On Tuesday evening, February 2, 2021, President Biden issued an Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border. Despite the length of the title and impressive agenda implied therein, the order is sadly disappointing in terms of substance. Though it includes the rescission of several Trump executive orders, on other issues of great importance the executive order does nothing concrete. Rather, it mandates the creation of two strategy papers related to roots of migration, a report on visa and asylum processing, and a series of policy reviews on a variety of topics, including 6 and 9 month reviews on the legal bases for seeking asylum. Specific policy decisions on controversial programs such as the Migrant Protection Protocol, Title 42, and the Transit Ban are deferred, awaiting review and recommendations concerning whether to rescind or modify the original orders.
As formulated, it is hard to understand why any of this requires an Executive Order. It seems that an executive order(s) would follow policy reviews, such as those mentioned. Mandating such reviews could simply be handled via departmental memorandum. It is also worth noting, that the policy considerations in Sections 2 and 3 of the order are already part of legislation introduced into the Senate as the Citizenship Act of 2021 - a wide ranging immigration reform bill promoted by the Biden team and introduced by Bob Menendez (D-NJ). Which is to say, actual authorization and budget considerations for items discussed vaguely in the first half of this Executive Order, will actually be hammered out in Congress based on a strategy Biden has already unveiled.
The order, therefore, creates more questions than answers. That said, since we work in Central America and work on migration, we took the time to review it. Here is a summary of what is there. You can read the full order here.
The first item of substance is a president directive to, “the Assistant to the President for National Security Affairs (APNSA), in coordination with the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of any other relevant executive departments and agencies” to create the United States Strategy for Addressing the Root Causes of Migration (the “Root Causes Strategy”); and the United States Strategy for Collaboratively Managing Migration in the Region (the “Collaborative Management Strategy”).
The “Root Cause Strategy” will include methods for combating corruption and promoting respect for human rights; and directs U.S. officials to work with the USTR to ensure that labor rights are defended within the framework of the Central America Free Trade Agreement. The order also includes an incredibly vague encouragement to deploy “Northern Triangle domestic resources and the development of Northern Triangle domestic capacity to replicate and scale efforts to foster sustainable societies across the region.”
For more detail on what will ultimately be in this strategy, it would be instructive to review The Biden Plan to Build Security and Prosperity in Partnership with the People of Central America. This document, which shapes the legislative priorities laid out by the Biden’s administration in the Citizenship Act of 2021, argues for $4 billion dollars in assistance to Honduras, El Salvador and Guatemala to address the roots causes of migration by combating corruption and promoting investment.
The “Collaborative Management Strategy” has some interesting ideas in it, but seems mostly geared toward keeping asylum seekers away from the U.S. border by creating regional placements “as close to home as possible.” So, one reading of this strategy is an alternate version of current (and much criticized) asylum cooperation agreements with Honduras, El Salvador and Guatemala (which, in current form, may be cancelled by this order), alongside the buttressing of Mexico immigration enforcement. From the order: “The Collaborative Management Strategy should focus on programs and infrastructure that facilitate access to protection and other lawful immigration avenues, in both the United States and partner countries, as close to migrants’ homes as possible.” (emphasis added).
Ultimately whether this is a progressive change will depend on whether or not new rules mandate that people seek asylum closer to home. In other words, enhancing capacity to provide meaningful legal protections to people seeking to migrate is always a good thing. Denying people access to U.S. asylum procedures because alternatives exist, would not be a good thing - this is what Trump did, if far more clumsily.
Section Three is concerned with expanding “Lawful Pathways for Protection and Opportunity in the United States.” However, like section two, the actual deliverable is a series of reports. Which is to say, there is no new policy here, but a directive for the Secretary of State and the Secretary of Homeland Security to study and make recommendations to 1.) Re-establish the Central American Minors program - an Obama era initiative through which Central American youth can apply for refugee status from their home country before traveling to the U.S.; 2.) create a Central American Family Reunification Program - which would allow family members already approved to join family members in the U.S. while final visa processing is undertaken; and 3.) look for ways to expand visa access where “appropriate and consistent with applicable law” - which is no change at all, but does create new priorities. All of the above is also part of the proposed Citizenship Act of 2021, so not clear why a series of reports on this requires an executive order.
Section 4 is perhaps the most frustrating section of the Executive Order. This section mandates a review and recommendations concerning whether to rescind or modify the following: The Migrant Protection Protocols (Remain in Mexico program), the Center for Disease Control and Protection order closing the border to most migrants (“Title 42”), the Transit Ban, and Asylum Cooperation Agreements with Guatemala, El Salvador and Honduras. Though the order says the administration "intends" to end asylum cooperation agreements (a point later confirmed by the State Department), the door is left open here to modify, rather than cancel these agreements.
The order also calls for a 180 day, “comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards.” Finally, the order calls for 9-month review of refugee status, “addressing the circumstances in which a person should be considered a member of a ‘particular social group.’”
The only concrete changes in enforcement/policy here are the revocation of several presidential memorandum on immigration issued by Trump, as well as Trump’s Executive Order of January 25, 2019. All of these are good moves, consistent with the administration’s commitment to revoke much of Trump’s agenda.
As we mentioned last week, Biden had promised a series of Executive Orders on border policy and the restoration of asylum. Rather than issue the promised series of orders, it seems the administration has chosen to issue just this one catch all order, which really does little but command further study. This is disappointing to be sure. We all know that changing policy at the border is politically challenging, and to some degree, has logistical limits while the administration tries to re-prioritize how people are processed. Unfortunately, it seems that Biden is already playing a game of modifying expectations and delaying commitments on these harder issues. As our concern remains with the people stuck in limbo and in grave danger at the border, living under the threat of COVID in detention facilities, or fleeing for their lives from any number of countries, we will continue to speak out about the need to end these policies NOW!