Published by The Lawfare Institute
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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:
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, 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.
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 addresses the fallout from Matter of A-B- by ordering a 180-day review of asylum eligibility for victims of domestic violence and gang violence. Immigration advocates hope the Biden administration will vacate both attorney general rulings and revoke regulations that attempt to codify Matter of A-B-. Those regulations—coined the “Death to Asylum Rule”—have been enjoined by a federal district court in California in Pangea Legal Services II v. DHS but have not been addressed by any of Biden’s executive actions to date. One of the most sweeping regulations to completely destroy access to asylum, the 419-page “Death to Asylum Rule” does much more than restrict gender-based asylum eligibility. It also narrows asylum eligibility for individuals who have faced persecution based on their political opinion, truncates the definition of what has traditionally qualified as persecution, cuts off eligibility for those who passed through at least one country en route to the United States and did not seek asylum in that country, and restricts the types of evidence that asylum seekers may present, among many other measures. The rule would have taken effect on Jan. 11 had it not been enjoined.
On his first day in office, Biden issued an executive order titled “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities,” revoking a Trump administration order that prioritized almost all undocumented individuals for deportation. A subsequent DHS memorandum implementing the executive order established three narrow interim priorities for immigration enforcement and put in place a 100-day moratorium on nearly all deportations pending further review of interior enforcement priorities. While the new enforcement priorities officially took effect Feb. 1, a federal judge in Texas has already placed a temporary nationwide pause on the moratorium. Most recently, on Feb. 18, Acting ICE Director Tae D. Johnson issued a memorandum establishing interim guidance in support of the DHS memorandum. This new memorandum is effective immediately and will remain in effect until Mayorkas issues new enforcement guidelines.
Taken together, Biden’s executive order and the accompanying DHS memorandum marked an important shift in the way the executive branch thinks about who should be prioritized for deportation. For example, the new priorities contrasted sharply with the previous administration’s complete gutting of prosecutorial discretion. And the interim priorities clashed with Obama-era immigration policy, too, by only prioritizing individuals who belong to three distinct categories: those who are suspected of terrorism or espionage; those who entered the U.S. after Nov. 1, 2020; and those who have committed an aggravated felony as defined by the Immigration and Nationality Act. In contrast, while the Obama administration exercised some discretion in its approach to immigration enforcement, noncitizens with criminal convictions of any kind were prioritized in its policies.
However, the more recent ICE memorandum—which controls—walks back some of the DHS memorandum’s narrow enforcement goals by permitting enforcement and deportation actions outside of the three enumerated criteria in “non-exigent” circumstances, as long as preapproval is obtained from the ICE field office director or the special agent in charge. In determining whether to pursue an action that falls outside the criteria, an ICE officer or agent must weigh whether the individual has any criminal convictions, the seriousness and recency of those convictions, and “whether a threat to public safety can be addresses through other means, such as through recourse to criminal law enforcement authorities” or through “public health and other civil authorities at the state and local level.” In contrast to the DHS memorandum, the ICE guidelines give the agency broad discretion to arrest and detain immigrants. The ICE memorandum also expands the DHS memorandum’s third enforcement category to include individuals who have been convicted of an offense involving participation in a criminal street gang.
Thus, despite the meaningful shift in immigration policy that Biden’s day-one actions on immigration enforcement symbolized, the extent of interior enforcement activity will effectively depend on the behavior of ICE field officers, many of whom were installed under the Trump administration. While the DHS memorandum mandates that resources be allocated according to the interim enforcement priorities, it also states that nothing should “prohibit the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein.” Moreover, the ICE memorandum goes one step further by emphasizing that “the interim priorities do not require or prohibit the arrest, detention, or removal of any noncitizen” (emphasis added), granting unfettered discretion to ICE officers. With the backdrop of the ICE memorandum’s strong language, it remains an open question whether ICE field offices will implement interim enforcement guidelines, especially given early signals that ICE officers have no intention to comply.
Early opposition to the DHS memorandum also foreshadows the uphill battle the executive branch will likely face in its efforts to achieve meaningful and lasting immigration reform. Two days after the memorandum was published, the attorney general of Texas challenged the 100-day deportation moratorium on the grounds that “suspending the removal of illegal aliens” would impact Texas’s “law enforcement, housing, education, employment, commerce, and healthcare needs and budgets.” A federal judge in South Texas surprisingly granted the state’s request to temporarily enjoin the 100-day deportation moratorium, and on Feb. 24, the judge suspended the moratorium indefinitely. The decision is a blow to immigrant advocacy groups that had pushed Biden to issue a deportation moratorium in order to allow the administration an opportunity to review and reset interior enforcement priorities, which the Trump administration had eliminated. Meanwhile, ICE has continued to deport immigrants at alarming rates.
While the 100-day moratorium is paused nationwide, the DHS interim measures went into effect on Feb. 1 and are superseded by the more recent ICE memorandum, which will remain in effect until Mayorkas issues new guidelines in less than 90 days.
The executive order titled “Proclamation on the Termination of Emergency With Respect to the Southern Border of The United States and Redirection of Funds Diverted to Border Wall Construction” rescinds a 2019 executive action issued by Trump that declared a national emergency at the U.S.-Mexico border. It also purports to pause construction of the southern border wall. The pause applies to wall projects funded by the $1.375 billion Trump procured from Congress as well as wall projects funded by several billion dollars of redirected funds from the Department of Defense and the Treasury Forfeiture Fund.
During his presidency, Trump expanded the border wall along the southern border by 450 miles. Various lawsuits have challenged the legality of repurposing funds through a national emergency declaration after Congress had denied those funds. In light of the executive order’s revocation of Trump’s national emergency declaration, the acting solicitor general recently asked the Supreme Court to take a case challenging border wall construction, originally scheduled for oral argument on Feb. 22, off of its argument calendar.
This executive order leaves several questions unanswered.
First, to what extent will Biden use surveillance at the border? During his campaign, Biden stated that instead of siphoning federal dollars from the Department of Defense to build a wall, he would direct federal resources to “smart” border enforcement efforts. On the campaign trail, Biden hinted at what these technology enforcement mechanisms might look like—cameras, sensors, large-scale X-ray machines and fixed towers. But many questions remain, especially given the increased use of DNA testing on noncitizens and a new proposal to employ facial recognition technology at the border. A White House fact sheet detailing Biden’s new immigration bill also calls for “smart border controls” that employ technology between ports of entry.
Second, the language of Biden’s executive order makes it possible for border wall construction to continue. During the 60-day pause, Biden administration officials have been charged with conducting a “careful review” of all resources appropriated or redirected to construct a southern border wall. During this review, officials must develop a plan for the redirection of funds and assess the “legality of the funding and contracting methods used to construct the wall.” Notably absent from the language is a clear plan to terminate outstanding contracts, a process that some observers have predicted could be “very lengthy and messy.”
The pause also contains a major exception for “funds appropriated by Congress.” The secretaries of defense and homeland security may make an exception for these funds in order to ensure they “fulfill their intended purpose.” And according to the latest Custom and Border Patrol figures, funding appropriated by Congress since 2018 is enough to pay for 298 miles of barrier—about 71 miles of which have been completed. That leaves up to 227 additional miles of border wall that, under the executive order’s exception, may still go forward.
Finally, stopping all border construction will not mitigate or restore the damage the wall has already caused to people and the environment. Trump’s wall has cut off access to water supplies, blasted entire sections of mountaintops and desecrated cherished border sites—for example, national parks, forest lands and an ancestral cemetery. Biden’s executive order does not contain any language focused on restoration or mitigation of those harms.
Pursuant to the Refugee Act of 1980, the president—after consulting with Cabinet representatives and Congress—sets the annual cap on refugees for the upcoming fiscal year. Under Obama, the ceiling for refugee admissions was set at 110,000 for 2017, and under Trump, the ceiling for refugee admission was lowered each year, dropping to only 18,000 for the current fiscal year—the lowest level in the history of USRAP.
The Trump administration also issued a memorandum creating complicated vetting procedures, which in turn contributed to an insurmountable backlog. Still, other measures further paralyzed the program. For instance, the Trump administration reduced personnel and placed limitations on referrals from the United Nations High Commissioner for Refugees. Reduced annual limits on the number of refugees also contributed to budget cuts, which shuttered resettlement offices.
Biden’s executive order titled “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration” is the first step toward rebuilding a program that was effectively gutted under Trump. The order requires an examination of the onerous vetting processes that Trump put in place, and it also calls for the annual cap on refugees to be expanded and brought in line with domestic law, international obligations and the humanitarian purposes expressed by the Congress in enacting the Refugee Act of 1980.
Biden has said that he will “seek to position the U.S. to accept 125,000 refugees during the first full fiscal year of his administration,” meaning that changes to the refugee cap would not be immediate.
The executive order also expands eligibility for U.S. refugee resettlement, including LGBTQ refugees and refugees forcibly displaced due to climate change.
Biden’s proclamation titled “Ending Discriminatory Bans on Entry to the United States” rescinds four iterations of the Trump administration’s bans on noncitizens from African and predominantly Muslim countries, calling the bans a “a stain on our national consciousness.” Effective immediately, the proclamation directs the U.S. government to no longer deny immigrant and nonimmigrant visas to nationals of Libya, Iran, Somalia, Yemen, Syria, Sudan, Nigeria, Tanzania, Myanmar, Eritrea, Kyrgyzstan, North Korea and Venezuela, solely because of their country of nationality. The third iteration of the Trump’s Muslim ban had previously been upheld by the Supreme Court in 2018.
The executive order also calls for the secretaries of state and homeland security, in consultation with the director of national intelligence, to review current screening and vetting procedures. This review is likely intended to address the Trump administration’s vast use of social media surveillance in adjudicating immigration and nonimmigrant visa applications, which raised First Amendment concerns.
However, a Trump-era executive order blocking visa processing from certain countries in light of the coronavirus pandemic remains intact. While Presidential Proclamation 10014—which prohibited the entry of certain immigrant visa applicants—was rescinded by executive action on Feb. 24, Presidential Proclamation 10052 remains in place, suspending entry to the United States of nonimmigrant visa applicants “who present a risk to the U.S. labor market during the economic recovery following the novel coronavirus outbreak.” This proclamation has continued to keep families separated and has disproportionately affected individuals from African nations—perpetuating the exclusionary effects of the Muslim bans. Advocates have called for President Biden to rescind the proclamation.
In addition, through a proclamation executed on Jan. 25, Biden restricted and suspended entry of noncitizens to the United States from certain countries where coronavirus variants were prevalent, including the Schengen Area, the United Kingdom, Ireland, Brazil and South Africa.
On his first day in office, Biden issued a memorandum entitled “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),” reaffirming his commitment to preserve the DACA program and protect DACA recipients. It follows failed attempts by the Trump administration to rescind the program. Biden’s memorandum begins by outlining the history of and values underlying DACA, but it has one central mandate: “The Secretary of Homeland Security, in consultation with the Attorney General, shall take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”
Created under Obama in 2012 to protect young immigrants, or “Dreamers,” DACA is a policy of using prosecutorial discretion to defer removal actions against individuals under the age of 30 who came to the U.S. as children, attended school or enrolled in the U.S. military and have not committed certain crimes. Under the policy, eligible immigrants can request temporary relief from removal and obtain work authorization as well as other federal benefits. DACA does not provide legal status nor does it create a path toward permanent residency or citizenship, and recipients must reapply every two years.
In 2014, Obama announced an expansion of DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a program providing relief from deportation and work permits for parents of U.S. citizens and lawful permanent residents. Twenty-six states challenged the programs, but in 2016 an evenly divided Supreme Court did not reach a majority decision regarding whether expanded DACA and DAPA were valid. Thus, the preliminary injunction remained intact in the states that challenged the programs. In June 2017, the Trump administration rescinded DAPA, thereby ending the program before it could even take effect.
In September 2017, the Trump administration announced plans to terminate DACA altogether. Civil rights groups, states and agencies across the country filed lawsuits challenging the DACA rescission on statutory and constitutional grounds. In June 2020, the Supreme Court overturned the Trump administration’s attempt to terminate DACA. Although DHS attempted to undermine the Supreme Court decision by announcing a policy of denying new DACA applications and limiting renewals, after being ordered by a Maryland district court to begin accepting new applications and by a New York district court to restore the program in its entirety, DHS resumed accepting first-time applications and renewal requests in December 2020.
Still, DACA faces additional legal challenges. In 2018, Texas Attorney General Ken Paxton, along with six other state attorneys general, filed a lawsuit in the Southern District of Texas, before the same judge who decided DAPA, challenging DACA’s legality as an overreach of the executive branch and seeking to end the program. The judge has not yet ruled but has indicated that he thinks DACA is illegal and has heard additional arguments from both sides in December 2020. Thus, although DACA still exists, the ongoing hostility to the program has left many DACA recipients and DACA-eligible immigrants feeling uncertain.
Biden’s DACA memorandum is a direct response to the previous administration’s sustained attacks on the program. Although it is short, uses vague language and does not make substantive legal changes, it represents a clear repudiation of the Trump administration’s attempts to undermine DACA and a commitment to restoring—and potentially expanding—the program. This memorandum paves the way for the nearly 650,000 active DACA recipients to renew and more than 300,000 DACA-eligible immigrants to apply for DACA.
While DACA does not confer a permanent immigration status or a path to citizenship, the executive order reaffirms Biden’s broader plan to create a path to citizenship for Dreamers and other undocumented immigrants. In keeping with his campaign promise to “commit significant political capital to finally deliver legislative immigration reform,” on day one, Biden also announced his proposed immigration bill, the U.S. Citizenship Act. The proposed bill would make DACA recipients, as well as Temporary Protected Status (TPS) holders and some farm workers, immediately eligible to apply for a green card and, after three years, eligible to apply for citizenship. This legislative step in addition to the executive order is crucial to protecting Dreamers against deportation in the event that DACA is invalidated by a federal court.
Although there has been Republican opposition to creating a path to citizenship more broadly, there is bipartisan support for creating a path to citizenship or permanent immigration status for DACA recipients. Recently, Sens. Dick Durbin and Lindsey Graham introduced a bill creating a path to citizenship for Dreamers. Further, there is massive public support for DACA—it is one of the most popular immigration policies of the Obama era. Thus, Biden’s commitment to DACA not only undoes the damage of the Trump administration but also represents a step toward expanding DACA eligibility and establishing a permanent legal status for DACA recipients.
On Feb. 2, Biden issued the “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” an order aimed at improving immigration processes and other benefits for the 40 million foreign-born individuals already living in the United States. In the order, Biden introduces a policy of “develop[ing] welcoming strategies that promote integration, inclusion, and citizenship, and ... embrac[ing] the full participation of the newest Americans in our democracy” as a guidepost for the executive order.
Agency Policy Review
Over the past four years, the Trump administration introduced regulations, orders, guidance documents and policies in order to restrict legal immigration and even U.S. citizenship. For instance, DHS increased immigration application fees and made it more difficult for individuals to obtain a fee waiver. Application processing times also skyrocketed, and policies such as the “no blank spaces” policy were created to purposefully slow processing times. The Executive Office of Immigration Review, a division of the Justice Department that administers the immigration courts, has also faced massive case backlogs in recent years, resulting in many immigrants waiting for years to have their cases adjudicated.
Section 3 of the executive order, entitled “Restoring Trust in our Legal Immigration System,” instructs the secretaries of state and homeland security and the attorney general to identify barriers to accessing immigration benefits and “fair, efficient adjudications of these benefits” and make recommendations on how to remove these barriers.
Section 3 also instructs the agency heads to identify any agency actions that fail to promote access to the immigration system, including the recently updated U.S. Citizenship and Immigration Services (USCIS) fee schedule, and to recommend steps to revise or rescind those actions. The executive order requires the secretaries to submit a plan outlining the steps their agencies will take in furtherance of the order’s guiding policy to Biden by May and to provide a progress report six months after submitting the plan.
These are tangible efforts to reverse the administrative hurdles created by the Trump administration. The policy review will be important because many policy changes were not made public and thus the full extent of administrative barriers the Trump administration created to exclude immigrants is unknown. The success of the Biden administration’s efforts to make known and reverse these policies will not be clear until the end of 2021, when the secretaries provide their progress report.
Sections 4 and 6 address public charge. Under U.S. immigration law, noncitizens who are “likely at any time to become a public charge” are deemed inadmissible, meaning that the government can deny their applications to adjust their immigration status or enter the United States. For many years, DHS applied the public charge rule to applicants enrolled in public benefits programs only when they had little or no income. However, the Trump administration broadened the definition of “public charge” to allow DHS officials to deny admission or adjustment of immigration status to any noncitizen who received one or more public benefit, such as food stamps or Medicaid, for more than 12 months within a three-year period. This rule essentially created a wealth test for immigration status and deterred immigrants from utilizing essential public benefits “out of fear of real or perceived immigration consequences.”
The rule was challenged by many immigrants’ rights groups and initially enjoined by many federal courts. In January 2020, the Supreme Court allowed the Trump administration to implement the rule while the litigation is pending, thereby sanctioning the denial of immigration benefits based on the broadened “public charge” definition. In February 2020, the rule took effect, but litigation across the country resulted in the rule’s enjoinment and then reimplementation. In December 2020, the U.S. Court of Appeals for the Ninth Circuit enjoined the rule in 18 states and Washington, D.C., but that injunction has not yet gone into effect. Thus, the public charge rule remains in effect nationwide. Because the rule was enacted through the formal administrative rule-making process, it cannot be revoked through an executive order; rather, it can either be invalidated by a federal court or revoked through the lengthy process of formal rule-making.
The order immediately undoes only one aspect of the Trump administration’s public charge rule. In May 2019, Trump issued a presidential memorandum directing federal agencies to enforce regulations that require those who sponsor immigrants (typically friends or family members) to reimburse the government for any public benefits the sponsored immigrant may receive. Section 6 revokes this memorandum and instructs agency heads to review and, if appropriate, suspend “any investigations or compliance actions initiated pursuant to that memorandum”; and “review any agency actions developed pursuant to that memorandum and, as appropriate, issue revised guidance.” Although this is a concrete step toward revoking the harsh Trump public charge policy, it applies only to one very narrow aspect of the policy.
In Section 4, Biden takes steps to undo the public charge rule more generally by mandating that the secretary of state, the attorney general, the secretary of homeland security and other agency heads review all agency actions related to the public charge ground of inadmissibility and deportability. Although this does not revoke the public charge rule, it initiates the rescission process. By April 3, 2021, the agency heads must (a) “consider and evaluate” the “effects” of agency actions around public charge and “implications of their continued interpretation,” (b) “identify agency actions ... to address concerns about the current public charge policies’ effect on the integrity of the Nation’s immigration system and public health,” and (c) “recommend steps that relevant agencies should take to clearly communicate current public charge policies and proposed changes ... to reduce fear and confusion among impacted communities.”
Because the final public charge rule cannot be changed through presidential action alone, this section initiates the process for the relevant agencies to revoke the rule. As agency heads are tasked with recommending next steps by April, regulations revoking the public charge rule may be proposed by that time. However, for now, the rule remains in place and the government has the authority to reject visa and adjustment of status applications based on noncitizens’ enrollment in public benefit programs.
Finally, Section 5 of the executive order focuses on citizenship, another area where the Trump administration created barriers to access. For instance, in 2017, Trump announced an “extreme vetting” policy, under which USCIS “appl[ies] more scrutiny to” all immigration applications. Permanent residents—who have already been vetted in prior immigration application processes—seeking to naturalize must go through another vetting process. This has created a massive backlog of citizenship applications, and wait times to naturalize have risen sharply in the past four years. Most recently, in November 2020, the Trump administration announced a new citizenship test, requiring legal residents seeking naturalization to answer twice as many questions correctly to pass. Many immigrants’ rights groups criticized the new test as “creat[ing] an additional and unnecessary barrier to naturalization.”
Biden addresses naturalization in this executive order by tasking the secretaries of state and homeland security and the attorney general with developing a plan to “improv[e] the naturalization process.” By April 3, the agency heads must “develop a plan describing any agency actions” to (a) “eliminate barriers in and otherwise improve the existing naturalization process”; (b) “substantially reduce current naturalization processing times”; (c) “make the naturalization process more accessible to all eligible individuals”; (d) facilitate naturalization for eligible candidates born abroad and members of the military”; and (e) “review policies and practices regarding denaturalization and passport revocation to ensure that these authorities are not used excessively or inappropriately.” By August, the agency heads must submit a progress report to Biden.
Further, the order establishes a working group, chaired by a senior DHS official and with members from senior leadership of other executive agencies, “to develop a national strategy to promote naturalization.” By May, the working group must “submit a strategy to the President outlining steps the Federal Government should take to promote naturalization, including the potential development of a public awareness campaign.” Thus, like the other aspects of the executive order, Biden’s plan to eliminate barriers to naturalization will take time to yield tangible benefits for citizenship-eligible immigrants.
Beyond Biden’s executive orders, the recently proposed U.S. Citizenship Act of 2021 expands citizenship eligibility by creating an eight-year path to citizenship for undocumented immigrants who arrived in the U.S. before January 2021 and, as previously described, a three-year path to citizenship for DACA recipients, TPS holders and certain farm workers. Moreover, the legislation replaces the word “alien” with “noncitizen” in federal law, a rhetorical change that reflects the Biden administration’s broader goal of welcoming immigrants into the United States.
On Feb. 2, Biden issued the “Executive Order on the Establishment of Interagency Task Force on the Reunification of Families” separated by the U.S. government in connection with the Trump administration’s zero-tolerance policy. The order symbolizes a shift toward prioritizing humane treatment of migrants at the U.S. border and a clear repudiation of the cruel policies separating parents and children as a means of deterring migration. Beyond its symbolic import, the order takes concrete steps to understand and redress the harms that family separation inflicted on thousands of migrants as well as to prevent future family separation. However, the order’s narrow scope limits its impact.
In April 2018, Trump’s Justice Department announced a “zero tolerance” policy of prosecuting all who crossed the border, even those accompanied by minor children. In implementing the policy, DHS detained adult migrants crossing the border in criminal custody and sent the children to shelters across the country run by the Office of Refugee Resettlement—a subagency of the Department of Health and Human Services responsible for unaccompanied minors at the border. The media soon began reporting on the boom in family separations, and outrage at the inhumane policy spread across the country. Ensuing litigation has been ongoing, and while some families have been reunited, many remain separated.
Cruel and inhumane border policies did not begin with the Trump administration. Under Obama, immigration detention expanded and cages in Customs and Border Protection processing centers were built. But while separations of parents and children did occur in some instances, systematic family separation as a matter of policy was entirely a product of the Trump administration.
Biden’s order creates an Interagency Task Force on the Reunification of Families led by the secretary of homeland security, with the secretaries of state and health and human services; the attorney general; and other high-ranking agency officials as members. The task force’s main mandates are to identify all children separated at the border during Trump’s presidency in connection with the zero-tolerance policy and to “facilitat[e] and enabl[e] the reunification” of the families. In addition, the task force is to make recommendations to Biden regarding offering immigration relief to affected families; providing “services and support to the children and their families, including trauma and mental health services”; “reunif[ying] any additional family members of the children who were separated”; and exercising presidential authorities to reunify families. In this process, the task force must consult with the children and families who were separated. The task force must provide an initial report to Biden by June 2021, followed by bimonthly progress reports and a final report with recommendations to ensure that family separation does not recur at the border.
The task force represents a positive step toward addressing the family separation crisis that ballooned under Trump. Most importantly, the task force is aimed at reunifying those families that remain separated. Since taking office, the Biden administration has reunited 105 families, a promising sign that there is infrastructure in place for the task force to reunite the hundreds of families that remain separated. This order also paves the way for redressing the harms faced by thousands of families, a move immigrant advocacy groups have been urging from Biden. By opening the possibility of immigration relief to affected families, Biden demonstrates a commitment to protecting immigrants’ rights, providing families with stability and security, and not retraumatizing families through immigration proceedings. Further, the explicit mention of mental health and trauma services represents an acknowledgment of the well-documented severe and enduring psychological harm that family separation has caused to the affected families, as well as the developmental effects on the children.
The membership of the task force is also important. It includes all relevant stakeholders: The Department of Homeland Security, which houses ICE and Customs and Border Protection, carried out the zero-tolerance policy, and newly appointed Secretary Mayorkas has expressed a commitment to reuniting families; the Justice Department created the policy; the Department of Health and Human Services, which houses the Office of Refugee Resettlement, had custody over the children separated from their parents; and the State Department could locate families affected by the policy who are no longer in the United States. Recently, Secretary Mayorkas announced that Michelle Brané, the former director of the Migrant Rights and Justice Program at the Women’s Refugee Commission, will serve as executive director of the task force. Naming a human rights and immigrants’ rights advocate as a leader of the task force is a sign of the Biden administration’s commitment to redressing the harms of the cruel zero-tolerance policy. Although the executive order does not define who the other task force members will be, including officials from throughout the administration will ensure that the task force has all tools at its disposal to address family separation.
Despite many of the positive steps that the executive order takes, it fails to address some notable issues.
First, the task force is focused narrowly on family separations pursuant to the zero-tolerance policy during Trump’s presidency. While this policy has been a significant driver of the practice, family separation is a more broadly used immigration enforcement tactic. Because separation at the U.S. border did not begin under Trump, identifying families separated prior to 2017 would provide a better understanding of the scope of family separation in immigration enforcement.
Second, the executive order does not explicitly address identifying and providing relief for those not currently in the United States. While having the secretary of state on the task force allows for this possibility and Secretary Mayorkas recently indicated that he intends to allow families that were separated to reunite in the United States, there are few details about how the task force will identify and provide relief to those who were deported or voluntarily returned to their home countries.
Finally, the timeline of the task force is cause for concern. The first recommendations are not due until June 2021, at which point many families will have been separated for more than four years. Further, the final report from the task force will not come for nearly a year and will take additional time to implement. Time is of the essence when it comes to addressing these grave harms. Providing immigration status and necessary mental health services to affected families should be a more immediate priority.
Notably, Biden’s immigration executive orders did not address Temporary Protected Status, a form of temporary immigration status for individuals displaced by conflict or natural disaster. Since the program was created in 1990, hundreds of thousands of foreign nationals have received TPS, and as of October 2020, approximately 411,000 TPS holders were residing in the U.S. Presently, 10 countries are designated for TPS, and those designations expire in 2021 and 2022. The Trump administration tried to end the designations for several countries, but they were temporarily reinstated by court orders. Biden has indicated that he plans to extend the designations as they expire and grant TPS to Venezuelans, but he has not formally issued any commitments. Moreover, Biden seeks to provide more permanent immigration benefits to TPS holders, and his proposed immigration bill includes a path to citizenship for TPS holders.
Another form of protection from removal is deferred enforced departure (DED). In one of his final acts as president, Trump issued a DED designation for Venezuelans. However, because DHS never issued instructions on how to apply for DED, it is unclear how Venezuelan immigrants can obtain DED protection. Given Biden’s campaign promise to extend TPS to Venezuelans and recent bipartisan proposed legislation to grant TPS to Venezuelans, there will likely be some determination in the coming months. Further, on the first day of his presidency, Biden also issued a “Memorandum Reinstating Deferred Enforced Departure for Liberians” who fled their country due to conflict and civil unrest. The Trump administration had allowed DED protection for Liberians to expire in January 2021, and this memo serves as a stopgap by reinstating the program for those who had DED grants when the designation expired.
Although Biden’s immigration executive actions represent a significant first step, many issues remain unaddressed. For instance, while Biden issued an executive order ending federal contracts with private prisons, the order does not apply to private immigration detention centers, which as of January 2020 housed more than 80 percent of detained immigrants. The orders also do not address the 287(g) program, which allows the federal government to deputize state and local law enforcement for immigration enforcement. The program proliferated under Trump and was a key feature of Trump’s policies criminalizing immigration. The executive actions also do not address the Secure Communities Program, an information-sharing program between law enforcement and ICE created under George W. Bush, ended by Obama and reinstated by Trump in 2017 that has resulted in deportations due to convictions for minor offenses such as traffic violations. The executive actions only begin to address some of the Trump administration’s efforts to chip away at the immigration system.
Moreover, in the absence of congressional action in the past decade, the fates of immigrants in the United States will remain subject to the whims of the executive branch. The limited scope and effect of Biden’s executive actions puts a spotlight on the overwhelming need to pass new and sweeping legislation. On Feb. 18, Biden’s comprehensive immigration reform proposal, the U.S. Citizenship Act of 2021, was formally introduced in Congress. While prospects of the bill becoming law remain unclear, the majority of Americans support some version of immigration reform.
Despite their inevitable shortcomings, Biden’s early immigration executive actions span a wide range of issues and address many of the changes the Trump administration made through his abuse of executive authority. The executive actions are best understood as an undoing of Trump’s policies rather than as new policies on their own. The actions are nuanced, thoughtful and pragmatic, and they have the potential to serve as a guidepost for more sustained, lasting reform.