President Biden Piles on Executive Immigration Actions

FAIR Take | February 2021

President Biden issued three more immigration executive orders on Tuesday, February 2, 2021, to continue back-peddling strides made on immigration enforcement during the previous administration. The orders include numerous directives to agency heads to immediately review and consider terminating enforcement policies such as:

• The Migrant Protection Protocols (also known as MPP, or sometimes referred to as “Remain in Mexico”), which required certain unlawful border crossers to wait in Mexico pending their full proceedings with an immigration judge;
  
   
• DHS’s policies interpreting and implementing the Immigration and Nationality Act’s Public Charge rule;
  
   
• The U.S. government’s bilateral asylum cooperative agreements (also known as ACAs) with Central American countries aimed at distributing burdens associated with the high levels of aliens seeking asylum in the United States with partner countries; and
  
   
• The government’s Title 42 authority, which limits entry into the United States during the pandemic to mitigate the spread of COVID-19 across the border, into detention centers, and border region communities.

Among many other things, the Executive Orders direct agency heads to develop recommendations and strategies to eliminate policy and regulatory barriers for aliens seeking immigration benefits in the United States and expand pathways for aliens fleeing generalized crime or “hardship,” which was undefined.  However, the Board of Immigration Appeals has repeatedly held that the nation’s refugee and asylum laws do not cover this. The Immigration and Nationality Act only provides refugee status for aliens fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or torture committed by governments, including public officials acting under the color of law.

President Biden’s February 2, 2021 executive actions illustrate a degree of caution, but paint a clear picture of this administration’s “America Last” immigration policy agenda and give relevant agencies a policy roadmap. The orders also highlight the Biden Administration’s intent to focus on maximizing the use of executive and administrative discretion to provide immigration benefits as broadly as possible, all while minimizing enforcement and fraud deterrence in the nation’s immigration system.

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 20, 2021. This series was far sweeping, and included the revoking executive orders issued under the former administration restricting travel from countries linked to terrorism or without adequate documentation security; directing the Department of Homeland Security (DHS) to enforce all immigration laws and not exempt classes or categories of removable aliens from enforcement; issuing a memorandum directing DHS and the Department of Justice (DOJ) to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) program, and ordering DHS to halt almost all deportations of aliens with removal orders for 100 days, among numerous other orders. (The State of Texas has filed a legal challenge which has temporarily put a hold on President Biden’s 100-day removal moratorium.)

Additionally, the President successfully requested that the Supreme Court remove litigation challenging both border wall construction and MPP from its docket. While technically both cases remain before the Justices in abeyance, the President’s requests signal that upcoming executive actions may render the cases moot and prevent the Court from issuing decisions affirming the government’s authorities. Accordingly, this litigation strategy would ensure that any future president that attempts to restart these programs will face similar legal challenges that hindered the previous administration.