Biden Administration's First Changes to U.S. Immigration Policy

February 2, 2021 President Biden's initial actions concerning immigration address DACA, the border wall, enforcement and deportation priorities, Liberian DED, and more.

By , J.D.

** LEGAL UPDATE **

As promised during newly inaugurated President Joe Biden's campaign, immigration matters are being put near the top on his administration's priority list. Among the executive orders and announcements made during the opening days and weeks of the Biden Harris administration are those summarized below.

First, however, let's pause for a reminder of the limits of presidential power. A U.S. president cannot add new laws to the books, nor amend existing ones. What he can do, however, is to order federal agencies to focus their efforts in certain directions, and even exercise their discretion in certain ways.

The president can also suggest new legislation to Congress, and get involved in the push for its passage. Biden has, in fact, announced that a reform of the U.S. immigration system is also among his top priorities, with a strategy of developing a system that "welcomes immigrants, keeps families together, and allows people across the country—both newly arrived immigrants and people who have lived here for generations—to more fully contribute to our country." Actual legislation could be a long time coming, though, and look nothing like the original plans. For that reason, we won't review Biden's legislative proposals here.

With that in mind, here are President Biden's initial actions concerning immigration, most of which are taking effect immediately.

Ending Trump-Era Travel Bans

Since 2017, various travel bans ordered by Donald Trump have severely restricted U.S. entry to citizens from numerous countries. President Biden's Proclamation on Ending Discriminatory Bans on Entry to The United States lifts two of these bans, thus opening consulates in, and allowing entry, from the countries of Iran, Libya, Somalia, Syria, Yemen, Venezuela, North Korea, Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

The order also asks the U.S. State Department to develop plans for swiftly reconsidering visa denials and pending waiver applications from when the ban was in place.

A later order rescinded Trump Proclamation 10014, an April 22, 2020 order called "(Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak." It blocked entry by new green card holders, including diversity visa holders.

Reinstating Deferred Action for Childhood Arrivals (DACA) Program

DACA was a program initiated by executive order under President Obama in 2012. The Trump Administration spent the next four years trying to terminate it. The courts stopped many of Trump's efforts, but regardless, only renewal applications were accepted by U.S. Citizenship and Immigration Services (USCIS), not new DACA applications.
The benefit offered by DACA is that it protects undocumented persons who were brought to the United States as children from deportation, allows them work permits (Employment Authorization Document or EAD) and in some cases, travel permits (Advance Parole). Without DACA, they're at immediate risk of deportation despite, in many cases, having little memory of life outside the U.S. and being without fault when it comes to their undocumented status.
The title of President Biden's executive order, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) speaks for itself. USCIS must accept new DACA applications, renew current applications, and grant EADs and Advance Parole to those eligible.
In addition, the legislation President Biden is proposing would provide a pathway to U.S. citizenship for DACA recipients and others. This legislation might become crucial, given that litigation opposing Obama's original DACA order is still winding its way through the U.S. court system.

Reestablishing Priorities for Removal (Deportation)

As with many law enforcement agencies, U.S. immigration authorities have a history of establishing priorities when it comes to how to direct their resources. Under President Obama, immigration agencies' focus when it came to initiating deportation proceedings was on people who did not have deep ties to the U.S. and were:

  • threats to U.S. national security
  • had serious criminal convictions, or
  • were frequent unlawful U.S. border crossers.

To balance this out, undocumented immigrants with longstanding family ties in the U.S. and a history of positive community behavior could actually request that immigration enforcement authorities set their cases aside for the moment, in favor of more pressing priorities. (This possibility was known as "deferred action.")

Under the Trump Administration, however, all such priorities were removed by executive order, in the name of zero tolerance for undocumented (and seemingly any other) immigrants.

President Biden's Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities revokes the Trump order, stating that "My Administration will reset the policies and practices for enforcing civil immigration laws to align enforcement with" the values and priorities of "national and border security, address[ing] the humanitarian challenges at the southern border, and ensur[ing] public health and safety."

Following this, DHS issued a memo announcing a 100-day moratorium on most deportations beginning Friday, January 22. It says the pause will allow the agency to ensure that its resources are dedicated to responding to the country's most pressing challenges. This was quickly followed by a lawsuit in Texas, however, where a federal district court judge blocked the action indefinitely. That means deportations will continue until and unless a higher court reverses this.

Also following the Biden order, the Department of Homeland Security issued an enforcement memo explaining that the new priorities for removal will, staring February 1, 2021, include:

1. National security, that is, people who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect U.S. national security.
2. Border security, including anyone caught at the U.S. border or port of entry while attempting to enter unlawfully or who were not physically present in the U.S. before November 1, 2020.
3. Public safety, including anyone incarcerated within federal, state, and local prisons and jails who is released on or after the issuance of the memo and convicted of an "aggravated felony."

The memo also raised the possibility of people being granted deferred action or parole, but did not detail any new procedures.

The future of this intended change in priorities was later called into doubt, however, as a federal court struck it down in August of 2021. The judge said the new priorities were too broad and restrictive for U.S. border enforcement personnel. Then an appeals court judge put a hold on that order for now. This matter remains unsettled for now. Expect further adjustments to policy.

Halting Construction of Southern Border Wall

Remember the wall that Trump falsely assured U.S. voters that Mexico would pay for, then went ahead and diverted funds to build regardless, for example around $3.8 billion from the Pentagon budget? Approximately 450 miles of the border wall were constructed, but it remains incomplete.

President Biden's Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction will end construction of this "waste of money" for now, then reassess. (Multiple media sources discuss why border walls don't achieve their intended purpose.)

Extending Deferred Enforced Departure for Liberians

The Deferred Enforced Departure (DED) program covers around 4,000 Liberians who have lived in the U.S. for many years and for whom returning would be unsafe due to conditions in their country. Trump had refused to renew Liberian DED.

Biden's order Reinstating Deferred Enforced Departure for Liberians will give them more time in which to apply for permanent residence under a 2019 law that created the Liberian Refugee Immigration Fairness (LRIF) program, without fear of deportation.

Creating a Family-Reunification Task Force

Under the Trump Administration, thousands of children and parents were separated at the Southern border. The Biden Harris Administration plans to establish a task force to recommend steps to reunify these families. In the same executive order, President Biden also revoked the Trump Administration's executive order that first began the family-separation policy.

Developing a Humane Border and Asylum Strategy

In order to undo the chaos and cruelty of the Trump Administration's border policies, the Biden Harris Administration will begin rolling these back, while implementing a three-part plan to:

  • address the underlying causes of migration, namely instability, violence, and economic insecurity in the home countries
  • collaborate with foreign governments, international organizations, and nonprofits to shore up other countries' ability to provide protection and opportunities to asylum seekers and migrants, and
  • ensure that Central American refugees and asylum seekers can access legal help in the United States.

This executive order also seeks to restore the U.S. asylum system, including by rescinding and reviewing numerous Trump Administration proclamations, rules, and guidance documents, which basically closed the U.S. border to asylum seekers.

Restoring the U.S.'s System for Legal Immigration

The Biden Harris administration will also attempt to deal with the hundreds of Trump-era policies that sought to close the door on legal immigration, for example through family relationships and employment. A task force will be established to develop policies that promote immigrant integration and inclusion and to make sure that the U.S.'s legal immigration system runs fairly and efficiently. This will involve a thorough review of Trump-era regulations, policies, and guidance, on the issue of public charge inadmissibility and more. This order also rescinds President Trump's memo requiring family sponsors to repay the government if their relatives receive public benefits.

Effective Date: February 2, 2021