The Department of Homeland Security (DHS) has shown inconsistency in its arguments concerning the Cuban Adjustment Act (CAA) of 1966, posing challenges for Cuban individuals navigating the naturalization process in the United States. Particularly, the definition of “parole” is under dispute, which poses a major issue, as parole is a significant component in gaining lawful permanent resident status under the CAA.
If a Cuban individual enters the U.S. “without inspection”—which signifies entry outside of a designated port of entry—DHS has the authority to detain them. The detained individuals, if placed in removal proceedings, could either remain in custody or be released based on the decision by the DHS. Critical to the CAA, an individual can be offered a form of release known as “parole”.
A noteworthy Supreme Court case from 2018 seems to suggest that parole is the only option for release that DHS can offer. Considering this ruling, it would appear that the majority of Cubans released from detention must have been paroled and, thus, should be eligible for CAA. DHS, however, may interpret otherwise as it may consider additional release authorizations beyond parole.
The controversy centers around what is identified as “parole” in the immigration context. Confusingly, neither the Immigration and Nationality Act nor the DHS provide a clear definition of parole. When appearing in immigration court, attorneys from the United States Citizenship and Immigration Services (USCIS) Office of the Principal Legal Advisor prefer a strict interpretation, contending that respondents not explicitly paroled by the DHS are not eligible for adjustment under the CAA.
In contrast, the USCIS—the federal agency who handles immigration relief applications when the immigration court lacks jurisdiction—posits a broader perspective, declaring that applications from respondents released on bail or ordered on their own recognizance should be accepted. It is baffling to consider how the immigration court can efficiently carry out their mission when the very branches of DHS they answer to present conflicting interpretations of parole under the CAA.
Furthermore, the variant interpretations of the CAA have led to disparities within the immigration courts across different U.S. cities. While courts in Miami and Houston accept the argument that release from DHS custody (including release on bail or order on their own recognizance) is sufficient to constitute parole, courts in other cities require an explicit demonstration of parole, typically in the form of an I-94 stamp. This implies that the eligibility of a Cuban applicant for adjustment can change based solely on the immigration court handling the case.
Highlighting the issue further, a recent ruling by the Board of Immigration Appeals in the case of Cabrera-Fernandez distinguished “conditional parole” from “humanitarian parole”, acknowledging only the latter as a viable path to eligibility under the CAA. This ruling added more complexities to the situation, failing to address the DHS’s contradictory policies or the role immigration courts play in enforcing these inconsistent policies.
Such inconsistencies highlight the need for the DHS to adopt a clear and uniform understanding of “parole” and its implications. This would not only improve the efficiency and fairness of immigration proceedings, but also offer more certainty and clarity for those reliant on the CAA in their pursuit of U.S. residency.
Georgianna Pisano Goetz, an immigration attorney at Refugee and Immigrant Center for Education and Legal Services, brings our attention to these issues in her compelling analysis in Bloomberg Law.