the border in October
2022.\59\ The increased volume of provisional releases of Nicaraguan
nationals puts strains on U.S. border communities.
---------------------------------------------------------------------------
\59\ OIS analysis of and CBP subject-level data and OIS Persist
Dataset based on data through October 31, 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 Nicaraguan 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.\60\ FEMA
funding has supported building significant NGO capacity along the SWB,
including a substantial increase in available shelter beds in key
locations.
---------------------------------------------------------------------------
\60\ 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>.
---------------------------------------------------------------------------
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,\61\ 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.\62\ Since Nicaraguan 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 Nicaraguan
nationals into a safe and orderly process in ways that DHS anticipates
will yield a decrease in the numbers arriving at the SWB.
---------------------------------------------------------------------------
\61\ 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>.
\62\ 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>.
---------------------------------------------------------------------------
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 arriving migrants 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.\63\
---------------------------------------------------------------------------
\63\ 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>.
---------------------------------------------------------------------------
In FY 2022, more than 750 migrants died attempting to enter the
United States across the SWB,\64\ an estimated 32 percent increase from
FY 2021 (568 deaths) and a 195 percent increase from FY 2020 (254
deaths).\65\ The approximate number of migrants rescued by CBP in FY
2022 (almost 19,000 rescues) \66\ increased 48 percent from FY 2021
(12,857 rescues), and 256 percent from FY 2020 (5,336 rescues).\67\
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.\68\ CBP attributes these rising trends to increasing
numbers of migrants, as evidenced by increases in overall U.S. Border
Patrol encounters.\69\ The increased rates of both migrant deaths and
those needing rescue at the SWB demonstrate the perils in the migrant
journey.
---------------------------------------------------------------------------
\64\ CNN, First on CNN: A Record Number of Migrants Have Died
Crossing the U.S.-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>.
\65\ Department of Homeland Security, U.S. Customs and Border
Protection, Rescue Beacons and Unidentified Remains: Fiscal Year
2022 Report to Congress.
\66\ CNN, First on CNN: A Record Number of Migrants Have Died
Crossing the U.S.-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>.
\67\ Department of Homeland Security, U.S. Customs and Border
Protection, Rescue Beacons and Unidentified Remains: Fiscal Year
2022 Report to Congress.
\68\ 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>.
\69\ Department of Homeland Security, U.S. Customs and Border
Protection, Rescue Beacons and Unidentified Remains: Fiscal Year
2022 Report to Congress.
---------------------------------------------------------------------------
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; \70\ 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, 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.\71\ 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
[[Page 1262]]
engaged in human smuggling prioritize profit over safety.\72\
---------------------------------------------------------------------------
\70\ 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>.
\71\ New York Times, Smuggling Migrants at the Border Now a
Billion-Dollar Business, (July 25, 2022), <a href="https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html">https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html</a>.
\72\ 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>.
---------------------------------------------------------------------------
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.\73\
---------------------------------------------------------------------------
\73\ 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>.
---------------------------------------------------------------------------
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); \74\ the
Collaborative Migration Management Strategy (CMMS); \75\ and the Los
Angeles Declaration on Migration and Protection (L.A. Declaration),
which was endorsed in June 2022 by 21 countries.\76\ 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.\77\ The L.A. Declaration
specifically lays out the goal of collectively ``expand[ing] access to
regular pathways for migrants and refugees.'' \78\
---------------------------------------------------------------------------
\74\ 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>.
\75\ 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>.
\76\ 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>.
\77\ Id.
\78\ Id.
---------------------------------------------------------------------------
This new process helps achieve these goals by providing an
immediate and temporary orderly process for Nicaraguan nationals to
lawfully enter the United States while we work to improve conditions in
sending countries 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
and Costa Rica--are affected by the increased movement of Nicaraguan
nationals and have been seeking greater U.S. action to address these
challenging flows for some time. These Nicaraguan 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 regard to this population, as part of
a regional response. Any effort to meaningfully address the crisis in
Nicaragua 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 Nicaraguan 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 Nicaraguan 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 independent U.S. actions 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 without
authorization along the SWB. The goal of this process is to reduce the
irregular migration of Nicaraguan nationals while the United States,
together with partners in the region, works to improve conditions in
sending countries and create more lawful 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 Nicaraguan
nationals who have fled the Ortega regime and Nicaragua. The Government
of Nicaragua continues to repress and punish all forms of dissent and
public criticism of the regime and has continued to take actions
against
[[Page 1263]]
those who oppose its positions.\79\ This process provides a safe
mechanism for Nicaraguan nationals who seek to leave their home country
to enter the United States without having to make the dangerous journey
to the United States.
---------------------------------------------------------------------------
\79\ OHCHR, Presentation of Report on the Human Rights Situation
in Nicaragua, Human Rights Council Resolution 49/3 (Sept. 13, 2022),
<a href="https://www.ohchr.org/en/speeches/2022/09/presentation-report-human-rights-situation-nicaragua">https://www.ohchr.org/en/speeches/2022/09/presentation-report-human-rights-situation-nicaragua</a>.
---------------------------------------------------------------------------
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 Nicaraguan national and, if applicable, the
national's immediate family members.\80\ 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:
---------------------------------------------------------------------------
\80\ Certain non-Nicaraguans may use this process if they are an
immediate family member of a Nicaraguan beneficiary and traveling
with that Nicaraguan 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.
---------------------------------------------------------------------------
<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 Nicaragua or be a non-Nicaraguan
immediate family member \81\ and traveling with a Nicaraguan principal
beneficiary;
---------------------------------------------------------------------------
\81\ See preceding footnote.
---------------------------------------------------------------------------
<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 U.S. 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
<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 Nicaraguan 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 Nicaragua, or currently holds refugee status in
any country, unless DHS operates a similar parole process for the
country's nationals.\82\
---------------------------------------------------------------------------
\82\ This limitation does not apply to immediate family members
traveling with a Nicaraguan 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; \83\
---------------------------------------------------------------------------
\83\ See, e.g., INA sec. 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A).
---------------------------------------------------------------------------
<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.\84\
---------------------------------------------------------------------------
\84\ 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.
---------------------------------------------------------------------------
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 Nicaraguans'
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
[[Page 1264]]
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 the United States.\85\ 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.
---------------------------------------------------------------------------
\85\ 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.
---------------------------------------------------------------------------
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 from USCIS under
existing regulations. 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.
D. Scope, Termination, and No Private Rights
The Secretary retains the sole discretion to terminate the process
at any point.The number of travel authorizations granted under the
Parole Process for Nicaraguans shall be spread across this process and
the separate and independent Parole Process for Cubans, 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,\86\ 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.'' \87\ 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.''
---------------------------------------------------------------------------
\86\ 5 U.S.C. 553(b)(A); id. 553(d)(2).
\87\ See Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)).
---------------------------------------------------------------------------
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.\88\ Courts have held that this exemption
applies when the rule in question ``is clearly and directly involved in
a foreign affairs function.'' \89\ 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.\90\ This process satisfies both standards.
---------------------------------------------------------------------------
\88\ 5 U.S.C. 553(a)(1).
\89\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984)
(cleaned up).
\90\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.
2008).
---------------------------------------------------------------------------
As described above, this process is directly responsive to requests
from key foreign partners--including the GOM--to provide a lawful
process for Nicaraguan nationals to enter the United States. The United
States will only implement the new parole process while able to return
or remove to Mexico Nicaraguan 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 Nicaraguan 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 U.S. action in this
regard, 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
Nicaraguan nationals. The GOM's willingness to accept the returns or
removals 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 Nicaragua 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
[[Page 1265]]
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.\91\ DHS similarly
invoked the foreign affairs exemption more recently, in connection with
the Venezuela parole process.\92\
---------------------------------------------------------------------------
\91\ See 82 FR 4902 (Jan. 17, 2017).
\92\ 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.\93\ The numbers of Nicaraguans
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.\94\
---------------------------------------------------------------------------
\93\ See 5 U.S.C. 553(b)(B); id. 553(d)(3).
\94\ 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 rule making 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 Nicaraguan 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.\95\ 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
process.\96\ 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.\97\ A number of cases
follow this logic in the context of economic regulation.\98\
---------------------------------------------------------------------------
\95\ See 5 U.S.C. 553(b)(B).
\96\ 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)).
\97\ 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.'').
\98\ 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.\99\ 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.
---------------------------------------------------------------------------
\99\ 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 Nicaraguan
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.'' \100\
DHS cited the prospect that ``publication of the rule as a proposed
rule, which would signal a significant change in policy while
permitting
[[Page 1266]]
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.'' \101\ 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.'' \102\ DHS concluded that
``a surge could result in significant loss of human life.'' \103\
---------------------------------------------------------------------------
\100\ Eliminating Exception to Expedited Removal Authority for
Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017).
\101\ Id.
\102\ Id.
\103\ 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
Nicaragua 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 Nicaraguan nationals as eligible for a DHS established
process that necessitates collection of a facial photograph in CBP
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. 2023-00254 Filed 1-5-23; 4:15 pm]
BILLING CODE 9110-9M-P
</pre></body>
</html>Indexed from Federal Register on January 9, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.