I didn’t want to slog through the latest executive orders to write this analysis. But the devil is in the details, those too arcane to make their way into news headlines or even articles. So I’m brewing a second cup of coffee and working on the analysis while I wait for the snow to stop falling outside.
On February 2, President Joe Biden issued three more executive orders on immigration. These come after his first-day executive orders and administrative actions on immigration. The second batch of executive orders (and probably not the last) are:
- Executive Order on the Establishment of Interagency Task on the Reunification of Families
- 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
- Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans
You can click on the links to read the full and official text of each order.
A caveat: As with the earlier executive orders and administrative actions, these are limited in scope. Some changes can only be made by Congress. Other changes must go through a lengthy process of issuing new federal regulations to repeal those that the Trump administration put in place.
Why a task force? Why not just order reunification?
As in many immigration situations, that’s complicated.
This task force has high-level leadership: the Secretary of the Department of Homeland Security, the Secretary of Health and Human Services, the Secretary of State, and the Attorney General. Their first job is to identify the children separated from their families during the entire four years of the Trump administration, January 20, 2017 to January 20, 2021.
Then, they are to try to reunify the separated families. That’s where it gets tricky.
Many parents have been deported. The U.S. government can only issue visas authorized under some provision of the immigration law. Congressional action to change the current law would be necessary to issue visas to the parents.
Does reunification mean sending the children back to the dangerous situations that their parents fled? Or could it mean granting humanitarian parole to parents to come here? That would be a limited solution, with no path to permanent residence and no guarantee against future deportation. And what happens to other family members—siblings or parents who remained behind in the home country?
The order asks for an initial report within 120 days, and for recommendations on providing services and support, including trauma and mental health services.
Comprehensive Regional Framework
This executive order directs U.S. officials to prepare two strategy documents. The Root Causes Strategy for addressing root causes of migration from Central America, including:
“(A) combating corruption, strengthening democratic governance, and advancing the rule of law;
(B) promoting respect for human rights, labor rights, and a free press;
(C) countering and preventing violence, extortion, and other crimes perpetrated by criminal gangs, trafficking networks, and other organized criminal organizations;
(D) combating sexual, gender-based, and domestic violence; and
(E) addressing economic insecurity and inequality;”
The Collaborative Management Strategy calls for working with Central American governments and Mexico to implement “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” through asylum and resettlement programs in those countries, return and reintegration programs, and humanitarian assistance including shelter networks.
Immigration advocates are rightfully skeptical of the Collaborative Management Strategy. If Central American governments could protect asylum seekers, they would not be fleeing in the first place.
Safe and Orderly Processing of Asylum Seekers
The second half of this order calls for “Expansion of Lawful Pathways for Protection and Opportunity in the United States.” That means a review of asylum procedures and “consideration” of several specific measures, including:
- reversing the 2017 rescission of the Central American Minors (CAM) parole policy, and
- exercising discretion to parole family members with approved visas into the United States.
Most important are the mandates directing action by appropriate cabinet level officials, who:
- “shall promptly begin consultation and planning with international and non-governmental organizations to develop 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;”
- “shall promptly review and determine whether to terminate or modify the program known as the Migrant Protection Protocols (MPP);”
- “shall promptly consider 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;
- “shall promptly review and determine whether to rescind” two Trump-era interim rules that eviscerated the asylum process;”
- “shall promptly review and determine whether to rescind” agreements with Central American countries providing for deportation of asylum seekers to those countries;
- “shall promptly begin a review of procedures for individuals placed in expedited removal proceedings at the United States border.”
The Biden executive order directly reverses several Trump executive orders, but some of the Trump policies are more deeply embedded as federal regulations. The mandates for review (listed above) recognize that a longer process may be necessary to draft, propose, and publish under the rule-making process for federal regulations.
The executive order also has immediate impact, directing an immediate end to the “Prompt Asylum Case Review” (PACR) program and the “Humanitarian Asylum Review Program” (HARP), two Trump programs that rush asylum seekers to removal without a fair hearing for their cases.
Finally, the order requires changes in asylum eligibility. The first signals intent to revoke the Trump administration prohibition of asylum protection for anyone fleeing domestic or gang violence. The second calls for regulations “addressing the circumstances in which a person should be considered a member of a ‘particular social group,'” which is one of the criteria for granting asylum.
With a beginning policy statement that welcomes immigrants and celebrates their essential contributions to the country, this regulation proposes changes to make immigration processes more efficient and welcoming:
“Consistent with our character as a Nation of opportunity and of welcome, it is essential to ensure that our laws and policies encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them.”
- reconstitutes the Task Force on New Americans,
- directs steps to repeal recent fee increases,
- calls for an immediate review of the Trump administration’s public charge regulation,
- revokes Trump’s direction on recouping money from sponsors, and
- directs a review of naturalization processes to make them speedier and more efficient.
And in other immigration updates:
- Biden’s comprehensive legislative package, the U.S. Citizenship Act of 2021, still has not been introduced, though it is promised any day now. Senate Republicans promise to kill it. If they filibuster, 60 votes would be needed to stop the filibuster and bring the bill to a vote.
- Another legislative avenue for relief for some might be including a provision for legalization for essential workers in the COVID relief bill. That bill could pass with only 51 votes, as a budget reconciliation bill not subject to a filibuster.
- Senators Dick Durbin and Lindsey Graham reintroduced the Dream Act this morning.