Immigration Law: Biden's First Hundred Days
Malvina De La Canal
At the Justice & Diversity Center’s (JDC) Immigrant Legal Defense Program, we have spent the last several years adapting to an unprecedented number of changes to immigration law and policy—and we are now expecting even more changes during the first hundred days of the Biden Administration.
The following summary covers President Biden’s immigration law and policy updates as of March 15, 2021.
While many of these new policies will protect JDC’s immigration clients, it will take many years of litigation, advocacy and congressional action to create a more fair and just immigration system that protects the due process rights of all immigrants in deportation proceedings.
The First Week of the Biden Administration
On January 20, 2021, President Biden signed five executive orders specifically on immigration, including the following:
Preserving and Fortifying DACA
Deferred Action for Childhood Arrivals (DACA) is an executive action that was signed by the Obama Administration, giving temporary legal status to certain immigrants who arrived in the U.S. as children or youth. The Trump Administration terminated DACA in 2017, permitting only renewals for those who had already been approved. President Biden ordered the Secretary of Homeland Security to “take all actions” deemed appropriate to “preserve and fortify DACA” as it was originally implemented by the Obama Administration in 2012. This is a major relief for nearly 700,000 immigrant youth, many of whom were brought to the U.S. by their parents at a young age, remember little or nothing of their country of origin, and for whom our current immigration laws offer no other form of legal status. More information here and here.
Proclamation Ending Discriminatory Bans on Entry to the United States
Known as the Muslim ban, the former administration banned entry to individuals from Muslim countries, including Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen. Those most affected had lawful status to enter the U.S. and were not allowed to re-enter, or had family members residing legally in the U.S. that they could no longer visit. Individuals from these countries can now travel to the U.S. More information here.
Revision of Civil Immigration Enforcement Policies and Priorities
The Department of Homeland Security, particularly U.S. Immigration and Customs Enforcement (ICE), enhanced its immigration law enforcement protocols under both the Obama and Trump Administrations with tactics such as the 287(g) program that authorized local and state law enforcement to collaborate with ICE agents. As a result, many within the undocumented immigrant community were detained at their homes, on the way to their children's school, or at work, and placed in removal proceedings. A significant number of those detained had lived in the U.S. for many years and had no significant criminal record. The Biden Administration directed Acting DHS Secretary David Pekoske to implement new interim enforcement priorities. Acting Secretary Pekoske issued a memorandum, known as the Pekoske memo, directing DHS personnel to focus enforcement priorities only on individuals who may be considered a threat to national security due to acts of terrorism or espionage, a threat to border security, or a threat to public safety. The memo also issued a 100-day moratorium on removals for those with a final order of removal.
The portion of the Pekoske memo issuing the 100-day moratorium was enjoined by a federal judge in Texas. A revised version signed on February 18 by ICE Secretary Tae Johnson, known as the Interim ICE Johnson memo, further clarified the “threat to public safety” priority as those who have been convicted of what is considered an aggravated felony, and listed several mitigating factors that may be considered when determining whether someone is a public safety threat. The Johnson memo applies only to ICE personnel, and not CBP or USCIS. More information here and here.
Termination of Border Wall Construction
Over the past four years, contractors expanded the border wall by 453 miles, with another $2.6 billion dollars' worth of construction left to go. The Biden administration halted any further construction to assess the legality of the funding and contracting methods used to construct the wall, and an investigation was ordered on all contracts for the border wall construction. More information here and here.
Reinstating Deferred Enforced Departure (DED) for Liberians
Liberians forced to flee their country due to armed conflict have been protected by the U.S. since 1991 under Deferred Enforced Departure (DED). President Biden extended DED through June 30, 2022 and Liberians under such status will be eligible for employment authorization through the same date. More information here.
February 2, 2021 Executive Orders
On February 2, 2021, President Biden signed three additional Executive Orders related to immigration. These three orders did not create any significant new rules, but they did halt or rescind several Trump policies and implemented a one hundred day deadline for further action.
Family Reunification Task Force
On February 2, President Biden established the Interagency Taskforce on the Reunification of Families to identify children separated from their families at the U.S.-Mexico border throughout the Trump Administration and reunite them with their families. The Chair members of the Task Force are the DHS Secretary, the DOS Secretary, and the Secretary of Health and Human Services. The Task Force must recommend additional services and support to the children, including trauma and mental health services, and provide an initial report no later than June 2, 2021 (120 days from the date of the order), as well as an interim report every 60 days thereafter. On March 2, DHS Secretary Alexander Mayorkas announced the Task Force’s principles, and appointed Michelle Brané as Executive Director of the Task Force. More information here and here.
Regional Strategy to Address Irregular Migration Across the Southern Border and Create a Humane Asylum System
This executive order outlined a multi-pronged approach to responding to asylum seekers at the U.S. Southern Border with Mexico. The administration pledges to work with other countries in the region, international organizations and civil society to address the root causes of migration in the region. The order directs the Assistant to the President for National Security Affairs (APNSA), in coordination with the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of any other relevant executive departments and agencies, to work together to prepare a strategy for the U.S. in addressing the root causes of migration. The order also directs the Secretary of Homeland Security and the Secretary of State to identify and improve lawful pathways for migration in the region and a more efficient and humane processing of asylum applicants at the border. More information here.
Restoring Faith in our Legal Immigration System and Strengthen Integration and Inclusion Efforts for New Americans
This executive order directs the Domestic Policy Council (DPC) to convene a Task Force on New Americans to welcome and support immigrants, including refugees. The order also directs the Secretary of State, Attorney General and the Secretary of Homeland Security to review existing policies that do not encourage full participation by immigrants in civic life, that are ineffective or inefficient and to eliminate fear and other barriers that prevent immigrants from accessing services available to them. This order also directed an immediate review of agency actions on Public Charge and promoting Naturalization.
Other Executive Actions
Migrant Protection Protocols
On January 5, 2019, DHS announced the implementation of the Migrant Protection Protocols (MPP) that permitted Customs and Border Patrol officers to send back any non-Mexican asylum seekers to border towns in Mexico while their asylum claims were adjudicated in U.S. Immigration courts. As a result, numerous tent encampments sprung along the border, where asylum seekers slept in squalid conditions, and were subjected to assaults and other violent crimes. As of November 2019, 56,000 asylum seekers were placed in the MPP program, 16,000 of them children. On February 11, 2021, the Department of Homeland Security (DHS) announced plans to process into the United States certain individuals who had been returned to Mexico under the Migrant Protection Protocols (MPP) and have pending cases before the Executive Office for Immigration Review (EOIR). Beginning on February 19, 2021, DHS started phase one of its effort to restore safe and orderly processing at the Southwest Border. More information here and here.
U.S. Citizenship Application Fee
On February 2, President Biden signed an order to revise or rescind the former administration’s final rule entitled “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Benefit Request Requirements” that was published in the Federal Register on August 3, 2020 and in effect attempted to increase the U.S. Citizenship application fee by 80%, from $640 to $1170. Implementation of the fee increase was halted by a preliminary injunction from a federal judge of the Northern District of California. More information here and here.
Revocation of Immigrant Visa Freeze
On February 24, President Biden revoked former President Trump’s Proclamation 10014 signed on April 22, 2020 that effectively suspended the issuance of immigrant visas. President Biden’s Proclamation 10149 revoked the prior proclamation on the basis that “preventing certain family members of U.S. citizens and lawful permanent residents from joining their families” in effect harms the United States. President Trump’s proclamation halted as many as 120,000 family-based preference visas in 2020.
TPS for Venezuelans
On March 8, 2021, Secretary of Homeland Security Alejandro N. Mayorkas designated Venezuela for Temporary Protected Status (TPS) for 18 months, until September 2022. The new designation of TPS for Venezuela enables Venezuelan nationals (and individuals without nationality who last resided in Venezuela) to file initial applications for TPS if they can demonstrate continuous residence in the United States as of the designation’s effective date. This comes as a relief to the millions who have been forced out of their country due to drastic poverty and human rights abuses by the dictatorship of President Nicolas Maduro. TPS designation is extended through September 9, 2022. More information here and here.
Federal Impact Litigation
Many of our JDC collaborative partners have been in litigation to prevent several rule changes that were published in the Federal Register. JDC submitted a public comment opposing two of these rule changes in 2020. But the proposed rules were finalized in the final days of the last administration after an unprecedented rush through the public comment process. These cases claimed that the previous administration violated the Administrative Procedures Act in implementing these rules and we are now seeing these rule changes halted through injunctive relief. In the case of the Public Charge Rule, the Department of Justice announced that it will no longer defend the rule change and the case has now been dismissed by the Supreme Court.
Public Charge Rule
In 2019, the previous administration attempted to institute a new public charge rule that made the receipt of public benefits a basis for denying permanent residency and family-related immigrant visas. The rule change applied to a small number of immigrants and did not apply to most immigrants applying for humanitarian relief, such as asylum. However, the attention given to the rule in the media caused many who were eligible for public benefits, including U.S. citizen children, to fear requesting any benefits including health insurance, food and nutrition assistance programs, and even school lunch programs because they believed it might negatively impact their immigration status or the immigration status of a family member. On February 2, however, President Biden issued an immediate review of the DHS agency actions related to the public charge rule and on March 9, 2021 the Department of Justice announced that it would no longer defend the lawsuit before the Supreme Court and the case was dismissed. Now that the 2019 public charge rule has been vacated in its entirety, adjustment of status cases, as well as immigrant visa cases decided at the consulates, will be adjudicated based on prior 1999 guidance regarding public charge. This means that DHS and DOS officials will not consider a person’s receipt of Medicaid, Medi-Cal public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination. In addition, medical treatment or preventive services for COVID-19, including vaccines, will not be considered for public charge purposes. More information here.
Nationwide Injunction on EOIR Rules Limiting Immigration Judge Discretion and Appellate Procedures
On March 10, 2021, U.S. District Judge for the Northern District of California Susan Illston in Centro Legal De La Raza et al v. EOIR enjoined nationwide implementation of EOIR’s final rule titled "Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure" that was to take effect on January 15, 2021. This final rule made drastic and sweeping changes to the procedures governing immigration courts and put unprecedented restrictions on the judicial independence and authority of immigration judges. This rule would have significantly restricted the options of immigrants appearing before the immigration court and would have severely limited the procedural tools our JDC attorneys rely on to uphold due process. JDC submitted a public comment in the Federal Register denouncing the proposed rule in 2020. More information here and here.
Nationwide Injunction on New Asylum Regulations
On January 8, 2021, Judge James Donato of the U.S. District Court for the Northern District of California in Pangea Legal Services et al v. DHS preliminarily enjoined the government from implementing, enforcing, or applying the final rule issued by DHS and DOJ on December 11, 2020 titled “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” or any related policies or procedures. The rule was set to take effect on January 11, 2021 and would have created a massive overhaul of the asylum seeking process in the United States and would have drastically impacted the immigrant community served by JDC. The judge found the plaintiffs had demonstrated a likelihood of success on the merits by establishing that DHS lacked authority through Acting DHS Secretary Chad Wolf for the proposed rulemaking, and a likelihood of irreparable harm in the absence of injunctive relief. JDC, along with many other nonprofits, submitted a public comment against the rule in 2020. More information here.
There have been three immigration related bills proposed in Congress since January 20. While these bills will go through many changes while they are debated and negotiated, they provide important guidance on the immigration priorities of this administration and certain members of Congress.
U.S. Citizenship Act of 2021
On February 18, 2021, Congressmember Linda Sanchez (D-CA) introduced bill H.R. 1177 to the House and Senator Robert “Bob” Menendez along with 25 other senators introduced identical bill S 348 in the Senate on February 22. The bill, titled U.S. Citizenship Act of 2021, aims to provide “an earned path to citizenship, address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system,” among others. A few notable proposals that would most impact our JDC clients include (1) immediate temporary legal status for all undocumented people who were in the United States prior to January 1, 2021 with eligibility for permanent residence after five years of filing taxes and a clean criminal record, (2) immediate eligibility for permanent residence to Dreamers, TPS holders, and farmworkers, (3) additional community based resources for alternatives to detention programs in order to decrease the number of individuals in immigration detention (4) additional staff and resources for immigration courts in order to process cases more efficiently, (5) eligibility for an employment authorization document for crime victims within 180 days of filing their T, U, or VAWA petition. More details here and here.
Pathway to Citizenship for Dreamers and Farmworkers
In March, the House is scheduled to vote on two bills that were introduced in 2019, the American Dream and Promise Act (H.R. 6) and the Farm Workforce Modernization Act (H.R. 5038). H.R. 6 would create a path to Citizenship for Dreamers as well as for those with TPS or Deferred Enforced Departure, and H.R. 5038 would create a path to citizenship for undocumented farm workers and reform part of the H-2A temporary agricultural work visa program. More information here and here.