Originally Published in The Washington Post
Nick Miroff, Seung Min Kim and Maria Sacchetti - February 2, 2021
The orders signed Tuesday continue a blizzard of executive actions that Biden has issued since the first day of his presidencyaddressing policy challenges such as the coronavirus pandemic, economic relief and climate change.
“There’s a lot of talk, with good reason, about the number of executive orders I’ve signed,” Biden said from the Oval Office as he signed the orders. “I’m not making new law. I’m eliminating bad policy.”
Of the latest orders, Biden said: “This is about how America is safer, stronger and more prosperous when we have a fair, orderly and humane immigration system.”
“In a matter of weeks, President Joe Biden has rolled back a substantial part of the gains it took years for the Trump Administration to achieve in the fight to stop illegal immigration,” Sen. Lindsey O. Graham (R-S.C.) tweeted. “The refusal to continue building the border wall and changing Trump asylum policies requiring migrants to wait in Mexico for their court date are formulas for disaster and will create massive future runs on the border.”
Both Biden and his top aides have described in broad terms their intent to repudiate the previous administration’s policies. But senior administration officials also acknowledge that some of Trump’s border-control measures will remain in place for the time being, in a sign of their concern about a new migration wave building amid the pandemic.
Biden’s orders will “review,” though not cancel, the Migrant Protection Protocols, also known as the “Remain in Mexico” program, which 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 determine how to dismantle the program.
The president’s latest orders also leave intact, pending review, 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 Mexican border cities.
White House press secretary Jen Psaki said other executive actions were under consideration, as she defended how the administration chose to roll out its immigration directives.
Still, Tuesday’s orders are in sharp contrast to actions that Biden took on the first day of his presidency, which led to immediate changes and reversals of Trump policies, such as halting construction on the $16 billion wall along the southern border and repealing the ban on travelers from several Muslim-majority nations.
His administration also ordered a 100-day “pause” on deportations of most immigrants already living in the United States, although a federal judge in Texas last week issued a restraining order blocking it. The judge’s action allowed U.S. Immigration and Customs Enforcement to essentially go back to the status quo while the court considers a motion by the state of Texas seeking an injunction.
The actions signed Tuesday are far less aggressive, at least initially — primarily directing agencies to review Trump’s policies and determine how to revise them. Senior administration officials said that they intend to replace Trump’s border measures with more-humane programs but that they need more time.
“They can’t turn everything around with one executive order,” said Ali Noorani, president of the National Immigration Forum. “These are important process steps. But the administration needs to make sure they convert to action in the very near future.”
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, presenting a fresh challenge for an administration that has tried to project a more generous immigration policy for those who are already in the country without legal status.
“This is not the time to come to the United States,” Psaki said Tuesday. “We need the time to put in place an immigration process so people can be treated humanely.”
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.
Senior administration officials described the actions as a warm-up to additional measures in coming months.
For instance, the Biden administration plans to significantly raise the cap on refugees allowed into the United States every year, according to two people familiar with its plans who spoke on the condition of anonymity to disclose private discussions. The goal, the people said, was to raise the annual cap on refugees to 125,000 per year.
That would be a substantial change from the Trump administration, which slashed refugee levels to 15,000 last year — the lowest since the Refugee Act establishing the caps took effect under the Reagan administration.
One of Biden’s orders directs his administration to consider terminating a series of Asylum Cooperation Agreements that the Trump administration reached with Central American countries that allow U.S. authorities to ship them asylum seekers from the border. Biden will instead seek to develop a “Collaborative Management Strategy” to work with governments in Central America to improve protections for vulnerable groups “as close to the migrants’ homes as possible,” the order states.
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.
“The Trump administration wreaked so much havoc over the period of four years, and so it’s going to take time to undo that kind of harm,” said Marielena Hincapié, executive director of the National Immigration Law Center. “We want them to take their time and to be very deliberate on how they’re making their changes.”
Biden also faces solidifying GOP opposition to his immigration proposals and his homeland security secretary, Alejandro Mayorkas. The first immigrant to lead the sprawling department, Mayorkas was confirmed on a bipartisan 56-to-43 vote Tuesday afternoon after some Republicans objected to a fast-track confirmation vote for him last week.
Mayorkas has been tapped to lead the family reunification task force, which will produce a status update in about four months.
The Trump administration attempted to obstruct 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 DHS inspector general, congressional homeland security committees and the U.S. Office of Special Counsel to investigate.
The American Federation of Government Employees’ 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.