Notice2023-00255
Implementation of a Parole Process for Haitians
Primary source
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Published
January 9, 2023
Issuing agencies
Homeland Security Department
Abstract
This notice describes a new effort designed to respond to and protect against a significant increase in the number of Haitian 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 irregular migration. Haitians who do not avail themselves of this process, and instead enter the United States without authorization between ports of entry (POEs), generally are subject to removal. 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 Haitian nationals to lawfully enter the United States in a safe and orderly manner and be considered for a case-by-case determination of parole. To be eligible, individuals must have a supporter in the United States who agrees to provide financial support for the duration of the beneficiary's parole period, pass national security and public safety vetting, and fly at their own expense to an interior POE, rather than entering at a land POE. Individuals are ineligible for this process if they have been ordered removed from the United States within the prior five years; have entered unauthorized into the United States between POEs, Mexico, or Panama after the date of this notice's publication with an exception for individuals permitted a single instance of voluntary departure or withdrawal of their application for admission to still maintain their eligibility for this process; or are otherwise deemed not to merit a favorable exercise of discretion.
Full Text
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[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1243-1255]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00255]
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DEPARTMENT OF HOMELAND SECURITY
Implementation of a Parole Process for Haitians
ACTION: Notice.
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SUMMARY: This notice describes a new effort designed to respond to and
protect against a significant increase in the number of Haitian
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 irregular
migration. Haitians who do not avail themselves of this process, and
instead enter the United States without authorization between ports of
entry (POEs), generally are subject to removal. 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 Haitian 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--Haitian Parole Process
This notice describes the implementation of a new parole process
for certain Haitian nationals, including the eligibility criteria and
filing process. The parole process is intended to enhance border
security by responding to and protecting against a significant increase
of irregular migration by Haitians to the United States via dangerous
routes that pose serious risks to migrants' lives and safety, while
also providing a process for certain such nationals to lawfully enter
the United States in a safe and orderly manner.
The announcement of this new process followed detailed
consideration of a wide range of relevant facts and alternatives, as
reflected in the Secretary's decision memorandum dated December 22,
2022.\1\ The complete reasons for the Secretary's decision are included
in that memorandum. This Federal Register notice is intended to provide
appropriate context and guidance for the public regarding the policy
and relevant procedures associated with this policy.
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\1\ See Memorandum for the Secretary from the Under Secretary
for Strategy, Policy, and Plans, Acting Commissioner of U.S. Customs
and Border Protection, and Director of U.S. Citizenship and
Immigration Services, Parole Process for Certain Haitian Nationals
(Dec. 22, 2022).
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A. Overview
The U.S. Government is engaged in a multi-pronged, regional
strategy to address the challenges posed by irregular migration.\2\
This long-term strategy--a shared endeavor with partner nations--
focuses on addressing the root causes of migration, which are currently
fueling unprecedented levels of irregular migration, and creating safe,
orderly, and humane processes for migrants seeking protection
throughout the region. This includes domestic efforts to expand
immigration processing capacity and multinational collaboration to
prosecute migrant-smuggling and human-trafficking criminal
organizations as well as their facilitators and money-laundering
networks. While this strategy shows great promise, it will take time to
fully implement. In the interim, the U.S. government needs to take
immediate steps to provide safe, orderly, humane pathways for the large
numbers of individuals seeking to enter the United States and to
discourage such individuals from taking the dangerous journey to and
arriving, without authorization, at the SWB.
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\2\ In this notice, irregular migration refers to the movement
of people into another country without authorization.
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In October 2022, DHS undertook a new effort to address the high
number of Venezuelans encountered at the SWB.\3\ Specifically, DHS
provided a new parole process for Venezuelans who are backed by
supporters in the United States to come to the United States by flying
to interior ports of entry--thus obviating the need for them to make
the dangerous journey to the SWB. Meanwhile, the Government of Mexico
(GOM) made an independent decision for the first time to accept the
returns of Venezuelans who crossed the SWB without authorization
pursuant to the Title 42 public health Order, thus imposing a
consequence on Venezuelans who sought to come to the SWB rather than
avail themselves of the newly announced Parole Process. Within a week
of the October 12, 2022 announcement of that process, the number of
Venezuelans encountered at the SWB fell from over 1,100 a day to under
200 a day, and as of the week ending December 4, to an average of 86 a
day.\4\ The new process and accompanying consequence for unauthorized
entry also led to a precipitous decline in irregular migration of
Venezuelans throughout the Western Hemisphere. The number of
Venezuelans attempting to enter Panama through the Dari[eacute]n Gap--
an inhospitable jungle that spans between Panama and Colombia--was down
from 40,593 in October 2022 to just 668 in November.\5\
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\3\ Implementation of a Parole Process for Venezuelans, 87 FR
63507 (Oct. 19, 2022).
\4\ DHS Office of Immigration Statistics (OIS) analysis of data
pulled from CBP Unified Immigration Portal (UIP) December 5, 2022.
Data are limited to USBP encounters to exclude those being paroled
in through ports of entry.
\5\ Servicio Nacional de Migraci[oacute]n de Panam[aacute],
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022,
<a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last viewed
Dec. 11, 2022).
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[[Page 1244]]
DHS anticipates that implementing a similar process for Haitians
will reduce the number of Haitians seeking to irregularly enter the
United States between POEs along the SWB or by sea by coupling a
meaningful incentive to seek a safe, orderly means of traveling to the
United States with the imposition of consequences for those who seek to
enter without authorization pursuant to this process. Only those who
meet specified criteria and pass national security and public safety
vetting will be eligible for consideration for parole under this
process.
Instituting a similar process for Haitians is critical to
responding to and protecting against a significant increase of
irregular migration by Haitians to the United States via dangerous
routes that pose serious risks to migrants' lives and safety. At the
end of FY 2021, DHS experienced a focused surge in Haitian migration in
the Del Rio sector of the border that strained its capacity to process
individuals in a timely manner, necessitating an all-of-government
response. In FY 2022, DHS encounters of Haitians at the SWB increased
to unprecedented levels, with 48,697 unique encounters, as compared to
the annual average of 3,242 unique encounters for FY 2014 to FY
2019.\6\ In addition, the number of Haitian nationals entering Panama
through the Dari[eacute]n Gap has been steadily increasing in recent
months--something that has been a key predictor of migrant movement
towards the SWB in the past, including with nationals of Venezuela a
few months ago. Haitians represented the third highest nationality
encountered in the Dari[eacute]n Gap between January and November 2022,
at 16,933 encounters, and the number of Haitian encounters in Panama
doubled between September and November 2022.\7\
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\6\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\7\ Servicio Nacional de Migraci[oacute]n de Panam[aacute],
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022,
<a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a>, (last viewed
Dec. 11, 2022).
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Haitian migrants are also increasingly taking to the sea in
makeshift boats. Maritime migration from Haiti also increased sharply
in FY 2022, with a total of 4,025 Haitian nationals interdicted at sea
compared to 1,205 in FY 2021 and 398 in FY 2020.\8\ While attempted
irregular entry of Haitians between POEs has waned since June 2022, DHS
assesses that this trend could quickly shift again, given the
prevalence of displaced Haitian communities gathered in Mexico and the
increasing volume of Haitians traversing the Dari[eacute]n Gap on their
way north.
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\8\ OIS analysis of United States Coast Guard (USCG) data
provided October, 2022; Maritime Interdiction Data from USCG,
October 5, 2022.
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DHS anticipates that instituting a Venezuela-like process for
nationals of Haiti will reduce the irregular migration of Haitians in
the hemisphere, disincentivize Haitians in northern Mexico from seeking
to enter along the SWB of the United States without authorization, and
reduce dangerous attempts to travel to the United States by sea. This
will be accomplished by coupling a meaningful incentive to seek a safe,
orderly means of traveling by air to interior ports of entry in the
United States with the imposition of consequences for those who seek to
enter without authorization between POEs along the SWB. Individuals can
access this lawful process from safe locations in Haiti or in third
countries. 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 Haitians is contingent on the GOM making an independent decision to
accept the return or removal of Haitian nationals who bypass this new
process and enter the United States without authorization.
As in the process for Venezuelans, a supporter in the United States
must initiate the process on behalf of a Haitian national (and certain
non-Haitian 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, Haitian 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. These strategies will support
efforts to stabilize conditions in Haiti, thus diminishing the push
factors and enabling more regular removals of those Haitians who
nonetheless enter the United States or partner nations unauthorized and
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 benefits during this two-year parole period
generally will need to depart the United States prior to the expiration
of their authorized parole period or will be placed in removal
proceedings after the period of parole expires.
The temporary, case-by-case parole of qualifying Haitian 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 have displaced
hundreds of thousands of Haitians throughout the Western Hemisphere, to
include concurrent health, economic, and political crises. Most
significantly, DHS anticipates this process will: (i) enhance the
security of the U.S. SWB by reducing irregular migration of Haitian
nationals, including by imposing additional consequences on those who
seek to enter between POEs; (ii) improve vetting for national security
and public safety; (iii) reduce the strain on DHS personnel and
resources; (iv) minimize the domestic impact of irregular migration
from Haiti; (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 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
[[Page 1245]]
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.\9\ Within a week of
the announcement, the number of Venezuelans encountered at the SWB fell
from over 1,100 per day to under 200 per day, and as of the week ending
December 4, an average of 86 per day.\10\
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\9\ OIS analysis of OIS Persist Dataset based on data through
October 31, 2022.
\10\ Office of Immigration Statistics (OIS) analysis of data
pulled from CBP UIP December 5, 2022. Data are limited to USBP
encounters to exclude those being paroled in through ports of entry.
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Panama's daily encounters of Venezuelans also declined
significantly, 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.\11\
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\11\ Servicio Nacional de Migraci[oacute]n de Panam[aacute],
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022,
<a href="https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf">https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf</a> (last viewed
Dec. 11, 2022).
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The Venezuela process fundamentally changed the calculus for
Venezuelan migrants. Venezuelan migrants who had already crossed the
Dari[eacute]n Gap have returned to Venezuela by the thousands on
voluntary flights organized by the governments of Mexico, Guatemala,
and Panama, as well as civil society.\12\ Other migrants who were about
to enter the Dari[eacute]n Gap have turned around and headed back
south.\13\ Still others who were intending to migrate north are staying
where they are to apply for this parole process.\14\ 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.
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\12\ 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).
\13\ 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).
\14\ 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).
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2. Trends and Flows: Increase of Haitian 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.\15\ 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.\16\ 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.\17\
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\15\ OIS analysis of historic CBP data.
\16\ Id.
\17\ Id.
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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.\18\ Beginning in the 2010s, a growing
share of migrants have come from Northern Central America \19\ (NCA)
and, since the late 2010s, from countries throughout the Americas.\20\
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.\21\
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\18\ According to historic OIS Yearbooks of Immigration
Statistics, Mexican nationals accounted for 96 to over 99 percent of
apprehensions of persons entering without inspection between 1980
and 2000. OIS Yearbook of Immigration Statistics, various years. On
Mexican migrants from this era's demographics and economic
motivations see Jorge Durand, Douglas S. Massey, and Emilio A.
Parrado, ``The New Era of Mexican Migration to the United States,''
The Journal of American History Vol. 86, No. 2 (Sept. 1999): 518-
536.
\19\ Northern Central America refers to El Salvador, Guatemala,
and Honduras.
\20\ 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.
\21\ Prior to 2013, the overall share of encounters who were
processed for expedited removal and claimed fear averaged less than
2 percent annually. Between 2013 and 2018, the share rose from 8 to
20 percent, before dropping with the surge of family unit encounters
in 2019 (most of whom were not placed in expedited removal) and the
onset of T42 expulsions in 2020. At the same time, between 2013 and
2021, among those placed in expedited removal, the share making fear
claims increased from 16 to 82 percent. OIS analysis of historic CBP
and USCIS data and OIS Enforcement Lifecycle through June 30, 2022.
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C. Trends in Haitian Migration
1. Migration by Land
Since 2019, increasing numbers of Haitians have sought to enter the
United States at the land border. In FY 2019, DHS encountered just
3,039 Haitian nationals at the SWB.\22\ This number grew to 4,431
unique encounters in FY 2020, and then sharply increased by 881 percent
to 43,484 unique encounters in FY 2021.\23\
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\22\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\23\ Id.
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In September 2021, the U.S. experienced a mass migration event
involving approximately 15,000 Haitians crossing into Del Rio, Texas,
within a matter of days. The group included many thousands who had left
Haiti years before, spent time living and working in countries like
Chile and Brazil, and then traveled up to our border through
Panama.\24\ This led to thousands of Haitian nationals living in a
makeshift camp under a bridge in Del Rio and placed immense strain on
U.S. government resources that were employed to respond to the event.
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\24\ The Texan, Many Haitian Nationals Came From Chile and
Brazil Before Heading to Del Rio, Oct. 7, 2021, <a href="https://thetexan.news/many-haitian-nationals-came-from-chile-and-brazil-before-heading-to-del-rio/">https://thetexan.news/many-haitian-nationals-came-from-chile-and-brazil-before-heading-to-del-rio/</a>.
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Unique encounters of Haitian nationals at the SWB continued to
increase in FY 2022 to 48,697, with a peak of 9,753 unique encounters
in a single month in May 2022.\25\ While encounters of Haitian migrants
at our border have declined since June 2022, the Government of Panama,
which tracks irregular migration through the Dari[eacute]n Gap, has
observed a surge in
[[Page 1246]]
land-based encounters of Haitian nationals migrating north in recent
months. Encounters of Haitian nationals in Panama jumped from 1,021 in
July 2022, to 2,170 in September, to 4,607 in November.\26\
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\25\ CBP, Nationwide Encounters, <a href="https://www.cbp.gov/newsroom/stats/nationwide-encounters">https://www.cbp.gov/newsroom/stats/nationwide-encounters</a>, (last visited, Dec. 17, 2022; OIS
analysis of OIS Persist Dataset based on data through November 30,
2022.
\26\ Servicio Nacional de Migraci[oacute]n de Panam[aacute],
Irregulares Por Darien, November 2022.
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Those numbers are rising at a time when Haitians are already
concentrated in Mexico. UNHCR estimates that there were 62,680 Haitians
in Mexico in 2022 and projects that this population will grow to
104,541 in 2023.\27\ From October 2021 to October 2022, approximately
55,429 Haitian nationals were granted 12-month temporary humanitarian
visitor status in Mexico, the highest of any nationality and almost
twice as many as the second-highest nationality.\28\ Some Haitians
migrating north have sought asylum in Mexico--a number that peaked in
2021--and may be planning to settle there permanently.\29\ However, DHS
assesses that many thousands of Haitians are waiting in Mexico with the
ultimate goal of entering the United States, with many reporting they
are waiting until the Centers for Disease Control and Prevention (CDC)
Title 42 Order is lifted.
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\27\ UNHCR Global Focus, Mexico, See countries of origin data
for 2022 and 2023, <a href="https://reporting.unhcr.org/mexico?year=2022">https://reporting.unhcr.org/mexico?year=2022</a>.
\28\ OIS analysis of Instituto Nacional de Migracion data.
\29\ Estad[iacute]sticas Comisi[oacute]n Mexicana de Ayuda a
Refugiados, Mexico Commission for Assistance of Refugee data show
that about 6,000 Haitians applied for asylum in Mexico in 2020,
50,000 in 2021, and nearly 16,000 in 2022 (through November),
<a href="https://www.gob.mx/cms/uploads/attachment/file/783226/Cierre_Noviembre-2022__1-Dic._.pdf">https://www.gob.mx/cms/uploads/attachment/file/783226/Cierre_Noviembre-2022__1-Dic._.pdf</a>, (last viewed Dec. 17, 2022).
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2. Migration by Sea
Increasing numbers of Haitian migrants also continue to attempt
migration to the United States via maritime routes, often endangering
their own lives in precarious and unseaworthy vessels. Maritime
migration from Haiti more than tripled in FY 2022, with a total of
4,025 Haitian nationals interdicted at sea compared to 1,205 in FY 2021
and 398 in FY 2020.\30\
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\30\ OIS analysis of United States Coast Guard (USCG) data
provided October 2022; Maritime Interdiction Data from USCG, October
5, 2022.
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The southeast coastal border sectors also have seen increases in
unique encounters of Haitian nationals who arrived in the United States
by sea.\31\ In FY 2021, those sectors encountered 593 unique Haitian
nationals, a 411 percent increase compared to 116 in FY 2020.\32\ In FY
2022, unique encounters of Haitian nationals in coastal sectors tripled
from FY 2021 to 1,788--composing 31 percent of total unique encounters
by USBP in the southeast coastal sectors.\33\
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\31\ Includes Miami, FL; New Orleans, LA; and Ramey, PR sectors
where all apprehensions are land apprehensions not maritime.
\32\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\33\ Id.
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3. Push and Pull Factors
DHS assesses that the high number of Haitian nationals encountered
at the land border and interdicted at sea is driven primarily by two
key factors: First, the displacement of Haitians throughout the Western
Hemisphere caused by years of political, health, and economic crises,
as well as the explosion of gang violence in Haiti--exacerbated by
events that took place in the summer of 2021--are causing thousands to
leave the country. Second, the precarious security situation in Haiti
is having an impact on DHS's ability to remove Haitian nationals who do
not establish a legal basis to remain in the United States; absent such
an ability, more individuals may be willing to take a chance that they
can come--and stay.
i. Factors Pushing Migration From Haiti
In recent years, Haiti has experienced a series of events,
including natural disasters, economic stagnation, pervasive hunger,
gang violence, and political assassinations that have devastated the
country. This has led tens of thousands of Haitians to lose hope and
attempt to migrate.\34\
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\34\ Diana Roy, Council on Foreign Relations, Ten Graphics That
Explain the U.S. Struggle With Migrant Flows in 2022 (Dec. 1, 2022).
<a href="https://www.cfr.org/article/ten-graphics-explain-us-struggle-migrant-flows-2022">https://www.cfr.org/article/ten-graphics-explain-us-struggle-migrant-flows-2022</a>.
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On August 14, 2021, a 7.2 magnitude earthquake hit Haiti, killing
more than 2,200 people, injuring over 12,000 more, destroying tens of
thousands of homes, and crippling Haiti's already fragile
infrastructure.\35\ Just days later, Tropical Storm Grace hit Haiti,
with heavy downpours hampering the continuing rescue efforts for those
impacted by the earthquake.\36\ Within a month, over 650,000 Haitians
required humanitarian assistance, including 260,000 children.\37\ The
World Bank estimates that the August 2021 earthquake caused damages and
losses in excess of more than $1.6 billion, roughly 11 percent of
GDP.\38\
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\35\ UNICEF, Massive earthquake leaves devastation in Haiti:
UNICEF and partners are on the ground providing emergency assistance
for children and their families, <a href="https://www.unicef.org/emergencies/massive-earthquake-devastation-haiti">https://www.unicef.org/emergencies/massive-earthquake-devastation-haiti</a> (last viewed Dec. 12, 2022).
\36\ The Washington Post, Tropical Depression Grace Drenching
Haiti Days After Major Earthquake, Aug. 16, 2021, <a href="https://www.washingtonpost.com/weather/2021/08/16/tropical-depression-grace-haiti-flooding/">https://www.washingtonpost.com/weather/2021/08/16/tropical-depression-grace-haiti-flooding/</a>, (last viewed Dec. 19, 2022).
\37\ UNICEF, One Month After Haiti Earthquake: 260,000 Children
Still Need Humanitarian Assistance, Sept. 15, 20221, <a href="https://www.unicef.org.uk/press-releases/one-month-after-haiti-earthquake-260000-children-still-need-humanitarian-assistance-unicef/">https://www.unicef.org.uk/press-releases/one-month-after-haiti-earthquake-260000-children-still-need-humanitarian-assistance-unicef/</a>, (last
visited Dec. 19, 2022).
\38\ The World Bank, Haiti Overview, Updated Nov. 8, 2022,
https://www.worldbank.org/en/country/haiti/
overview#:~:text=The%20results%20of%20the%20assessment%20of%20the%20e
ffects,in%20damage%20and%20losses%2C%20or%2011%25%20of%20GDP, (last
visited Dec. 19, 2022).
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Amidst the political, security, and environmental crises, Haiti's
economy has collapsed. Even before the events of 2021, Haiti already
stood as the poorest country in the Americas and one of the poorest in
the world.\39\ In 2021, Haiti had a GDP per capita of $1,815, the
lowest in the Latin America and the Caribbean region, ranking 170 out
of 189 on the UN's Human Development Index.\40\ The situation has
deteriorated to such a point that the Haitian Government itself, on
October 7, 2022, asked for international military assistance to help
address the converging crises.\41\
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\39\ Id.
\40\ The Human Development Index (HDI) is a summary measure of
average achievement in key dimensions of human development: a long
and healthy life, being knowledgeable and have a decent standard of
living.
\41\ CNN, Haiti government asks for international military
assistance, Oct. 7, 2022, <a href="https://www.cnn.com/2022/10/07/americas/haiti-international-military-assistance-humanitarian-crisis-intl/index.html">https://www.cnn.com/2022/10/07/americas/haiti-international-military-assistance-humanitarian-crisis-intl/index.html</a> (last viewed Dec. 17, 2022).
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In addition to the economic turmoil the island has confronted, the
security situation in Haiti has been problematic for some time.
Violence in Haiti reached an inflection point on July 7, 2021, with the
assassination of Haitian President Jovenel Mo[iuml]se.\42\ The
President's death exacerbated political instability on the island,
undermining state institutions and generating a power vacuum that has
been occupied by gangs. Between January and June 2022, gangs have
carried out approximately 930 killings, 680 injuries, and 680
kidnappings in Port-au-Prince alone, with more than 1,200 kidnappings
occurring in 2021, almost twice the number reported in 2020 and five
times more than in 2019.\43\ This recent surge in gang
[[Page 1247]]
violence has destroyed infrastructure and caused businesses to close,
leaving Haitians struggling to find basic products including food,
water, and medicines.\44\ Armed clashes with gangs have destroyed water
networks, severely restricting access to potable drinking water and
further hampering the attempts to control a cholera outbreak that, as
of November 15, 2022, had caused 8,146 hospitalizations and 188
deaths.\45\
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\42\ Catherine Porter, Michael Crowley, and Constant
M[eacute]heut, The New York Times, Haiti's President Assassinated in
Nighttime Raid, Shaking a Fragile Nation (July 7, 2021). <a href="https://www.nytimes.com/2021/07/07/world/americas/haiti-president-assassinated-killed.html">https://www.nytimes.com/2021/07/07/world/americas/haiti-president-assassinated-killed.html</a>.
\43\ See International Crisis Group, New Gang Battle Lines Scar
Haiti as Political Deadlock Persists (July 27, 2022), <a href="https://www.crisisgroup.org/latin-america-caribbean/haiti/new-gang-battle-lines-scar-haiti-political-deadlock-persists">https://www.crisisgroup.org/latin-america-caribbean/haiti/new-gang-battle-lines-scar-haiti-political-deadlock-persists</a>; Office of the High
Commissioner for Human Rights, Sexual violence in Port-au-Prince: A
weapon used by gangs to instill fear (Oct. 14, 2022), <a href="https://www.ohchr.org/en/documents/country-reports/sexual-violence-port-au-prince-weapon-used-gangs-instill-fear">https://www.ohchr.org/en/documents/country-reports/sexual-violence-port-au-prince-weapon-used-gangs-instill-fear</a>. Doctors Without Borders,
Returning to Haiti means death (Aug. 12, 2022), <a href="https://www.doctorswithoutborders.org/latest/returning-haiti-means-death">https://www.doctorswithoutborders.org/latest/returning-haiti-means-death</a>.
\44\ Office of the High Commissioner for Human Rights, Press
Release: Haiti: Bachelet deeply disturbed by human rights impact of
deteriorating security situation in Port-au-Prince (May 17, 2022),
<a href="https://www.ohchr.org/en/press-releases/2022/05/haiti-bachelet-deeply-disturbed-human-rights-impact-deteriorating-security">https://www.ohchr.org/en/press-releases/2022/05/haiti-bachelet-deeply-disturbed-human-rights-impact-deteriorating-security</a>.
\45\ Pan American Health Organization, Cholera Outbreak in
Hispaniola Situation Report #6 (Nov. 17, 2022), <a href="https://www.paho.org/en/documents/cholera-outbreak-hispaniola-2022-situation-report-6">https://www.paho.org/en/documents/cholera-outbreak-hispaniola-2022-situation-report-6</a>.
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The situation has deteriorated to such a point that the Haitian
Government, on October 7, 2022, asked for international military
assistance to help address the converging crises.\46\
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\46\ CNN, Haiti government asks for international military
assistance, Oct. 7, 2022, <a href="https://www.cnn.com/2022/10/07/americas/haiti-international-military-assistance-humanitarian-crisis-intl/index.html">https://www.cnn.com/2022/10/07/americas/haiti-international-military-assistance-humanitarian-crisis-intl/index.html</a>, (last viewed Dec. 17, 2022).
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Over the past two years, many of the Haitian nationals encountered
at our SWB actually left Haiti for opportunities in South America many
years before.\47\ This Haitian diaspora in South America developed
after the January 2010 earthquake in Haiti that killed more than
217,000 and displaced more than 1.5 million people. Many migrated to
Brazil, which offered employment opportunities, humanitarian
protection, and support from large and growing Haitian diaspora
communities.\48\ Others migrated to Chile, where Haitian nationals
could, until 2020, enter visa-free. As of 2020, there were an estimated
143,000 Haitians living in Brazil and 180,000 in Chile.\49\ However,
over the past two years, declining economic conditions in Chile and
Brazil, which were exacerbated by the COVID-19 pandemic, have led many
Haitian migrants to leave those countries to head north.\50\
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\47\ Migration Policy Institute, Haitian Migration through the
Americas: A Decade in the Making, (Sept. 30, 2021), <a href="https://www.migrationpolicy.org/article/haitian-migration-through-americas">https://www.migrationpolicy.org/article/haitian-migration-through-americas</a>;
Council on Foreign Relations, Why Are Haitian Migrants Gathering at
the U.S. Border? October 1, 2021, <a href="https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border">https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border</a>, (last visited Dec. 19,
2022).
\48\ Id.
\49\ Migration Policy Institute, Chile's Retooled Migration Law
Offers More Restrictions, Less Welcome, (May 2021), <a href="https://www.migrationportal.org/insight/chiles-retooled-migration-law-offers-more-restrictions-less-welcome/">https://www.migrationportal.org/insight/chiles-retooled-migration-law-offers-more-restrictions-less-welcome/</a>, (last visited Dec. 19,
2022).
\50\ Id. Migration Policy Institute.
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As noted above, UNHCR estimates 62,680 Haitians were in Mexico in
2022, and projects that this population will grow to 104,541 in
2023.\51\ Many thousands more are between Mexico and South America.
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\51\ UNHCR Global Focus, Mexico, See countries of origin data
for 2022 and 2023, <a href="https://reporting.unhcr.org/mexico?year=2022">https://reporting.unhcr.org/mexico?year=2022</a>.
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ii. Return Limitations
While the Government of Haiti generally accepts repatriations, gang
activity and conditions in the country have created significant
instability, at times curtailing DHS's ability to repatriate Haitians,
either by air or maritime repatriations by sea. For example, in early
September 2022, destabilizing events, including gangs seizing control
of a key fuel terminal, led to a pause in repatriation flights. The
ability of our on-the-ground partners to help receive migrants that
provide services for individuals returned to Haiti is evaluated on a
day-to-day basis.\52\ The ability to conduct returns is tenuous, and
not something that can be counted on at scale should large numbers of
Haitian nationals once again start crossing our SWB.
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\52\ International Organization for Migration, IOM condemns
violence and looting of humanitarian supplies in Haiti (Sept. 24,
2022). <a href="https://haiti.iom.int/news/iom-condemns-violence-and-looting-humanitarian-supplies-haiti">https://haiti.iom.int/news/iom-condemns-violence-and-looting-humanitarian-supplies-haiti</a>.
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The maritime environment is similarly affected by the limitation on
returns. Even a temporary inability of DHS to repatriate Haitians
interdicted at sea could have a cascading effect on U.S. Government
resources. U.S. Coast Guard (USCG) uses its vessels to conduct direct
repatriations, yet these have limited capacity to hold migrants; they
cannot continue to hold migrants for extended periods of time if
repatriations are not possible.
4. Impact on DHS Resources and Operations
i. Impact on DHS Resources
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 Haitian nationals encountered--DHS has taken a series of
extraordinary steps. Since FY 2021, DHS has built and now operates 10
soft-sided processing facilities at a cost of $688 million. CBP and ICE
detailed a combined 3,770 officers and agents to the SWB to effectively
manage this processing surge. In FY 2022, DHS had to utilize its above
threshold reprogramming authority to identify approximately $281
million from other divisions in the Department to address SWB needs, to
include facilities, transportation, medical care, and personnel costs.
The Federal Emergency Management Agency (FEMA) has spent $260
million in FYs 2021 and 2022 combined on grants to non-governmental
(NGO) and state and local entities through the Emergency Food and
Shelter Program--Humanitarian (EFSP-H) to assist with the reception and
onward travel of migrants arriving at the SWB. This spending is in
addition to $1.4 billion in additional FY 2022 appropriations that were
designated for SWB enforcement and processing capacities.\53\
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\53\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of
Homeland Security, to Interested Parties, DHS Plan for Southwest
Border Security and Preparedness, Apr. 26, 2022, <a href="https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf">https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf</a>.
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ii. Impact on Border Operations
The impact has been particularly acute in certain border sectors.
In FY 2021, 81 percent of unique Haitians encountered occurred in the
Del Rio sector.\54\ In FY 2022, flows shifted disproportionately to the
El Paso and Yuma sectors, which accounted for 82 percent of unique
encounters in that year, while Del Rio fell to 13 percent.\55\ All
three sectors remain at risk of operating, or are currently operating,
over capacity.\56\ In FY 2022, El Paso and Yuma sector encounters
increased by 161 percent, a seven-fold increase over the average for FY
2014-FY 2019, in part as a result of the increases in Haitian nationals
being encountered there.\57\
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\54\ OIS analysis of OIS Persist Dataset based on data through
November 30, 2022.
\55\ Id.
\56\ OIS analysis of data pulled from CBP UIP December 7, 2022.
\57\ Id.
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The focused increase in encounters within those three sectors is
particularly challenging. Yuma and Del Rio sectors are geographically
remote, and because--up until the past two years--they have not been a
focal point for large numbers of individuals entering irregularly, have
limited infrastructure and personnel in place to safely process the
elevated encounters that they are seeing. The Yuma Sector is along the
Colorado River corridor, which presents additional challenges to
migrants, such
[[Page 1248]]
as armed robbery, assault by bandits, and drowning, as well as to the
U.S. Border Patrol (USBP) agents encountering them. El Paso sector has
relatively modern infrastructure for processing noncitizens encountered
at the border but is far away from other CBP sectors, which makes it
challenging to move individuals for processing elsewhere during surges.
In an effort to decompress sectors that are experiencing surges,
DHS deploys lateral transportation, using buses and flights to move
noncitizens to other sectors that have additional capacity to process.
In November 2022, USBP sectors along the SWB operated a combined 602
decompression bus routes to neighboring sectors and operated 124
lateral decompression flights, redistributing noncitizens to other
sectors with additional capacity.\58\
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\58\ Data from SBCC, as of December 11, 2022.
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Because DHS assets are finite, using air resources to operate
lateral flights reduces DHS's ability to operate international
repatriation flights to receiving countries, leaving noncitizens in
custody for longer and further taxing DHS resources.
iii. Impact on Maritime Operations
In FY 2022, interdictions of Haitians surged to 4,025, compared to
just 824 interdictions at sea in FY 2019.\59\ While these numbers are
significantly smaller than those encountered at the land border, they
are high for the maritime environment where the safety risk is
particularly acute.
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\59\ OIS analysis of USCG data provided October 2022; Maritime
Interdiction Data from USCG, October 5, 2022.
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Responding to this increase requires significant resources. In
response to the persistently elevated levels of irregular maritime
migration across all southeast vectors, the Director of Homeland
Security Task Force-Southeast (HSTF-SE) elevated the operational phase
of DHS's maritime mass migration plan (Operation Vigilant Sentry) from
Phase 1A (Preparation) to Phase 1B (Prevention).\60\ Operation Vigilant
Sentry is HSTF-SE's comprehensive, integrated, national operational
plan for a rapid, effective, and unified response of federal, state,
and local capabilities in response to indicators and/or warnings of a
mass migration in the Caribbean.
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\60\ Operation Vigilant Sentry (OVS) Phase 1B, Information
Memorandum for the Secretary from RADM Brendon C. McPherson,
Director, Homeland Security Task Force--Southeast, August 21, 2022.
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The shift to Phase 1B triggered the surge of additional DHS
resources to support HSTF-SE's Unified Command staff and operational
rhythm. Between July 2021 and December 2022, Coast Guard deployed three
times the number of large cutters to the South Florida Straits and the
Windward Passage, four times the number of patrol boats and twice the
number of fixed/rotary-wing aircraft to support maritime domain
awareness and interdiction operations in the southeastern maritime
approaches to the United States.\61\ USCG also added two MH-60
helicopters to respond to increased maritime migration flows in FY
2022.\62\ USCG almost doubled its flight hour coverage per month to
support migrant interdictions in FY 2022. Increased resource demands
translate into increased maintenance on those high demand air and sea
assets.
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\61\ Id.
\62\ Joint DHS and DOD Brief on Mass Maritime Migration, August
2022.
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DHS assesses that a reduction in the flow of Haitian nationals
arriving at the SWB or taking to sea 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 significant public
benefit.'' \63\ 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.\64\ DHS sets the
duration of the parole based on the purpose for granting the parole
request and may impose reasonable conditions on parole.\65\ DHS may
terminate parole in its discretion at any time.\66\ By regulation,
parolees may apply for and be granted employment authorization to work
lawfully in the United States.\67\
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\63\ 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''). Haitians 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.
\64\ INA 101(a)(13)(B), 212(d)(5)(A), 8 U.S.C. 1101(a)(13)(B),
1182(d)(5)(A).
\65\ See 8 CFR 212.5(c).
\66\ See 8 CFR 212.5(e).
\67\ See 8 CFR 274a.12(c)(11).
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This process will combine a consequence for those who seek to enter
the United States irregularly between POEs with a significant incentive
for Haitian nationals to remain where they are and use a lawful process
to request authorization to travel by air to, and ultimately apply for
discretionary grant of parole into, the United States for a period of
up to two years.
III. Justification for the Process
As noted above, section 212(d)(5)(A) of the INA confers upon the
Secretary of Homeland Security the discretionary authority to parole
noncitizens ``into the United States temporarily under such reasonable
conditions as [the Secretary] may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant public benefit.''
\68\
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\68\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
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A. Significant Public Benefit
The parole of Haitian nationals and their immediate family members
under this process--which imposes new consequences for Haitians who
seek to enter the United States irregularly between POEs, while
providing an alternative opportunity for eligible Haitian nationals to
seek advance authorization to travel to the United States to seek
discretionary parole, on a case-by-case basis, in the United States--
serves a significant public benefit for several, interrelated reasons.
Specifically, we anticipate that the parole of eligible individuals
pursuant to this process will: (i) enhance border security through a
reduction in irregular migration of Haitian 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 Haiti; (v) provide a
disincentive to undergo the 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 and, as part of those efforts, to
establish additional processing pathways from within the region to
discourage irregular migration.
1. Enhance Border Security by Reducing Irregular Migration of Haitian
Nationals
As described above, in FY 2022, Haitian nationals made up a
significant and growing number of those encountered seeking to cross,
unauthorized, into the United States by land or who are intercepted
after taking to the sea. While the number of Haitian encounters at our
land border have
[[Page 1249]]
decreased in recent months, they could quickly rise again due to the
conditions in Haiti, the significant number of Haitians present in
Mexico, and the increasing number of Haitians crossing into Panama from
South America.
By incentivizing individuals to seek a lawful, orderly means of
traveling to the United States, while imposing consequences to
irregular migration, DHS assesses that the new parole process will
mitigate anticipated future surges of Haitians seeking to cross into
the United States without authorization, whether by land or by sea.
This expectation is informed by the recently implemented process for
Venezuelans and the significant shifts in migratory patterns that took
place once the process was initiated. The success to date of the
Venezuela process provides compelling evidence that coupling effective
disincentives for irregular entry with incentives to travel in a lawful
and orderly manner can meaningfully shift migration patterns in the
region and to the SWB.
Implementation of the parole process is contingent on the GOM's
independent decision to accept the return of Haitian 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 Haiti or elsewhere. The ability to effectuate
voluntary departures, withdrawals, and removals of Haitian nationals to
Mexico will impose a consequence on irregular entry that may not exist
should the security situation in Haiti continue to deteriorate to the
extent that DHS cannot effectuate sufficient returns in a safe manner.
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 Haitian parole process will
allow DHS to vet potential beneficiaries for national security and
public safety purposes before they travel to the United States.
As described below, the vetting will require prospective
beneficiaries to upload a live photograph via an app. This will enhance
the scope of the pre-travel vetting--thereby enabling DHS to better
identify those with criminal records or other disqualifying information
of concern and deny them travel before they arrive at our border,
representing an improvement over the status quo.
3. Reduce the Burden on DHS Personnel and Resources
By mitigating an anticipated increase in encounters of Haitian
nationals along the SWB as well as maritime interdictions, and
channeling decreased flows of Haitian nationals to interior POEs, we
anticipate the process will relieve some of the forecasted impact
increased migratory flows could have on the DHS workforce, resources,
and other missions.
In the Caribbean, DHS also has surged significant resources--mostly
from USCG--to address the heightened rate of maritime encounters.
Providing a safe and orderly alternative path is expected to also
reduce the number of Haitians who seek to enter the United States by
sea and will allow USCG, in particular, to better balance its other
important missions, including its counter-drug smuggling operations,
protection of living marine resources, support for shipping navigation,
and a range of other critical international engagements.
In addition, permitting Haitian nationals to voluntarily depart or
withdraw their application for admission one time and still be
considered for parole through the process will reduce the burden on DHS
personnel and resources that would otherwise be required to obtain and
execute a final order of removal. This includes reducing strain on
detention and removal flight capacity, officer resources, and reducing
costs associated with detention and monitoring.
4. Minimize the Domestic Impact
Though the Venezuelan process has significantly reduced the
encounters of Venezuelan nationals, other migratory flows continue to
strain domestic resources, which is felt most acutely by border
communities. Recent experience, including the Del Rio incident in
August 2021, show that migratory surges can happen suddenly and quickly
overwhelm U.S. government and partner resources. Given the number of
Haitian migrants currently residing in Mexico, the prospect of another
surge cannot be discounted. The Haiti process directly mitigates
against such a surge--and the impact it would have on State and local
governments and civil society stakeholders--by providing a substantial
incentive for Haitians to use a lawful process to fly directly to the
United States, and a significant consequence for those who do not.
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 provided services and
assistance to Haitian 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.\69\ FEMA funding has supported building
significant NGO capacity along the SWB, including a substantial
increase in available shelter beds in key locations.
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\69\ CNN, Washington, DC, Approves Creation of New Agency to
Provide Services for Migrants Arriving From Other States (Sept. 21,
2022), <a href="https://www.cnn.com/2022/09/21/us/washington-dc-migrant-services-office">https://www.cnn.com/2022/09/21/us/washington-dc-migrant-services-office</a>.
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Nevertheless, local communities have reported strain on their
ability to provide needed social services. Local officials and NGOs
report that the temporary shelters that house migrants are quickly
reaching capacity due to the high number of arrivals,\70\ 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.\71\ As Haitian nationals are amongst those being
conditionally released into communities after being processed along the
SWB, this parole process will address these concerns by diverting flows
of Haitian nationals into an orderly and lawful process in ways that
DHS anticipates will yield a decrease in the numbers arriving at the
SWB.
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\70\ 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>.
\71\ KGUN9 Tucson, Local Migrant Shelter Reaching Max Capacity
as it Receives Hundreds per Day (Sept. 23, 2022), <a href="https://www.kgun9.com/news/local-news/local-migrant-shelter-reaching-max-capacity-as-it-receives-hundreds-per-day">https://www.kgun9.com/news/local-news/local-migrant-shelter-reaching-max-capacity-as-it-receives-hundreds-per-day</a>.
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DHS anticipates that this process will help minimize the burden on
communities, state and local governments, and NGOs who support the
reception and onward travel of 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
[[Page 1250]]
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.\72\
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\72\ CBP, Fact Sheet: Counter Human Smuggler Campaign Updated
(Oct. 6, 2022), <a href="https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th">https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th</a>.
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In FY 2022, more than 750 migrants died attempting to enter the
United States,\73\ an estimated 32 percent increase from FY 2021 (568
deaths) and a 195 percent increase from FY 2020 (254 deaths).\74\ The
approximate number of migrants rescued by CBP in FY 2022 (almost 19,000
rescues) \75\ increased 48 percent from FY 2021 (12,857 rescues), and
256 percent from FY 2020 (5,336 rescues).\76\ 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.\77\ CBP attributes
these rising trends to increasing numbers of migrants, as evidenced by
increases in overall U.S. Border Patrol encounters.\78\ The increased
rates of both migrant deaths and those needing rescue at the SWB
demonstrate the perils in the migrant journey.
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\73\ CNN, First on CNN: A Record Number of Migrants Have Died
Crossing the US-Mexico Border (Sept. 7, 2022), <a href="https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html">https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html</a>.
\74\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal
Year 2022 Report to Congress.
\75\ CNN, First on CNN: A Record Number of Migrants Have Died
Crossing the US-Mexico Border (Sept. 7, 2022), <a href="https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html">https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/index.html</a>.
\76\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal
Year 2022 Report to Congress.
\77\ 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>.
\78\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal
Year 2022 Report to Congress.
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Meanwhile, these numbers do not account for the countless incidents
of death, illness, and exploitation migrants experience during the
perilous journey north. These migratory movements are in many cases
facilitated by numerous human smuggling organizations, for which the
migrants are pawns; \79\ 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. Tragically, a
significant number of individuals perish along the way. The trailer
truck accident that killed 55 migrants in Chiapas, Mexico, in December
2021 and the tragic incident in San Antonio, Texas, on June 27, 2022,
in which 53 migrants died of the heat in appalling conditions, are just
two examples of many in which TCOs engaged in human smuggling
prioritize profit over safety.\80\
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\79\ 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>.
\80\ Reuters, Migrant Truck Crashes in Mexico Killing 54 (Dec.
9, 2021), <a href="https://www.reuters.com/article/uk-usa-immigration-mexico-accident-idUKKBN2IP01R">https://www.reuters.com/article/uk-usa-immigration-mexico-accident-idUKKBN2IP01R</a>; Reuters, The Border's Toll: Migrants
Increasingly Die Crossing into U.S. from Mexico (July 25, 2022),
<a href="https://www.reuters.com/article/usa-immigration-border-deaths/the-borders-toll-migrants-increasingly-die-crossing-into-u-s-from-mexico-idUSL4N2Z247X">https://www.reuters.com/article/usa-immigration-border-deaths/the-borders-toll-migrants-increasingly-die-crossing-into-u-s-from-mexico-idUSL4N2Z247X</a>.
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Migrants who travel via sea also face perilous conditions,
including at the hands of smugglers. Human smugglers continue to use
unseaworthy, overcrowded vessels that are piloted by inexperienced
mariners. These vessels often lack any safety equipment, including but
not limited to: personal flotation devices, radios, maritime global
positioning systems, or vessel locator beacons. USCG and interagency
consent-based interviews suggest that human-smuggling networks and
migrants consider the attempts worth the risk.
The increase in migrants taking to sea, under dangerous conditions,
has also led to devastating consequences. In FY 2022, the USCG recorded
107 noncitizen deaths, including presumed dead, as a result of
irregular maritime migration. In January 2022, the USCG located a
capsized vessel with a survivor clinging to the hull. USCG crews
interviewed the survivor who indicated there were 34 others on the
vessel who were not in the vicinity of the capsized vessel and
survivor.\81\ The USCG conducted a multi-day air and surface search for
the missing migrants, eventually recovering five deceased migrants,
while the others were presumed lost at sea.\82\ In November 2022, USCG
and CBP rescued over 180 people from an overloaded boat that became
disabled off of the Florida Keys.\83\ They pulled 18 Haitian migrants
out of the sea after they became trapped in ocean currents while trying
to swim to shore.\84\
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\81\ Adriana Gomez Licon, Associated Press, Situation `dire' as
Coast Guard seeks 38 missing off Florida, Jan. 26, 2022, <a href="https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019">https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019</a>.
\82\ Adriana Gomez Licon, Associated Press, Coast Guard suspends
search for migrants off Florida, Jan. 27, 2022, <a href="https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239">https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239</a>.
\83\ Ashley Cox, CBS News CW44 Tampa, More than 180 people
rescued from overloaded vessel in Florida Keys, Nov. 22, 2022,
<a href="https://www.cbsnews.com/tampa/news/more-than-180-people-rescued-from-overloaded-vessel-in-florida-keys/">https://www.cbsnews.com/tampa/news/more-than-180-people-rescued-from-overloaded-vessel-in-florida-keys/</a>.
\84\ Id.
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DHS anticipates this process will save lives and undermine the
profits and operations of the dangerous TCOs that put migrants' lives
at risk for profit because it incentivizes intending migrants to use a
safe and orderly means to access the United States via commercial air
flights, thus ultimately reducing the demand for smuggling networks to
facilitate the dangerous journey.
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); \85\ the
Collaborative Migration Management Strategy (CMMS); \86\ and the Los
Angeles Declaration on Migration and Protection (L.A. Declaration),
which was endorsed in June 2022 by 21 countries.\87\ The
[[Page 1251]]
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.\88\ The L.A. Declaration
specifically lays out the goal of collectively ``expand[ing] access to
regular pathways for migrants and refugees.'' \89\
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\85\ 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>.
\86\ 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>.
\87\ 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>.
\88\ Id.
\89\ Id.
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In June 2022, the U.S. Government announced the planned resumption
of operations under the Haitian Family Reunification Parole (HFRP)
program.\90\ Approved HFRP beneficiaries enter the United States as
parolees but are eligible to apply for lawful permanent residence (LPR)
status once their immigrant visas become available. However, the
security situation in Haiti makes it virtually impossible to resume the
program in a timely manner and with enough resources to process
meaningful numbers of beneficiaries. Furthermore, the Department of
State temporarily reduced presence in Haiti due to the security
situation, hampering its ability to process parents, spouses, and
children of U.S. citizens and lawful permanent residents for more than
20,000 beneficiaries with immigrant visas currently available.
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\90\ White House, Fact Sheet: The Los Angeles Declaration on
Migration and Protection U.S. Government and Foreign Partner
Deliverables (June 2022) <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/</a>.
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While HFRP and other efforts represent important progress for
certain Haitians who are the beneficiaries of family-based immigrant
petitions, HFRP's narrow eligibility criteria, coupled with the
operational challenges posed by the security situation in Haiti and
Department of State's limited family-based visa processing, result in
modest processing throughput and mean that additional pathways are
required to meet the current and acute border security and irregular
migration mitigation objective. This new process will help achieve
these goals by providing an immediate, temporary, and orderly process
for Haitian nationals to lawfully enter the United States while we work
to improve conditions in Haiti 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.
The process also will respond to an acute foreign policy need
complementary to regional efforts. Many countries in the region are
affected by the surge in migration of Haitian nationals, and some are
eagerly seeking greater United States action to address these
challenging flows. The Dominican Republic, which shares a border with
Haiti, hosts thousands of Haitian migrants. Brazil and Chile, which had
provided Haitians a legal pathway allowing them to reside there, saw
Haitians leaving in very high numbers as a result of declining economic
conditions, which were only exacerbated by the COVID-19 pandemic.\91\
Peru, Ecuador, and Colombia have observed Haitian migrants who had been
residing in South America for some time transiting their countries in
order to reach the SWB. Panama has been particularly hard-hit by these
migratory flows given its geographic location; additionally, the
Dari[eacute]n Gap serves as a bottleneck and also creates a
humanitarian challenge for the country as it seeks to provide shelter,
medical care, food, and other services to migrants exiting the
jungle.\92\
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\91\ Council on Foreign Relations, Why Are Haitian Migrants
Gathering at the U.S. Border? October 1, 2021, <a href="https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border">https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border</a>, (last visited
Dec. 19, 2022).
\92\ Reuters, Thousands of mostly Haitian Migrants Traverse
Panama on Way to United States, Sept. 26, 2021, <a href="https://www.reuters.com/world/americas/thousands-mostly-haitian-migrants-traverse-panama-way-united-states-2021-09-26/">https://www.reuters.com/world/americas/thousands-mostly-haitian-migrants-traverse-panama-way-united-states-2021-09-26/</a>, (last viewed Dec. 19,
2021).
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Along with the Venezuelan process, this new process will add to
these efforts and enable the United States to lead by example. Such
processes are a key mechanism to advance the larger domestic and
foreign policy goals of the U.S. Government to promote a safe, orderly,
legal, and humane migration strategy throughout our hemisphere. The new
process also strengthens the foundation for the United States to press
regional partners--many of which are already taking important steps--to
undertake additional actions with regards to this population, as part
of a regional response. Any effort to meaningfully address the crisis
in Haiti will require continued efforts by these and other regional
partners.
Importantly, the United States will only implement the new parole
process while able to return or remove to Mexico Haitian 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 Haitian 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 irregularly
along the SWB. The goal of this process is to reduce the irregular
migration of Haitian 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 also will address the urgent humanitarian needs of many Haitian
nationals. As described above, escalating gang violence, the aftermaths
of an earthquake, and a cholera outbreak have worsened already
concerning political, economic, and social conditions in Haiti.\93\
This process provides a safe mechanism for Haitian nationals who
[[Page 1252]]
seek to enter the United States for urgent humanitarian reasons without
having to make a dangerous journey by land or sea.
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\93\ Congressional Research Service, Haiti: Political Conflict
and U.S. Policy Overview (Aug. 2, 2022), <a href="https://crsreports.congress.gov/product/pdf/IF/IF12182">https://crsreports.congress.gov/product/pdf/IF/IF12182</a>.
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IV. Eligibility
A. Supporters
U.S.-based supporters must initiate the process by filing Form I-
134A on behalf of a Haitian 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:
<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 Haiti or be a non-Haitian immediate
family member \81\ and traveling with a Haitian principal beneficiary;
<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 Haitian 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 Haiti, or currently holds refugee status in any
country, unless DHS operates a similar parole process for the country's
nationals.\94\
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\94\ This limitation does not apply to immediate family members
traveling with a Haitian national.
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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\
<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\
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 CDC, 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 Haitians' immediate
family members and minor children. The supporter will then be vetted by
USCIS to protect against exploitation and abuse, and to ensure that the
supporter is able to financially support the beneficiary whom they
agree to support. Supporters must be vetted and confirmed by USCIS, at
USCIS' discretion, before moving forward in the process.
Step 2: Submit Biographic Information
If a supporter is confirmed by USCIS, the listed beneficiary will
receive an email from USCIS with instructions to create an online
account with myUSCIS and next steps for completing the application. The
beneficiary will be required to confirm their biographic information in
their online account and attest to meeting the eligibility
requirements.
As part of confirming eligibility in their myUSCIS account,
individuals who seek authorization to travel to the United States will
need to confirm that they meet public health requirements, including
certain vaccination requirements.
Step 3: Submit Request in CBP One Mobile Application
After confirming biographic information in myUSCIS and completing
required eligibility attestations, the beneficiary will receive
instructions through myUSCIS for accessing the CBP One mobile
application. The beneficiary must then enter limited biographic
information into CBP One and submit a live photo.
Step 4: Approval To Travel to the United States
After completing Step 3, the beneficiary will receive a notice in
their myUSCIS account confirming whether CBP has, in CBP's discretion,
provided the beneficiary with advance authorization to travel to the
United States to seek a discretionary grant of parole on a case-by-case
basis. If approved, this authorization is generally valid for 90 days,
and beneficiaries are responsible for securing their own travel
[[Page 1253]]
via commercial air to an interior POE of 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.
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 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 Parole
Process for Haitians at any point. The number of travel authorizations
granted under this process shall be spread across this process and the
separate and independent Parole Process for Cubans, the Parole Process
for Nicaraguans, 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,\95\ 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.'' \96\ As section 212(d)(5)(A) of the
INA, 8 U.S.C. 1182(d)(5)(A), provides, parole decisions are made by the
Secretary of Homeland Security ``in his discretion.''
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\95\ 5 U.S.C. 553(b)(A); id. 553(d)(2).
\96\ See Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)).
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Second, even if this process were considered to be a legislative
rule that would normally be subject to requirements for notice-and-
comment rulemaking and a delayed effective date, the process would be
exempt from such requirements because it involves a foreign affairs
function of the United States.\97\ Courts have held that this exemption
applies when the rule in question ``is clearly and directly involved in
a foreign affairs function.'' \98\ 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.\99\ This rule satisfies both standards.
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\97\ 5 U.S.C. 553(a)(1).
\98\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984)
(cleaned up).
\99\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.
2008).
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As described above, this process is directly responsive to requests
from key foreign partners--including the GOM--to provide a lawful
process for Haitian nationals to enter the United States. The United
States will only implement the new parole process while able to return
or remove Haitian nationals who enter the United States 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 Haitian 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 Haitian
nationals. That willingness could be impacted by the delay associated
with a public rulemaking process involving advance notice and comment
and a delayed effective date. Additionally, making it publicly known
that we plan to return or remove nationals of Haiti to Mexico at a
future date would likely result in a surge in migration, as migrants
rush to the border to enter before the process begins--which would
adversely impact each country's border security and further strain
their personnel and resources deployed to the border.
Moreover, this process is not only responsive to the interests of
key foreign partners--and necessary for addressing migration issues
requiring coordination between two or more governments--it is also
fully aligned with larger and important foreign policy objectives of
this Administration and fits within a web of carefully negotiated
actions by multiple governments (for instance in the L.A. Declaration).
It is the view of the United States that the implementation of this
process would 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
[[Page 1254]]
exemption because the change was central to ongoing negotiations
between the two countries.\100\ DHS similarly invoked the foreign
affairs exemption more recently, in connection with the Venezuela
parole process.\101\
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\100\ See 82 FR 4902 (Jan. 17, 2017).
\101\ See 87 FR 63507 (Oct. 19, 2022).
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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.\102\ The numbers of Haitians
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.\103\
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\102\ See 5 U.S.C. 553(b)(B); id. 553(d)(3).
\103\ 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)).
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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 Haitian 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.\104\ 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.\105\ 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.\106\ A number of cases follow this logic in
the context of economic regulation.\107\
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\104\ See 5 U.S.C. 553(b)(B).
\105\ 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 Sec. 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)).
\106\ 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.'').
\107\ See, e.g., Chamber of Commerce of U.S. v. S.E.C., 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.'').
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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.\108\ 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.
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\108\ 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).
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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 is likely to contribute to more Haitians
attempting to enter irregularly either at the SWB or by sea, at a time
when DHS has extremely limited options for processing, detaining, or
quickly removing such migrants safely and in sufficient numbers.
Inaction 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.'' \109\
DHS cited the prospect that ``publication of the rule as a proposed
rule, which would signal a significant change in policy while
permitting continuation of the exception for Cuban nationals, could
lead to a surge in migration of Cuban nationals seeking to travel to
and enter the United States during the period between the publication
of a proposed and a final rule.'' \110\ 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.'' \111\ DHS concluded that
``a surge could result in significant loss of human life.'' \112\
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\109\ Eliminating Exception to Expedited Removal Authority for
Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017).
\110\ Id.
\111\ Id.
\112\ 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).
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[[Page 1255]]
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
Haiti 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 Haitian 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. 2023-00255 Filed 1-5-23; 4:15 pm]
BILLING CODE 9110-09-P
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</html>Indexed from Federal Register on January 9, 2023.
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