The attorney general’s immigration powers can aid fleeing Ukrainians

More than 2 million people have already fled Ukraine following Vladimir Putin’s illegal invasion on Feb. 24. Many as yet unresolved contingencies will affect how many people ultimately seek refuge outside Ukraine, but some sources have estimated that as many as 4 million could ultimately be forced to flee. 

Thus far, the weight of the existing exodus has been born by countries directly bordering Ukraine. But this is likely to change in the coming weeks. Given Ukrainians’ right to 90 days of visa-free travel within the European Union, some may be expected to move beyond their first country of entry to other countries within the EU. Additionally, countries outside the EU are also likely to assist in the resettlement of Ukrainian refugees. Canada, the United Kingdom and Japan have all recently announced the development of new programs to allow for the streamlined entry of Ukrainians.  

On March 3, the Biden administration took an important first step in offering its own assistance to Ukrainians: designating Ukraine for Temporary Protected Status. This permits Ukrainians currently in the United States to remain for at least the next 18 months, while also being able to seek work authorization. It is a benefit for Ukrainians already present in the U.S. but has inherent shortcomings: It offers no relief to Ukrainians outside the United States on the date of designation.  

For Ukrainians outside the U.S., the Biden administration could take an additional step: The attorney general could exercise his parole authority under the Immigration and Nationality Act. This authority allows the attorney general to “parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons … any alien applying for admission to the United States.”  

History provides a helpful analogue to the exercise of the authority in the face of Russian aggression in the Soviet Union’s armed intervention and brutal suppression of the Hungarian Revolution of 1956. Soviet intervention prompted an outflowing of refugees to neighboring countries, which were soon overwhelmed by the influx of people. The U.S. along with other countries offered assistance to resettle fleeing Hungarians and ultimately permitted over 30,000 to enter this country under the attorney general’s parole authority.  

The Hungarian example was the first of a handful of times that the attorney general utilized this authority to allow categorical entry in a humanitarian emergency. Subsequently, it was used to address situations in Cuba and Hong Kong in the 1960s, and in the wake of U.S. withdrawal from Vietnam in the 1970s (links).  

Congress responded to ad hoc refugee admissions through the parole authority with the Refugee Act of 1980. This act established the refugee and asylum system, which sought to displace the ability of the executive to exercise the parole power for the benefit of refugees. But that act did not eliminate the parole authority generally, or even as relates to refugees. The revised statute provides that the “attorney general may not parole into the United States an alien who is a refugee unless the attorney general determines that compelling reasons in the public interest with respect to that particular alien” support parole rather than refugee-processing abroad.  

There are at least two reasons for believing that the attorney general could exercise the parole authority for Ukrainians.  

First, given the immediacy and extent of the Ukrainian crisis, compelling reasons in the public interest do support exercise of the parole authority rather than recourse to the more prolonged refugee-admission process and its numerical cap on admissions. Second, there is an argument that many fleeing Ukraine, although colloquially “refugees,” do not fall within the legal definition of that term under U.S. law. Generally, refugees are those who fear persecution from the government or those the government is unable or unwilling to control, on account of specified grounds. But conditions of war and civil unrest, that affect the population at large, are generally insufficient to establish these elements of a refugee claim. Additionally, the context of flight from an invading army would raise other complicated issues for assessing refugee eligibility under U.S. precedent, the identity of the persecutor and the ability of the Ukraine government to protect its citizenry.   

Counterintuitive as it may seem to assert that fleeing Ukrainians are not technically refugees under the law of asylum, it provides an opening to permit broad admissions under the parole authority. Given the urgent humanitarian rationale for such parole, the conditions of the statute would be satisfied, the limitation Congress imposed in 1980 would be inapplicable and applications for admission could be processed at U.S. Embassies abroad, much as they were in 1956.  

It would be up to the administration to determine the contours of such a program. Eligibility could turn on having a close relative in the U.S. already, the absence of disqualifying criminal convictions and the lack of any public-health ground for denying admission. Admission of Ukrainians who would otherwise meet the criteria established by the administration is ultimately in the discretion of the attorney general.  

Given that the United States will not deploy military force to defend Ukraine, the parole authority provides one avenue through which it could nonetheless ease the suffering of Ukrainians affected by the invasion. 

Alberto Gonzales was the 80th attorney general of the United States and counsel to the president in the George W. Bush administration. He is now the Doyle Rogers distinguished professor or law and dean of the Belmont University College of Law. Patrick Glen is an adjunct professor of law at Georgetown University Law Center and a lawyer in Washington, D.C.