In the 65 days that President Biden has been in office, he has issued 37 executive orders, and this does not even count any presidential proclamations or agency actions stemming from executive orders. At CILA, we are understandably most interested in what the executive orders and other administrative actions mean for immigration. This post is an update to our initial February 5, 2020 post, adding additional actions that have been taken since then, with an analysis of the steps the administration has taken on immigration so far and how they will impact the population we serve, immigrant children.[1] CILA’s intention is to update this post regularly, so that we can help practitioners keep abreast of changes. The relevant actions that have occurred so far are as follows, in reverse chronological order:
Statement by Homeland Security Secretary Alejandro N. Mayorkas Regarding the Situation at the Southwest Border - Spring 2021 Expand
- As has been widely reported over the last few weeks, there is an ongoing surge of children who have arrived unaccompanied on the Southwest border of the United States.
- CILA has created “ABA CILA Fact Sheet: Unaccompanied Children at the Border” to address some of these issues and answer commonly asked questions..
- Potential impact on immigrant children:
- With the COVID restrictions that were previously in place, ORR did not have an adequate number of beds to house all of these children.
- This has resulted in children staying in CBP holding facilities for longer that the usual 72 hours (which can be extended in emergency circumstances).
- As a result ORR activated some of its influx facilities and Biden ordered FEMA in to assist.
- Dream & Promise Act passed by the House.
- The bill was introduced into the House of Representatives on March 3rd.
- Its general purpose is to provide a path to citizenship for Dreamers and those that currently qualify for DACA.
- The National Immigration Forum has a helpful Fact Sheet explaining the legislation.
- Potential impact on immigrant children:
- It will apply to those who can establish that they came to the U.S. before the age of 18 and have continuously lived in the U.S. on or before January 1, 2021.
- They would gain “conditional residency” status and have a chance to get lawful permanent residency if they meet certain requirements.
- Could be a potential avenue for those children who appear to not have any other viable form of immigration relief.
- The 2018 agreement between HHS and DHS was determined to have had a "chilling effect" on anyone who was undocumented coming forward to sponsor a child out of ORR custody.
- DHS and HHS have signed a new Memorandum of Agreement that "promotes the safe and timely transfer of children. The new agreement does not change safeguards designed to ensure unaccompanied children are unified with properly vetted sponsors who can safely care for them while they await immigration proceedings."
- Impact on children:
- This should make it easier for children to be released from ORR quickly, and sponsors more willing to come forward.
Court enjoins "Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure" Final Rule - March 10, 2021 Expand
- Centro Legal de La Raza et al v. EOIR et al,. was brought in the Northern District of California to challenge the new regulations for the BIA and administrative closure. You can see CILA's analysis of the proposed regulations here.
- Senior District Judge Susan Illston granted preliminary injunction on March 10, stopping the regulations from being in effect.
- Subsequently EOIR also rescinded EOIR PM 20-01, which had many of the same BIA case processing rules as the enjoined regulations.
- Impact on children:
- This should allow children's cases on appeal to be processed fairly, and not rushed through without adequate consideration.
- It also removes at least one barrier to administrative closure for removal proceedings, although Matter of Castro-Tum is still considered good law.
- DOS & USCIS Announce reinstatement of Central American Minors (CAM) Program.
- First Phase will be processing applications that were closed when the program terminated in 2017.
- New applications will begin to be accepted in the second phase.
- The National Immigration Forum has a helpful Fact Sheet explaining the program..
- Potential impact on immigrant children:
- The program will not necessarily benefit children who are currently in the United States and arrived without a parent or guardian (although they could have had a petition pending when the program was terminated).
- The CAM program involves applying for refugee status (the equivalent of asylum status) in the child's home country, which will be one of the Northern Triangle countries. If a child were to apply for the program in their home country and be denied, it could impact any potential asylum cases of those children that arrive after the program is reinstated, as USCIS has already made a determination that the child did not meet the definition of a refugee/asylee.
ICE policy requiring child's unaccompanied status to be redetermined rescinded - March 4, 2021 Expand
- At the end of the Trump administration, ICE invoked a policy regarding a child's unaccompanied status. (As reported by BuzzFeed News)
- The policy "required that ICE officers review whether an immigrant child was still 'unaccompanied' each time they encountered the minor."
- "The officers were also told to evaluate all available information in determining whether the child should still be classified as unaccompanied, including whether they had turned 18 and whether there was an 'available' guardian in the US who could care for them or was already doing so."
- Acting ICE Director Tae Johnson revoked the policy in order to “prevent the loss of procedural and legal safeguards created by Congress that were designed to keep [unaccompanied immigrant children] safe.”
- Potential impact on immigrant children:
- There is ongoing litigation on the redetermination of a child's unaccompanied status and whether or not USCIS can make that redetermination.
- Matter of MACO says that an immigration judge can make that redetermination, but this policy may indicate that ICE OCC will no longer request the determination.
- ICE announced a new case review process.
- This announcement has more impact on those being held in adult ICE detention facilities, nevertheless, it is further evidence of the reinstatement of prosecutorial discretion.
- If a person in detention or removal proceedings does not appear to meet ICE’s priorities for enforcement, detention, or removal, they are encouraged to first contact their local ERO field office to request a case review.
- AILA recently hosted a roundtable on requesting prosecutorial discretion and the recording is available to AILA members for free.
- The Congressional Research Service produced a Legal Sidebar on 03/09/2021 called “The Biden Administration’s Immigration Enforcement Priorities: Background and Legal Considerations” which goes through these policies.
- Potential impact on immigrant children:
- There is evidence from around the country that ICE OCC attorneys are exercising more prosecutorial discretion, in particular on dismissing removal cases for children and youth with approved SIJS petitions and a current priority date.
- Practitioners should begin to add prosecutorial discretion back in to the potential options available to their clients.
- President Biden revoked proclamation 10014, known as the Immigrant Visa Ban, which had originally halted the issuance of immigrant visas to most individuals abroad seeking to immigrant to the United States as permanent residents.
- Potential impact on immigrant children:
- CILA's speculation that this proclamation, along with the closures of the U.S. consulates for COVID, is partially responsible for the advancement of the EB-4 category in the DOS visa bulletin, was confirmed by DOS's Charlie Oppenheim.
- With demand for immigrant visas down, and the consulates not issuing them, the leftover visas are rolled over into other categories, making more available for SIJS recipients wanting to adjust.
- It is possible that the advancement of visas available in the EB-4 category will slow.
- CILA's speculation that this proclamation, along with the closures of the U.S. consulates for COVID, is partially responsible for the advancement of the EB-4 category in the DOS visa bulletin, was confirmed by DOS's Charlie Oppenheim.
Suspending and Terminating the Asylum Cooperative Agreements with the Governments El Salvador, Guatemala, and Honduras - February 6, 2021 Expand
- DOS announced suspension of asylum cooperative agreements.
- In response to President Biden’s executive action “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” (discussed below), DOS notified the Governments of El Salvador, Guatemala, and Honduras that the U.S. intended to terminate the agreements.
- The termination of these agreements will be effective after the notice period stipulated in each of the agreements, but their suspension was immediate.
- Potential impact on immigrant children:
- Although unaccompanied children are exempt from safe third country agreements when applying for asylum, there can be issues if the child is determined by an immigration judge to no longer be an unaccompanied child at the time they apply. The termination of these agreements will alleviate that issue for children from El Salvador, Guatemala, and Honduras. Children from Mexico don't pass through a third country on their way to the U.S. border, but, per the TVPRA they are subject to being returned as long as they don't express a fear or returning or have trafficking indicators.
DHS Announces Process to Address Individuals in Mexico with Active MPP Cases - February 11, 2021 Expand
- DHS announced a plan to allow asylum applicants who had been returned to Mexico under the Migrant Protection Protocols (MPP) and have pending cases before the Executive Office for Immigration Review (EOIR) to enter the United States.
- Phase one began on 2/19/2021, at San Ysidro Port of Entry at San Diego.
- On 2/25/2021 processing of migrants at Matamoros encampment began at Brownsville, reports are that the camp has been effectively emptied at this point.
- Processing began at El Paso on 2/26/2021.
- We are still waiting for processing to start at Laredo and Reynosa.
- As discussed below, enrollments of asylum seekers into MPP was halted on President Biden’s first day in office.
- More information on the processing of asylum seekers from MPP into the U.S., including how to register, can be found on the DHS website.
- Potential impact on immigrant children:
- Fewer children who are part of families in the MPP program may seek to cross the border under exceptions to travel restrictions for unaccompanied children subject to the related litigation of that policy, as they will now be allowed to enter with their families.
- Less impetus for children who are not already enrolled in MPP to separate from their families, and less opportunity for tragic difficulties while waiting in Mexico leading to family separation, during or after the MPP process and come to the border alone.
- No clarification about the legal process for unaccompanied children in the U.S. who were formerly in the MPP program.
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 – February 2, 2021 Expand
Root causes- Strategy will be developed that identifies and prioritizes actions to address the root causes of migration including:
- Work with Northern Triangle countries to:
- combat corruption, strengthening democratic governance, and advancing the rule of law;
- promote respect for human rights, labor rights, and a free press;
- counter and prevent violence, extortion, and other crimes perpetrated by criminal gangs, trafficking networks, and other organized criminal organizations;
- combat sexual, gender-based, and domestic violence; and
- address economic insecurity and inequality;
- Collaborative Management Strategy: find alternatives for migrants close to home
- continued development of asylum systems and resettlement capacities of receiving countries in the region
- development of internal relocation and integration programs for internally displaced persons, as well as return and reintegration programs for returnees
- expansion of shelter networks, to address the immediate needs of individuals who have fled their homes to seek protection elsewhere in the region
- Expansion of Lawful Pathways for Protection and Opportunity in the United States
- Review mechanisms for better identifying and processing individuals from the Northern Triangle who are eligible for refugee resettlement to the United States
- Identify and implement all legally available and appropriate forms of relief
- Consider reinstituting the CAM Parole Program
- Consider parole of Northern Triangle nationals who have approved family petitions.
- Restoring and Enhancing Asylum Processing at the Border
- DHS & CDC to develop policies for safe processing of asylum claims at land borders
- DHS & CDC reinstate safe and orderly reception and processing of arriving asylum seekers, consistent with public health and safety and capacity including:
- Review and terminate, rescind, or modify orders requires Title 42 expulsions, 85 Fed. Reg. 65,806 (October 13, 2020) & 85 Fed. Reg. 56,424 (September 11, 2020) (codified at 42 C.F.R. 71.40).
- Note: D.C. District court overturned injunction in J.E.S. v. Wolf, which challenged the Title 42 expulsions for unaccompanied immigrant children. The Biden administration has said it will not restart the expulsions.
- Review and determine whether to terminate or modify the program known as the Migrant Protection Protocols (MPP)
- Consider a phased strategy for those subjected to MPP to for the safe and orderly entry into the United States, of those individuals who have been subjected to MPP for further processing of their asylum claims.
- Review and determine whether to rescind the interim final otherwise known as Asylum Ban 1.0 and the final rule titled “Asylum Eligibility and Procedural Modifications,” 85 Fed. Reg. 82,260 (December 17, 2020)
- Review and terminate, rescind, or modify orders requires Title 42 expulsions, 85 Fed. Reg. 65,806 (October 13, 2020) & 85 Fed. Reg. 56,424 (September 11, 2020) (codified at 42 C.F.R. 71.40).
- Consider terminating third country agreements with El Salvador, Guatemala, and Honduras
- Cease “Prompt Asylum Case Review” program and the “Humanitarian Asylum Review Program”
- Within 180 days, the AG and DHS must conduct a comprehensive review to evaluate whether the U.S. provides protection for those fleeing domestic violence or gang violence in a manner consistent with international standards
- Within 270 days, the AG and DHS must promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group.”
- Work with Northern Triangle countries to:
- Strategy will be developed that identifies and prioritizes actions to address the root causes of migration including:
- Potential impact on immigrant children
- Will potentially make the asylum process easier for all, including children
- Children from the Northern Triangle potentially will be eligible again for in country refugee processing
- Could potentially address root causes so that the children no longer need to flee and seek asylum in the United States
- Does not immediately address recent asylum regulations including DHS and DOJ Asylum Eligibility and Procedural Modifications (Effective January 19, 2021), DHS and DOJ Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review (currently enjoined) and DHS and DOJ Security Bars and Processing (effective March 22, 2021) or policies regarding PSG but requires action within 270 days which will hopefully result in more inclusive application of asylum law.
Executive Order on the Establishment of Interagency Task Force on the Reunification of Families – February 2, 2021 Expand
- Policy: “protect family unity and ensure that children entering the United States are not separated from their families, except in the most extreme circumstances where a separation is clearly necessary for the safety and well-being of the child or is required by law.”
- Task Force Functions:
- Identifying all children 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;
- Facilitating and enabling the reunification of each of the identified children with their families through:
- possible exercise of humanitarian parole, or other visas/immigration benefits
- provision of additional services and support to children and families
- reunification with additional family members
- consulting with children, families, and stakeholders, considering preferences, parental rights, and child well being
- Potential impact on immigrant children:
- Much needed coordinated and intentional effort to reunite separated families, which resulted in children being made unaccompanied and put in ORR custody, and make reparations for the psychological trauma endured by the families
- Does not address children who are separated from their non-parent family members at the border under other immigration policies.
Executive Order to Restore Faith in Our Immigration System and Promote Integration of New Americans – February 2, 2021 Expand
- Policy: “develop welcoming strategies that promote integration, inclusion, and citizenship.”
- Domestic Policy Council (DPC) will convene a Task Force on New Americans to coordinate the government’s efforts to welcome and support immigrants
- Each agency must review agency policies and submit a plan within 90 days to
- Identify barriers to immigration benefits and fair, efficient adjudications, recommend how to remove barriers
- Identify agency actions that fail to promote access to legal immigration system and recommend steps to revise or rescind policies
- Potential impact on immigrant children
- Will hopefully roll back many of the previous administration’s anti-immigrant immigration policies many of which failed to recognize the specific needs of children
- Could help clear backlogs and speed adjudications, particularly for asylum seeking children at USCIS. If the administration reverts back to prior USCIS policy, then children could potentially be prioritized in asylum interviews
- Will not impact the number of visas available for special immigrant juvenile status or other forms of relief, and the associated wait times
“Motion of The Petitioners to Hold the Briefing Schedule in Abeyance and to Remove the Case From the February 2021 Argument Calendar” Innovation Law Lab v. Wolf (Pekoske) [MPP case] – February 1, 2021 Expand
- Biden Administration asked the Supreme Court of the United States to remove the MPP case from its docket with consent from petitioners. The case is currently scheduled for oral argument on March 1, 2021
- Reason for request is the suspension of the MPP program
- Potential impact on immigrant children:
- As noted above, the dissolution of the MPP program is better for children and will result in fewer children from MPP affected families coming to the border alone
- Does not resolve potential impact for the children who are part of families already enrolled in MPP program and waiting in Mexico or children from MPP families who cross into the United States alone
- Under its continuing regulatory freeze and review (see discussion below) the Biden Administration has withdrawn the regulations that were proposed for special immigrant juvenile petitions.
- Potential impact on immigrant children:
- The original (and only) SIJS regulations were made final in 1993.
- The parts of the INA that cover SIJS have been amended several times since then, including in 2008 when the TVPRA significantly expanded eligibility for SIJS.
- DHS issued proposed regulations in 2011 and opened them for comment; no final rule ever resulted.
- In 2019 DHS again opened the 2011 proposed regulations for comment; these are the regulations that have now been withdrawn.
- With the withdrawal of the regulations, practitioners still have to rely on outdated and inadequate regulations when filing SIJS petitions for their child clients.
- The original (and only) SIJS regulations were made final in 1993.
Rescinding the Zero-Tolerance Policy for Offenses Under 8 U.S.C. § 1325(a), Attorney General – January 26, 2021 Expand
- Zero Tolerance” resulted in many separated families and forced children with families to go through the system for unaccompanied children.
- “Consistent with this longstanding principle of making individualized assessments in criminal cases, I am rescinding-effective immediately-the policy directive entitled Zero Tolerance for Offenses Under 8 USC.§ 1325(a) (April 6, 2018). A policy requiring a prosecutor to charge every case referred for prosecution under 8 U.S.C. § 1325(a) without regard for individual circumstances is inconsistent with our principles.”
- Potential impact for immigrant children
- Children will not be forcibly separated from their families and therefore unaccompanied by government design
- Children in the ORR system will primarily be children who were unaccompanied on the border or separated from another family member or friend
DHS Statement on the Suspension of New Enrollments in the Migrant Protection Protocols Program – January 20, 2020 Expand
- Suspends new enrollments in MPP effective January 21,2021
- Clarifies the COVID-19 non-essential travel restrictions remain in place and current MPP participants must stay in Mexico.
- Potential impact on immigrant children:
- Children who are part of families in the MPP program may still seek to cross the border under exceptions to travel restrictions for unaccompanied children subject to the related litigation of that policy.
- Less impetus for children who are not already enrolled in MPP to separate from their families, and less opportunity for tragic difficulties while waiting in Mexico leading to family separation, during or after the MPP process and come to the border alone.
- No clarification about the legal process for unaccompanied children in the U.S. who were formerly in the MPP program.
Memorandum from Acting Secretary Pekoske on Immigration Enforcement Policies - January 20, 2021 Expand
- Requires review of policies and practices concerning immigration enforcement and recommendations regarding:
- immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets
- policies governing the exercise of prosecutorial discretion
- policies governing detention
- policies regarding interaction with state and local law enforcement
- Interim enforcement guidelines and priorities:
- National security
- Border security
- Anyone entering or attempting to enter after 11/1/2020
- Public safety
- Aggravated felons, released on or after 01/20/2021, and determined to be a threat to public safety
- 100 Day moratorium on removals
- Texas federal district court issued 14-day TRO 01/26/20201 to block moratorium, suit filed by Texas Attorney General
- FIEL and RAICES, represented by the ACLU, intervened in the suit on 01/28/2021
- Judge extended TRO to 02/23/2021
- Potential impact on immigrant children:
- Children are no longer enforcement priorities under the interim guidelines.
- The reinstatement of prosecutorial discretion provides new options for children whose relief is pending before USICS and not the immigration court, including a request to DHS to use their discretion to seek joint administrative closure or dismissal
Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities - January 20, 2021 Expand
- Revokes Executive Order 13768 of January 25, 2017 (Enhancing Public Safety in the Interior of the United States)
- Calls for review of any agency actions developed pursuant to Executive Order 13768 and for appropriate action, including issuing revised guidance, to align with:
- Protecting national and border security
- Addressing the humanitarian challenges at the southern border
- Ensuring public health and safety
- Adhering to due process of law
- Safeguarding the dignity and well-being of all families and communities
- Potential impact on immigrant children:
- Children will no longer be enforcement priorities as they were in Executive Order 13768 because every undocumented person was an enforcement priority. What this means in practice, and what priorities the new administration will set is still unclear
- No new rules/regulations are to be proposed or issued until a Biden appointee has reviewed and approved
- Rules sent to, but not published in the Federal Register, are to be withdrawn immediately for review and approval by Biden appointee
- Rules already published in the Federal Register, but which have not yet taken effect, are to be “considered” for 60-day postponement to review for any questions of fact, law, and policy the rules may raise
- “Consider” a 30-day comment period to allow comments about issues of fact, law, and policy raised by the rule, and consider pending petitions for reconsideration
- If a rule raises substantial questions of fact, law, or policy, agencies should notify the OMB Director and take action in consultation with the OMB Director
- Rules affected by this freeze that would have impacted immigrant children:
- USCIS Security Bars and Processing, 85 FR 84160 [asylum seekers can be banned due to public health concerns], DELAYED until March 22, 2021
- DOJ/EOIR Final Rule on Jurisdiction and Venue in Removal Proceedings, 72 FR 14494 - WITHDRAWN on 1/21/2021
- DHS Special Immigrant Juvenile Petitions Final Rule, 84 FR 55250, 10/16/19: WITHDRAWN on 1/26/2021
The changes to U.S. immigration regulations and policy have been coming fast and furious under the new administration. Although many of the "changes" are in fact reversions to policies in place prior to the Trump administration, they are having a profound impact on our clients and their immigration cases.
[1] CILA will not be reviewing all of the different immigration executive orders and agency actions that the administration has put out so far; we are limiting our review to those pieces that will impact children who arrive unaccompanied. There are several good resources already created that look at the full picture, such as AILA’s “Featured Issue: First 100 Days of the Biden Administration,” Immigration Advocates Network Alerts, “The First 100 Days,” and the ABA Commission on Immigration’s “Recent White House and Executive Agency Immigration Pronouncements.”