Biden and immigration so far…

President Biden has been in office for three days now, and he’s been busy.  On the immigration front, Biden has followed through on his promise to rescind many of Trump’s orders and rules. His administration is also working with congressional leaders on a wide-reaching immigration reform bill to be introduced very soon. Below I summarize actions taken thus far, including:

• Department of Homeland Security memorandum issued January 20, 2021
• Department of Homeland Security suspension of Migrant Protection Protocol, January 20, 2021
• Six different Executive Orders issued on January 20, 2021
• And the Citizenship Act of 2021, to be introduced any day now

While the list is impressive, it largely involves upending some of Trump’s most unpopular or controversial programs. There is much work left to be done, of course, on protecting asylum, ending immigrant detention, and halting summary expulsions at the border. But not a bad first week!

Department of Homeland Security orders 100-day moratorium on deportations

Department of Homeland Security acting director, David Pekoske, signed a memorandum implementing a 100 day moratorium on most deportations. The moratorium goes into effect today (January 22). During the 100 day moratorium DHS is supposed to engage in a review of its practices and develop recommendations, “to address aspects of immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement.”

Importantly, the order applies only to people who have a final removal order, and there are further exceptions to this, including empowering DHS general counsel to make individualized assessments to remove people any way. Perhaps more important, at least in terms of numbers, is that people currently being expelled under the March CDC order (“Title 42” expulsions) are not covered by this order. Biden may well issue a subsequent order halting Title 42 expulsions, but I would not expect that soon.

Finally, DHS is instructed to reduce enforcement operations to a few priority areas. From the memorandum:

1. 1. National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.

1. 2. Border security. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.

1. 3. Public safety. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.

Department of Homeland Security suspends Migrant Protection Protocols.

DHS separately suspended new enrollments in the MPP program (or Remain in Mexico program). Under MPP, people seeking asylum in the United States are redirected to await in Mexico for immigration hearings on their cases. The program was a huge debacle, leading to 55,000 people or more sent back into Mexico over the last year or more to wait for a hearing. 

From DHS, “[starting January 21] the Department will cease adding individuals into the program.  However, current COVID-19 non-essential travel restrictions, both at the border and in the region, remain in place at this time.  All current MPP participants should remain where they are, pending further official information from U.S. government officials.”

To be clear, MPP has not ended yet! What the announcement means is that while more people will not be enrolled in MPP for now, no one currently waiting in Mexico is allowed in either pending a hearing. Further, the CDC order effectively blocking asylum claims at the border since March 2020 is still operative. So, asylum is still on hold for most people at the border. All of this will likely change. 

We all expect MPP to be ended - but the administration is clearly waiting until a process can be put into place the manage pending MPP cases, alongside any new asylum claims.

Executive Orders

“Preserving and Fortifying” Deferred Action for Childhood Arrivals (DACA): Executive Order

This order directs departments to take measures necessary to protect and fully implement DACA - which protects from deportation many [not all!] people who were brought into the United States in an unauthorized manner as children. Trump tried to end DACA throughout his president, but was slowed from doing so in the courts. Ultimately it is up to Congress to create a permanent solution and path to permanent residency and citizenship.

Reinstatement of Deferred Enforced Departure for people from Liberia: Executive Order

Deferred Enforced Departure is not the same as Temporary Protected Status (TPS), but in this case operates in a similar way. E.g., given the human rights situation in Liberia, most people currently in the U.S. are protected from deportation proceedings. The DED program was actually put into place after TPS for Liberians was suspended in 2007.

“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” Executive Order

As is clear from the title, with this order Biden is declaring an end to the National Emergency Trump used as a justification to reprogram funds for the construction of the border wall. The order also directs a review of the legality of Trump’s use of re-apportioned funds for wall construction.

“Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census” Executive Order

This order requires all residents of a state to be included in the census count, for the purposes of reapportionment of congressional seats, regardless of citizenship status. 

“Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities” Executive Order

One of Trump’s first executive orders in January of 2017 expanded immigration enforcement priorities and eliminated administrative restrictions on enforcement actions at schools, hospitals, and places of worship. While the order did not “legislate” new authority, it presented the broadest possible interpretation of authority for ICE enforcement, and essentially placed all unauthorized persons within the United States on an equal footing for removal.

Biden’s order revokes Trump’s earlier executive order, and directs all agencies to review and reassess any new guidance that had been issued under Trump’s order.

“Proclamation on Ending Discriminatory Bans on Entry to The United States” Executive Order

What this does, from New York Times: “In a blow to one of his predecessor’s earliest actions to limit immigration, Mr. Biden has also ended the so-called Muslim ban, which blocked travel to the United States from several predominantly Muslim and African countries. Mr. Biden has directed the State Department to restart visa processing for individuals from the affected countries and to develop ways to address the harm caused to those who were prevented from coming to the United States because of the ban.”

The Citizenship Act of 2021

The Citizenship Act is the Biden administration and Demcratic leadership’s effort toward a comprehensive immigration bill, and, if passed, would mark a huge change for millions of people. The bill includes provisions impacting unauthorized immigrants already living in the United States and revises laws governing authorized immigration. There are also provisions on enforcement and border security, and additional funds to address the root causes of migration in Central America. A 4-page summary of the bill distributed by Biden’s transition team is available here. Vox has done an excellent summary of its various provisions here.

The feature of the bill getting the most attention is the creation of a path to citizenship for those people currently unauthorized to be in the United States. The process would take 8 years for most unauthorized immigrants - faster for DACA and TPS holders. From a bill summary provided to the media by the incoming administration:

The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes. Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.

Bob Menendez (D-NJ) will be introducing this legislation into the Senate soon (possibly by the time you read this). Once the legislation is introduced and we have time to read through the devilish details, we will provide a more comprehensive summary of key provisions.