Implementation of a Parole Process for Haitians, 1243-1255 [2023-00255]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Notices]
[Pages 1243-1255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00255]


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DEPARTMENT OF HOMELAND SECURITY


Implementation of a Parole Process for Haitians

ACTION: Notice.

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SUMMARY: This notice describes a new effort designed to respond to and 
protect against a significant increase in the number of Haitian 
nationals crossing the border without authorization, as the U.S. 
Government continues to implement its broader, multi-pronged and 
regional strategy to address the challenges posed by irregular 
migration. Haitians who do not avail themselves of this process, and 
instead enter the United States without authorization between ports of 
entry (POEs), generally are subject to removal. As part of this effort, 
the U.S. Department of Homeland Security (DHS) is implementing a 
process--modeled on the successful Uniting for Ukraine (U4U) and 
Process for Venezuelans--for certain Haitian nationals to lawfully 
enter the United States in a safe and orderly manner and be considered 
for a case-by-case determination of parole. To be eligible, individuals 
must have a supporter in the United States who agrees to provide 
financial support for the duration of the beneficiary's parole period, 
pass national security and public safety vetting, and fly at their own 
expense to an interior POE, rather than entering at a land POE. 
Individuals are ineligible for this process if they have been ordered 
removed from the United States within the prior five years; have 
entered unauthorized into the United States between POEs, Mexico, or 
Panama after the date of this notice's publication with an exception 
for individuals permitted a single instance of voluntary departure or 
withdrawal of their application for admission to still maintain their 
eligibility for this process; or are otherwise deemed not to merit a 
favorable exercise of discretion.

DATES: DHS will begin using the Form I-134A, Online Request to be a 
Supporter and Declaration of Financial Support, for this process on 
January 6, 2023.

FOR FURTHER INFORMATION CONTACT: Daniel Delgado, Acting Director, 
Border and Immigration Policy, Office of Strategy, Policy, and Plans, 
Department of Homeland Security, 2707 Martin Luther King Jr. Ave SE, 
Washington, DC 20528-0445; telephone (202) 447-3459 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Background--Haitian Parole Process

    This notice describes the implementation of a new parole process 
for certain Haitian nationals, including the eligibility criteria and 
filing process. The parole process is intended to enhance border 
security by responding to and protecting against a significant increase 
of irregular migration by Haitians to the United States via dangerous 
routes that pose serious risks to migrants' lives and safety, while 
also providing a process for certain such nationals to lawfully enter 
the United States in a safe and orderly manner.
    The announcement of this new process followed detailed 
consideration of a wide range of relevant facts and alternatives, as 
reflected in the Secretary's decision memorandum dated December 22, 
2022.\1\ The complete reasons for the Secretary's decision are included 
in that memorandum. This Federal Register notice is intended to provide 
appropriate context and guidance for the public regarding the policy 
and relevant procedures associated with this policy.
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    \1\ See Memorandum for the Secretary from the Under Secretary 
for Strategy, Policy, and Plans, Acting Commissioner of U.S. Customs 
and Border Protection, and Director of U.S. Citizenship and 
Immigration Services, Parole Process for Certain Haitian Nationals 
(Dec. 22, 2022).
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A. Overview

    The U.S. Government is engaged in a multi-pronged, regional 
strategy to address the challenges posed by irregular migration.\2\ 
This long-term strategy--a shared endeavor with partner nations--
focuses on addressing the root causes of migration, which are currently 
fueling unprecedented levels of irregular migration, and creating safe, 
orderly, and humane processes for migrants seeking protection 
throughout the region. This includes domestic efforts to expand 
immigration processing capacity and multinational collaboration to 
prosecute migrant-smuggling and human-trafficking criminal 
organizations as well as their facilitators and money-laundering 
networks. While this strategy shows great promise, it will take time to 
fully implement. In the interim, the U.S. government needs to take 
immediate steps to provide safe, orderly, humane pathways for the large 
numbers of individuals seeking to enter the United States and to 
discourage such individuals from taking the dangerous journey to and 
arriving, without authorization, at the SWB.
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    \2\ In this notice, irregular migration refers to the movement 
of people into another country without authorization.
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    In October 2022, DHS undertook a new effort to address the high 
number of Venezuelans encountered at the SWB.\3\ Specifically, DHS 
provided a new parole process for Venezuelans who are backed by 
supporters in the United States to come to the United States by flying 
to interior ports of entry--thus obviating the need for them to make 
the dangerous journey to the SWB. Meanwhile, the Government of Mexico 
(GOM) made an independent decision for the first time to accept the 
returns of Venezuelans who crossed the SWB without authorization 
pursuant to the Title 42 public health Order, thus imposing a 
consequence on Venezuelans who sought to come to the SWB rather than 
avail themselves of the newly announced Parole Process. Within a week 
of the October 12, 2022 announcement of that process, the number of 
Venezuelans encountered at the SWB fell from over 1,100 a day to under 
200 a day, and as of the week ending December 4, to an average of 86 a 
day.\4\ The new process and accompanying consequence for unauthorized 
entry also led to a precipitous decline in irregular migration of 
Venezuelans throughout the Western Hemisphere. The number of 
Venezuelans attempting to enter Panama through the Dari[eacute]n Gap--
an inhospitable jungle that spans between Panama and Colombia--was down 
from 40,593 in October 2022 to just 668 in November.\5\
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    \3\ Implementation of a Parole Process for Venezuelans, 87 FR 
63507 (Oct. 19, 2022).
    \4\ DHS Office of Immigration Statistics (OIS) analysis of data 
pulled from CBP Unified Immigration Portal (UIP) December 5, 2022. 
Data are limited to USBP encounters to exclude those being paroled 
in through ports of entry.
    \5\ Servicio Nacional de Migraci[oacute]n de Panam[aacute], 
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022, 
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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[[Page 1244]]

    DHS anticipates that implementing a similar process for Haitians 
will reduce the number of Haitians seeking to irregularly enter the 
United States between POEs along the SWB or by sea by coupling a 
meaningful incentive to seek a safe, orderly means of traveling to the 
United States with the imposition of consequences for those who seek to 
enter without authorization pursuant to this process. Only those who 
meet specified criteria and pass national security and public safety 
vetting will be eligible for consideration for parole under this 
process.
    Instituting a similar process for Haitians is critical to 
responding to and protecting against a significant increase of 
irregular migration by Haitians to the United States via dangerous 
routes that pose serious risks to migrants' lives and safety. At the 
end of FY 2021, DHS experienced a focused surge in Haitian migration in 
the Del Rio sector of the border that strained its capacity to process 
individuals in a timely manner, necessitating an all-of-government 
response. In FY 2022, DHS encounters of Haitians at the SWB increased 
to unprecedented levels, with 48,697 unique encounters, as compared to 
the annual average of 3,242 unique encounters for FY 2014 to FY 
2019.\6\ In addition, the number of Haitian nationals entering Panama 
through the Dari[eacute]n Gap has been steadily increasing in recent 
months--something that has been a key predictor of migrant movement 
towards the SWB in the past, including with nationals of Venezuela a 
few months ago. Haitians represented the third highest nationality 
encountered in the Dari[eacute]n Gap between January and November 2022, 
at 16,933 encounters, and the number of Haitian encounters in Panama 
doubled between September and November 2022.\7\
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    \6\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \7\ Servicio Nacional de Migraci[oacute]n de Panam[aacute], 
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022, 
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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    Haitian migrants are also increasingly taking to the sea in 
makeshift boats. Maritime migration from Haiti also increased sharply 
in FY 2022, with a total of 4,025 Haitian nationals interdicted at sea 
compared to 1,205 in FY 2021 and 398 in FY 2020.\8\ While attempted 
irregular entry of Haitians between POEs has waned since June 2022, DHS 
assesses that this trend could quickly shift again, given the 
prevalence of displaced Haitian communities gathered in Mexico and the 
increasing volume of Haitians traversing the Dari[eacute]n Gap on their 
way north.
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    \8\ OIS analysis of United States Coast Guard (USCG) data 
provided October, 2022; Maritime Interdiction Data from USCG, 
October 5, 2022.
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    DHS anticipates that instituting a Venezuela-like process for 
nationals of Haiti will reduce the irregular migration of Haitians in 
the hemisphere, disincentivize Haitians in northern Mexico from seeking 
to enter along the SWB of the United States without authorization, and 
reduce dangerous attempts to travel to the United States by sea. This 
will be accomplished by coupling a meaningful incentive to seek a safe, 
orderly means of traveling by air to interior ports of entry in the 
United States with the imposition of consequences for those who seek to 
enter without authorization between POEs along the SWB. Individuals can 
access this lawful process from safe locations in Haiti or in third 
countries. Only those who meet specified criteria and pass national 
security and public safety vetting will be eligible for consideration 
for parole under this process. Implementation of the new parole process 
for Haitians is contingent on the GOM making an independent decision to 
accept the return or removal of Haitian nationals who bypass this new 
process and enter the United States without authorization.
    As in the process for Venezuelans, a supporter in the United States 
must initiate the process on behalf of a Haitian national (and certain 
non-Haitian nationals who are an immediate family member of a primary 
beneficiary), and commit to providing the beneficiary financial 
support, as needed.
    In addition to the supporter requirement, Haitian nationals and 
their immediate family members must meet several eligibility criteria 
in order to be considered, on a case-by-case basis, for advance travel 
authorization and parole. Only those who meet all specified criteria 
are eligible to receive advance authorization to travel to the United 
States and be considered for a discretionary grant of parole, on a 
case-by-case basis, under this process. Beneficiaries must pass 
national security, public safety, and public health vetting prior to 
receiving a travel authorization, and those who are approved must 
arrange air travel at their own expense to seek entry at an interior 
POE.
    A grant of parole under this process is for a temporary period of 
up to two years. During this two-year period, the United States will 
continue to build on the multi-pronged, long-term strategy with our 
foreign partners throughout the region to support conditions that would 
decrease irregular migration, work to improve refugee processing and 
other immigration pathways in the region. These strategies will support 
efforts to stabilize conditions in Haiti, thus diminishing the push 
factors and enabling more regular removals of those Haitians who 
nonetheless enter the United States or partner nations unauthorized and 
who lack a valid claim of asylum or other forms of protection. The two-
year period will also enable individuals to seek humanitarian relief or 
other immigration benefits for which they may be eligible, and to work 
and contribute to the United States. Those who are not granted asylum 
or any other immigration benefits during this two-year parole period 
generally will need to depart the United States prior to the expiration 
of their authorized parole period or will be placed in removal 
proceedings after the period of parole expires.
    The temporary, case-by-case parole of qualifying Haitian nationals 
pursuant to this process will provide a significant public benefit for 
the United States by reducing unauthorized entries along our SWB while 
also addressing the urgent humanitarian reasons that have displaced 
hundreds of thousands of Haitians throughout the Western Hemisphere, to 
include concurrent health, economic, and political crises. Most 
significantly, DHS anticipates this process will: (i) enhance the 
security of the U.S. SWB by reducing irregular migration of Haitian 
nationals, including by imposing additional consequences on those who 
seek to enter between POEs; (ii) improve vetting for national security 
and public safety; (iii) reduce the strain on DHS personnel and 
resources; (iv) minimize the domestic impact of irregular migration 
from Haiti; (v) disincentivize a dangerous irregular journey that puts 
migrant lives and safety at risk and enriches smuggling networks; and 
(vi) fulfill important foreign policy goals to manage migration 
collaboratively in the hemisphere.
    The Secretary retains the sole discretion to terminate the process 
at any point.

B. Conditions at the Border

1. Impact of Venezuela Process
    This process is modeled on the Venezuela process--as informed by 
the way that similar incentive and disincentive structures successfully 
decreased the number of Venezuelan nationals making the dangerous 
journey to and being encountered along the

[[Page 1245]]

SWB. The Venezuela process demonstrates that combining a clear and 
meaningful consequence for irregular entry along the SWB with a 
significant incentive for migrants to wait where they are and use a 
safe, orderly process to come to the United States can change migratory 
flows. Prior to the October 12, 2022 announcement of the Venezuela 
process, DHS encountered approximately 1,100 Venezuelan nationals per 
day between POEs--with peak days exceeding 1,500.\9\ Within a week of 
the announcement, the number of Venezuelans encountered at the SWB fell 
from over 1,100 per day to under 200 per day, and as of the week ending 
December 4, an average of 86 per day.\10\
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    \9\ OIS analysis of OIS Persist Dataset based on data through 
October 31, 2022.
    \10\ Office of Immigration Statistics (OIS) analysis of data 
pulled from CBP UIP December 5, 2022. Data are limited to USBP 
encounters to exclude those being paroled in through ports of entry.
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    Panama's daily encounters of Venezuelans also declined 
significantly, falling some 88 percent, from 4,399 on October 16 to 532 
by the end of the month--a decline driven entirely by Venezuelan 
migrants' choosing not to make the dangerous journey through the 
Dari[eacute]n Gap. The number of Venezuelans attempting to enter Panama 
through the Dari[eacute]n Gap continued to decline precipitously in 
November--from 40,593 encounters in October, a daily average of 1,309, 
to just 668 in November, a daily average of just 22.\11\
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    \11\ Servicio Nacional de Migraci[oacute]n de Panam[aacute], 
Irregulares en Tr[aacute]nsito Frontera Panam[aacute]-Colombia 2022, 
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.\12\ Other migrants who were about 
to enter the Dari[eacute]n Gap have turned around and headed back 
south.\13\ Still others who were intending to migrate north are staying 
where they are to apply for this parole process.\14\ Put simply, the 
Venezuela process demonstrates that combining a clear and meaningful 
consequence for irregular entry along the SWB with a significant 
incentive for migrants to wait where they are and use this parole 
process to come to the United States can yield a meaningful change in 
migratory flows.
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    \12\ La Prensa Latina Media, More than 4,000 migrants 
voluntarily returned to Venezuela from Panama, https://www.laprensalatina.com/more-than-4000-migrants-voluntarily-returned-to-venezuela-from-panama/, Nov. 9 2022 (last viewed Dec. 8, 2022).
    \13\ Voice of America, U.S. Policy Prompts Some Venezuelan 
Migrants to Change Route, https://www.voanews.com/a/us-policy-prompts-some-venezuelan-migrants-to-change-route/6790996.html, Oct. 
14, 2022 (last viewed Dec. 8, 2022).
    \14\ Axios, Biden's new border policy throws Venezuelan migrants 
into limbo, https://www.axios.com/2022/11/07/biden-venezuela-border-policy-darien-gap, Nov. 7 2022 (last viewed Dec. 8, 2022).
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2. Trends and Flows: Increase of Haitian Nationals Arriving at the 
Southwest Border
    The last decades have yielded a dramatic increase in encounters at 
the SWB and a dramatic shift in the demographics of those encountered. 
Throughout the 1980s and into the first decade of the 2000s, encounters 
along the SWB routinely numbered in the millions per year.\15\ By the 
early 2010s, three decades of investments in border security and 
strategy contributed to reduced border flows, with border encounters 
averaging fewer than 400,000 per year from 2011-2017.\16\ However, 
these gains were subsequently reversed as border encounters more than 
doubled between 2017 and 2019, and--following a steep drop in the first 
months of the COVID-19 pandemic--continued to increase at a similar 
pace in 2021 and 2022.\17\
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    \15\ OIS analysis of historic CBP data.
    \16\ Id.
    \17\ Id.
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    Shifts in demographics have also had a significant effect on 
migration flows. Border encounters in the 1980s and 1990s consisted 
overwhelmingly of single adults from Mexico, most of whom were 
migrating for economic reasons.\18\ Beginning in the 2010s, a growing 
share of migrants have come from Northern Central America \19\ (NCA) 
and, since the late 2010s, from countries throughout the Americas.\20\ 
Migrant populations from these newer source countries have included 
large numbers of families and children, many of whom are traveling to 
escape violence, political oppression, and for other non-economic 
reasons.\21\
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    \18\ According to historic OIS Yearbooks of Immigration 
Statistics, Mexican nationals accounted for 96 to over 99 percent of 
apprehensions of persons entering without inspection between 1980 
and 2000. OIS Yearbook of Immigration Statistics, various years. On 
Mexican migrants from this era's demographics and economic 
motivations see Jorge Durand, Douglas S. Massey, and Emilio A. 
Parrado, ``The New Era of Mexican Migration to the United States,'' 
The Journal of American History Vol. 86, No. 2 (Sept. 1999): 518-
536.
    \19\ Northern Central America refers to El Salvador, Guatemala, 
and Honduras.
    \20\ According to OIS analysis of CBP data, Mexican nationals 
continued to account for 89 percent of total SWB encounters in FY 
2010, with Northern Central Americans accounting for 8 percent and 
all other nationalities for 3 percent. Northern Central Americans' 
share of total encounters increased to 21 percent by FY 2012 and 
averaged 46 percent in FY 2014-FY 2019, the last full year before 
the start of the COVID-19 pandemic. All other countries accounted 
for an average of 5 percent of total SWB encounters in FY 2010-FY 
2013, and for 10 percent of total encounters in FY 2014-FY 2019.
    \21\ Prior to 2013, the overall share of encounters who were 
processed for expedited removal and claimed fear averaged less than 
2 percent annually. Between 2013 and 2018, the share rose from 8 to 
20 percent, before dropping with the surge of family unit encounters 
in 2019 (most of whom were not placed in expedited removal) and the 
onset of T42 expulsions in 2020. At the same time, between 2013 and 
2021, among those placed in expedited removal, the share making fear 
claims increased from 16 to 82 percent. OIS analysis of historic CBP 
and USCIS data and OIS Enforcement Lifecycle through June 30, 2022.
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C. Trends in Haitian Migration

1. Migration by Land
    Since 2019, increasing numbers of Haitians have sought to enter the 
United States at the land border. In FY 2019, DHS encountered just 
3,039 Haitian nationals at the SWB.\22\ This number grew to 4,431 
unique encounters in FY 2020, and then sharply increased by 881 percent 
to 43,484 unique encounters in FY 2021.\23\
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    \22\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \23\ Id.
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    In September 2021, the U.S. experienced a mass migration event 
involving approximately 15,000 Haitians crossing into Del Rio, Texas, 
within a matter of days. The group included many thousands who had left 
Haiti years before, spent time living and working in countries like 
Chile and Brazil, and then traveled up to our border through 
Panama.\24\ This led to thousands of Haitian nationals living in a 
makeshift camp under a bridge in Del Rio and placed immense strain on 
U.S. government resources that were employed to respond to the event.
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    \24\ The Texan, Many Haitian Nationals Came From Chile and 
Brazil Before Heading to Del Rio, Oct. 7, 2021, https://thetexan.news/many-haitian-nationals-came-from-chile-and-brazil-before-heading-to-del-rio/.
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    Unique encounters of Haitian nationals at the SWB continued to 
increase in FY 2022 to 48,697, with a peak of 9,753 unique encounters 
in a single month in May 2022.\25\ While encounters of Haitian migrants 
at our border have declined since June 2022, the Government of Panama, 
which tracks irregular migration through the Dari[eacute]n Gap, has 
observed a surge in

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land-based encounters of Haitian nationals migrating north in recent 
months. Encounters of Haitian nationals in Panama jumped from 1,021 in 
July 2022, to 2,170 in September, to 4,607 in November.\26\
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    \25\ CBP, Nationwide Encounters, https://www.cbp.gov/newsroom/stats/nationwide-encounters, (last visited, Dec. 17, 2022; OIS 
analysis of OIS Persist Dataset based on data through November 30, 
2022.
    \26\ Servicio Nacional de Migraci[oacute]n de Panam[aacute], 
Irregulares Por Darien, November 2022.
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    Those numbers are rising at a time when Haitians are already 
concentrated in Mexico. UNHCR estimates that there were 62,680 Haitians 
in Mexico in 2022 and projects that this population will grow to 
104,541 in 2023.\27\ From October 2021 to October 2022, approximately 
55,429 Haitian nationals were granted 12-month temporary humanitarian 
visitor status in Mexico, the highest of any nationality and almost 
twice as many as the second-highest nationality.\28\ Some Haitians 
migrating north have sought asylum in Mexico--a number that peaked in 
2021--and may be planning to settle there permanently.\29\ However, DHS 
assesses that many thousands of Haitians are waiting in Mexico with the 
ultimate goal of entering the United States, with many reporting they 
are waiting until the Centers for Disease Control and Prevention (CDC) 
Title 42 Order is lifted.
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    \27\ UNHCR Global Focus, Mexico, See countries of origin data 
for 2022 and 2023, https://reporting.unhcr.org/mexico?year=2022.
    \28\ OIS analysis of Instituto Nacional de Migracion data.
    \29\ Estad[iacute]sticas Comisi[oacute]n Mexicana de Ayuda a 
Refugiados, Mexico Commission for Assistance of Refugee data show 
that about 6,000 Haitians applied for asylum in Mexico in 2020, 
50,000 in 2021, and nearly 16,000 in 2022 (through November), 
https://www.gob.mx/cms/uploads/attachment/file/783226/Cierre_Noviembre-2022__1-Dic._.pdf, (last viewed Dec. 17, 2022).
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2. Migration by Sea
    Increasing numbers of Haitian migrants also continue to attempt 
migration to the United States via maritime routes, often endangering 
their own lives in precarious and unseaworthy vessels. Maritime 
migration from Haiti more than tripled in FY 2022, with a total of 
4,025 Haitian nationals interdicted at sea compared to 1,205 in FY 2021 
and 398 in FY 2020.\30\
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    \30\ OIS analysis of United States Coast Guard (USCG) data 
provided October 2022; Maritime Interdiction Data from USCG, October 
5, 2022.
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    The southeast coastal border sectors also have seen increases in 
unique encounters of Haitian nationals who arrived in the United States 
by sea.\31\ In FY 2021, those sectors encountered 593 unique Haitian 
nationals, a 411 percent increase compared to 116 in FY 2020.\32\ In FY 
2022, unique encounters of Haitian nationals in coastal sectors tripled 
from FY 2021 to 1,788--composing 31 percent of total unique encounters 
by USBP in the southeast coastal sectors.\33\
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    \31\ Includes Miami, FL; New Orleans, LA; and Ramey, PR sectors 
where all apprehensions are land apprehensions not maritime.
    \32\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \33\ Id.
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3. Push and Pull Factors
    DHS assesses that the high number of Haitian nationals encountered 
at the land border and interdicted at sea is driven primarily by two 
key factors: First, the displacement of Haitians throughout the Western 
Hemisphere caused by years of political, health, and economic crises, 
as well as the explosion of gang violence in Haiti--exacerbated by 
events that took place in the summer of 2021--are causing thousands to 
leave the country. Second, the precarious security situation in Haiti 
is having an impact on DHS's ability to remove Haitian nationals who do 
not establish a legal basis to remain in the United States; absent such 
an ability, more individuals may be willing to take a chance that they 
can come--and stay.
i. Factors Pushing Migration From Haiti
    In recent years, Haiti has experienced a series of events, 
including natural disasters, economic stagnation, pervasive hunger, 
gang violence, and political assassinations that have devastated the 
country. This has led tens of thousands of Haitians to lose hope and 
attempt to migrate.\34\
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    \34\ Diana Roy, Council on Foreign Relations, Ten Graphics That 
Explain the U.S. Struggle With Migrant Flows in 2022 (Dec. 1, 2022). 
https://www.cfr.org/article/ten-graphics-explain-us-struggle-migrant-flows-2022.
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    On August 14, 2021, a 7.2 magnitude earthquake hit Haiti, killing 
more than 2,200 people, injuring over 12,000 more, destroying tens of 
thousands of homes, and crippling Haiti's already fragile 
infrastructure.\35\ Just days later, Tropical Storm Grace hit Haiti, 
with heavy downpours hampering the continuing rescue efforts for those 
impacted by the earthquake.\36\ Within a month, over 650,000 Haitians 
required humanitarian assistance, including 260,000 children.\37\ The 
World Bank estimates that the August 2021 earthquake caused damages and 
losses in excess of more than $1.6 billion, roughly 11 percent of 
GDP.\38\
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    \35\ UNICEF, Massive earthquake leaves devastation in Haiti: 
UNICEF and partners are on the ground providing emergency assistance 
for children and their families, https://www.unicef.org/emergencies/massive-earthquake-devastation-haiti (last viewed Dec. 12, 2022).
    \36\ The Washington Post, Tropical Depression Grace Drenching 
Haiti Days After Major Earthquake, Aug. 16, 2021, https://www.washingtonpost.com/weather/2021/08/16/tropical-depression-grace-haiti-flooding/, (last viewed Dec. 19, 2022).
    \37\ UNICEF, One Month After Haiti Earthquake: 260,000 Children 
Still Need Humanitarian Assistance, Sept. 15, 20221, https://www.unicef.org.uk/press-releases/one-month-after-haiti-earthquake-260000-children-still-need-humanitarian-assistance-unicef/, (last 
visited Dec. 19, 2022).
    \38\ The World Bank, Haiti Overview, Updated Nov. 8, 2022, 
https://www.worldbank.org/en/country/haiti/
overview#:~:text=The%20results%20of%20the%20assessment%20of%20the%20e
ffects,in%20damage%20and%20losses%2C%20or%2011%25%20of%20GDP, (last 
visited Dec. 19, 2022).
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    Amidst the political, security, and environmental crises, Haiti's 
economy has collapsed. Even before the events of 2021, Haiti already 
stood as the poorest country in the Americas and one of the poorest in 
the world.\39\ In 2021, Haiti had a GDP per capita of $1,815, the 
lowest in the Latin America and the Caribbean region, ranking 170 out 
of 189 on the UN's Human Development Index.\40\ The situation has 
deteriorated to such a point that the Haitian Government itself, on 
October 7, 2022, asked for international military assistance to help 
address the converging crises.\41\
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    \39\ Id.
    \40\ The Human Development Index (HDI) is a summary measure of 
average achievement in key dimensions of human development: a long 
and healthy life, being knowledgeable and have a decent standard of 
living.
    \41\ CNN, Haiti government asks for international military 
assistance, Oct. 7, 2022, https://www.cnn.com/2022/10/07/americas/haiti-international-military-assistance-humanitarian-crisis-intl/ (last viewed Dec. 17, 2022).
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    In addition to the economic turmoil the island has confronted, the 
security situation in Haiti has been problematic for some time. 
Violence in Haiti reached an inflection point on July 7, 2021, with the 
assassination of Haitian President Jovenel Mo[iuml]se.\42\ The 
President's death exacerbated political instability on the island, 
undermining state institutions and generating a power vacuum that has 
been occupied by gangs. Between January and June 2022, gangs have 
carried out approximately 930 killings, 680 injuries, and 680 
kidnappings in Port-au-Prince alone, with more than 1,200 kidnappings 
occurring in 2021, almost twice the number reported in 2020 and five 
times more than in 2019.\43\ This recent surge in gang

[[Page 1247]]

violence has destroyed infrastructure and caused businesses to close, 
leaving Haitians struggling to find basic products including food, 
water, and medicines.\44\ Armed clashes with gangs have destroyed water 
networks, severely restricting access to potable drinking water and 
further hampering the attempts to control a cholera outbreak that, as 
of November 15, 2022, had caused 8,146 hospitalizations and 188 
deaths.\45\
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    \42\ Catherine Porter, Michael Crowley, and Constant 
M[eacute]heut, The New York Times, Haiti's President Assassinated in 
Nighttime Raid, Shaking a Fragile Nation (July 7, 2021). https://www.nytimes.com/2021/07/07/world/americas/haiti-president-assassinated-killed.html.
    \43\ See International Crisis Group, New Gang Battle Lines Scar 
Haiti as Political Deadlock Persists (July 27, 2022), https://www.crisisgroup.org/latin-america-caribbean/haiti/new-gang-battle-lines-scar-haiti-political-deadlock-persists; Office of the High 
Commissioner for Human Rights, Sexual violence in Port-au-Prince: A 
weapon used by gangs to instill fear (Oct. 14, 2022), https://www.ohchr.org/en/documents/country-reports/sexual-violence-port-au-prince-weapon-used-gangs-instill-fear. Doctors Without Borders, 
Returning to Haiti means death (Aug. 12, 2022), https://www.doctorswithoutborders.org/latest/returning-haiti-means-death.
    \44\ Office of the High Commissioner for Human Rights, Press 
Release: Haiti: Bachelet deeply disturbed by human rights impact of 
deteriorating security situation in Port-au-Prince (May 17, 2022), 
https://www.ohchr.org/en/press-releases/2022/05/haiti-bachelet-deeply-disturbed-human-rights-impact-deteriorating-security.
    \45\ Pan American Health Organization, Cholera Outbreak in 
Hispaniola Situation Report #6 (Nov. 17, 2022), https://www.paho.org/en/documents/cholera-outbreak-hispaniola-2022-situation-report-6.
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    The situation has deteriorated to such a point that the Haitian 
Government, on October 7, 2022, asked for international military 
assistance to help address the converging crises.\46\
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    \46\ CNN, Haiti government asks for international military 
assistance, Oct. 7, 2022, https://www.cnn.com/2022/10/07/americas/haiti-international-military-assistance-humanitarian-crisis-intl/, (last viewed Dec. 17, 2022).
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    Over the past two years, many of the Haitian nationals encountered 
at our SWB actually left Haiti for opportunities in South America many 
years before.\47\ This Haitian diaspora in South America developed 
after the January 2010 earthquake in Haiti that killed more than 
217,000 and displaced more than 1.5 million people. Many migrated to 
Brazil, which offered employment opportunities, humanitarian 
protection, and support from large and growing Haitian diaspora 
communities.\48\ Others migrated to Chile, where Haitian nationals 
could, until 2020, enter visa-free. As of 2020, there were an estimated 
143,000 Haitians living in Brazil and 180,000 in Chile.\49\ However, 
over the past two years, declining economic conditions in Chile and 
Brazil, which were exacerbated by the COVID-19 pandemic, have led many 
Haitian migrants to leave those countries to head north.\50\
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    \47\ Migration Policy Institute, Haitian Migration through the 
Americas: A Decade in the Making, (Sept. 30, 2021), https://www.migrationpolicy.org/article/haitian-migration-through-americas; 
Council on Foreign Relations, Why Are Haitian Migrants Gathering at 
the U.S. Border? October 1, 2021, https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border, (last visited Dec. 19, 
2022).
    \48\ Id.
    \49\ Migration Policy Institute, Chile's Retooled Migration Law 
Offers More Restrictions, Less Welcome, (May 2021), https://www.migrationportal.org/insight/chiles-retooled-migration-law-offers-more-restrictions-less-welcome/, (last visited Dec. 19, 
2022).
    \50\ Id. Migration Policy Institute.
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    As noted above, UNHCR estimates 62,680 Haitians were in Mexico in 
2022, and projects that this population will grow to 104,541 in 
2023.\51\ Many thousands more are between Mexico and South America.
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    \51\ UNHCR Global Focus, Mexico, See countries of origin data 
for 2022 and 2023, https://reporting.unhcr.org/mexico?year=2022.
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ii. Return Limitations
    While the Government of Haiti generally accepts repatriations, gang 
activity and conditions in the country have created significant 
instability, at times curtailing DHS's ability to repatriate Haitians, 
either by air or maritime repatriations by sea. For example, in early 
September 2022, destabilizing events, including gangs seizing control 
of a key fuel terminal, led to a pause in repatriation flights. The 
ability of our on-the-ground partners to help receive migrants that 
provide services for individuals returned to Haiti is evaluated on a 
day-to-day basis.\52\ The ability to conduct returns is tenuous, and 
not something that can be counted on at scale should large numbers of 
Haitian nationals once again start crossing our SWB.
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    \52\ International Organization for Migration, IOM condemns 
violence and looting of humanitarian supplies in Haiti (Sept. 24, 
2022). https://haiti.iom.int/news/iom-condemns-violence-and-looting-humanitarian-supplies-haiti.
---------------------------------------------------------------------------

    The maritime environment is similarly affected by the limitation on 
returns. Even a temporary inability of DHS to repatriate Haitians 
interdicted at sea could have a cascading effect on U.S. Government 
resources. U.S. Coast Guard (USCG) uses its vessels to conduct direct 
repatriations, yet these have limited capacity to hold migrants; they 
cannot continue to hold migrants for extended periods of time if 
repatriations are not possible.
4. Impact on DHS Resources and Operations
i. Impact on DHS Resources
    To respond to the increase in encounters along the SWB since FY 
2021--an increase that has accelerated in FY 2022, driven in part by 
the number of Haitian nationals encountered--DHS has taken a series of 
extraordinary steps. Since FY 2021, DHS has built and now operates 10 
soft-sided processing facilities at a cost of $688 million. CBP and ICE 
detailed a combined 3,770 officers and agents to the SWB to effectively 
manage this processing surge. In FY 2022, DHS had to utilize its above 
threshold reprogramming authority to identify approximately $281 
million from other divisions in the Department to address SWB needs, to 
include facilities, transportation, medical care, and personnel costs.
    The Federal Emergency Management Agency (FEMA) has spent $260 
million in FYs 2021 and 2022 combined on grants to non-governmental 
(NGO) and state and local entities through the Emergency Food and 
Shelter Program--Humanitarian (EFSP-H) to assist with the reception and 
onward travel of migrants arriving at the SWB. This spending is in 
addition to $1.4 billion in additional FY 2022 appropriations that were 
designated for SWB enforcement and processing capacities.\53\
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    \53\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of 
Homeland Security, to Interested Parties, DHS Plan for Southwest 
Border Security and Preparedness, Apr. 26, 2022, https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf.
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ii. Impact on Border Operations
    The impact has been particularly acute in certain border sectors. 
In FY 2021, 81 percent of unique Haitians encountered occurred in the 
Del Rio sector.\54\ In FY 2022, flows shifted disproportionately to the 
El Paso and Yuma sectors, which accounted for 82 percent of unique 
encounters in that year, while Del Rio fell to 13 percent.\55\ All 
three sectors remain at risk of operating, or are currently operating, 
over capacity.\56\ In FY 2022, El Paso and Yuma sector encounters 
increased by 161 percent, a seven-fold increase over the average for FY 
2014-FY 2019, in part as a result of the increases in Haitian nationals 
being encountered there.\57\
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    \54\ OIS analysis of OIS Persist Dataset based on data through 
November 30, 2022.
    \55\ Id.
    \56\ OIS analysis of data pulled from CBP UIP December 7, 2022.
    \57\ Id.
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    The focused increase in encounters within those three sectors is 
particularly challenging. Yuma and Del Rio sectors are geographically 
remote, and because--up until the past two years--they have not been a 
focal point for large numbers of individuals entering irregularly, have 
limited infrastructure and personnel in place to safely process the 
elevated encounters that they are seeing. The Yuma Sector is along the 
Colorado River corridor, which presents additional challenges to 
migrants, such

[[Page 1248]]

as armed robbery, assault by bandits, and drowning, as well as to the 
U.S. Border Patrol (USBP) agents encountering them. El Paso sector has 
relatively modern infrastructure for processing noncitizens encountered 
at the border but is far away from other CBP sectors, which makes it 
challenging to move individuals for processing elsewhere during surges.
    In an effort to decompress sectors that are experiencing surges, 
DHS deploys lateral transportation, using buses and flights to move 
noncitizens to other sectors that have additional capacity to process. 
In November 2022, USBP sectors along the SWB operated a combined 602 
decompression bus routes to neighboring sectors and operated 124 
lateral decompression flights, redistributing noncitizens to other 
sectors with additional capacity.\58\
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    \58\ Data from SBCC, as of December 11, 2022.
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    Because DHS assets are finite, using air resources to operate 
lateral flights reduces DHS's ability to operate international 
repatriation flights to receiving countries, leaving noncitizens in 
custody for longer and further taxing DHS resources.
iii. Impact on Maritime Operations
    In FY 2022, interdictions of Haitians surged to 4,025, compared to 
just 824 interdictions at sea in FY 2019.\59\ While these numbers are 
significantly smaller than those encountered at the land border, they 
are high for the maritime environment where the safety risk is 
particularly acute.
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    \59\ OIS analysis of USCG data provided October 2022; Maritime 
Interdiction Data from USCG, October 5, 2022.
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    Responding to this increase requires significant resources. In 
response to the persistently elevated levels of irregular maritime 
migration across all southeast vectors, the Director of Homeland 
Security Task Force-Southeast (HSTF-SE) elevated the operational phase 
of DHS's maritime mass migration plan (Operation Vigilant Sentry) from 
Phase 1A (Preparation) to Phase 1B (Prevention).\60\ Operation Vigilant 
Sentry is HSTF-SE's comprehensive, integrated, national operational 
plan for a rapid, effective, and unified response of federal, state, 
and local capabilities in response to indicators and/or warnings of a 
mass migration in the Caribbean.
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    \60\ Operation Vigilant Sentry (OVS) Phase 1B, Information 
Memorandum for the Secretary from RADM Brendon C. McPherson, 
Director, Homeland Security Task Force--Southeast, August 21, 2022.
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    The shift to Phase 1B triggered the surge of additional DHS 
resources to support HSTF-SE's Unified Command staff and operational 
rhythm. Between July 2021 and December 2022, Coast Guard deployed three 
times the number of large cutters to the South Florida Straits and the 
Windward Passage, four times the number of patrol boats and twice the 
number of fixed/rotary-wing aircraft to support maritime domain 
awareness and interdiction operations in the southeastern maritime 
approaches to the United States.\61\ USCG also added two MH-60 
helicopters to respond to increased maritime migration flows in FY 
2022.\62\ USCG almost doubled its flight hour coverage per month to 
support migrant interdictions in FY 2022. Increased resource demands 
translate into increased maintenance on those high demand air and sea 
assets.
---------------------------------------------------------------------------

    \61\ Id.
    \62\ Joint DHS and DOD Brief on Mass Maritime Migration, August 
2022.
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    DHS assesses that a reduction in the flow of Haitian nationals 
arriving at the SWB or taking to sea would reduce pressure on 
overstretched resources and enable the Department to more quickly 
process and, as appropriate, return or remove those who do not have a 
lawful basis to stay.

II. DHS Parole Authority

    The Immigration and Nationality Act (INA or Act) provides the 
Secretary of Homeland Security with the discretionary authority to 
parole noncitizens ``into the United States temporarily under such 
reasonable conditions as [the Secretary] may prescribe only on a case-
by-case basis for urgent humanitarian reasons or significant public 
benefit.'' \63\ Parole is not an admission of the individual to the 
United States, and a parolee remains an ``applicant for admission'' 
during the period of parole in the United States.\64\ DHS sets the 
duration of the parole based on the purpose for granting the parole 
request and may impose reasonable conditions on parole.\65\ DHS may 
terminate parole in its discretion at any time.\66\ By regulation, 
parolees may apply for and be granted employment authorization to work 
lawfully in the United States.\67\
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    \63\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also 6 
U.S.C. 202(4) (charging the Secretary with the responsibility for 
``[e]stablishing and administering rules . . . governing . . . 
parole''). Haitians paroled into the United States through this 
process are not being paroled as refugees, and instead will be 
considered for parole on a case-by-case basis for a significant 
public benefit or urgent humanitarian reasons. This parole process 
does not, and is not intended to, replace refugee processing.
    \64\ INA 101(a)(13)(B), 212(d)(5)(A), 8 U.S.C. 1101(a)(13)(B), 
1182(d)(5)(A).
    \65\ See 8 CFR 212.5(c).
    \66\ See 8 CFR 212.5(e).
    \67\ See 8 CFR 274a.12(c)(11).
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    This process will combine a consequence for those who seek to enter 
the United States irregularly between POEs with a significant incentive 
for Haitian nationals to remain where they are and use a lawful process 
to request authorization to travel by air to, and ultimately apply for 
discretionary grant of parole into, the United States for a period of 
up to two years.

III. Justification for the Process

    As noted above, section 212(d)(5)(A) of the INA confers upon the 
Secretary of Homeland Security the discretionary authority to parole 
noncitizens ``into the United States temporarily under such reasonable 
conditions as [the Secretary] may prescribe only on a case-by-case 
basis for urgent humanitarian reasons or significant public benefit.'' 
\68\
---------------------------------------------------------------------------

    \68\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
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A. Significant Public Benefit

    The parole of Haitian nationals and their immediate family members 
under this process--which imposes new consequences for Haitians who 
seek to enter the United States irregularly between POEs, while 
providing an alternative opportunity for eligible Haitian nationals to 
seek advance authorization to travel to the United States to seek 
discretionary parole, on a case-by-case basis, in the United States--
serves a significant public benefit for several, interrelated reasons. 
Specifically, we anticipate that the parole of eligible individuals 
pursuant to this process will: (i) enhance border security through a 
reduction in irregular migration of Haitian nationals, including by 
imposing additional consequences on those who seek to enter between 
POEs; (ii) improve vetting for national security and public safety; 
(iii) reduce strain on DHS personnel and resources; (iv) minimize the 
domestic impact of irregular migration from Haiti; (v) provide a 
disincentive to undergo the dangerous irregular journey that puts 
migrant lives and safety at risk and enriches smuggling networks; and 
(vi) fulfill important foreign policy goals to manage migration 
collaboratively in the hemisphere and, as part of those efforts, to 
establish additional processing pathways from within the region to 
discourage irregular migration.
1. Enhance Border Security by Reducing Irregular Migration of Haitian 
Nationals
    As described above, in FY 2022, Haitian nationals made up a 
significant and growing number of those encountered seeking to cross, 
unauthorized, into the United States by land or who are intercepted 
after taking to the sea. While the number of Haitian encounters at our 
land border have

[[Page 1249]]

decreased in recent months, they could quickly rise again due to the 
conditions in Haiti, the significant number of Haitians present in 
Mexico, and the increasing number of Haitians crossing into Panama from 
South America.
    By incentivizing individuals to seek a lawful, orderly means of 
traveling to the United States, while imposing consequences to 
irregular migration, DHS assesses that the new parole process will 
mitigate anticipated future surges of Haitians seeking to cross into 
the United States without authorization, whether by land or by sea. 
This expectation is informed by the recently implemented process for 
Venezuelans and the significant shifts in migratory patterns that took 
place once the process was initiated. The success to date of the 
Venezuela process provides compelling evidence that coupling effective 
disincentives for irregular entry with incentives to travel in a lawful 
and orderly manner can meaningfully shift migration patterns in the 
region and to the SWB.
    Implementation of the parole process is contingent on the GOM's 
independent decision to accept the return of Haitian nationals who 
voluntarily depart the United States, those who voluntarily withdraw 
their application for admission, and those subject to expedited removal 
who cannot be removed to Haiti or elsewhere. The ability to effectuate 
voluntary departures, withdrawals, and removals of Haitian nationals to 
Mexico will impose a consequence on irregular entry that may not exist 
should the security situation in Haiti continue to deteriorate to the 
extent that DHS cannot effectuate sufficient returns in a safe manner.
2. Improve Vetting for National Security and Public Safety
    All noncitizens whom DHS encounters at the border undergo thorough 
vetting against national security and public safety databases during 
their processing. Individuals who are determined to pose a national 
security or public safety threat are detained pending removal. That 
said, there are distinct advantages to being able to vet more 
individuals before they arrive at the border so that we can stop 
individuals who could pose threats to national security or public 
safety even earlier in the process. The Haitian parole process will 
allow DHS to vet potential beneficiaries for national security and 
public safety purposes before they travel to the United States.
    As described below, the vetting will require prospective 
beneficiaries to upload a live photograph via an app. This will enhance 
the scope of the pre-travel vetting--thereby enabling DHS to better 
identify those with criminal records or other disqualifying information 
of concern and deny them travel before they arrive at our border, 
representing an improvement over the status quo.
3. Reduce the Burden on DHS Personnel and Resources
    By mitigating an anticipated increase in encounters of Haitian 
nationals along the SWB as well as maritime interdictions, and 
channeling decreased flows of Haitian nationals to interior POEs, we 
anticipate the process will relieve some of the forecasted impact 
increased migratory flows could have on the DHS workforce, resources, 
and other missions.
    In the Caribbean, DHS also has surged significant resources--mostly 
from USCG--to address the heightened rate of maritime encounters. 
Providing a safe and orderly alternative path is expected to also 
reduce the number of Haitians who seek to enter the United States by 
sea and will allow USCG, in particular, to better balance its other 
important missions, including its counter-drug smuggling operations, 
protection of living marine resources, support for shipping navigation, 
and a range of other critical international engagements.
    In addition, permitting Haitian nationals to voluntarily depart or 
withdraw their application for admission one time and still be 
considered for parole through the process will reduce the burden on DHS 
personnel and resources that would otherwise be required to obtain and 
execute a final order of removal. This includes reducing strain on 
detention and removal flight capacity, officer resources, and reducing 
costs associated with detention and monitoring.
4. Minimize the Domestic Impact
    Though the Venezuelan process has significantly reduced the 
encounters of Venezuelan nationals, other migratory flows continue to 
strain domestic resources, which is felt most acutely by border 
communities. Recent experience, including the Del Rio incident in 
August 2021, show that migratory surges can happen suddenly and quickly 
overwhelm U.S. government and partner resources. Given the number of 
Haitian migrants currently residing in Mexico, the prospect of another 
surge cannot be discounted. The Haiti process directly mitigates 
against such a surge--and the impact it would have on State and local 
governments and civil society stakeholders--by providing a substantial 
incentive for Haitians to use a lawful process to fly directly to the 
United States, and a significant consequence for those who do not.
    Generally, since FY 2019, DHS has worked with Congress to make 
approximately $290 million available through FEMA's EFSP to support 
NGOs and local governments that provide initial reception for migrants 
entering through the SWB. These entities have provided services and 
assistance to Haitian nationals and other noncitizens who have arrived 
at our border, including by building new administrative structures, 
finding additional housing facilities, and constructing tent shelters 
to address the increased need.\69\ FEMA funding has supported building 
significant NGO capacity along the SWB, including a substantial 
increase in available shelter beds in key locations.
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    \69\ CNN, Washington, DC, Approves Creation of New Agency to 
Provide Services for Migrants Arriving From Other States (Sept. 21, 
2022), 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,\70\ and 
stakeholders in the border region have expressed concern that shelters 
will eventually reach full bed space capacity and not be able to host 
any new arrivals.\71\ As Haitian nationals are amongst those being 
conditionally released into communities after being processed along the 
SWB, this parole process will address these concerns by diverting flows 
of Haitian nationals into an orderly and lawful process in ways that 
DHS anticipates will yield a decrease in the numbers arriving at the 
SWB.
---------------------------------------------------------------------------

    \70\ 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/.
    \71\ 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 arriving migrants at the SWB. 
Beneficiaries are required to fly at their own expense to an interior 
POE, rather than arriving at the SWB. They also are only authorized to 
come to the United States if they have a supporter who has agreed to 
receive them and provide

[[Page 1250]]

basic needs, including housing support. Beneficiaries also are eligible 
to apply for work authorization, thus enabling them to support 
themselves.
5. Disincentivize a Dangerous Journey That Puts Migrant Lives and 
Safety at Risk and Enriches Smuggling Networks
    The process, which will incentivize intending migrants to use a 
safe, orderly, and lawful means to access the United States via 
commercial air flights, cuts out the smuggling networks. This is 
critical, because transnational criminal organizations--including the 
Mexican drug cartels--are increasingly playing a key role in human 
smuggling, reaping billions of dollars in profit and callously 
endangering migrants' lives along the way.\72\
---------------------------------------------------------------------------

    \72\ 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.
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    In FY 2022, more than 750 migrants died attempting to enter the 
United States,\73\ an estimated 32 percent increase from FY 2021 (568 
deaths) and a 195 percent increase from FY 2020 (254 deaths).\74\ The 
approximate number of migrants rescued by CBP in FY 2022 (almost 19,000 
rescues) \75\ increased 48 percent from FY 2021 (12,857 rescues), and 
256 percent from FY 2020 (5,336 rescues).\76\ Although exact figures 
are unknown, experts estimate that about 30 bodies have been taken out 
of the Rio Grande River each month since March 2022.\77\ CBP attributes 
these rising trends to increasing numbers of migrants, as evidenced by 
increases in overall U.S. Border Patrol encounters.\78\ The increased 
rates of both migrant deaths and those needing rescue at the SWB 
demonstrate the perils in the migrant journey.
---------------------------------------------------------------------------

    \73\ 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/.
    \74\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal 
Year 2022 Report to Congress.
    \75\ CNN, First on CNN: A Record Number of Migrants Have Died 
Crossing the US-Mexico Border (Sept. 7, 2022), 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\ 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.
    \78\ DHS, CBP, Rescue Beacons and Unidentified Remains: Fiscal 
Year 2022 Report to Congress.
---------------------------------------------------------------------------

    Meanwhile, these numbers do not account for the countless incidents 
of death, illness, and exploitation migrants experience during the 
perilous journey north. These migratory movements are in many cases 
facilitated by numerous human smuggling organizations, for which the 
migrants are pawns; \79\ the organizations exploit migrants for profit, 
often bringing them across inhospitable deserts, rugged mountains, and 
raging rivers, often with small children in tow. Upon reaching the 
border area, noncitizens seeking to cross into the United States 
generally pay transnational criminal organizations (TCOs) to coordinate 
and guide them along the final miles of their journey. Tragically, a 
significant number of individuals perish along the way. The trailer 
truck accident that killed 55 migrants in Chiapas, Mexico, in December 
2021 and the tragic incident in San Antonio, Texas, on June 27, 2022, 
in which 53 migrants died of the heat in appalling conditions, are just 
two examples of many in which TCOs engaged in human smuggling 
prioritize profit over safety.\80\
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    \79\ DHS Memorandum from Alejandro N. Mayorkas, Secretary of 
Homeland Security, to Interested Parties, DHS Plan for Southwest 
Border Security and Preparedness (Apr. 26, 2022), https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf.
    \80\ 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.
    The increase in migrants taking to sea, under dangerous conditions, 
has also led to devastating consequences. In FY 2022, the USCG recorded 
107 noncitizen deaths, including presumed dead, as a result of 
irregular maritime migration. In January 2022, the USCG located a 
capsized vessel with a survivor clinging to the hull. USCG crews 
interviewed the survivor who indicated there were 34 others on the 
vessel who were not in the vicinity of the capsized vessel and 
survivor.\81\ The USCG conducted a multi-day air and surface search for 
the missing migrants, eventually recovering five deceased migrants, 
while the others were presumed lost at sea.\82\ In November 2022, USCG 
and CBP rescued over 180 people from an overloaded boat that became 
disabled off of the Florida Keys.\83\ They pulled 18 Haitian migrants 
out of the sea after they became trapped in ocean currents while trying 
to swim to shore.\84\
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    \81\ Adriana Gomez Licon, Associated Press, Situation `dire' as 
Coast Guard seeks 38 missing off Florida, Jan. 26, 2022, https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019.
    \82\ 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.
    \83\ Ashley Cox, CBS News CW44 Tampa, More than 180 people 
rescued from overloaded vessel in Florida Keys, Nov. 22, 2022, 
https://www.cbsnews.com/tampa/news/more-than-180-people-rescued-from-overloaded-vessel-in-florida-keys/.
    \84\ Id.
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    DHS anticipates this process will save lives and undermine the 
profits and operations of the dangerous TCOs that put migrants' lives 
at risk for profit because it incentivizes intending migrants to use a 
safe and orderly means to access the United States via commercial air 
flights, thus ultimately reducing the demand for smuggling networks to 
facilitate the dangerous journey.
6. Fulfill Important Foreign Policy Goals To Manage Migration 
Collaboratively in the Hemisphere
    Promoting a safe, orderly, legal, and humane migration strategy 
throughout the Western Hemisphere has been a top foreign policy 
priority for the Administration. This is reflected in three policy-
setting documents: the U.S. Strategy for Addressing the Root Causes of 
Migration in Central America (Root Causes Strategy); \85\ the 
Collaborative Migration Management Strategy (CMMS); \86\ and the Los 
Angeles Declaration on Migration and Protection (L.A. Declaration), 
which was endorsed in June 2022 by 21 countries.\87\ The

[[Page 1251]]

CMMS and the L.A. Declaration call for a collaborative and regional 
approach to migration, wherein countries in the hemisphere commit to 
implementing programs and processes to stabilize communities hosting 
migrants or those of high outward-migration; humanely enforce existing 
laws regarding movements across international boundaries, especially 
when minors are involved; take actions to stop migrant smuggling by 
targeting the criminals involved in these activities; and provide 
increased regular pathways and protections for migrants residing in or 
transiting through the 21 countries.\88\ The L.A. Declaration 
specifically lays out the goal of collectively ``expand[ing] access to 
regular pathways for migrants and refugees.'' \89\
---------------------------------------------------------------------------

    \85\ 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.
    \86\ 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.
    \87\ 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/.
    \88\ Id.
    \89\ Id.
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    In June 2022, the U.S. Government announced the planned resumption 
of operations under the Haitian Family Reunification Parole (HFRP) 
program.\90\ Approved HFRP beneficiaries enter the United States as 
parolees but are eligible to apply for lawful permanent residence (LPR) 
status once their immigrant visas become available. However, the 
security situation in Haiti makes it virtually impossible to resume the 
program in a timely manner and with enough resources to process 
meaningful numbers of beneficiaries. Furthermore, the Department of 
State temporarily reduced presence in Haiti due to the security 
situation, hampering its ability to process parents, spouses, and 
children of U.S. citizens and lawful permanent residents for more than 
20,000 beneficiaries with immigrant visas currently available.
---------------------------------------------------------------------------

    \90\ White House, Fact Sheet: The Los Angeles Declaration on 
Migration and Protection U.S. Government and Foreign Partner 
Deliverables (June 2022) https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/.
---------------------------------------------------------------------------

    While HFRP and other efforts represent important progress for 
certain Haitians who are the beneficiaries of family-based immigrant 
petitions, HFRP's narrow eligibility criteria, coupled with the 
operational challenges posed by the security situation in Haiti and 
Department of State's limited family-based visa processing, result in 
modest processing throughput and mean that additional pathways are 
required to meet the current and acute border security and irregular 
migration mitigation objective. This new process will help achieve 
these goals by providing an immediate, temporary, and orderly process 
for Haitian nationals to lawfully enter the United States while we work 
to improve conditions in Haiti and expand more permanent lawful 
immigration pathways in the region, including refugee processing and 
other lawful pathways into the United States and other Western 
Hemisphere countries.
    The process also will respond to an acute foreign policy need 
complementary to regional efforts. Many countries in the region are 
affected by the surge in migration of Haitian nationals, and some are 
eagerly seeking greater United States action to address these 
challenging flows. The Dominican Republic, which shares a border with 
Haiti, hosts thousands of Haitian migrants. Brazil and Chile, which had 
provided Haitians a legal pathway allowing them to reside there, saw 
Haitians leaving in very high numbers as a result of declining economic 
conditions, which were only exacerbated by the COVID-19 pandemic.\91\ 
Peru, Ecuador, and Colombia have observed Haitian migrants who had been 
residing in South America for some time transiting their countries in 
order to reach the SWB. Panama has been particularly hard-hit by these 
migratory flows given its geographic location; additionally, the 
Dari[eacute]n Gap serves as a bottleneck and also creates a 
humanitarian challenge for the country as it seeks to provide shelter, 
medical care, food, and other services to migrants exiting the 
jungle.\92\
---------------------------------------------------------------------------

    \91\ Council on Foreign Relations, Why Are Haitian Migrants 
Gathering at the U.S. Border? October 1, 2021, https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border, (last visited 
Dec. 19, 2022).
    \92\ Reuters, Thousands of mostly Haitian Migrants Traverse 
Panama on Way to United States, Sept. 26, 2021, https://www.reuters.com/world/americas/thousands-mostly-haitian-migrants-traverse-panama-way-united-states-2021-09-26/, (last viewed Dec. 19, 
2021).
---------------------------------------------------------------------------

    Along with the Venezuelan process, this new process will add to 
these efforts and enable the United States to lead by example. Such 
processes are a key mechanism to advance the larger domestic and 
foreign policy goals of the U.S. Government to promote a safe, orderly, 
legal, and humane migration strategy throughout our hemisphere. The new 
process also strengthens the foundation for the United States to press 
regional partners--many of which are already taking important steps--to 
undertake additional actions with regards to this population, as part 
of a regional response. Any effort to meaningfully address the crisis 
in Haiti will require continued efforts by these and other regional 
partners.
    Importantly, the United States will only implement the new parole 
process while able to return or remove to Mexico Haitian nationals who 
enter the United States without authorization across the SWB. The 
United States' ability to execute this process thus is contingent on 
the GOM making an independent decision to accept the return or removal 
of Haitian nationals who bypass this new process and enter the United 
States without authorization.
    For its part, the GOM has made clear its position that, in order to 
effectively manage the migratory flows that are impacting both 
countries, the United States needs to provide additional safe, orderly, 
and lawful processes for migrants who seek to enter the United States. 
The GOM, as it makes its independent decisions as to its ability to 
accept returns of third country nationals at the border and its efforts 
to manage migration within Mexico, is thus closely watching the United 
States' approach to migration management and whether it is delivering 
on its plans in this space. Initiating and managing this process--which 
is dependent on GOM's actions--will require careful, deliberate, and 
regular assessment of GOM's responses to independent U.S. actions and 
ongoing, sensitive diplomatic engagements.
    As noted above, this process is responsive to the GOM's request 
that the United States increase lawful pathways for migrants and is 
also aligned with broader Administration domestic and foreign policy 
priorities in the region. The process couples a meaningful incentive to 
seek a lawful, orderly means of traveling to the United States with the 
imposition of consequences for those who seek to enter irregularly 
along the SWB. The goal of this process is to reduce the irregular 
migration of Haitian nationals while the United States, together with 
partners in the region, works to improve conditions in sending 
countries and create more lawful immigration and refugee pathways in 
the region, including to the United States.

B. Urgent Humanitarian Reasons

    The case-by-case temporary parole of individuals pursuant to this 
process also will address the urgent humanitarian needs of many Haitian 
nationals. As described above, escalating gang violence, the aftermaths 
of an earthquake, and a cholera outbreak have worsened already 
concerning political, economic, and social conditions in Haiti.\93\ 
This process provides a safe mechanism for Haitian nationals who

[[Page 1252]]

seek to enter the United States for urgent humanitarian reasons without 
having to make a dangerous journey by land or sea.
---------------------------------------------------------------------------

    \93\ Congressional Research Service, Haiti: Political Conflict 
and U.S. Policy Overview (Aug. 2, 2022), https://crsreports.congress.gov/product/pdf/IF/IF12182.
---------------------------------------------------------------------------

IV. Eligibility

A. Supporters

    U.S.-based supporters must initiate the process by filing Form I-
134A on behalf of a Haitian national and, if applicable, the national's 
immediate family members.\80\ Supporters may be individuals filing on 
their own, with other individuals, or on behalf of non-governmental 
entities or community-based organizations. Supporters are required to 
provide evidence of income and assets and declare their willingness to 
provide financial support to the named beneficiary for the length of 
parole. Supporters are required to undergo vetting to identify 
potential human trafficking or other concerns. To serve as a supporter 
under the process, an individual must:
     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 Haiti or be a non-Haitian immediate 
family member \81\ and traveling with a Haitian principal beneficiary;
     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 U.S. 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
     demonstrate that a grant of parole is warranted based on 
significant public benefit or urgent humanitarian reasons, as described 
above, and that a favorable exercise of discretion is otherwise 
merited.
    A Haitian national is ineligible to be considered for advance 
authorization to travel to the United States as well as parole under 
this process if that person is a permanent resident or dual national of 
any country other than Haiti, or currently holds refugee status in any 
country, unless DHS operates a similar parole process for the country's 
nationals.\94\
---------------------------------------------------------------------------

    \94\ This limitation does not apply to immediate family members 
traveling with a Haitian 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; \83\
     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.\84\
    Travel Requirements: Beneficiaries who receive advance 
authorization to travel to the United States to seek parole into the 
United States will be responsible for arranging and funding their own 
commercial air travel to an interior POE of the United States.
    Health Requirements: Beneficiaries must follow all applicable 
requirements, as determined by DHS's Chief Medical Officer, in 
consultation with CDC, with respect to health and travel, including 
vaccination and/or testing requirements for diseases including COVID-
19, polio, and measles. The most up-to-date public health requirements 
applicable to this process will be available at 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 Haitians' immediate 
family members and minor children. The supporter will then be vetted by 
USCIS to protect against exploitation and abuse, and to ensure that the 
supporter is able to financially support the beneficiary whom they 
agree to support. Supporters must be vetted and confirmed by USCIS, at 
USCIS' discretion, before moving forward in the process.
Step 2: Submit Biographic Information
    If a supporter is confirmed by USCIS, the listed beneficiary will 
receive an email from USCIS with instructions to create an online 
account with myUSCIS and next steps for completing the application. The 
beneficiary will be required to confirm their biographic information in 
their online account and attest to meeting the eligibility 
requirements.
    As part of confirming eligibility in their myUSCIS account, 
individuals who seek authorization to travel to the United States will 
need to confirm that they meet public health requirements, including 
certain vaccination requirements.
Step 3: Submit Request in CBP One Mobile Application
    After confirming biographic information in myUSCIS and completing 
required eligibility attestations, the beneficiary will receive 
instructions through myUSCIS for accessing the CBP One mobile 
application. The beneficiary must then enter limited biographic 
information into CBP One and submit a live photo.
Step 4: Approval To Travel to the United States
    After completing Step 3, the beneficiary will receive a notice in 
their myUSCIS account confirming whether CBP has, in CBP's discretion, 
provided the beneficiary with advance authorization to travel to the 
United States to seek a discretionary grant of parole on a case-by-case 
basis. If approved, this authorization is generally valid for 90 days, 
and beneficiaries are responsible for securing their own travel

[[Page 1253]]

via commercial air to an interior POE of the United States.\85\ 
Approval of advance authorization to travel does not guarantee parole 
into the United States. Whether to parole the individual is a 
discretionary determination made by CBP at the POE at the time the 
individual arrives at the interior POE.
    All of the steps in this process, including the decision to grant 
or deny advance travel authorization and the parole decision at the 
interior POE, are entirely discretionary and not subject to appeal on 
any grounds.
Step 5: Seeking Parole at the POE
    Each individual arriving under this process will be inspected by 
CBP and considered for a grant of discretionary parole for a period of 
up to two years on a case-by-case basis.
    As part of the inspection, beneficiaries will undergo additional 
screening and vetting, to include additional fingerprint biometric 
vetting consistent with CBP inspection processes. Individuals who are 
determined to pose a national security or public safety threat or 
otherwise do not warrant parole pursuant to section 212(d)(5)(A) of the 
INA, 8 U.S.C. 1182(d)(5)(A), and as a matter of discretion upon 
inspection, will be processed under an appropriate processing pathway 
and may be referred to ICE for detention.
Step 6: Parole
    If granted parole pursuant to this process, each individual 
generally will be paroled into the United States for a period of up to 
two years, subject to applicable health and vetting requirements, and 
will be eligible to apply for employment authorization from USCIS under 
existing regulations. USCIS is leveraging technological and process 
efficiencies to minimize processing times for requests for employment 
authorization. All individuals two years of age or older will be 
required to complete a medical screening for tuberculosis, including an 
IGRA test, within 90 days of arrival to the United States.

D. Scope, Termination, and No Private Rights

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

V. Regulatory Requirements

A. Administrative Procedure Act

    This process is exempt from notice-and-comment rulemaking and 
delayed effective date requirements on multiple grounds, and is 
therefore amenable to immediate issuance and implementation.
    First, the Department is merely adopting a general statement of 
policy,\95\ i.e., a ``statement[] issued by an agency to advise the 
public prospectively of the manner in which the agency proposes to 
exercise a discretionary power.'' \96\ As section 212(d)(5)(A) of the 
INA, 8 U.S.C. 1182(d)(5)(A), provides, parole decisions are made by the 
Secretary of Homeland Security ``in his discretion.''
---------------------------------------------------------------------------

    \95\ 5 U.S.C. 553(b)(A); id. 553(d)(2).
    \96\ See Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting 
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)).
---------------------------------------------------------------------------

    Second, even if this process were considered to be a legislative 
rule that would normally be subject to requirements for notice-and-
comment rulemaking and a delayed effective date, the process would be 
exempt from such requirements because it involves a foreign affairs 
function of the United States.\97\ Courts have held that this exemption 
applies when the rule in question ``is clearly and directly involved in 
a foreign affairs function.'' \98\ In addition, although the text of 
the Administrative Procedure Act does not expressly require an agency 
invoking this exemption to show that such procedures may result in 
``definitely undesirable international consequences,'' some courts have 
required such a showing.\99\ This rule satisfies both standards.
---------------------------------------------------------------------------

    \97\ 5 U.S.C. 553(a)(1).
    \98\ Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) 
(cleaned up).
    \99\ See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 
2008).
---------------------------------------------------------------------------

    As described above, this process is directly responsive to requests 
from key foreign partners--including the GOM--to provide a lawful 
process for Haitian nationals to enter the United States. The United 
States will only implement the new parole process while able to return 
or remove Haitian nationals who enter the United States without 
authorization across the SWB. The United States' ability to execute 
this process is contingent on the GOM making an independent decision to 
accept the return or removal of Haitian nationals who bypass this new 
process and enter the United States without authorization. Thus, 
initiating and managing this process will require careful, deliberate, 
and regular assessment of the GOM's responses to U.S. action in this 
regard, and ongoing, sensitive diplomatic engagements.
    Delaying issuance and implementation of this process to undertake 
rulemaking would undermine the foreign policy imperative to act now. It 
also would complicate broader discussions and negotiations about 
migration management. For now, the GOM has indicated it is prepared to 
make an independent decision to accept the return or removal of Haitian 
nationals. That willingness could be impacted by the delay associated 
with a public rulemaking process involving advance notice and comment 
and a delayed effective date. Additionally, making it publicly known 
that we plan to return or remove nationals of Haiti to Mexico at a 
future date would likely result in a surge in migration, as migrants 
rush to the border to enter before the process begins--which would 
adversely impact each country's border security and further strain 
their personnel and resources deployed to the border.
    Moreover, this process is not only responsive to the interests of 
key foreign partners--and necessary for addressing migration issues 
requiring coordination between two or more governments--it is also 
fully aligned with larger and important foreign policy objectives of 
this Administration and fits within a web of carefully negotiated 
actions by multiple governments (for instance in the L.A. Declaration). 
It is the view of the United States that the implementation of this 
process would advance the Administration's foreign policy goals by 
demonstrating U.S. partnership and U.S. commitment to the shared goals 
of addressing migration through the hemisphere, both of which are 
essential to maintaining strong bilateral relationships.
    The invocation of the foreign affairs exemption here is also 
consistent with Department precedent. For example, DHS published a 
notice eliminating an exception to expedited removal for certain Cuban 
nationals, which explained that the change in policy was consistent 
with the foreign affairs

[[Page 1254]]

exemption because the change was central to ongoing negotiations 
between the two countries.\100\ DHS similarly invoked the foreign 
affairs exemption more recently, in connection with the Venezuela 
parole process.\101\
---------------------------------------------------------------------------

    \100\ See 82 FR 4902 (Jan. 17, 2017).
    \101\ 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.\102\ The numbers of Haitians 
encountered at the SWB are already high, and a delay would greatly 
exacerbate an urgent border and national security challenge and would 
miss a critical opportunity to reduce and divert the flow of irregular 
migration.\103\
---------------------------------------------------------------------------

    \102\ See 5 U.S.C. 553(b)(B); id. 553(d)(3).
    \103\ See Chamber of Commerce of U.S. v. SEC., 443 F.3d 890, 908 
(D.C. Cir. 2006) (``The [``good cause''] exception excuses notice 
and comment in emergency situations, where delay could result in 
serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)).
---------------------------------------------------------------------------

    Undertaking notice-and-comment rule making procedures would be 
contrary to the public interest because an advance announcement of the 
process would seriously undermine a key goal of the policy: it would 
incentivize even more irregular migration of Haitian nationals seeking 
to enter the United States before the process would take effect. There 
are urgent border and national security and humanitarian interests in 
reducing and diverting the flow of irregular migration.\104\ It has 
long been recognized that agencies may use the good cause exception, 
and need not take public comment in advance, where significant public 
harm would result from the notice-and-comment process.\105\ If, for 
example, advance notice of a coming price increase would immediately 
produce market dislocations and lead to serious shortages, advance 
notice need not be given.\106\ A number of cases follow this logic in 
the context of economic regulation.\107\
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    \104\ See 5 U.S.C. 553(b)(B).
    \105\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94-95 
(D.C. Cir. 2012) (noting that the ``good cause'' exception ``is 
appropriately invoked when the timing and disclosure requirements of 
the usual procedures would defeat the purpose of the proposal--if, 
for example, announcement of a proposed rule would enable the sort 
of financial manipulation the rule sought to prevent [or] in order 
to prevent the amended rule from being evaded'' (cleaned up)); 
DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct. 
App. 1975) (``[W]e are satisfied that there was in fact `good cause' 
to find that advance notice of the freeze was `impracticable, 
unnecessary, or contrary to the public interest' within the meaning 
of Sec.  553(b)(B). . . . Had advance notice issued, it is apparent 
that there would have ensued a massive rush to raise prices and 
conduct `actual transactions'--or avoid them--before the freeze 
deadline.'' (cleaned up)).
    \106\ See, e.g., Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp. 
Emer. Ct. App. 1975) (``[W]e think good cause was present in this 
case based upon [the agency's] concern that the announcement of a 
price increase at a future date could have resulted in producers 
withholding crude oil from the market until such time as they could 
take advantage of the price increase.'').
    \107\ See, e.g., Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 
890, 908 (D.C. Cir. 2006) (``The [``good cause''] exception excuses 
notice and comment in emergency situations, where delay could result 
in serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)); Mobil 
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct. 
App. 1983) (``On a number of occasions . . . this court has held 
that, in special circumstances, good cause can exist when the very 
announcement of a proposed rule itself can be expected to 
precipitate activity by affected parties that would harm the public 
welfare.'').
---------------------------------------------------------------------------

    The same logic applies here, where the Department is responding to 
exceedingly serious challenges at the border, and advance announcement 
of that response would significantly increase the incentive, on the 
part of migrants and others (such as smugglers), to engage in actions 
that would compound those very challenges. It is well established that 
migrants may change their behavior in response to perceived imminent 
changes in U.S. immigration policy.\108\ For example, as detailed 
above, implementation of the parole process for Venezuelans was 
associated with a drastic reduction in irregular migration by 
Venezuelans. Had the parole process been announced prior to a notice-
and-comment period, it likely would have had the opposite effect, 
resulting in many hundreds of thousands of Venezuelan nationals 
attempting to cross the border before the program went into effect. 
Overall, the Department's experience has been that in some 
circumstances when public announcements have been made regarding 
changes in our immigration laws and procedures that would restrict 
access to immigration benefits to those attempting to enter the United 
States along the U.S.-Mexico land border, there have been dramatic 
increases in the numbers of noncitizens who enter or attempt to enter 
the United States. Smugglers routinely prey on migrants in response to 
changes in domestic immigration law.
---------------------------------------------------------------------------

    \108\ 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 is likely to contribute to more Haitians 
attempting to enter irregularly either at the SWB or by sea, at a time 
when DHS has extremely limited options for processing, detaining, or 
quickly removing such migrants safely and in sufficient numbers. 
Inaction would unduly impede DHS's ability to fulfill its critical and 
varied missions. At current rates, a delay of just a few months to 
conduct notice-and-comment rulemaking would effectively forfeit an 
opportunity to reduce and divert migrant flows in the near term, harm 
border security, and potentially result in scores of additional migrant 
deaths.
    The Department's determination here is consistent with past 
practice in this area. For example, in addition to the Venezuelan 
process described above, DHS concluded in January 2017 that it was 
imperative to give immediate effect to a rule designating Cuban 
nationals arriving by air as eligible for expedited removal because 
``pre-promulgation notice and comment would . . . endanger[ ] human 
life and hav[e] a potential destabilizing effect in the region.'' \109\ 
DHS cited the prospect that ``publication of the rule as a proposed 
rule, which would signal a significant change in policy while 
permitting continuation of the exception for Cuban nationals, could 
lead to a surge in migration of Cuban nationals seeking to travel to 
and enter the United States during the period between the publication 
of a proposed and a final rule.'' \110\ DHS found that ``[s]uch a surge 
would threaten national security and public safety by diverting 
valuable Government resources from counterterrorism and homeland 
security responsibilities. A surge could also have a destabilizing 
effect on the region, thus weakening the security of the United States 
and threatening its international relations.'' \111\ DHS concluded that 
``a surge could result in significant loss of human life.'' \112\
---------------------------------------------------------------------------

    \109\ Eliminating Exception to Expedited Removal Authority for 
Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017).
    \110\ Id.
    \111\ Id.
    \112\ Id.; accord, e.g., Visas: Documentation of Nonimmigrants 
Under the Immigration and Nationality Act, as Amended, 81 FR 5906, 
5907 (Feb. 4, 2016) (finding the good cause exception applicable 
because of similar short-run incentive concerns).

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[[Page 1255]]

B. Paperwork Reduction Act (PRA)

    Under the Paperwork Reduction Act (PRA), 44 U.S.C. chapter 35, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any new reporting requirements 
they impose. The process announced by this notice requires changes to 
two collections of information, as follows.
    OMB has recently approved a new collection, Form I-134A, Online 
Request to be a Supporter and Declaration of Financial Support (OMB 
control number 1615-NEW). This new collection will be used for the 
Haiti parole process, and is being revised in connection with this 
notice, including by increasing the burden estimate. To support the 
efforts described above, DHS has created a new information collection 
that will be the first step in these parole processes and will not use 
the paper USCIS Form I-134 for this purpose. U.S.-based supporters will 
submit USCIS Form I-134A online on behalf of a beneficiary to 
demonstrate that they can support the beneficiary for the duration of 
their temporary stay in the United States. USCIS has submitted and OMB 
has approved a request for emergency authorization of the required 
changes (under 5 CFR 1320.13) for a period of 6 months. Within the next 
90 days, USCIS will immediately begin normal clearance procedures under 
the PRA.
    OMB has previously approved an emergency request under 5 CFR 
1320.13 for a revision to an information collection from CBP entitled 
Advance Travel Authorization (OMB control number 1651-0143). In 
connection with the implementation of the process described above, CBP 
is making multiple changes under the PRA's emergency processing 
procedures at 5 CFR 1320.13, including increasing the burden estimate 
and adding Haitian nationals as eligible for a DHS established process 
that necessitates collection of a facial photograph in CBP 
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. 2023-00255 Filed 1-5-23; 4:15 pm]
BILLING CODE 9110-09-P