Implementation of a Parole Process for Cubans, 1266-1279 [2023-00252]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1266-1279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00252]


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DEPARTMENT OF HOMELAND SECURITY


Implementation of a Parole Process for Cubans

ACTION: Notice.

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SUMMARY: This notice describes a new effort designed to enhance the 
security

[[Page 1267]]

of our Southwest Border (SWB) by reducing the number of encounters of 
Cuban nationals crossing the border without authorization, as the U.S. 
Government continues to implement its broader, multi-pronged and 
regional strategy to address the challenges posed by a surge in 
migration. Cubans who do not avail themselves of this new process, and 
instead enter the United States without authorization between ports of 
entry (POEs), generally are subject to removal--including to third 
countries, such as Mexico. As part of this effort, the U.S. Department 
of Homeland Security (DHS) is implementing a process--modeled on the 
successful Uniting for Ukraine (U4U) and Process for Venezuelans--for 
certain Cuban 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--Cuban Parole Process

    This notice describes the implementation of a new parole process 
for certain Cuban nationals, including the eligibility criteria and 
filing process. The parole process is intended to enhance border 
security by reducing the record levels of Cuban nationals entering the 
United States between POEs, while also providing a process for certain 
such nationals to lawfully enter the United States in a safe and 
orderly manner.
    The announcement of this new process followed detailed 
consideration of a wide range of relevant facts and alternatives, as 
reflected in the Secretary's decision memorandum dated December 22, 
2022.\1\ The complete reasons for the Secretary's decision are included 
in that memorandum. This Federal Register notice is intended to provide 
appropriate context and guidance for the public regarding the policy 
and relevant procedures associated with this policy.
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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 Cuban 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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    Building on the success of the Uniting for Ukraine (U4U) process 
and the Process for Venezuelans, DHS is implementing a similar process 
to address the increasing number of encounters of Cuban nationals at 
the SWB and at sea, which have reached record levels over the past six 
months. Similar to Venezuela, Cuba has restricted DHS's ability to 
remove individuals to Cuba, which has constrained the Department's 
ability to respond to this surge.
    In October 2022, DHS undertook a new effort to address the high 
number of Venezuelans encountered at the SWB.\3\ Specifically, DHS 
provided a new parole process for Venezuelans who are backed by 
supporters in the United States to come to the United States by flying 
to interior ports of entry--thus obviating the need for them to make 
the dangerous journey to the SWB. Meanwhile, the Government of Mexico 
(GOM) 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 per day to 
under 200 per day, and as of the week ending December 4, to an average 
of 86 per day.\4\ The new process and accompanying consequence for 
unauthorized entry also led to a precipitous decline in irregular 
migration of Venezuelans throughout the Western Hemisphere. The number 
of Venezuelans attempting to enter Panama through the Dari[eacute]n 
Gap--an inhospitable jungle that spans between Panama and Colombia--was 
down from 40,593 in October 2022 to just 668 in November.\5\
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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, 
https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf (last viewed 
Dec. 11, 2022).
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    DHS anticipates that implementing a similar process for Cubans will 
reduce the number of Cubans 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. 
Implementation of the new parole process for Cubans is

[[Page 1268]]

contingent on the GOM accepting the return, departure, or removal to 
Mexico of Cuban nationals seeking to enter the United States without 
authorization between POEs on the SWB.
    As in the process for Venezuelans, a supporter in the United States 
must initiate the process on behalf of a Cuban national (and certain 
non-Cuban 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, Cuban nationals and their 
immediate family members must meet several eligibility criteria in 
order to be considered, on a case-by-case basis, for advance travel 
authorization and parole. Only those who meet all specified criteria 
are eligible to receive advance authorization to travel to the United 
States and be considered for a discretionary grant of parole, on a 
case-by-case basis, under this process. Beneficiaries must pass 
national security, public safety, and public health vetting prior to 
receiving a travel authorization, and those who are approved must 
arrange air travel at their own expense to seek entry at an interior 
POE.
    A grant of parole under this process is for a temporary period of 
up to two years. During this two-year period, the United States will 
continue to build on the multi-pronged, long-term strategy with our 
foreign partners throughout the region to support conditions that would 
decrease irregular migration, work to improve refugee processing and 
other immigration pathways in the region, and allow for increased 
removals of Cubans from the United States and partner nations who 
continue to migrate irregularly but who lack a valid claim of asylum or 
other forms of protection. The two-year period will also enable 
individuals to seek humanitarian relief or other immigration benefits, 
including adjustment of status pursuant to the Cuban Adjustment Act, 
Public Law 89-732, 80 Stat. 1161 (1966) (8 U.S.C. 1255 note), 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 Cuban nationals 
pursuant to this process will provide a significant public benefit for 
the United States, by reducing unauthorized entries along our SWB, 
while also addressing the urgent humanitarian reasons that are driving 
hundreds of thousands of Cubans to flee their home country, to include 
crippling economic conditions and dire food shortages, widespread 
social unrest, and the Government of Cuba's (GOC) violent repression of 
dissent.\6\ Most significantly, DHS anticipates this process will: (i) 
enhance the security of the U.S. SWB by reducing irregular migration of 
Cuban 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 Cuba; (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.
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    \6\ Washington Office on Latin America, U.S.-Cuba Relations: The 
Old, the New and What Should Come Next, Dec. 16, 2022, https://www.wola.org/analysis/us-cuba-relations-old-new-should-come-next/ 
(last visited Dec. 17, 2022).
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    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 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. 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.\7\
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    \7\ 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 over the same time period, falling some 88 percent, from 
4,399 on October 16 to 532 by the end of the month--a decline driven 
entirely by Venezuelan migrants' choosing not to make the dangerous 
journey through the Dari[eacute]n Gap. The number of Venezuelans 
attempting to enter Panama through the Dari[eacute]n Gap continued to 
decline precipitously in November--from 40,593 encounters in October, a 
daily average of 1,309, to just 668 in November, a daily average of 
just 22.\8\
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    \8\ Servicio Nacional de Migraci[oacute]n de Panam[aacute], 
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022, 
https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf (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. Other migrants who were about to 
enter the Dari[eacute]n Gap have turned around and headed back south. 
Still others who were intending to migrate north are staying where they 
are to apply for this parole process. 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.
2. Trends and Flows: Increase of Cuban 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.\9\ 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.\10\ 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.\11\
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    \9\ OIS analysis of historic CBP data.
    \10\ Id.
    \11\ Id.
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    Shifts in demographics have also had a significant effect on 
migration flows. Border encounters in the 1980s and

[[Page 1269]]

1990s consisted overwhelmingly of single adults from Mexico, most of 
whom were migrating for economic reasons.\12\ Beginning in the 2010s, a 
growing share of migrants have come from Northern Central America \13\ 
(NCA) and, since the late 2010s, from countries throughout the 
Americas.\14\ 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.\15\
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    \12\ 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, 518-536 (Sept. 
1999).
    \13\ Northern Central America refers to El Salvador, Guatemala, 
and Honduras.
    \14\ 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.
    \15\ 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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    Cubans are fleeing the island in record numbers, eclipsing the mass 
exodus of Cuban migrants seen during the Mariel exodus of 1980.\16\ In 
FY 2022, DHS encountered about 213,709 unique Cuban nationals at the 
SWB, a seven-fold increase over FY 2021 rates, and a marked 29-fold 
increase over FY 2020.\17\ FY 2022 average monthly unique encounters of 
Cuban nationals at the land border totaled 17,809, a stark increase 
over the average monthly rate of 589 unique encounters in FYs 2014-
2019.\18\ These trends are only accelerating in FY 2023. In October and 
November 2022, DHS encountered 62,788 unique Cuban nationals at the 
border--almost one third FY 2022's record total.\19\ The monthly 
average of 31,394 unique Cuban nationals is a 76 percent increase over 
the FY 2022 monthly average.\20\ The first 10 days of December 2022 saw 
15,657 encounters of Cubans at the SWB.\21\ In FY 2023, Cuban nationals 
have represented 16.5 percent of all unique encounters at the SWB, the 
second largest origin group.\22\
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    \16\ El Pa[iacute]s, The Cuban Migration Crisis, Biggest Exodus 
in History Holds Key to Havana-Washington Relations, Dec. 15, 2022, 
https://english.elpais.com/international/2022-12-15/the-cuban-migration-crisis-biggest-exodus-in-history-holds-key-to-havana-washington-relations.html (last visited Dec. 17, 2022).
    \17\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \18\ Id.
    \19\ Id.
    \20\ Id.
    \21\ OIS analysis of CBP Unified Immigration Portal (UIP) data 
pulled on December 12, 2022.
    \22\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
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    Maritime migration from Cuba also increased sharply in FY 2022 
compared to FY 2021. According to DHS data, in FY 2022, a total of 
5,740 Cuban nationals were interdicted at sea, the top nationality, 
compared to 827 in FY 2021, an almost 600 percent increase in a single 
fiscal year.\23\
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    \23\ OIS analysis of United States Coast Guard (USCG) data 
provided October 2022; Maritime Interdiction Data from USCG, October 
5, 2022.
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    In addition to the increase of Cuban nationals in U.S. Coast Guard 
(USCG) interdictions at sea and U.S. Customs and Border Protection 
(CBP) encounters at the SWB, USBP encounters of Cubans in southeast 
coastal sectors are also on the rise.\24\ In FY 2022, DHS encountered 
2,657 unique Cuban nationals (46 percent of total unique encounters), 
an increase of 1,040 percent compared to FY 2021.\25\ This trend also 
has accelerated sharply in FY 2023, as CBP has made 1,917 unique 
encounters of Cuban nationals in the first two months of the FY--almost 
three-quarters of FY 2022's total.\26\ Cuban nationals are 72 percent 
of all unique encounters in these sectors in October and November.\27\
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    \24\ Includes Miami, FL; New Orleans, LA; and Ramey, PR sectors 
where all apprehensions are land apprehensions not maritime.
    \25\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \26\ Id.
    \27\ Id.
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3. Push and Pull Factors
    DHS assesses that the high--and rising--number of Cuban nationals 
encountered at the SWB and interdicted at sea is driven by three key 
factors: First, Cuba is facing its worst economic crisis in decades due 
to the lingering impacts of the COVID-19 pandemic, high food prices, 
and economic sanctions.\28\ Second, the government's response has been 
marked by further political repression, including widespread arrests 
and arbitrary detentions in response to protests.\29\ Third, the United 
States faces significant limits on the ability to return Cuban 
nationals who do not establish a legal basis to remain in the United 
States to Cuba or elsewhere; absent the ability to return Cubans who do 
not have a lawful basis to stay in the United States, more individuals 
are willing to take a chance that they can come--and stay.
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    \28\ The Economist, Cuba is Facing Its Worst Shortage of Food 
Since 1990s, July 1, 2021, https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s 
(last visited Dec. 17, 2022).
    \29\ Miami Herald, As Cubans Demand Freedom, President 
D[iacute]az-Canel Says He Will Not Tolerate 'Illegitimate' Protests, 
October 2, 2022, https://www.miamiherald.com/news/nation-world/world/americas/cuba/article266767916.html (last visited Dec. 17, 
2022).
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    Further, in November 2021, the Government of Nicaragua announced 
visa-free travel for Cubans.\30\ This policy provided Cubans a more 
convenient and accessible path into the continent, facilitating their 
ability to begin an irregular migration journey to the SWB via land 
routes.\31\ Many such Cuban migrants fall victim to human smugglers and 
traffickers, who look to exploit the most vulnerable individuals for 
profit with utter disregard for their safety and wellbeing, as they 
attempt the dangerous journey northward through Central America and 
Mexico.\32\
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    \30\ Reuters, Nicaragua Eliminates Visa Requirement for Cubans, 
November 23, 2021, https://www.reuters.com/world/americas/nicaragua-eliminates-visa-requirement-cubans-2021-11-23/ (last visited Dec. 
17, 2022).
    \31\ The New York Times, Cuban Migrants Arrive to U.S. in Record 
Numbers, on Foot, Not by Boat, May 4, 2022, https://www.nytimes.com/2022/05/03/world/americas/cuban-migration-united-states.html (last 
visited Dec. 17, 2022).
    \32\ CNN, Cubans are Arriving to the U.S. in Record Numbers. 
Smugglers are Profiting from Their Exodus, https://www.cnn.com/2022/05/12/americas/cuba-mass-migration-intl-latam/, May 12, 
2022 (last visited Dec. 17, 2022).
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i. Factors Pushing Migration From Cuba
    There are a number of economic and other factors that are driving 
migration of Cuban nationals. Cuba is undergoing its worst economic 
crisis since the 1990s \33\ due to the lingering impact of the COVID-19 
pandemic, reduced foreign aid from Venezuela because of that country's 
own economic crisis, high food prices, and U.S. economic sanctions.\34\ 
In July 2022, the

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Government of Cuba (GOC) reported the economy contracted by 10.9% in 
2020, grew by 1.3% in 2021, and is projected to expand by 4% in 
2022.\35\ However, this projected expansion is unlikely to respond to 
the needs of the Cuban people. Mass shortages of dairy and other basic 
goods continue to persist, and Cubans wait in lines for hours to 
receive subsidized cooking oil or other basic goods.\36\ Deepening 
poverty, exacerbated by the COVID-19 pandemic, has led to food 
shortages and rolling blackouts, and continues to batter the 
economy.\37\ This combination of factors has created untenable economic 
conditions on the island that are likely to continue to drive Cubans to 
travel irregularly to the United States in the immediate future.\38\
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    \33\ The Economist, Cuba is Facing Its Worst Shortage of Food 
Since 1990s, July 1, 2021, https://www.economist.com/the-americas/2021/07/01/cuba-is-facing-its-worst-shortage-of-food-since-the-1990s 
(last visited Dec. 17, 2022).
    \34\ Congressional Research Service, Cuba: U.S. Policy in the 
117th Congress, Sept. 22, 2022, https://crsreports.congress.gov/product/pdf/R/R47246 (last visited Dec. 17, 2022).
    \35\ Caribbean Council, Gil Says Economic Recovery Gradual, 
Inflation Must Be Better Addressed, Cuba Briefing, July 25, 2022, 
https://www.caribbean-council.org/gil-says-economic-recovery-gradual-inflation-must-be-better-addressed/ (last visited Sept. 25, 
2022).
    \36\ Washington Post, In Cuba, a Frantic Search for Milk, May 
21, 2022, https://www.washingtonpost.com/world/interactive/2022/cuba-economy-milk-shortage/ (last visited Sept. 25, 2022).
    \37\ New York Times, `Cuba Is Depopulating': Largest Exodus Yet 
Threatens Country's Future, Dec. 10, 2022. https://www.nytimes.com/2022/12/10/world/americas/cuba-us-migration.html (last visited Dec. 
16, 2022).
    \38\ Id.
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    The GOC has not been able to effectively address these issues to 
date, and has instead taken to repressive tactics to manage public 
discontent. Cuba remains a one-party authoritarian regime under the 
Communist Party of Cuba (PCC) government, which continues to restrict 
freedoms of expression, association, peaceful assembly, and other human 
rights.\39\ The GOC employs arbitrary detention to harass and 
intimidate critics, independent activists, political opponents, and 
others.\40\ While the Cuban constitution grants limited freedoms of 
peaceful assembly and association, the GOC restricts these freedoms in 
practice.\41\ The government routinely blocks any attempts to 
peacefully assemble that might result in opposition to, or criticism 
of, the government.\42\ This was evident when the human rights 
situation in Cuba began to decline significantly in 2020.\43\ In 
November 2020, the government cracked down on the San Isidro Movement 
(MSI), a civil society group opposed to restrictions on artistic 
expression.\44\ This crackdown, coupled with deteriorating economic 
conditions (food and medicine shortages and blackouts), led to 
demonstrations in Havana and throughout the country.\45\
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    \39\ U.S. Department of State, 2021 Country Reports on Human 
Rights Practices: Cuba, https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/cuba/ (last visited Dec. 17, 
2022).
    \40\ Id.
    \41\ Id.
    \42\ Id.
    \43\ Congressional Research Service, Cuba: U.S. Policy Overview, 
Aug. 5, 2022, https://crsreports.congress.gov/product/pdf/IF/IF10045 
(last visited Dec. 17, 2022).
    \44\ Id.
    \45\ Id.
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    According to a Human Rights Watch report, the GOC also committed 
extensive human rights violations in response to massive anti-
government protests in July 2021 with the apparent goal of punishing 
protesters and deterring future demonstrations.\46\ The report 
documents a wide range of human rights violations against well-known 
government critics and ordinary citizens, including, arbitrary 
detention, prosecutions without fair trial guarantees, and cases of 
physical ill treatment, including beatings that in some cases 
constitute torture.\47\ Several organizations reported countrywide 
internet outages, followed by erratic connectivity, including 
restrictions on social media and messaging platforms.\48\
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    \46\ Human Rights Watch, Prison or Exile: Cuba's Systematic 
Repression of July 2021 Demonstrators, July 11, 2022. https://www.hrw.org/report/2022/07/11/prison-or-exile/cubas-systematic-repression-july-2021-demonstrators.
    \47\ Id.
    \48\ Human Rights Watch, World Report 2022--Cuba. See https://www.hrw.org/world-report/2022/country-chapters/cuba.
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    Protests over the challenges of obtaining basic necessities have 
continued as have heavy-handed government responses. In September 2022, 
a prolonged blackout caused by Hurricane Ian led to protests in Havana 
and other cities.\49\ Cuban President Miguel D[iacute]az-Canel 
denounced the peaceful gatherings as ``counterrevolutionary'' and 
``indecent,'' remarking that ``[d]emonstrations of this type have no 
legitimacy.'' \50\ Amnesty International received reports of the GOC 
deploying the military and police to repress these protests as well as 
reports of arbitrary detention.\51\
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    \49\ Dave Sherwood, Reuters, Oct. 1, 2022, Banging pots, Cubans 
stage rare protests over Hurricane Ian blackouts, https://www.reuters.com/world/americas/cubans-havana-bang-pots-protest-days-long-blackout-after-ian-2022-09-30/.
    \50\ Miami Herald, As Cubans Demand Freedom, President 
D[iacute]az-Canel Says He Will Not Tolerate 'Illegitimate' Protests, 
October 2, 2022, https://www.miamiherald.com/news/nation-world/world/americas/cuba/article266767916.html (last visited Dec. 17, 
2022).
    \51\ Amnesty International, Cuba: Tactics of Repression Must Not 
be Repeated, Oct. 5, 2022, https://www.amnesty.org/en/latest/news/2022/10/cuba-repression-must-not-be-repeated/ (last viewed Dec. 19, 
2022).
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    The government's repression and inability to address the underlying 
shortages that inspired those lawful demonstrations have generated a 
human rights and humanitarian crisis that is driving Cubans from the 
country. On June 2, 2022, the Inter-American Commission on Human Rights 
(IACHR) in its 2021 Annual Report stated that no guarantees currently 
exist for exercising freedom of expression in Cuba.\52\ Although the 
forms of harassment of independent journalists, artists, activists, and 
any who question government officials are not new, the 2021 Annual 
Report notes that they are worsening quickly.\53\ The government 
controls formal media and closely monitors and targets perceived 
dissidents within the artistic community, mainstream artists, and media 
figures who express independent or critical views.\54\ GOC frequently 
blocks access to many news websites and blogs and has repeatedly 
imposed targeted restrictions on critics' access to cellphone data.\55\
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    \52\ IACHR, Annual Report 2021--Chapter IV.B--Cuba, p.678, June 
2, 2022, https://www.oas.org/en/iachr/reports/ia.asp?Year=2021 (last 
visited Dec. 19, 2022).
    \53\ Id.
    \54\ Id.
    \55\ Id.
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    Cuba's deteriorating economic conditions and political repression 
continue to increasingly drive Cubans out of their country. As a 
result, many have taken dangerous journeys, including through maritime 
means, often costing their lives at sea and on land while trying to 
reach the United States.
ii. Return Limitations
    Due to the global COVID-19 pandemic, the GOC stopped accepting 
regular returns of their nationals via U.S. Immigration and Customs 
Enforcement (ICE) aircraft after February 28, 2020. The U.S. Government 
has been engaged in discussions with the GOC to reactivate the 
Migration Accords, which specify that the United States will process 
20,000 Cuban nationals--not including immediate relatives of U.S. 
citizens--to come to the United States through immigrant visas and 
other lawful pathways, such as the Cuban Family Reunification Parole 
(CFRP) program, and that the Cuban government will accept the 
repatriation of its nationals who are encountered entering the United 
States without authorization. A limited number of removal flights will 
not, absent other efforts, impose a deterrent to Cuban nationals 
seeking to cross, unauthorized, into the United States.

[[Page 1271]]

    As a result, the U.S. did not return any Cuban nationals directly 
to Cuba in FY 2022. In addition, other countries, including Mexico, 
have generally refused to accept the returns of Cuban nationals, with 
limited exceptions including Cubans who have immediate family members 
who are Mexican citizens or who otherwise have legal status in Mexico. 
In FY 2022, DHS expelled 4,710 Cuban nationals to Mexico, equivalent to 
2 percent of Cuban encounters for the year.\56\
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    \56\ OIS analysis of OIS Persist Dataset and CBP subject-level 
data through November 30, 2022.
---------------------------------------------------------------------------

    Like the Venezuela process, the Cuba process will require a 
significant expansion of opportunities for return or removal, to 
include the GOM's acceptance of Cuban nationals encountered attempting 
to irregularly enter the United States without authorization between 
POEs.
    Returns alone, however, are not sufficient to reduce and divert the 
flows of Cubans. The United States will combine a consequence for Cuban 
nationals who seek to enter the United States irregularly at the land 
border with an incentive to use the safe, orderly process to request 
authorization to travel by air to, and seek parole to enter, the United 
States, without making the dangerous journey to the border.
4. Impact on DHS Resources and Operations
    To respond to the increase in encounters along the SWB since FY 
2021--an increase that has accelerated in FY 2022, driven in part by 
the number of Cuban 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.\57\
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    \57\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of 
Homeland Security, to Interested Parties, DHS Plan for Southwest 
Border Security and Preparedness (Apr. 26, 2022), https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf.
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    The impact has been particularly acute in certain border sectors. 
The increased flows of Cuban nationals are disproportionately occurring 
within the remote Del Rio and Yuma sectors, both of which are at risk 
of operating, or are currently operating, over capacity. In FY 2022, 73 
percent of unique encounters of Cuban nationals occurred in these two 
sectors.\58\ Thus far in FY 2023, Del Rio and Yuma sectors have 
accounted for 72 percent of unique encounters of Cuban nationals.\59\ 
In FY 2022, Del Rio and Yuma sectors encountered over double (137 
percent increase) the number of migrants as compared to FY 2021, a 
fifteen-fold increase over the average for FY 2014-FY 2019, in part as 
a result of the sharp increase in Cuban nationals being encountered 
there.\60\
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    \58\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \59\ Id.
    \60\ Id.
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    The focused increase in encounters within those two sectors is 
particularly challenging. Del Rio sector is geographically remote, and 
because--up until the past two years--it has not been a focal point for 
large numbers of individuals entering irregularly, it has 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 
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.\61\
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    \61\ 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. Fewer 
international repatriation flights in turn exacerbates DHS's inability 
to return or remove noncitizens in its custody by sending the message 
that there is no consequence for illegal entry.
    The sharp increase in maritime migration has also had a substantial 
impact on DHS resources. USCG has surged resources and shifted assets 
from other missions due to this increased irregular maritime migration. 
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).\62\ 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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    \62\ 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.
---------------------------------------------------------------------------

    The shift to Phase 1B triggered the surge of additional DHS 
resources to support HSTF-SE's Unified Command staff and operational 
rhythm. For example, between July 2021 and August 2022, Coast Guard 
operational planners surged 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. USCG also added two MH-60 helicopters to respond to increased 
maritime migration flows in FY 2022.\63\ Moreover, USCG had to almost 
double 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.
---------------------------------------------------------------------------

    \63\ Joint DHS and DOD Brief on Mass Maritime Migration, August 
2022.
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    DHS assesses that a reduction in the flow of Cuban nationals 
arriving at the SWB or taking to sea would reduce pressure on 
overstretched resources and enable the Department to more quickly

[[Page 1272]]

process and, as appropriate, return or remove those who do not have a 
lawful basis to stay, or repatriate those encountered at sea while also 
delivering on other maritime missions.

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.'' \64\ 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.\65\ DHS sets the 
duration of the parole based on the purpose for granting the parole 
request and may impose reasonable conditions on parole.\66\ DHS may 
terminate parole in its discretion at any time.\67\ By regulation, 
parolees may apply for and be granted employment authorization to work 
lawfully in the United States.\68\
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    \64\ 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''). Cubans 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.
    \65\ INA sec. 101(a)(13)(B), 212(d)(5)(A), 8 U.S.C. 
1101(a)(13)(B), 1182(d)(5)(A).
    \66\ See 8 CFR 212.5(c).
    \67\ See 8 CFR 212.5(e).
    \68\ 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 Cuban 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.'' 
\69\
---------------------------------------------------------------------------

    \69\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------

A. Significant Public Benefit

    The parole of Cuban nationals and their immediate family members 
under this process--which imposes new consequences for Cubans who seek 
to enter the United States irregularly between POEs, while providing an 
alternative opportunity for eligible Cuban 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 Cuban 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 Cuba; (v) provide a 
disincentive to undergo the dangerous journey that puts migrant lives 
and safety at risk and enriches smuggling networks; and (vi) fulfill 
important foreign policy goals to manage migration collaboratively in 
the hemisphere and, as part of those efforts, to establish additional 
processing pathways from within the region to discourage irregular 
migration.
1. Enhance Border Security by Reducing Irregular Migration of Cuban 
Nationals
    As described above, Cuban nationals make up a significant and 
growing number of those encountered seeking to cross between POEs 
irregularly. DHS assesses that without additional and more immediate 
consequences imposed on those who seek to do so, together with a safe 
and orderly process for Cubans to enter the United States, without 
making the journey to the SWB, the numbers will continue to grow.
    By incentivizing individuals to seek a safe, orderly means of 
traveling to the United States through the creation of an alternative 
pathway to the United States, while imposing additional consequences to 
irregular migration, DHS assesses this process could lead to a 
meaningful drop in encounters of Cuban individuals along the SWB and at 
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 for a safe, orderly 
parole process 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 Cuban nationals who 
voluntarily depart the United States, those who voluntarily withdraw 
their applications for admission, and those subject to expedited 
removal who cannot be removed to Cuba or elsewhere. The ability to 
effectuate voluntary departures, withdrawals, and removals of Cuban 
nationals to Mexico will impose a consequence on irregular entry that 
currently does not exist.
2. Improve Vetting for National Security and Public Safety
    All noncitizens whom DHS encounters at the border undergo thorough 
vetting against national security and public safety databases during 
their processing. Individuals who are determined to pose a national 
security or public safety threat are detained pending removal. That 
said, there are distinct advantages to being able to vet more 
individuals before they arrive at the border so that we can stop 
individuals who could pose threats to national security or public 
safety even earlier in the process. The Cuban 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 reducing encounters of Cuban nationals encountered at sea or at 
the SWB, and channeling decreased flows of Cuban nationals to interior 
POEs, we anticipate that the process could relieve some of the impact 
increased migratory flows have had on the DHS workforce along the SWB. 
This process is expected to free up resources, including those focused 
on decompression of border sectors, which in turn may enable an 
increase in removal flights--allowing for the removal of more 
noncitizens with final orders of removal faster and reducing the number 
of days migrants are in DHS custody. While the process will also draw 
on DHS resources within U.S. Citizenship and Immigration Services 
(USCIS) and CBP to process requests for discretionary parole on a

[[Page 1273]]

case-by-case basis and conduct vetting, these requirements involve 
different parts of DHS and require fewer resources as compared to the 
status quo.
    In 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 Cubans who seek to enter the United States by sea, 
and will allow USCG 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 Cuban 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. Given the inability to remove, return, or repatriate Cuban 
nationals in substantial numbers, DHS is currently conditionally 
releasing 87 percent of the Cuban nationals it encounters at the 
border, pending their removal proceedings or the initiation of such 
proceedings, and Cuban nationals accounted for 23 percent of all 
encounters released at the border in November 2022.\70\ The increased 
volume of provisional releases of Cuban nationals puts strains on U.S. 
border communities.
---------------------------------------------------------------------------

    \70\ OIS analysis of CBP subject-level data and OIS Persist 
Dataset based on data through November 30, 2022.
---------------------------------------------------------------------------

    Generally, since FY 2019, DHS has worked with Congress to make 
approximately $290 million available through FEMA's EFSP to support 
NGOs and local governments that provide initial reception for migrants 
entering through the SWB. These entities have engaged to provide 
services and assistance to Cuban 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.\71\ FEMA funding has 
supported building significant NGO capacity along the SWB, including a 
substantial increase in available shelter beds in key locations.
---------------------------------------------------------------------------

    \71\ CNN, Washington, DC, Approves Creation of New Agency to 
Provide Services for Migrants Arriving From Other States, Sept. 21, 
2022, https://www.cnn.com/2022/09/21/us/washington-dc-migrant-services-office.
---------------------------------------------------------------------------

    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,\72\ 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.\73\ Since Cuban nationals account for a significant 
percentage of the individuals being conditionally released into 
communities after being processed along the SWB, this parole process 
will address these concerns by diverting flows of Cuban nationals into 
a safe and orderly process in ways that DHS anticipates will yield a 
decrease in the numbers arriving at the SWB.
---------------------------------------------------------------------------

    \72\ San Antonio Report, Migrant aid groups stretched thin as 
city officials seek federal help for expected wave, Apr. 27, 2022, 
https://sanantonioreport.org/migrant-aid-groups-stretched-thin-city-officials-seek-federal-help/.
    \73\ KGUN9 Tucson, Local Migrant Shelter Reaching Max Capacity 
as it Receives Hundreds per Day, Sept. 23, 2022, https://www.kgun9.com/news/local-news/local-migrant-shelter-reaching-max-capacity-as-it-receives-hundreds-per-day.
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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 migrants arriving at the SWB. 
Beneficiaries are required to fly at their own expense to an interior 
POE, rather than arriving at the SWB. They also are only authorized to 
come to the United States if they have a supporter who has agreed to 
receive them and provide basic needs, including housing support. 
Beneficiaries also are eligible to apply for work authorization, thus 
enabling them to support themselves.
5. Disincentivize a Dangerous Journey That Puts Migrant Lives and 
Safety at Risk and Enriches Smuggling Networks
    The process, which will incentivize intending migrants to use a 
safe, orderly, and lawful means to access the United States via 
commercial air flights, cuts out the smuggling networks. This is 
critical, because transnational criminal organizations--including the 
Mexican drug cartels--are increasingly playing a key role in human 
smuggling, reaping billions of dollars in profit and callously 
endangering migrants' lives along the way.\74\
---------------------------------------------------------------------------

    \74\ CBP, Fact Sheet: Counter Human Smuggler Campaign Updated 
(Oct. 6, 2022), https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th.
---------------------------------------------------------------------------

    In FY 2022, more than 750 migrants died attempting to enter the 
United States across the SWB,\75\ an estimated 32 percent increase from 
FY 2021 (568 deaths) and a 195 percent increase from FY 2020 (254 
deaths).\76\ The approximate number of migrants rescued by CBP in FY 
2022 (almost 19,000 rescues) \77\ increased 48 percent from FY 2021 
(12,857 rescues), and 256 percent from FY 2020 (5,336 rescues).\78\ 
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.\79\ CBP attributes these rising trends to increasing 
numbers of migrants, as evidenced by increases in overall U.S. Border 
Patrol encounters.\80\ The increased rates of both migrant deaths and 
those needing rescue at the SWB demonstrate the perils in the migrant 
journey.
---------------------------------------------------------------------------

    \75\ CNN, First on CNN: A Record Number of Migrants Have Died 
Crossing the US-Mexico Border (Sept. 7, 2022), https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/.
    \76\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal 
Year 2022 Report to Congress.
    \77\ CNN, First on CNN: A Record Number of Migrants Have Died 
Crossing the US-Mexico Border (Sept. 7, 2022), https://www.cnn.com/2022/09/07/politics/us-mexico-border-crossing-deaths/.
    \78\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal 
Year 2022 Report to Congress.
    \79\ The Guardian, Migrants Risk Death Crossing Treacherous Rio 
Grande River for `American Dream' (Sept. 5, 2022), https://www.theguardian.com/us-news/2022/sep/05/migrants-risk-death-crossing-treacherous-rio-grande-river-for-american-dream.
    \80\ 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; \81\ 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,

[[Page 1274]]

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.\82\
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    \81\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of 
Homeland Security, to Interested Parties, DHS Plan for Southwest 
Border Security and Preparedness (Apr. 26, 2022), https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf.
    \82\ Reuters, Migrant Truck Crashes in Mexico Killing 54 (Dec. 
9, 2021), https://www.reuters.com/article/uk-usa-immigration-mexico-accident-idUKKBN2IP01R; Reuters, The Border's Toll: Migrants 
Increasingly Die Crossing into U.S. from Mexico (July 25, 2022), 
https://www.reuters.com/article/usa-immigration-border-deaths/the-borders-toll-migrants-increasingly-die-crossing-into-u-s-from-mexico-idUSL4N2Z247X.
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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.\83\
---------------------------------------------------------------------------

    \83\ Email from U.S. Coast Guard to DHS Policy, Re: heads up on 
assistance needed, Dec. 13, 2022.
---------------------------------------------------------------------------

    The increase in migrants taking to sea, under dangerous conditions, 
has 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 Coast Guard 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.\84\ The USCG 
conducted a multi-day air and surface search for the missing migrants, 
eventually recovering five deceased migrants; the others were presumed 
lost at sea.\85\
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    \84\ Adriana Gomez Licon, Associated Press, Situation `dire' as 
Coast Guard seeks 38 missing off Florida, Jan. 26, 2022, https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019.
    \85\ Adriana Gomez Licon, Associated Press, Coast Guard suspends 
search for migrants off Florida, Jan. 27, 2022, https://apnews.com/article/florida-lost-at-sea-79253e1c65cf5708f19a97b6875ae239.
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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 to the SWB. By reducing the demand for 
these services, DHS is effectively targeting the resources of TCOs and 
human-smuggling networks that so often facilitate these unprecedented 
movements with utter disregard for the health and safety of migrants. 
DHS and federal partners have taken extraordinary measures--including 
the largest-ever surge of resources against human-smuggling networks--
to combat and disrupt the TCOs and smugglers and will continue to do 
so.\86\
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    \86\ See DHS Update on Southwest Border Security and 
Preparedness Ahead of Court-Ordered Lifting of Title 42, Dec. 13, 
2022, https://www.dhs.gov/publication/update-southwest-border-security-and-preparedness-ahead-court-ordered-lifting-title-42 (last 
visited Dec. 18, 2022).
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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); \87\ the 
Collaborative Migration Management Strategy (CMMS); \88\ and the Los 
Angeles Declaration on Migration and Protection (L.A. Declaration), 
which was endorsed in June 2022 by 21 countries.\89\ The CMMS and the 
L.A. Declaration call for a collaborative and regional approach to 
migration, wherein countries in the hemisphere commit to implementing 
programs and processes to stabilize communities hosting migrants or 
those of high outward-migration; humanely enforce existing laws 
regarding movements across international boundaries, especially when 
minors are involved; take actions to stop migrant smuggling by 
targeting the criminals involved in these activities; and provide 
increased regular pathways and protections for migrants residing in or 
transiting through the 21 countries.\90\ The L.A. Declaration 
specifically lays out the goal of collectively ``expand[ing] access to 
regular pathways for migrants and refugees.'' \91\
---------------------------------------------------------------------------

    \87\ National Security Council, Root Causes of Migration in 
Central America (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
    \88\ National Security Council, Collaborative Migration 
Management Strategy, July 2021, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf?utm_medium=email&utm_source=govdelivery.
    \89\ Id.; The White House, Los Angeles Declaration on Migration 
and Protection (LA Declaration), June 10, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
    \90\ Id.
    \91\ Id.
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    The U.S. Government has been working with the GOC to restart the 
Cuba Migration Accords. On November 15, 2022, U.S. and Cuban officials 
met in Havana to discuss the implementation of the Accords and to 
underscore our commitment to pursuing safe, regular, and humane 
migration between Cuba and the United States.\92\ These Migration Talks 
provide an opportunity for important discussions on mutual compliance 
with the Migration Accords--composed of a series of binding bilateral 
agreements between the United States and Cuba signed in 1984, 1994, 
1995, and 2017--which establish certain commitments of the United 
States and Cuba relating to safe, legal, and orderly migration.
---------------------------------------------------------------------------

    \92\ Department of State, Migration Talks with the Government of 
Cuba, Nov. 15, 2022; https://www.state.gov/migration-talks-with-the-government-of-cuba-2/.
---------------------------------------------------------------------------

    In September 2022, the U.S. Government announced the resumption of 
operations under the CFRP program, which allows certain beneficiaries 
of family-based immigrant petitions to seek parole into the United 
States while waiting for a visa number to become available. Beginning 
in early 2023, U.S. Embassy Havana will resume full immigrant visa 
processing for the first time since 2017, which will, over time, 
increase the pool of noncitizens eligible for CFRP.\93\ Approved 
beneficiaries through this process will enter the United States as 
parolees but will be eligible to apply for adjustment to lawful 
permanent resident (LPR) status once their immigrant visas become 
available. Also during this period, Cubans may be eligible to apply for 
lawful permanent residence under the Cuban Adjustment Act.\94\
---------------------------------------------------------------------------

    \93\ USCIS, USCIS Resumes Cuban Family Reunification Parole 
Program Operations, https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations, Sept. 
9, 2022 (last visited Dec. 10, 2022).
    \94\ Public Law 89-732, Cuban Adjustment Act of 1966 (CAA), Nov. 
2, 1966, https://www.gpo.gov/fdsys/pkg/STATUTE-80/pdf/STATUTE-80-Pg1161.pdf (last viewed Dec. 16, 2022).
---------------------------------------------------------------------------

    While these efforts represent important progress for certain Cubans 
who are the beneficiaries of a family-based immigrant petition, CFRP's 
narrow eligibility, challenges faced

[[Page 1275]]

operating in Cuba, and more modest processing throughput mean that 
additional pathways are required to meet the current and acute border 
security and irregular migration mitigation objective. This new process 
helps achieve these goals by providing an immediate and temporary 
orderly process for Cuban nationals to lawfully enter the United States 
while we work to improve conditions in Cuba and expand more permanent 
lawful immigration pathways in the region, including refugee processing 
and other lawful pathways into the United States and other Western 
Hemisphere countries. It thus provides the United States another avenue 
to lead by example.
    The process also responds to an acute foreign policy need. Key 
allies in the region--including specifically the Governments of Mexico, 
Honduras, Guatemala, and Costa Rica--are affected by the increased 
movement of Cuban nationals and have been seeking greater U.S. action 
to address these challenging flows for some time. Cuban flows 
contribute to strain on governmental and civil society resources in 
Mexican border communities in both the south and the north--something 
that key foreign government partners have been urging the United States 
to address.
    Along with the Venezuelan process, this new process adds to these 
efforts and enables the United States to lead by example. Such 
processes are a key mechanism to advance the larger domestic and 
foreign policy goals of the U.S. Government to promote a safe, orderly, 
legal, and humane migration strategy throughout our hemisphere. The new 
process also strengthens the foundation for the United States to press 
regional partners--many of which are already taking important steps--to 
undertake additional actions with regards to this population, as part 
of a regional response. Any effort to meaningfully address the crisis 
in Cuba will require continued efforts by these and other regional 
partners.
    Importantly, the United States will only implement the new parole 
process while able to remove or return to Mexico Cuban 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 Cuban 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 U.S. actions in this regard, 
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 Cuban nationals while the United States, together with 
partners in the region, works to improve conditions in sending 
countries and create more immigration and refugee pathways in the 
region, including to the United States.

B. Urgent Humanitarian Reasons

    The case-by-case temporary parole of individuals pursuant to this 
process will address the urgent humanitarian needs of Cuban nationals 
who have fled crippling economic conditions and social unrest in Cuba. 
The GOC continues to repress and punish all forms of dissent and public 
criticism of the regime and has continued to take actions against those 
who oppose its positions.\95\ This process provides a safe mechanism 
for Cuban nationals who seek to leave their home country to enter the 
United States without having to make the dangerous journey to the 
United States.
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    \95\ Id.; Congressional Research Service, Cuba: U.S. Policy in 
the 117th Congress, Sept. 22, 2022, https://crsreports.congress.gov/product/pdf/R/R47246.
---------------------------------------------------------------------------

IV. Eligibility To Participate in the Process and Processing Steps

A. Supporters

    U.S.-based supporters must initiate the process by filing Form I-
134A on behalf of a Cuban national and, if applicable, the national's 
immediate family members.\96\ 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:
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    \96\ Certain non-Cubans may use this process if they are an 
immediate family member of a Cuban beneficiary and traveling with 
that Cuban beneficiary. For purposes of this process, immediate 
family members are limited to a spouse, common-law partner, and/or 
unmarried child(ren) under the age of 21.
---------------------------------------------------------------------------

     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;
     pass security and background vetting, including for public 
safety, national security, human trafficking, and exploitation 
concerns; and
     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:
     be outside the United States;
     be a national of Cuba or be a non-Cuban immediate family 
member \97\ and traveling with a Cuban principal beneficiary;
---------------------------------------------------------------------------

    \97\ Certain non-Cubans may use this process if they are an 
immediate family member of a Cuban beneficiary and traveling with 
that Cuban beneficiary. For purposes of this process, immediate 
family members are limited to a spouse, common-law partner, and/or 
unmarried child(ren) under the age of 21.
---------------------------------------------------------------------------

     have a U.S.-based supporter who filed a Form I-134A on 
their behalf that USCIS has vetted and confirmed;
     possess an unexpired passport valid for international 
travel;
     provide for their own commercial travel to an air POE and 
final U.S. destination;
     undergo and pass required national security and public 
safety vetting;
     comply with all additional requirements, including 
vaccination requirements and other public health guidelines; and

[[Page 1276]]

     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 Cuban 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 Cuba, or currently holds refugee status in any 
country, unless DHS operates a similar parole process for the country's 
nationals.\98\
---------------------------------------------------------------------------

    \98\ This limitation does not apply to immediate family members 
traveling with a Cuban national.
---------------------------------------------------------------------------

    In addition, a potential beneficiary is ineligible for advance 
authorization to travel to the United States as well as parole under 
this process if that person:
     fails to pass national security and public safety vetting 
or is otherwise deemed not to merit a favorable exercise of discretion;
     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; \99\
---------------------------------------------------------------------------

    \99\ See, e.g., INA sec. 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A).
---------------------------------------------------------------------------

     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;
     has irregularly crossed the Mexican or Panamanian border 
after January 9, 2023; or
     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.\100\
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    \100\ As defined in 6 U.S.C. 279(g)(2). Children under the age 
of 18 must be traveling to the United States in the care and custody 
of their parent or legal guardian to be considered for parole at the 
POE under the process.
---------------------------------------------------------------------------

    Travel Requirements: Beneficiaries who receive advance 
authorization to travel to the United States to seek parole into the 
United States will be responsible for arranging and funding their own 
commercial air travel to an interior POE of the United States.
    Health Requirements: Beneficiaries must follow all applicable 
requirements, as determined by DHS's Chief Medical Officer, in 
consultation with the Centers for Disease Control and Prevention, with 
respect to health and travel, including vaccination and/or testing 
requirements for diseases including COVID-19, polio, and measles. The 
most up-to-date public health requirements applicable to this process 
will be available at www.uscis.gov/CHNV.

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 Cubans' 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 via 
commercial air to an interior POE of the United States.\101\ 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.
---------------------------------------------------------------------------

    \101\ Air carriers can validate an approved and valid travel 
authorization submission using the same mechanisms that are 
currently in place to validate that a traveler has a valid visa or 
other documentation to facilitate issuance of a boarding pass for 
air travel.
---------------------------------------------------------------------------

    All of the steps in this process, including the decision to grant 
or deny advance travel authorization and the parole decision at the 
interior POE, are entirely discretionary and not subject to appeal on 
any grounds.
Step 5: Seeking Parole at the POE
    Each individual arriving at a POE under this process will be 
inspected by CBP and considered for a grant of discretionary parole for 
a period of up to two years on a case-by-case basis.
    As part of the inspection, beneficiaries will undergo additional 
screening and vetting, to include additional fingerprint biometric 
vetting consistent with CBP inspection processes. Individuals who are 
determined to pose a national security or public safety threat or 
otherwise do not warrant parole pursuant to section 212(d)(5)(A) of the 
INA, 8 U.S.C. 1182(d)(5)(A), and as a matter of discretion upon 
inspection, will be processed under an appropriate processing pathway 
and may be referred to ICE for detention.
Step 6: Parole
    If granted parole pursuant to this process, each individual 
generally will be paroled into the United States for a period of up to 
two years, subject to applicable health and vetting requirements, and 
will be eligible to apply for employment authorization under existing 
regulations. Individuals may request employment authorization from 
USCIS. 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.

[[Page 1277]]

D. Scope, Termination, and No Private Rights

    The Secretary retains the sole discretion to terminate the Parole 
Process for Cubans 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 Nicaraguans, the Parole 
Process for Haitians, and Parole Process for Venezuelans (as described 
in separate notices published concurrently in today's edition of the 
Federal Register) and shall not exceed 30,000 each month in the 
aggregate. Each of these processes operates independently, and any 
action to terminate or modify any of the other processes will have no 
bearing on the criteria for or independent decisions with respect to 
this process.
    This process is being implemented as a matter of the Secretary's 
discretion. It is not intended to and does not create any rights, 
substantive or procedural, enforceable by any party in any matter, 
civil or criminal.

V. Regulatory Requirements

A. Administrative Procedure Act

    This process is exempt from notice-and-comment rulemaking and 
delayed effective date requirements on multiple grounds, and is 
therefore amenable to immediate issuance and implementation.
    First, the Department is merely adopting a general statement of 
policy,\102\ 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.'' \103\ 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.''
---------------------------------------------------------------------------

    \102\ 5 U.S.C. 553(b)(A); id. 553(d)(2).
    \103\ See Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting 
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)).
---------------------------------------------------------------------------

    Second, even if this process were considered to be a legislative 
rule that would normally be subject to requirements for notice-and-
comment rulemaking and a delayed effective date, the process would be 
exempt from such requirements because it involves a foreign affairs 
function of the United States.\104\ Courts have held that this 
exemption applies when the rule in question ``is clearly and directly 
involved in a foreign affairs function.'' \105\ 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.\106\ This process satisfies both 
standards.
---------------------------------------------------------------------------

    \104\ 5 U.S.C. 553(a)(1).
    \105\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 
1984) (cleaned up).
    \106\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 
2008).
---------------------------------------------------------------------------

    As described above, this process is directly responsive to requests 
from key foreign partners--including the GOM--to provide a lawful 
process for Cuban nationals to enter the United States. The United 
States will only implement the new parole process while able to return 
or remove to Mexico Cuban nationals who enter without authorization 
across the SWB. The United States' ability to execute this process is 
contingent on the GOM making an independent decision to accept the 
return or removal of Cuban 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 this independent U.S. action 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 Cuban 
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 Cuba to Mexico at a 
future date would likely result in an even greater surge in migration, 
as migrants rush to the border to enter before the process begins--
which would adversely impact each country's border security and further 
strain their personnel and resources deployed to the border.
    Moreover, this process is not only responsive to the interests of 
key foreign partners--and necessary for addressing migration issues 
requiring coordination between two or more governments--it is also 
fully aligned with larger and important foreign policy objectives of 
this Administration and fits within a web of carefully negotiated 
actions by multiple governments (for instance in the L.A. Declaration). 
It is the view of the United States that the implementation of this 
process will advance the Administration's foreign policy goals by 
demonstrating U.S. partnership and U.S. commitment to the shared goals 
of addressing migration through the hemisphere, both of which are 
essential to maintaining strong bilateral relationships.
    The invocation of the foreign affairs exemption here is also 
consistent with Department precedent. For example, DHS published a 
notice eliminating an exception to expedited removal for certain Cuban 
nationals, which explained that the change in policy was consistent 
with the foreign affairs exemption because the change was central to 
ongoing negotiations between the two countries.\107\ DHS similarly 
invoked the foreign affairs exemption more recently, in connection with 
the Venezuela parole process.\108\
---------------------------------------------------------------------------

    \107\ See 82 FR 4902 (Jan. 17, 2017).
    \108\ See 87 FR 63507 (Oct. 19, 2022).
---------------------------------------------------------------------------

    Third, DHS assesses that there is good cause to find that the delay 
associated with implementing this process through notice-and-comment 
rulemaking and with a delayed effective date would be contrary to the 
public interest and impracticable.\109\ The numbers of Cubans 
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.\110\
---------------------------------------------------------------------------

    \109\ See 5 U.S.C. 553(b)(B); id. 553(d)(3).
    \110\ See Chamber of Commerce of U.S. v. SEC., 443 F.3d 890, 908 
(D.C. Cir. 2006) (``The [``good cause''] exception excuses notice 
and comment in emergency situations, where delay could result in 
serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)).
---------------------------------------------------------------------------

    Undertaking notice-and-comment rulemaking 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 Cuban 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.\111\ 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

[[Page 1278]]

process.\112\ 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.\113\ A number of 
cases follow this logic in the context of economic regulation.\114\
---------------------------------------------------------------------------

    \111\ See 5 U.S.C. 553(b)(B).
    \112\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94-95 
(D.C. Cir. 2012) (noting that the ``good cause'' exception ``is 
appropriately invoked when the timing and disclosure requirements of 
the usual procedures would defeat the purpose of the proposal--if, 
for example, announcement of a proposed rule would enable the sort 
of financial manipulation the rule sought to prevent [or] in order 
to prevent the amended rule from being evaded'' (cleaned up)); 
DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct. 
App. 1975) (``[W]e are satisfied that there was in fact `good cause' 
to find that advance notice of the freeze was `impracticable, 
unnecessary, or contrary to the public interest' within the meaning 
of section 553(b)(B). . . . Had advance notice issued, it is 
apparent that there would have ensued a massive rush to raise prices 
and conduct `actual transactions'-- or avoid them--before the freeze 
deadline.'' (cleaned up)).
    \113\ 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.'').
    \114\ See, e.g., Chamber of Commerce of U.S. v. SEC., 443 F.3d 
890, 908 (D.C. Cir. 2006) (``The [``good cause''] exception excuses 
notice and comment in emergency situations, where delay could result 
in serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)); Mobil 
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct. 
App. 1983) (``On a number of occasions . . . this court has held 
that, in special circumstances, good cause can exist when the very 
announcement of a proposed rule itself can be expected to 
precipitate activity by affected parties that would harm the public 
welfare.'').
---------------------------------------------------------------------------

    The same logic applies here, where the Department is responding to 
exceedingly serious challenges at the border, and advance announcement 
of that response would significantly increase the incentive, on the 
part of migrants and others (such as smugglers), to engage in actions 
that would compound those very challenges. It is well established that 
migrants may change their behavior in response to perceived imminent 
changes in U.S. immigration policy \115\ 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.
---------------------------------------------------------------------------

    \115\ See, e.g., Tech Transparency Project, Inside the World of 
Misinformation Targeting Migrants on Social Media, https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media, July 26, 2022 (last 
viewed Dec. 6, 2022).
---------------------------------------------------------------------------

    In addition, it would be impracticable to delay issuance of this 
process in order to undertake such procedures because--as noted above--
maintaining the status quo, which involves record numbers of Cuban 
nationals currently being encountered attempting to enter without 
authorization at the SWB, coupled with DHS's extremely limited options 
for processing, detaining, or quickly removing such migrants, would 
unduly impede DHS's ability to fulfill its critical and varied 
missions. At current rates, a delay of just a few months to conduct 
notice-and-comment rulemaking would effectively forfeit an opportunity 
to reduce and divert migrant flows in the near term, harm border 
security, and potentially result in scores of additional migrant 
deaths.
    The Department's determination here is consistent with past 
practice in this area. For example, in addition to the Venezuelan 
process described above, DHS concluded in January 2017 that it was 
imperative to give immediate effect to a rule designating Cuban 
nationals arriving by air as eligible for expedited removal because 
``pre-promulgation notice and comment would . . . endanger[ ] human 
life and hav[e] a potential destabilizing effect in the region.'' \116\ 
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.'' \117\ 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.'' \118\ DHS concluded that 
``a surge could result in significant loss of human life.'' \119\
---------------------------------------------------------------------------

    \116\ Eliminating Exception to Expedited Removal Authority for 
Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017).
    \117\ Id.
    \118\ Id.
    \119\ Id.; accord, e.g., Visas: Documentation of Nonimmigrants 
Under the Immigration and Nationality Act, as Amended, 81 FR 5906, 
5907 (Feb. 4, 2016) (finding the good cause exception applicable 
because of similar short-run incentive concerns).
---------------------------------------------------------------------------

B. Paperwork Reduction Act (PRA)

    Under the Paperwork Reduction Act (PRA), 44 U.S.C. chapter 35, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any new reporting requirements 
they impose. The process announced by this notice requires changes to 
two collections of information, as follows.
    OMB has recently approved a new collection, Form I-134A, Online 
Request to be a Supporter and Declaration of Financial Support (OMB 
control number 1615-NEW). This new collection will be used for the 
Cuban 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 Cuban nationals as eligible for a DHS established process 
that necessitates collection of a facial photograph in CBP

[[Page 1279]]

OneTM. 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 
www.reginfo.gov.

Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2023-00252 Filed 1-5-23; 4:15 pm]
BILLING CODE 9110-09-P