Biden hits the ground running, but leaves some Trump-era policy in place—01-22-21

Immigration news, in context

This is the sixty-fourth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we look at the several executive orders and policy memos implemented by the new Biden administration in its first couple of days.

  • In Under the Radar, we look at what hasn’t changed, including the situation at the border.

  • In Next Destination, we discuss the proposed immigration bill Biden sent to Congress.

The Big Picture

The news: Much like his predecessor, who launched the much-maligned so-called Muslim Ban one week into his tenure, President Biden did not waste any time moving on his immigration agenda. In fact, moved faster, signing a slate of executive orders hours into office and directing his acting Homeland Security secretary to issue a memo instituting a 100-day “pause” on most deportations and rescinding several earlier DHS policy memos.

Travel bans thrown out

In one presidential proclamation, Biden revoked Trump-era Executive Order 13780 and Proclamations 9645, 9723, and 9983, collectively the travel bans utilizing the flimsy rationalization of terrorism and national security to block the entry of people from (as of the time of revocation) 13 countries. The first order the stopgap Muslim ban put into place after the first one failed in court, while 9645 was the third version that ultimately survived a Supreme Court challenge in Hawaii v. Trump. Proclamation 9723 removed Chad from the list of restrictions, while 9983 was the more recent “Africa ban” that limited entry from six countries, including Nigeria. 

The bans had run the gamut from very narrow—such as the ban on tourist and business visas for certain Venezuelan government officials and their families—to almost total, such as the ban on all immigrant and nonimmigrant visas to Syrian nationals, circumventable only by individually adjudicated and almost impossible-to-obtain waivers.

The proclamation didn’t bother with tweaks, instead tossing the orders completely. It instructs embassy and consular personnel to immediately resume visa processing for those who would have been barred under the prior orders, and the State Department to come up with a plan to expeditiously adjudicate visa applications for those currently in the waiver process. It stops short of guaranteeing that those who were previously denied under 9645 or 9983 will have their visas re-adjudicated, instead ordering the State Department to develop a proposal that “shall consider whether to reopen immigrant visa applications that were denied” and expedite the processing of those that are reopened.

While doing away with the prior restrictions, the new proclamation does nod to their original rationale, which included an apparent lack of effective data sharing between the US government and the nations targeted. It directs DHS and the Director of National Intelligence to review foreign government data sharing and the reliability of this information, developing “recommendations to improve screening and vetting activities,” leaving the door open to some additional restrictions if data-sharing is found to be deficient. Notably, the order does not touch any of the ostensibly pandemic-related travel or immigration bans, including Proclamations 10014 and 10052, which essentially ban almost all issuance of immigrant and nonimmigrant visas and travel to the U.S., respectively, through March 31. With these still in place, the revocation of these travel bans will have a limited impact for now (more on that below).

Strained Census exclusion effort put out of its misery

The Trump administration put a lot of time and effort into using the 2020 Census as a vehicle for both gathering additional data on noncitizens and disenfranchising them politically through both de facto and de jure means. The first salvo was an attempt to include a citizenship question on every census form, as opposed to the more limited-reach American Community Survey. This effort was challenged in court and ultimately failed before the Supreme Court when it was discovered that then-Commerce Secretary Wilbur Ross had lied about the original rationale for including the question; while he claimed that the Justice Department sought this information to enforce the Voting Rights Act, it turned out that the Commerce Department, under pressure from the White House, had asked Justice to make this request.

The court left open the possibility of including the question under different legal reasoning, but at that point it was too late, so Trump changed tacks, issuing Executive Order 13880, which attempted to have the citizenship data determined through combining census information with other federal data, such as from DHS and Social Security. In July of last year, the purpose of this data collection was made clear as Trump signed a presidential memorandum attempting to prevent undocumented immigrants from being counted for Congressional apportionment. The process is a bit complex, but at base what takes place is that Commerce Department forwards a report on the “whole number of persons” in each state to the president, who then sends it to Congress, which in turns transmits it to each state for the purpose of apportioning seats in the House of Representatives and local legislatures. Trump wanted this count sent to Congress to exclude undocumented immigrants, an effort that was immediately blocked by the courts. Trump also sought to have the results delivered by the original deadline of Dec. 31, 2020, despite the Census Bureau having estimated it needed several months of additional time to complete the count. Litigation over that effort was continuing up until last week.

This entire drawn-out mess was brought to a close with Biden’s executive order revoking the prior order as well as the presidential memorandum, and re-establishing that it was the federal government’s policy to deliver an apportionment report counting each inhabitant of each state and that the “Secretary shall take all necessary steps, consistent with law, to ensure that the total population information presented to the President and to the States is accurate and complies with all applicable laws.” In essence, the government will return to its original posture. Policy notwithstanding, there are real concerns that the data itself will be incomplete given both the fear among immigrant communities engendered since the citizenship question debacle and the difficulties presented by the coronavirus pandemic.

Deportation priorities to be adjusted

One of Trump’s first acts as president was to broaden ICE’s immigration enforcement priorities, expanding the scope of which immigrants the agency should target for arrest and deportation. Trump did this via Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States,” which Biden rescinded this week via a subsequent executive order

Biden’s executive order is very brief; rather than spelling out ICE’s new enforcement priorities, the order simply lifts Trump’s previous order, which was far more expansive. Trump’s order instructed ICE and other immigration agencies to prioritize “all removable aliens” for deportation, overriding the agency’s more limited enforcement priorities during the final years of the Obama administration. It also called for the hiring of 10,000 immigration officers, the expansion of 287(g) partnerships with local law enforcement agencies, the disqualification of so-called “sanctuary jurisdiction” from receipt of federal grants and other funding, the return of Secure Communities, the increased prosecution of “immigration violators,” and sanctions against countries that refused to accept deportees.

DHS to enact moratorium, rescinds other policies

Acting Homeland Security Secretary David Pekoske (serving in an official capacity this time, unlike some of his illegally-acting predecessors) issued a memo partly directing staff to conduct the evaluation of enforcement priorities directed by Biden’s executive order, plus laying out the promised 100-day deportation pause and rescinding some recent DHS policy memos. It directs a coordinated, “Department-wide review of policies and practices concerning immigration enforcement,” including “the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement.”

While this review is ongoing, there are interim enforcement guidelines that are rather similar to the prioritization scheme of the last couple years of the Obama administration: first priority are people suspected of terrorism, espionage, or threatening national security, then recent entrants (defined as entering after Nov. 1, 2020), and then people convicted of aggravated felonies as defined in the Immigration and Nationality Act. Despite this system, the memo notes that “nothing in this

memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities.” These priorities go into effect on Feb. 1.

Starting today, and for the next 100 days, people with final orders of removal will not be deported from the United States unless the ICE director makes a determination that they either engaged in terrorism, espionage, or are a threat to national security, or their removal is otherwise required by law; were not physically present in the country before Nov. 1, 2020; or voluntarily waive their right to remain in the country. The acting director of ICE is instructed to release additional operational guidelines by Feb. 1. These guidelines will include a process for dealing with one of the obvious stumbling blocks with this policy, which is that it doesn’t provide for the release of people already in detention nor stop additional people from being detained.

ICE detention, unlike criminal detention, is supposed to be non-punitive, and people are ostensibly put in it to ensure they make their hearings, don’t pose a threat, and are removed once a final decision is made. The courts have ruled that once an order of removal is handed down, people must be removed expeditiously—understood as within 90 days—or released. The memo alludes to this by stating that the director shall develop “a process for individualized review and consideration of the appropriate disposition for individuals who have been ordered removed for 90 days or more.” It lists some options as “staying or reopening cases, alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action.”

Finally, it rescinds several policy memos put in place to implement Trump’s now-rescinded orders and directives, most notably a couple of memos that instructed the U.S. Citizenship and Immigration Services to automatically serve people with orders to appear for deportation proceedings if their immigration applications were denied and they didn’t otherwise have status.

Deferred Enforced Departure for Liberians reinstated

In December 2019, Congress passed the National Defense Authorization Act for the 2020 fiscal year, a massive military funding bill that also included a provision creating a path to citizenship for certain Liberian nationals living in the U.S. The Liberian Refugee Immigration Fairness provision was fairly narrow: only those who had been previously granted Temporary Protected Status (TPS), which ended in 2007, and then received Deferred Enforced Departure (DED) would be eligible, as would their spouses and children.

Those who were eligible for adjustment of status could apply until December 20, 2020—but as Dara Lind previously reported for ProPublica, Trump’s DHS bungled pretty much every step of the process, leaving thousands of eligible Liberian immigrants suddenly vulnerable to deportation. Congress ended up extending the application period but didn’t extend work authorization for those eligible, meaning they would no longer be able to legally work in the U.S. as their adjustment of status applications were processed.

The Biden administration issued a memorandum seeking to remedy this by directing the DHS secretary to “promptly direct the appropriate officials to make provision … for immediate allowance of work authorization for those Liberians” who had DED-related work authorization documents prior to the expiration date. There are a few exceptions, including people who are ineligible for TPS, those whose adjustment of status applications were already denied, those whose deportation is deemed “in the interest of the United States,” those whose presence in the U.S. is believed to “have potentially serious adverse foreign policy consequences,” those who have returned to Liberia or their previous country of residence for more than 180 aggregate days, those who had been deported prior to the memorandum’s issuance, or those subject to extradition. 

DACA protections fortified

Another presidential memorandum essentially reaffirmed the existence of Deferred Action for Childhood Arrivals, Obama-era protections for certain undocumented youth that the Trump administration tried to eliminate. It’s a short memorandum, in which Biden orders the DHS secretary and the attorney general to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

Trump attempted to end DACA in 2017 and was immediately sued by several states and university systems, who argued that the administration had violated the Administrative Procedure Act and constitutional equal protection principles. While the DACA lawsuit made its way through the courts—ultimately ending up in the hands of the Supreme Court—those who already had DACA status were able to stay in the country, but new applications weren’t processed. Even after the Supreme Court ruled that the administration’s attempt to end DACA was unlawful, DHS refused to process new applications.

At its strongest, DACA is still a stopgap measure. The program allows young undocumented people who meet certain qualifications to live and work in the country, but it doesn’t provide a path to citizenship or permanent residency. The sweeping immigration bill Biden sent to Congress would create a three-year path to citizenship for DREAMers, but some congressional Republicans have already made their opposition to the legislation clear, potentially thwarting any chance at reform.

RIP to the border wall (sort of)

Biden is halting construction of the wall along the U.S.-Mexico border, one of Trump’s signature campaign promises that actually came to fruition. The wall wasn’t fully built, but the Trump administration did erect hundreds of miles of the structure, much of which it paid for by redirecting money from military funding.

The proclamation also rescinds Trump’s Proclamation 9844, which declared a national emergency at the southern border and allowed the administration to redirect funding from other government agencies to pay for the wall’s construction. 

It’s unclear what will happen to the parts of the border wall that have already been built—Biden previously said his administration won’t tear the existing structure down, but he will likely face pressure to do so. The proclamation also requires the DHS and Defense secretaries and the director of the Office and Management and Budget to assess the legality of the funding and contracting for the wall, and to examine all construction contracts and their completion status. The aforementioned agency heads have been tasked with developing a plan for repurposing any outstanding contracts, and have been instructed to redirect funds to other projects when legally feasible.

Although Biden promised that not another foot of wall would be built, the immigration bill he sent to Congress does include provisions for a “smart” wall. As our Felipe De La Hoz wrote for The Nation, a tech-wall may “have the veneer of scientific impartiality,” but that’s exactly what makes them “insidiously dangerous.” A “smart” wall would ensnare just as many people—if not more so—than a concrete structure. It would likely push migrants towards more dangerous routes to avoid detection, increasing the already acute risks of crossing the border. 

Under the Radar

COVID-related restrictions remain untouched

Biden signed a stack of COVID-related executive actions and a stack of immigration-related ones, but notably he hardly addressed the policies that combine these, namely his predecessor’s several pandemic-related immigration restrictions. In an executive order “on Promoting COVID-19 Safety in Domestic and International Travel,” the president essentially reiterates the premise of a previously-confirmed CDC order that will make international travelers present a negative COVID-19 test prior to boarding aircraft bound for the United States, empower the Health and Human Services and DHS to “take any further appropriate regulatory action,” and evaluate limitations at land borders and sea ports.

The administration announced that new people would not be enrolled in the Migrant Protection Protocols, which forced asylum seekers to wait in Mexico in often squalid and dangerous conditions for their court cases to play out, but did not terminate the CDC Title 42 order, which authorizes border personnel to immediately expel asylum seekers without due process. As The Los Angeles Times’ Molly O’Toole has chronicled, this is already causing confusion among the migrants, who remain unsure if they’ll actually be able to tender asylum claims or if they’ll be expelled.

As mentioned above, Biden has also left Trump’s coronavirus immigration travel bans in place. These aren’t minor provisions; 10014 essentially stops all immigration to the United States. In those orders, the explicit intent was to protect the United States from the economic impact of immigration and temporary workers, not the health impact, which meant they should have been easy pickings for the Biden administration to terminate day one. The CDC order was issued against the recommendation of career staff, is viewed as useless by health experts, and universally hated immigration advocates. The fact that these were left in place, despite the transition clearly having evaluated which policies to flashily get rid of hours into the presidency, indicates that the team sees at least some element of utility to them. It seems that it retains a deathly fear of the optics of a border surge.

The two coronavirus proclamations are set to expire March 31, but the CDC order is in place until the CDC director chooses to reverse it. It’ll be worth keeping an eye on what the administration does on these restrictions in the coming weeks.

Next Destination

Biden sends Congress a sweeping immigration bill

In addition to all of the aforementioned executive orders, proclamations, and memoranda, Biden sent Congress a legislative proposal that would, among other things, create a path to citizenship for millions of undocumented immigrants. The full text of the bill, called the U.S. Citizenship of 2021, isn’t available yet, but the administration did release a fact sheet to reporters. 

The pathway to citizenship the bill would establish is lengthy. Those eligible would first have to apply for temporary legal status and would only be able to apply for a green card after five years. Three years after obtaining a green card, they’d be able to apply for citizenship provided they passed background checks, a civics test, and “demonstrate knowledge of English.” Immigrant farmworkers, DREAMers, and people with TPS would be allowed to forego the five-year waiting period and apply for green cards immediately. The bill would also change the family-based migration system, reduce visa wait-times, and give dependents of H-1B visa holders work authorization. The bill would also lift the one-year deadline for asylum applications and would raise the caps on U visas from 10,000 to 30,000.

As a tradeoff, the bill would provide additional funding for “smart border controls” such as drones and other technology. In order to curb unauthorized migration, it would provide increased funds to El Salvador, Guatemala, and Honduras “conditioned on their ability to reduce the endemic corruption, violence, and poverty that causes people to flee their home countries.” It’d create processing centers in Central America so people could apply to come to the U.S. as refugees.

Despite Democrats’ majority in both chambers of Congress, the bill’s future is uncertain, especially as written. Congressional Republicans will likely oppose all or most of the provisions, Democrats will likely cede some ground in hopes of bipartisan compromise, and the result will likely be far less expansive than immigrants’ rights groups hope.