Biden and Immigration: Week 2

On Biden’s first day in office he issued seventeen executive orders, 6 of which dealt with some facet of immigration policy. He also released a summary of a bill his administration would be sending to Congress; and the acting head of the Department of Homeland Security issued a memorandum that called for a moratorium on deportations and shifted enforcement priorities. It was an auspicious start - which we tried to capture in some detail last week on the blog.

Biden’s second week in office saw challenges emerge to his initial efforts, and, partly as a result of those challenges, delays in a planned second round of executive orders aimed at restoring the asylum system back to something like it was before Trump demolished it. 

Don't mess with Texas?

The biggest challenge to Biden’s volley of executive orders came from Texas. The lonestar state is home to Attorney General Ken Paxton, who is deeply committed to Trump-level truthiness when it comes to mobilizing his constituents. It was Ken Paxton, afterall, who engineered Texas’ challenge to the integrity of elections in Michigan, Pennsylvania and Georgia. This challenge was tossed quickly from federal courts for lack of standing or sense, but nevertheless put Paxton’s face on the screen of devices around the country.

On January 22, Paxton sued the 100-day moratorium in Federal court. Though a thinly veiled political stunt, Paxton’s office was nevertheless successful in getting a 14-day injunction against the moratorium from Trump appointee, District Judge Drew Tipton. The moratorium went into effect on January 27, and will hold until there is a further hearing on the merits of the case, at which point another decision will be made, appeals and so on. 

Paxton’s argument is that the moratorium violates federal law, specifically 8 U.S. Code § 1231. The problem here is that both the Texas filing and Tipton’s order are based on an oddly truncated version of the law. In the court order, the law in question as, “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” This seems clear cut, and if “shall” is read as “must,” which Tipton argues, then clearly there is not much wiggle room. However, what the law is this: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.”  The “otherwise provided” governs the “start time” of the 90-day period, and also, very broadly, provides the conditions under which the 90-day period can be exceeded. 

Which is to say, even if the law does not specifically envision a moratorium on removals, it does grant enormous discretion to the executive. 

In the end, the merits of the case seem irrelevant here, as Paxton is simply enjoying posing for the partisans. Biden’s limited moratorium and policy review is reconstituted on Paxton’s page as, “a seditious left-wing insurrection.” And he wants everyone to know that, though he does not know what "sedition" means, “my team and I stopped it.” 

Asylum Orders

On Friday, January 29, Biden had intended to issue a series of new Executive Orders that focused on asylum. The details of the orders remain a bit murky at this point, and the timeline has been pushed back to at least next week (as far as we know, that is - there is always a chance something may come out later today, after we publish). You can see a summary from Reuters .

The orders are expected to grapple with the following:

Biden will end Asylum Cooperation Agreements that had been negotiated separately with Honduras, Guatemala, and El Salvador. Under these agreements, the United States treats these countries as “safe third countries” and sends asylum seekers that reach the United States border back to one of them, where people can then apply for asylum in that country. Prior to COVID travel restrictions, the only agreement that was operative was the one with Guatemala. Under the provisions of that agreement hundreds of asylum seekers from Honduras and El Salvador were sent to Guatemala, where they were told they could seek asylum. The agreements have been the subject of much criticism, as Honduras, Guatemala and El Salvador are in fact the source of most of the refugees seeking entry into the United States.

Biden is expected to end the transit ban. The Trump administration killed asylum at the border for everyone not from Mexico with his “transit” ban. Under the provisions of this executive rule, no one who travelled through a third country before arriving at the United States’ border is allowed to apply for asylum unless they first applied in a transit country, and were denied. In effect, the transit ban meant that only people from Mexico could apply for asylum - and there are other restrictions in place that make that difficult already. The transit ban was the subject of a court challenge, and temporarily halted as a result. However, the order is still on the books and Biden needs to take executive action to formally end it.

Biden is also expected to restart a program that allowed children from Central America to apply for asylum in the United States - but from their home country, rather than make the journey to the U.S. first. The Central American Minors Program was started by the Obama administration during a spike in unaccompanied minors seeking entry at the U.S. border back in 2014 and 2015. Though the program was never able to process enough claims to keep up with the number of youth seeking to migrate, it was a start toward creating a more humane system for those seeking to flee violence in Central America. Trump ended the program soon after becoming president.

There is also some hope that Biden’s administration will formally end the Migrant Protection Protocol (“Remain in Mexico” program), and eventually revoke the Center for Disease Control and Protection's order that has shut the border to all seeking entry, leading to what is referred to as “Title 42” expulsions. Between March and December of 2020, 400,000 people have been summarily expelled under Title 42. At this point, further action on MPP and Title 42 is likely to take some time. From the Migration Policy Institute blog, January 27:

[A]ccording to Susan Rice, the White House Domestic Policy Council director, the administration will reopen the border to asylum seekers only "consistent with the capacity to do so safely and to protect public health.” As a result, a controversial federal Centers for Disease Control and Prevention (CDC) order used by the Trump administration to expel nearly all arrivals, including humanitarian ones, at the border is likely to remain in place for some period.

“Processing capacity at the border is not like a light that you can just switch on and off,” Rice told the EFE news agency in December. Biden himself similarly warned in a press conference, "It's a matter of setting up the guardrails so we can move in the direction," so the country does not "end up with two million people on our border."

Justice Delayed…

While one can certainly appreciate the complexity of undoing the damage that Trump did to asylum policy, events this week also point to the need to move quickly.

On Sunday news circulated that two burned-out vans were  with the bodies of 19 people inside, near the Mexican border town of Camargo in the state of Tamaulipas. The victims had all been shot, and according to witness statements from a nearby town, were Guatemalan migrants assassinated by a local cartel, an offshoot of the Zetas. Two years ago, the bodies of 24 migrants were found nearby. Mexico remains a dangerous place, with gang violence near the border claiming most of the 35,000 people murdered last year.

Which is to say, people who have been waiting in these areas under the Migrant Protection Protocol for a chance to present their case to a U.S. immigration judge need relief soon - for some it has been two years!