Read the original article: President Biden’s Immigration Executive Actions: A Recap
In his first weeks in office, President Biden issued several executive actions focused on reevaluating and unwinding the panoply of protectionist immigration policies former President Trump set in place through executive branch action. Some actions, like the Task Force on the Reunification of Families, focus on repairing past harms. Others, like Biden’s executive order on Deferred Action for Childhood Arrivals (DACA), are largely symbolic and serve as a clear repudiation of the Trump administration’s anti-immigrant agenda. While the executive actions are a meaningful first step, their scope is limited for a number of reasons.
First, achieving change on the ground will take time. According to immigration law professor Lucas Guttentag’s Immigration Policy Tracking Project, the Trump administration made more than 1,000 policy changes to the immigration system. Biden’s executive orders address only the tip of that iceberg. Moreover, unwinding many of Trump’s regulations will require the government to issue a notice of proposed rule-making followed by a public comment period. This process could take months or years.
Second, enforcement of Biden’s policies is not a guarantee. Even the executive actions that take immediate effect—for instance, Biden’s interim interior enforcement priorities—raise questions about the extent to which Trump’s anti-immigrant legacy will get in the way of concrete change. For example, Biden’s 100-day moratorium on deportations has already been challenged by state officials and enjoined by a federal court. Immigration and Customs Enforcement’s (ICE’s) compliance with the interim enforcement measures will also be an important test.
Third, Trump’s anti-immigrant legacy has left completely gutted systems in its wake, which will take time to restore. The United States Refugee Admissions Program (USRAP) is but one example. Understaffed and in complete disrepair, USRAP will need to be rebuilt before it can begin accepting 125,000 refugees per year—Biden’s promise on the campaign trail.
Finally, despite Biden’s directive to suspend the Migrant Protection Protocols, the U.S.-Mexico border remains effectively sealed under a Trump-era pandemic policy. Until Biden addresses this pandemic policy, seeking asylum at the southern border is no longer a possibility for new arrivals.
This guide describes the scope and context of Biden’s early immigration executive actions, outlines where their effect is limited, and emphasizes where more action is needed.
The following table of contents are links to the sections of this guide, which correspond to different areas of executive action policy:
Interior Enforcement Priorities
Deferred Action for Childhood Arrivals
Reviewing Agency Rules, Public Charge and Naturalization
Temporary Protected Status and Deferred Enforced Departure
During his presidency, Trump tested the limits of the executive branch in an effort to sharply limit asylum in the United States. Many of these policies were designed specifically to deter noncitizens from seeking asylum rather than to uphold obligations under domestic and international law. According to the Immigration Policy Tracking Project, the Trump administration crafted 96 asylum-related policies during his four years in office.
Biden’s sweeping executive order titled “Creating a Comprehensive Regional Framework to Address the Causes of Immigration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border” orders the secretary of homeland security to review some of these punitive policies, many of which have been subject to legal challenges in court. The order also aims to create a comprehensive regional framework to address the root causes of migration.
However, this executive order alone will not automatically remove obstacles to seeking asylum. In many cases, unraveling Trump’s regulations will require the relevant government agency to issue a notice of proposed rule-making followed by a public comment period. Proposed rules will also need to be crafted carefully so that they are not vulnerable to litigation. And many of the changes the Trump Administration made to the asylum system are subregulatory—policy changes that are not subject to the formal rule-making process and, therefore, are much more difficult to reverse. As a result, unwinding the previous administration’s attack on asylum could take several months or years.
Finally, irrespective of Biden’s order, the southern border remains effectively sealed to asylum seekers under a Trump-era public health order, issued pursuant to Title 42 of the Public Health Service Act. The Trump administration used Title 42 to override immigration laws and justify expelling asylum seekers from seeking America’s help. The Biden administration is currently implementing the same policy.
Migrant Protection Protocols
In a Dec. 20, 2018, press release, the Department of Homeland Security (DHS) announced that it would begin forcing thousands of asylum seekers to wait for their U.S. immigration proceedings to unfold in Mexico. The Migrant Protections Protocols, as the policy was called, became responsible for the squalid, open-air refugee camps that appeared on the United States’s doorstep, in Matamoros, Mexico. The displaced Central American asylum seekers subject to the program became easy targets for cartels and kidnappings.
On Biden’s first day in office, DHS announced that it would no longer place asylum seekers in the punitive program. This executive order simply affirmed that announcement but did not address how and when Migrant Protection Protocols would be phased out for the thousands already enrolled in the program. On Feb. 11, after Secretary of Homeland Security Alejandro Mayorkas was confirmed, DHS announced that it would begin Phase 1 of a program to restore processing for those individuals already enrolled. Phase 1 began on Feb. 19 with a group of 25 asylum seekers entering the San Ysidro Port of Entry in California, and on Feb. 25, the government began processing asylum seekers out of Matamoros, after nearly two years surviving in the encampment there.
While the announcement is welcome news for the individuals who were forced to remain in Mexico, the southern border remains effectively closed to new asylum seekers. Jen Psaki, the White House press secretary, announced on Feb. 10 that the Biden administration will continue to expel most migrants and asylum seekers from the southern border under Trump’s Title 42 pandemic policy. On March 1, Mayorkas reaffirmed Psaki’s announcement.
Asylum Ban 1.0
On Nov. 9, 2018, the Trump administration issued an interim final rule barring from asylum relief those individuals who entered the United States through the southern border at a place other than a recognized point of entry. Though the Supreme Court enjoined the policy in February 2020, Biden’s executive order officially ends the policy and orders DHS to unwind the regulations that made the policy operative.
Expedited Removal
Expedited removal, created by Congress in 1996, allows for the summary removal of asylum seekers without safeguards such as judicial review. On July 22, 2019, the Trump administration announced the vast expansion of expedited removal. Instead of applying to a circumscribed population—individuals 100 miles from the border who had been in the U.S. for 14 days or fewer—the summary removal process would now apply anywhere in the U.S. to individuals who had been in the country for two years or fewer. While a lawsuit brought by the ACLU temporarily paused implementation of the order, the Supreme Court lifted the pause last year.
Biden’s executive action instructs the secretary of homeland security to “consider whether to modify, revoke, or rescind” the procedures for individuals placed in expedited removal proceedings. It also asks the secretary to recommend a more efficient and orderly process “that facilitates timely adjudications and adherence to standards of fairness and due process.”
Like many of the other regulations Biden has instructed DHS to review and unwind, rescinding the designation titled “Designating Aliens for Expedited Removal” could take several months or years. In the meantime, asylum seekers remain vulnerable to a fast-track deportation system.
Safe Third Country Agreements
In an effort to deter Central American asylum seekers from seeking humanitarian protection in the United States, the Trump administration entered into Asylum Cooperative Agreements with Guatemala, El Salvador and Honduras that forced individuals fleeing for their lives to seek asylum in the very countries they fled.
Biden’s executive order directs the attorney general and the secretary of homeland security to “promptly review and determine” whether to rescind the interim final rule, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” as well as any agency memoranda or guidance issued in reliance on that rule. Subsequently, the State Department issued a stronger statement on Feb. 6, announcing the immediate suspension and eventual termination of the Asylum Cooperative Agreements. Although the agreements have been suspended, unwinding the rule will take much longer. Meanwhile, the legality of the rule and implementation of the agreements have been challenged in the U.S. Court of Appeals for the D.C. Circuit. The lawsuit may present an opportunity for the plaintiffs—asylum seekers and advocacy organizations—to work with the government to rescind the rule itself.
Transfers under the U.S.-Guatemala Asylum Cooperative Agreement had been paused since mid-March 2020 due to the coronavirus, and the agreements with El Salvador and Honduras were never implemented.
Asylum Eligibility
Under the Immigration and Nationality Act, the attorney general has broad authority to reopen and refer to himself or herself cases previously decided by the Board of Immigration Appeals. Pushing the limits of his authority, former Attorney General Jeff Sessions certified several cases, including Matter of A-B- (2018)—a case that centers on a woman who fled El Salvador following escalating threats and persecution from her husband—in order to drastically limit asylum for victims of private criminal activity (as opposed to state-sponsored persecution). Although many courts have held that Matter of A-B- does not substantively change asylum law, some courts have interpreted the decision to vastly narrow asylum eligibility for victims of gender-based and gang violence. Matter of A-B- has thus created uncertainty in asylum law and limited the kinds of claims asylum seekers can successfully bring. During Trump’s final days in office, then-Acting Attorney General Jeffrey Rosen issued a new ruling in Matter of A-B-, reaffirming Sessions’s decision and creating additional barriers for asylum seekers.
Biden’s executive order addres
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Read the original article: President Biden’s Immigration Executive Actions: A Recap