President Biden Eviscerates Border Security and Immigration Enforcement on Day One

FAIR Take | January 2021

At noon on January 20th, Chief Justice John Roberts administered the oath of office to Joe Biden, who became the 46th President of the United States. Later that afternoon, President Biden signed six executive actions that signify a complete 180-degree turn away from the immigration vision of former President Donald Trump. That same day, his acting secretary of the Department of Homeland Security issued two similar policy directives.

 

Changing Interior Enforcement Priorities

The first order that Biden signed was the “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities.” This revokes President Trump’s January 25, 2017 order, which stipulated that no class of illegal alien was exempt from enforcement. Under the Obama Administration, our country’s immigration enforcement agencies prioritized removing only aliens with criminal convictions. Trump changed this by clarifying that all illegal aliens were prioritized for removal, not just those with additional criminal records. This executive order from President Biden essentially returns enforcement priorities to the Obama era, representing a massive step in the wrong direction for interior immigration enforcement.

Stopping Accurate Census Representation

Late in his term, President Trump issued an executive order to try and exclude illegal aliens from the 2020 Census count for the purpose of Congressional apportionment. This was an important step to ensure that states such as New York and California, who eschew immigration enforcement and have enormous illegal alien populations, do not take congressional seats from states that do not have large illegal alien populations.

President Biden issued an “Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census,” which rescinds President Trump’s order to exclude illegal aliens from the Census count. Congressional apportionment is a zero-sum affair: the gain of one seat by a state necessitates the loss of a seat in another state. With this new executive order, sanctuary states like New York, California, and Oregon can now grow their congressional representation due to their large illegal alien populations at the expense of states without large numbers of illegal aliens.

Ending the National Emergency at the Southern Border

In February 2019, after sparring with the Democrat-controlled House of Representatives that led to a long government funding shutdown, President Trump declared a national emergency at the border in order to begin constructing a border wall. Most of the 450 miles of new border wall construction that occurred under the Trump Administration was a result of this national emergency declaration, which allowed them to move resources from other departments in order to fund construction of the border wall.

Despite supporting and voting for the Secure Fence Act of 2006 as a senator, Biden promised to end construction of the border wall. In issuing his “Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction,” Biden ends the national emergency at the border. This is a de facto end of all future construction at the border and a fulfillment of Biden’s campaign pledge to halt border wall construction.

Reinstating DED for Liberians

President Trump ended the “Deferred Enforced Departure” program that allowed Liberians to remain legally in the United States for many years after that country’s civil war ended in 2003. This was a common sense move and reinforced the sense that temporary protection programs – like DED and Temporary Protected Status (TPS) – are just that: temporary

President Biden immediately reversed this with a policy memorandum entitled “Reinstating Deferred Enforced Departure for Liberians.” It does exactly what it says by reinstating the DED program for Liberians in the United States, despite the fact that Liberia’s civil war concluded 18 years ago.

DACA

The Obama-era Deferred Action for Childhood Arrivals (DACA) program is a priority for the Biden Administration. He tapped the program’s architect Alejandro Mayorkas to lead the Department of Homeland Security (DHS) and has installed other Obama-era DHS officials throughout his administration.

President Trump tried to force Congress to take action on immigration by rescinding DACA in September 2017, leading to multiple lawsuits and eventually a Supreme Court case. In Department of Homeland Security v. Regents of the University of California, the Supreme Court struck down the Trump Administration’s attempt to rescind DACA by a 5-4 vote, finding the Administration’s wind-down of the program violated the Administrative Procedure Act. Notably, the court avoided ruling on the constitutionality of the program, keeping a constitutional challenge from the state of Texas very much in play.

Court decisions forced the Trump Administration to keep DACA alive. President Biden issued a memorandum “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)” which essentially directs DHS to take action to strengthen DACA against any future legal suits – including one currently working its way through the courts. What this exactly entails is not immediately clear, but what is clear is that the Biden Administration will use every tool at its disposal to protect this Obama-era executive amnesty.

Ending Travel Restrictions

One of Biden’s signature promise on the campaign trail was the guarantee that he would immediately end the travel restrictions put in place by the Trump Administration, labeling them as “Muslim bans” and accusing them of being discriminatory. He signed a “Proclamation on Ending Discriminatory Bans on Entry to The United States” which rescinds the Trump Administration’s various travel restrictions on North Korea, Syria, Iran, Yemen, Libya, Eritrea, Kyrgyzstan, Myanmar, Nigeria, Somalia, Sudan, Tanzania, and Venezuela.

100-Day Deportation Moratorium

Finally, one of the biggest promises Biden made was to pause all deportations for 100 days. While not an executive order, Biden’s acting head of DHS David Pekoske issued a memorandum ending nearly all removals for 100 days. Alarmingly, this includes all illegal aliens with criminal records, meaning that the Biden Administration is actually preventing the deportation of dangerous illegal alien felons already in custody. It is unclear what positive impact this has on the United States and why the Biden Administration is going out of its way to shield dangerous criminals from lawful removal back to their home countries.

Pausing the “Remain-in-Mexico” Program

Biden’s team also stopped sending new asylum petitioners to Mexico through the successful Migrant Protection Protocols (MPP) program, popularly referred to as “Remain-in-Mexico.” This program directed aliens with asylum claims to wait in Mexico while their asylum case made its way through the immigration court system. This important tool prevented aliens from making frivolous asylum claims to enter the United States and then disappear into the interior, and effectively ended the misguided policy of “catch and release.” With the pause of the Migrant Protection Protocols, U.S. immigration authorities will now return to the practice of catch and release, further exposing our glaring asylum loopholes. While the Biden Administration did not completely end the program and could keep it in place if they choose, this move indicates that they may be inclined to fully rescind it in the future.