A new release option may be available to aliens held in INS custody for illegal entry into the United States. In a recent interpreter opinion issued by the Service the INS may have authority, based upon the Immigration and Nationality Act, to parole from its custody aliens detained for illegal entry.
This new opinion is based upon a section of law found within the above mentioned Immigration and Nationality Act, namely; Section 212 (d) (5) (a). Under this section the INS has authority to parole from their custody any alien applying for admission into the United States pending a decision by the INS on whether to admit or remove that alien.
In the past aliens who entered illegally were not considered “applicants for admission,” and therefore had no right to the parole option. However, this changed with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
The Act created new amendments to immigration law and the subsequent interpretation of that law by the INS may now provide aliens who were once deportable for having entered illegally or without inspection to be considered as applicants for admission.
What then does this mean to a family who has a member detained by the INS for illegal entry or to an alien in custody awaiting a decision on whether he will be removed? The alien may now have an alternative means to secure his or her release pending a determination of his admissibility.
In order for a detained alien to qualify for this parole he or she must first meet certain criteria. Among the criteria the INS must find, on a case by case basis, is that either, “urgent humanitarian reasons, ” justify the parole, or that paroling the alien will bring, “significant public benefit.”
The INS opinion also gives a word of caution by hinting that to say that aliens are eligible does not mean that they are entitled to parole. Though a decision on whether to parole an alien from INS custody requires the above named criteria to be considered the ultimate decision is still a matter of discretion by the INS.
This discretionary power on whether to parole an alien is influenced not only by the above factors but also on the merits of each situation or as the opinion says on a, “case by case basis This discretion may be influenced by legal representation that understands the parole process.
Seeking parole as a form of release from INS custody is a complicated legal matter and should be done with the aid of a professional. If parole is something that you feel would benefit someone you know please find an experienced attorney to pursue the matter.