Round Two: Biden’s February 2nd Executive Orders on Immigration

By FAIR Government Relations

Background

President Biden issued three more immigration executive orders on Tuesday, February 2, 2021, to continue back-peddling strides made on immigration enforcement as well as systematic overhauls during the previous administration. Additionally, the President successfully requested that the Supreme Court remove litigation challenging both border wall construction and Migration Protection Protocols (also known as MPP, or sometimes referred to as “Remain in Mexico”) from their docket, essentially cementing adverse rulings against the government from lower courts in both cases.

This is the second series of immigration-related executive orders and administrative actions issued by the Biden Administration. The first installment came on Inauguration Day, January 21, 2021.  This series was far sweeping, and included the following actions:

• Revoked travel restrictions on countries linked to terrorism that did not demonstrate adequate security protocol or secure issuance of travel documentation;
   
• Revoked an order directing the Department of Homeland Security (DHS) to not exempt classes or categories of removable aliens from immigration enforcement, encouraged state and local cooperation with federal immigration enforcement, and revived the Secure Communities program;
   
• Issued an executive order requiring the Commerce Secretary to report Congressional apportionment numbers based on total population (including illegal aliens);
   
• Issued a Proclamation ending the National Emergency declaration used to divert military funds for wall construction, halts all construction as soon as possible (no later than 7 days);
   
• Issued a memorandum directing the DHS Secretary and Attorney General to “preserve and fortify DACA,” and urged Congress to pass legislation to provide a pathway to citizenship, and other benefits, to illegal aliens who may benefit from the program;
   
• Issued a memorandum extending Deferred Enforced Departure (DED) through June 2022 for thousands of Liberians and directs USCIS to process their applications faster;
   
• Issued a policy directive imposing a 100-day ban on removals of illegal aliens (this policy has since been temporarily halted by a legal challenge in the Fifth Circuit); and
   
• Issued a policy directive prohibiting new enrollments in MPP, which requires new arrivals who intend to apply for asylum to wait in Mexico pending their section 240 removal proceedings. 

President Biden’s February 2, 2021 executive actions are more passive, but paint a clear picture of this administration’s “America Last” immigration policy agenda and give relevant agencies a policy roadmap. They also highlight the Biden Administration’s intent to focus on maximizing the use of executive and administrative discretion to provide immigration benefits and to minimize enforcement and fraud deterrence in the nation’s immigration system.

Why does FAIR oppose the Executive Orders?

“Executive Order on the Establishment of an Interagency Task Force on the Reunification of Families”

• Virtually all of the children separated from accompanying adults during the 2019 border surge have been reunited with their parents or legal guardians. The small number who remain separated remain so because the adults accompanying them were not their parents or guardians, U.S. officials determined they were a threat to the safety or wellbeing of the child, or because the adults chose to leave them in the United States as unaccompanied minors rather than return to their home countries as a family unit to obtain immigration benefits as a result of their abandonment.
   
• The situation of these children is tragic, but the fault lies with the adults who exploited or abandoned them, not with the policies of the United States.
   
• We all support keeping families united, but there is nothing that says that reunification can only occur in this country. 

“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”

• A country that cannot address many of its own problems should not burden itself with the task of solving Central America’s.
   
• Biden is signaling that he has no intention of ever securing America’s borders or preventing mass incursions of migrants, and that American taxpayers will continue to subsidize failing foreign economies and substandard living conditions through magnetic U.S. immigration policies.
   
• While futilely attempting to address the root causes of migration in dozens of countries around the world, the Biden administration is ignoring, or exacerbating, the “pull factors” over which it has full control.
   
• CDC’s Title 42 authority and MPP have been effective containment and mitigation strategies, resulting in reduced introduction of COVID-19 into the U.S. from illegal aliens and frivolous asylum seekers. If either are rescinded, it puts the American people at risk.
   
• MPP has been successful in preventing the release of illegal aliens into the interior of the country as they await an immigration court date. Historical data shows that aliens who are released into the country prior to appearing before an immigration judge simply disappear.

“Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”

• Protecting the interests of the American people by barring the admission of immigrants who are likely to become public charges (become dependent on government welfare) has been a cornerstone of U.S. immigration policy since 1882.
   
• Biden is trying to reverse existing policies that protect American taxpayers – and doing so at a time when a raging pandemic is forcing many Americans to rely on social safety nets that can barely keep up with the demands being placed on them.

What do the Executive Orders Do?

“Executive Order on the Establishment of an Interagency Task Force on the Reunification of Families”

• Directs the Task Force, consisting of agency heads within the DHS, Department of Justice (DOJ), Department of State (DOS), and Department of Health and Human Services (HHS) to identify all minors who were separated from their families at the United States-Mexico border between January 20, 2017 and January 20, 2021, in connection with the operation of the Zero-Tolerance Policy, and provide recommendations concerning the exercise of any agency authorities necessary to reunite families; and
   
• Specifically calls for recommendations to the President concerning the exercise of any Presidential authorities necessary to reunite the children with their families, as appropriate and consistent with applicable law, and recommendations regarding the possible exercise of parole under section 212(d)(5)(A) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1182(d)(5)(A)), or the issuance of visas or other immigration benefits, as appropriate and consistent with applicable law, among other things.

“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”

• Directs DOS and DHS to review mechanisms to identify and process aliens from the Northern Triangle who may be eligible for refugee resettlement in the United States;
   
• Directs DOS and DHS to consider taking “all appropriate action” to reinstate the Central American Minors parole program (CAM);
   
• Directs agency heads to review and determine whether to terminate MPP;
   
• Directs agency heads to review and determine whether terminate or modify Title 42 regulations regarding admission of aliens from countries with prevalent communicable diseases (“Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists,” 85 Fed. Reg. 65,806 (October 13, 2020); and “Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of Introduction of Persons into United States from Designated Foreign Countries or Places for Public Health Purposes,” 85 Fed. Reg. 56,424 (September 11, 2020) (codified at 42 C.F.R. 71.40));
   
• Directs DHS and DOJ to review and determine whether to rescind the interim final rule clarifying the Departments authority to enter and engage in Asylum Cooperative Agreements (ACAs) with other countries (titled “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” 84 Fed. Reg. 63,994 (November 19, 2019)), as well as any agency memoranda or guidance issued in reliance on that rule;
   
• Directs DOS to promptly consider whether to notify the governments of the Northern Triangle that the United States intends to suspend and terminate the following agreements:

(1) “Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims,” 84 Fed. Reg. 64,095 (July 26, 2019);

(2) “Agreement Between the Government of the United States of America and the Government of the Republic of El Salvador for Cooperation in the Examination of Protection Claims,” 85 Fed. Reg. 83,597 (September 20, 2019); and

(3) “Agreement Between the Government of the United States of America and the Government of the Republic of Honduras for Cooperation in the Examination of Protection Claims,” 85 Fed. Reg. 25,462 (September 25, 2019).

• Directs agency heads to propose a “Root Cause Strategy” to identify and prioritize actions to address the underlying factors leading to migration in the region and ensure coherence of government positions;
   
• Directs agency heads to propose a “Collaborative Management Strategy” to identify and prioritize actions to strengthen efforts to address migration flows, including by expanding upon previous efforts to resettle throughout the region those individuals who qualify for humanitarian protection, and to facilitate access to protection and other lawful immigration avenues, in both the United States and partner countries, as close to individuals’ homes as possible;
   
• Directs agency heads to prioritize support for expanding pathways through which aliens facing “difficult or dangerous conditions in their home countries” can find stability and safety in receiving countries throughout the region, not only through asylum and refugee resettlement, but also through other immigration programs, including labor and other non-protection-related programs;
   
• Directs DHS and DOJ to: within 180 days of the date of this order, conduct a 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; and, within 270 days of the date of this order, promulgate joint regulations addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol; and
   
• Revokes the following Presidential documents:

(1)  Executive Order 13767 of January 25, 2017 (Border Security and Immigration Enforcement Improvements);

(2)  Proclamation 9880 of May 8, 2019 (Addressing Mass Migration Through the Southern Border of the United States);

(3)  Presidential Memorandum of April 29, 2019 (Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System);

(4)  Presidential Memorandum of April 6, 2018 (Ending “Catch and Release” at the Border of the United States and Directing Other Enhancements to Immigration Enforcement); and

(5) Presidential Memorandum of April 4, 2018 (Securing the Southern Border of the United States).

“Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”

• Directs the Domestic Policy Counsel to convene a Task Force on New Americans, which must include officials from agencies that implement policies that impact immigrant communities;
   
• Directs the Secretary of State, Secretary of Homeland Security, and Attorney General to provide recommendations to remove barriers aliens face when trying to access immigration benefits;
   
• Directs agency heads to immediately review agency actions regarding the implementation of the public charge ground of inadmissibility statute (found in section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4), and the related ground of deportability in section 237(a)(5) of the INA, 8 U.S.C. 1227(a)(5)); and 
   
• Directs agency heads to, within 60 days, submit recommendations address concerns about the current public charge-related policies’ effect on the integrity of the immigration system and public health and to reduce “fear and confusion” among aliens who may be subject to the inadmissibility or related ground of deportability.