Biden’s Immigration Executive Orders
Author: NYC Immigration Lawyer Alena Shautsova
On Tuesday, February 2, 2021, President Biden signed three more Immigration executive orders. These were not designed to ‘make new law’, but to eliminate ‘bad policy’. The orders themselves will inevitably have a legal effect. But what effect?
Two of the orders signed ordered a comprehensive review of many Trumpian immigration policies that remain in place. In line with the president’s vision of an inclusive United States – a haven for dreamers and a country supportive of its non-citizens – his first two orders laid down plans to review current policies.
The review will look over the restrictions to asylum, the funding to foreign countries, and other preventative measures which have slowed avenues to legal immigration and naturalisation.
The third order establishes a task force designed to identify and reunite children with family members that have fallen victim to the Zero Tolerance policy, unleashed under the last regime.
Research from Syracuse University and their delving through federal court documents show that the United States Government are unable to find the parents of over 500 children that have been separated from their parents under Trump’s Zero Tolerance policy. The newly appointed Secretary of the Department for Homeland Security, Alejandro Mayorkas will be tasked with driving this ‘task force’ and many of the President’s other desired changes.
Mr Mayorkas was sworn in by congress just hours prior to the three executive orders were signed. The Latino secretary had the support of only three Republican votes. Fervent opposition from the Republican side resides in a belief that altering the agenda on migration so rapidly will send the wrong message - ‘American Jobs’ are less important than those of non-citizens’.
Jessica Anderson, the Director at Heritage Action had this to say:
By abandoning common-sense asylum policies and increasing the burden on our strained social safety net, these orders will take away jobs from Americans struggling to find employment.
By the President’s orders, Mr Mayorkas will be reviewing the Migrant Protection Protocols (MPP) program. This is the scheme currently responsible for leaving almost 100,000 asylum seekers beyond the southern border in tent cities, waiting indefinitely. Many who languish in tent cities are the very people that have suffered being separated from their children under the Zero Tolerance policy
Lee Gelernt, the deputy director of the ACLU’s Immigrants’ Rights Project has been cautiously welcoming of the Presidents order to review the MPP program and reunify those afflicted families. That said, these advocacy groups are unsure whether orders from the President will go far toward the scale of change required. Lee Gelernt said the administration had to “do more… if it was going to fully address the family separation tragedy it inherited.”
The USCIS and the courts are overwhelmed and there are questions around how these reviews will be conducted, and from where their funding will come. There are similar questions around the task force itself, and how it will be designed to identify and reunify broken families. Will the President’s intended measures be an additional burden for the DHS and the USCIS?
Immigration courts have a backlog of over a million cases to wade through - 200,000 in Texas alone. The hope is that the President’s orders will ‘streamline operations’.
There will likely be a change to the Public Charge rule. This policy dictates that migrants who are a financial burden to the state be automatically denied visas. Permanent residents with US-born children have been deported under this policy, without any consideration of individual circumstance. This rule will be reviewed under new orders signed by the President.
The president also seeks to:
collaborate with regional partners, including foreign governments, international organisations, and non-profits to shore up other countries’ capacity to provide protection and opportunities to asylum seekers.
The President will be reviewing the foreign aid budget and other protocols to ensure the United States positions itself as a global beacon of hope.
A movement toward ‘shoring up’ the capacity of other nations - to deal with problems around poverty and lawlessness - makes sense. Together with a moratorium on the Migrant Protection Protocols and the Public Charge rule, these policies should free up some administrative capacity for the USCIS and prevent a degree of blowback hitting the immigration courts. That is the President’s thinking and I see no legitimate reason to believe the DHS will be overburdened or disrupted in the long term. Sure, reform may be taxing initially. But in terms of resource, people power, there is more than enough to push through any interim changes to procedure. The President’s logic stands to reason: if you deregulate, you cut administrative and legal workload. It’s a no brainer.
It must be notied that Biden’s Orders already have positive effect: the public charge rule it seems is about to be dropped, as the government changes its position in the related litgation. Nothing has been finalized yet, but it seems that the government will drop its appeal, and hence the Ninth Federal Court’s order enjoying the public charge nationwide will be finally the LAW!
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