Biden orders call for sweeping review of immigration system

Executive orders create family reunification task force, pave way to dismantling many of Trump's immigration policies

A Customs and Border Protection agent processes migrants in the Rio Grande Valley Sector of Texas on Aug. 20, 2019.  (Jinitzail Hernández/CQ Roll Call)
A Customs and Border Protection agent processes migrants in the Rio Grande Valley Sector of Texas on Aug. 20, 2019. (Jinitzail Hernández/CQ Roll Call)
Posted February 2, 2021 at 9:32pm

Continuing to take aim at the prior administration’s asylum policies and legal immigration restrictions, President Joe Biden signed executive orders Tuesday intended to fulfill a campaign promise of addressing families separated at the border, as well as halting certain fast-tracked deportations.

One of Biden’s orders establishes a task force, led by the Homeland Security secretary, to locate and reunite families separated under the Trump administration’s “zero-tolerance” policy. Another aims to address root causes of Central American migration and improve the asylum system, while the third calls for a review of former President Donald Trump's policies restricting the green card and citizenship processes.

Flanked by Vice President Kamala Harris, Biden signed the orders just hours after the Senate confirmed Alejandro Mayorkas to lead the U.S. Department of Homeland Security.

“There’s a lot of talk, with good reason, about the number of executive orders I have signed. I’m not making new law, I'm eliminating bad policy,” Biden said as he signed the orders.

In addition to creating the reunification task force, the orders pave the way for dismantling much of the immigration regime Trump left in place.

In one order, Biden indicated plans to revive the U.S. asylum system, which has been essentially shut down since March when the last administration issued a public health directive that turned away all asylum-seekers without considering claims for humanitarian protection.

That Biden order directs the Homeland Security secretary and other Cabinet officials to consider rescinding that Trump-era directive, and to “promptly begin taking steps to reinstate the safe and orderly reception and processing of arriving asylum seekers, consistent with public health and safety and capacity constraints.”

It also requires a review of the Migrant Protection Protocols, the Trump program requiring migrants to wait out their immigration cases in Mexico. Biden’s order instructs officials to “promptly consider a phased strategy for the safe and orderly entry into the United States” of those in the program.

The Trump administration’s asylum-sharing agreements with Honduras, Guatemala and El Salvador, which allowed the U.S. to send asylum-seekers to Guatemala, will also be revisited, the order says.

Biden also halted two pilot programs that fast-tracked deportations at the border, and he called on officials to review another policy that allows immigration agents to quickly deport immigrants who have lived in the U.S. for up to two years without a full immigration court hearing.

Targeting policies limiting asylum eligibility, Biden also requested "a comprehensive examination” of whether the U.S. provides sufficient protection for those fleeing domestic and gang violence.

“Securing our borders does not require us to ignore the humanity of those who seek to cross them. The opposite is true,” the order says.

Refugee advocates praised Biden for setting in motion massive changes to loosening an asylum system that Trump tightly restricted.

“There is still much work ahead of us, but President Biden has demonstrated his commitment to, and prioritization of, respecting humanitarian laws and extending protection to those who desperately need it,” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service.

Sen. Lindsey Graham, R-S.C., however, warned that eliminating Trump’s border restrictions “will create massive future runs on the border.”

“The caravans will start to flow again, and America will be under siege once again by new waves of migrants responding to the Biden Administration’s weak policies on immigration,” Graham said in a statement.

Changes to legal immigration processes within the U.S. are also on the table. Another executive order Biden signed calls for the review of the “public charge” rule, which allows immigration officers to deny green cards to applicants found likely to need public assistance based on factors such as education level and health, as well as past use of public benefits.

As part of that review, officials must recommend steps the government can take “to reduce fear and confusion among impacted communities.” The order also called on officials to identify any policies or agency actions “that fail to promote access to the legal immigration system,” such as the Trump administration’s rule increasing application fees for immigration benefits.

Advocates have said that the public charge rule has discouraged immigrants from seeking out health care benefits during the coronavirus pandemic. Carlos A. Guevara of UnidosUS, who previously worked at the DHS under the Obama administration, told CQ Roll Call earlier on Tuesday that the new administration must act quickly to roll back the rule.

“Speed is of the essence here. We’re in the middle of a pandemic, and this rule is just intersecting very cruelly with getting folks the help that they need,” he said.

Far enough?

Some advocates, while holding up the orders as a step in the right direction, also put heat on the Biden administration to take further actions and rescind the policies now under review.

“These executive actions are an important first step — but the administration cannot stop here. The United States should make it our priority to fully strengthen family immigration and further address the causes of forced migration immediately,” Rick Santos, president and CEO of Church World Service, a refugee organization, said in a statement.

White House Press Secretary Jen Psaki said at a Tuesday press conference that immigration reform is “not going to happen overnight.”

“We want to act swiftly, we want to act promptly, but we also need to make sure we're doing that through strategic policy process,” she said.

For instance, in Biden’s long-anticipated order to establish a family reunification task force, the new administration stopped short of guaranteeing legal status to those parents whose children remain in the U.S. It instead asks the task force to produce recommendations on the possibility of bringing parents or other relatives to the country.

Lee Gelernt, a lawyer with the American Civil Liberties Union who represents migrant families in the litigation over family separation, said the task force called for “an immediate commitment to specific remedies, including reunification in the U.S., permanent legal status, and restitution” for the more than 5,000 families separated under the prior administration.

“Anything short of that will be extremely troubling given that the U.S. government engaged in deliberate child abuse,” he said in a statement.

Biden also has not yet rescinded two of Trump’s proclamations limiting immigration from abroad. Benjamin Johnson, executive director of the American Immigration Lawyers Association, called this omission a “glaring missing piece” that has kept families separated.

Top Democrats in Congress, including House Judiciary Chairman Jerrold Nadler, D-N.Y., and incoming Senate Judiciary Chairman Richard J. Durbin, D-Ill., quickly expressed eagerness to work with the White House on reunification efforts.

Rep. Raul Ruiz, the new chairman of the Congressional Hispanic Caucus, told CQ Roll Call on Tuesday that he is working on bills to provide mental health and social services to migrant families separated under the Trump policy and to give them legal status in the U.S.

“I consider those crimes against humanity that will have long lasting psychological and health impacts within those families,” he said. “The Congressional Hispanic Caucus applauds the family reunification task force. We look forward to providing feedback, being integral and providing assistance.”