February 3, 2021
Last night, President Biden signed three immigration-related Executive Orders. The orders require that relevant agencies undertake a review of some of the most troubling policies of the Trump Administration, but they are not likely to have any immediate impact in terms of the current situation at the border. The CDC order has stopped virtually all asylum processing at the border since last March, and while one of the Executive Orders requires a prompt review and determination as to whether to terminate or rescind the CDC order, the order remains in effect for now. The Biden administration also announced yesterday that DHS will continue to refer unaccompanied children to ORR custody, rather than expelling them under the CDC order. Last week, the D.C. Circuit granted the government’s request, filed during the prior administration, to stay a district court injunction preventing the expulsion of UAC pending appeal. The court order would have permitted the Biden administration to resume expulsions of unaccompanied children. The future of MPP also remains uncertain. One of the Executive Orders requires a prompt review of whether to terminate or modify MPP, along with a prompt consideration of “a phased strategy for the safe and orderly entry into the United States, consistent with public health and safety and capacity constraints, of those individuals who have been subjected to MPP for further processing of their asylum claims.” More information on each Executive Order can be found below.
The Executive Order most relevant to the Commission’s work addresses regional migration and the asylum system. First, the Executive Order directs the preparation of a strategy to address the root causes of migration and a strategy to collaboratively manage migration in North and Central America. Second, it orders a report based on a review of mechanisms for better identifying and processing individuals from the Northern Triangle countries who are eligible for refugee resettlement in the US, including by increasing access and processing efficiency, and by identifying and implementing “all legally available and appropriate forms of relief” to complement the U.S. Refugee Admissions Program. As part of this review, the President ordered the Secretary of DHS to consider reinstituting the Central American Minors (CAM) parole program; exercising discretionary parole authority to permit beneficiaries of approved family-sponsored immigrant visa petitions from Northern Triangle countries to join family members in the US; and enhancing access to visa programs for individuals from Northern Triangle countries.
Third, the Order requires the development of policies and procedures “for the safe and orderly processing of asylum claims at United States land borders, consistent with public health and safety and capacity constraints,” including “taking steps to reinstate the safe and orderly reception and processing of arriving asylum seekers.” To further this goal, the EO requires review of a number of the Trump administration’s attacks on the asylum system to determine if they should be rescinded/suspended/terminated, including (1) the CDC order (and associated regulation); (2) MPP; (3) asylum ban 1.0 (the Interim Final Rule that prevents individuals who enter unlawfully via the Southern border from receiving asylum); (4) asylum ban 2.0 (the third-country transit bar); and (5) the “asylum cooperative agreements” with Guatemala, Honduras, and El Salvador (and the accompanying interim final rule). The legal processes for rescinding these actions would be different depending on whether they were issued as final regulations, agency memos, or some other kind of agency or Presidential action. For example, hours after this EO was signed, Secretary of State Blinken announced that the U.S. intends to suspend and terminate the “asylum cooperative agreements” with Guatemala, Honduras, and El Salvador. The only troubling Trump-era asylum programs on which the order requires immediate action are the “Prompt Asylum Case Review” program (PACR) and the “Humanitarian Asylum Review Program” (HARP), which were subjects of a recent Government Accountability Office report. President Biden ordered that DHS “promptly cease implementing” these programs, which have been suspended since March due to the COVID-19 pandemic. The EO also revokes several Presidential documents issued by former President Trump related to the Southern border and the asylum system. In addition, the Executive Order addressed expedited removal, requiring a review of procedures and a report within 120 days with recommendations “for creating a more efficient and orderly process that facilitates timely adjudications and adherence to standards of fairness and due process.” The Secretary of DHS also must promptly review and consider whether to modify or rescind the Trump administration’s expansion of expedited removal. Any substantial change to the use of expedited removal at the border could have dramatic implications for the work of the Commission’s projects.
Finally, the EO seeks to address important issues related to substantive asylum eligibility that the Trump Administration attempted to restrict. It gives the Attorney General and the Secretary of DHS 180 days to examine all current authorities “to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards” and orders the promulgation of joint regulations within 270 days “addressing the circumstances in which a person should be considered a member of a ‘particular social group.’”
Issues not specifically addressed by this EO include some of the rules finalized late in the Trump administration, such as the “mammoth death to asylum” rule, the rule modifying BIA procedures and ending administrative closure, the rule that imposed a 15-day deadline for filing asylum applications for individuals placed in expedited removal, and the EAD rule. All but one of these rules are subject to a court injunction.
President Biden also signed an Executive Order establishing an Interagency Task Force on the Reunification of Families. The Order states that the Biden administration will ensure that children entering the United States are not separated from their families “except in the most extreme circumstances where a separation is clearly necessary for the safety and well-being of the child or is required by law.” The Task Force will be chaired by Secretary Mayorkas and is charged with identifying all children who were separated from their families at the United States-Mexico border during the entirety of the Trump administration (January 20, 2017-January 20, 2021) in connection with the operation of the Zero-Tolerance policy (which is broadly defined); facilitating and enabling the reunification of the identified children with their families (including by the possible exercise of parole authority, the issuance of visas or other immigration benefits, and the use of any applicable Presidential authorities); and providing regular reports to the President, including a report with recommendations “to ensure that the Federal Government will not repeat the policies and practices leading to the separation of families at the border.” DHS will provide the funding and administrative support to implement the order. The Executive Order also revokes President Trump’s Executive Order of June 20, 2018 that purported to end family separation by detaining families.
The final Executive Order signed by President Biden yesterday addressed the legal immigration system. First, it requires the Domestic Policy Council to convene a Task Force on New Americans. Second, it requires a review of existing agency actions that may be inconsistent with the policy set forth in the introduction to the EO, including by making recommendations on how to remove barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits, and identifying and recommending steps to rescind any agency actions that fail to promote access to the legal immigration system, like the final rule increasing fees for certain USCIS applications and benefit requests. The EO requires the Secretary of State, the Attorney General, and the Secretary of the Department of Homeland Security each to submit a plan within 90 days that sets forth the steps they will take, and a report to the President 180 days later describing progress on each plan. Third, the EO specifically requires a review of all agency actions related to implementation of the public charge ground of inadmissibility and related ground of deportability and the submission of a report within 60 days describing steps the agencies intend to take. Fourth, the EO requires the Secretary of State, the Attorney General, and the Secretary of Homeland Security to develop a plan within 60 days that describes agency actions that will be taken to eliminate barriers in and otherwise improve the naturalization process, substantially reduce processing times, make the process more accessible (including through a potential reduction in the fee and restoration of the fee waiver process), facilitate naturalization for members of the military, and review policies and practices regarding denaturalization and passport revocation. Each agency must submit a progress report within 180 days of issuing a plan. Fifth, the EO establishes an Interagency Working Group on Promoting Naturalization that will submit a strategy to the President within 90 days. Finally, the EO revokes the 2019 Presidential Memorandum that would have enforced the requirement that any sponsor who signs an affidavit of support reimburse any benefits later unlawfully received by the sponsored immigrant and instructs the relevant agencies to review and decide whether to suspend any investigations or compliance actions initiated pursuant to the memorandum.