Biden to issue new immigration orders, while signaling cautious approach

This article features our Senior Counsel David Seide and was originally published here.

President Biden will announce executive actions Tuesday ordering the review and potential reversal of the Trump administration’s deterrent policies along the Mexico border and the barriers it created in the legal immigration system, senior administration officials said Monday evening.

The directives will also create a homeland security task force to reunite families separated by President Donald Trump’s “zero tolerance” border crackdown.

“President Biden’s strategy is centered on the basic premise that our country is safe and stronger and more prosperous with a safe, orderly and humane immigration system that welcomes immigrants, keeps families together and allows people — both newly arrived immigrants and people who have lived here for generations — to more fully contribute to our country,” a senior official told reporters.

Although officials described in broad terms their intent to repudiate the previous administration’s policies, they acknowledged that some of Trump’s border control measures will remain in place for the time being, in one sign of their concern about a new migration wave building in the middle of the pandemic.

Biden’s orders will “review,” though not cancel, the Migrant Protection Protocols, also known as the “Remain in Mexico” program, that sent more than 60,000 asylum seekers to wait outside U.S. territory while their claims are processed in immigration courts. The Biden administration has stopped placing asylum seekers in the program, but applicants with pending cases will not be allowed to immediately enter the United States while officials figure out how to dismantle the program.

The president’s latest orders also leave intact the emergency pandemic measure known as Title 42 that allows border authorities to rapidly “expel” back to Mexico those who cross the border illegally. Department of Homeland Security officials have said the measures are necessary to prevent the spread of the coronavirus inside U.S. border stations and immigration jails, while immigrant advocates have urged an immediate halt to the expulsions, saying they leave families and children vulnerable to criminals in dangerous border cities.

Biden officials said they intend to replace Trump’s border measures with more humane programs, but they need more time.

Detentions and arrests along the border have exceeded 70,000 for each of the past four months, one of the busiest stretches in more than a decade, according to the latest statistics and projections from U.S. Customs and Border Protection. Riot police in Guatemala forcefully broke up a large caravan of Hondurans last month, but many of those migrants are expected to find their way north in smaller groups, CBP officials say.

Biden officials said they have a plan to transform the migration dynamics along the Mexico border by addressing “root causes” of emigration from Central America and helping vulnerable groups find safe refuge closer to home. The administration plans to restore an Obama-era program allowing minors to apply to legally reunite with parents already living in the United States, instead of risking a dangerous journey with a smuggler.

“President Trump was so focused on the wall that he did nothing to address the root causes of why people are coming to our southern border,” said one official, who called the barrier a “limited, wasteful and naive strategy — and it failed.”

Biden’s directives build on other moves his administration has taken to annul several of Trump’s signature policies. He has halted construction of Trump’s $16 billion border wall, repealed the ban on travelers from several majority-Muslim nations and ordered a 100-day “pause” on deportations of most immigrants already living in the United States.

A federal judge in Texas last week placed a restraining order on Biden’s deportation pause, allowing U.S. Immigration and Customs Enforcement to go back to the status quo while the court considers a motion by the state of Texas seeking an injunction.

Biden officials described the actions as a warm-up to additional measures in coming months. Immigrant advocacy groups are urging swift action, but Trump officials layered hundreds of immigration restrictions into regulations, administrative decisions and agreements that will all be competing for Biden’s attention.

“There is hope and help coming, but it will take us a little bit of time to implement that,” a senior administration official said during a media briefing.

Biden also faces solidifying GOP opposition to his immigration proposals and his homeland security nominee, Alejandro Mayorkas. Republicans blocked a fast-track confirmation vote for Mayorkas, but he is expected to be confirmed Tuesday afternoon by a vote on the Senate floor.

The Trump administration attempted to erect obstructions to Biden’s plans before he took office, according to a whistleblower complaint filed Monday.

An unidentified federal employee’s complaint accuses a former Trump administration official of “gross mismanagement, gross waste of government funds and abuse of authority” for instituting last-minute agreements that could hinder Biden’s efforts to rein in deportations, and urges officials to quickly rescind them.

The complaint said former acting deputy homeland security secretary Ken Cuccinelli brokered the agreements with an Immigration and Customs Enforcement union that had endorsed Trump’s bids for president. The agreements, signed the day before Trump left office, allegedly gave the union “extraordinary” bargaining power over even minor policy changes, as well as generous time for union activities that would cost taxpayers millions of dollars, the complaint said.

David Z. Seide, the whistleblower’s lawyer and senior counsel of the Government Accountability Project, a nonpartisan legal organization, said that if the Biden administration does not exercise its authority under federal law to revoke the agreements within 30 days, or by Feb. 17, then the new rules will take effect.

“Time is of the essence,” he said in the letter.

The complaint urged the homeland security inspector general, congressional homeland security committees and the U.S. Office of Special Counsel to investigate.

The AFGE National ICE Council 118 (NIC 118), the union representing the ICE employees, did not respond to requests for comment. Cuccinelli also did not respond to messages but told the New York Times, which first reported on the whistleblower complaint, that he did nothing wrong.