Author(s): Maggie Cheng, NWIRP Staff Attorney (Asylum) and Malou Chávez, NWIRP Deputy Director

Below are highlights of the changes under the Biden-Harris administration that include updates on new rules, regulations, legal challenges, and changes in policy. The Biden-Harris administration has issued several executive actions that: 

  • Pause construction of the southern border wall; 
  • Preserve DACA (Deferred Action for Childhood Arrivals) program for young immigrants, or “Dreamers,” who came to the U.S. as children;
  • Reaffirm end of family separation policies that cruelly separated parents and children as a means for deterrence and form a task force to reunite families; 
  • End travel bans against immigrants from African and predominately Muslim countries;
  • Review and aim to remove asylum bans and other obstacles that limit asylum in the U.S.; 
  • Seek to rebuild the refugee resettlement program by revoking several Trump-era restrictions, expanding eligibility, and increasing the annual cap on refugees;  
  • Extend temporary protection from deportation for nationals of certain countries;
  • Pledge to reset immigration enforcement priorities and revoke Trump administration’s executive orders on interior immigration enforcement; and 
  • Revoke certain Trump-era barriers to obtaining residency/citizenship and propose a legalization program with a pathway to citizenship.

Asylum

Asylum Eligibility Rules

Many of the asylum regulations issued by the Trump administration—including barring asylum for applicants who did not enter through a port of entry or who did not apply for asylum in a transit country, and the so-called “Death to Asylum Rule”—have been enjoined by courts. The Trump administration also rescinded asylum case law for victims of domestic violence. President Biden has ordered a review of asylum eligibility for victims of domestic violence and gang violence. Immigration advocates hope that the new administration, including the newly-confirmed Attorney General Garland, will revoke Trump-era rulings and regulations and recognize protection for victims of gang- and gender-based violence. The new Biden-Harris citizenship bill (see below) also proposes to eliminate the one-year filing deadline for asylum. 

Migrant Protection Protocols Wind-down

The Biden-Harris administration announced its plans in February for winding-down the Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” program. MPP, implemented by the Trump administration in 2019, blocked asylum seekers from entering the U.S., forcing more than 70,000 asylum seekers to await their immigration court hearings for months and years in dangerous situations in Mexico. On the new administration’s first day, new enrollment in MPP ceased. MPP courts have been suspended due to COVID-19, and now will not resume. Starting on February 19, 2021, the administration is processing those in the MPP program for release into the U.S. The process will be slow and in phases, beginning with the 25,000 active cases (those with pending cases in immigration court), and roughly going by order of the date when they were placed in court proceedings (“first in, first out”). The UN Refugee Agency (UNHCR) and International Agency for Migration (IOM) are coordinating logistics and COVID-testing before release into the U.S. However the initial rollout of the release process has been confusing and riddled with technical difficulties—for example, the virtual registration website kept crashing.  In phase 1, officials expect to process as many as 300 people per day, starting at the San Ysidro, Brownsville, and El Paso ports of entry.

Central American Minors Program

On March 10, 2021, the Biden-Harris administration announced the restarting of the Central American Minors (CAM) program. The CAM refugee and parole programs, created under the Obama administration in response to the surge of Central American unaccompanied minors and families seeking refuge, allowed qualified minors from El Salvador, Guatemala, and Honduras to reunite with their parents who are lawfully present in the U.S. The CAM program was terminated in 2017 by the Trump administration. The new administration plans to reopen the program in two phases: first processing applications that were closed when the program was terminated; and secondly to accept new applications with updated guidance to follow. 

Photo by Gage Skidmore (cc license).

ICE Enforcement

In its first days in office, the Biden-Harris administration issued a 100-day deportation moratorium. However the Trump administration signed several last-minute agreements with local jurisdictions in hopes of halting any changes in immigration. As feared, Texas sued over the deportation pause. A judge in Texas (and Trump appointee) granted and later extended a temporary restraining order against the deportation moratorium pending litigation. 

The Trump administration also signed a last-minute agreement with the ICE union that purportedly would require the government  to obtain “prior written consent” from the National ICE Council before implementing immigration policy changes, effectively giving it veto power. ICE has initially been opposing or ignoring the new Biden initiatives. As immigration expert Stephen Yale-Loehr puts it: “In sum, changing the ICE bureaucracy is like steering an ocean liner. It takes time to change course. And it is harder when the crew may refuse to comply.” Aside from the issue of whether that agreement was even legal in the first place, the Biden administration rejected the agreement. Under federal law, an agency head can approve or disapprove an agreement within 30 days of its signing. 

While the 100-day moratorium is paused nationwide, in mid-February, ICE has walked-back some and issued a memorandum establishing interim guidelines and prioritizing enforcement against those who are suspected of terrorism and espionage; recent arrivals; and those who have committed an aggravated felony. 

Temporary Protected Status/Deferred Enforced Departure for Nationals of Liberia, Venezuela & Myanmar

In January 2021, the Biden-Harris administration reinstated Deferred Enforced Departure (DED) for Liberian nationals, providing them temporary protection from deportation and work authorization. 

On March 9, 2021, the administration designated Venezuela for Temporary Protected Status (TPS), which provides Venezuela nationals who have continuously resided in the U.S. before then temporary status and work authorization. On March 12, 2021, the administration also announced that it will offer TPS to nationals of Myanmar (Burma). 

Note that there are currently ten other countries designated for TPS. The Trump administration ordered termination of TPS for six of those countries, but there are pending lawsuits challenging those terminations. The new administration is expected to address those designations in the coming months. 

Residency and Citizenship

Public Charge

On March 9, 2021, the Biden administration announced that it will no longer pursue legal challenges to enforce the Trump-era 2019 Public Charge Rule, which made it much more difficult for lower-income immigrants to obtain permanent residency. As a consequence, the government will no longer consider an applicant’s receipt of Medicaid (except long-term institutionalization at the government’s expense) or SNAP as part of the public charge determination, nor require the Form I-944, Declaration of Self Sufficiency, from applicants for permanent residency. 

Naturalization

The Trump administration revised the naturalization civics test, making it longer and harder for immigrants to obtain citizenship. Beginning March 1, 2021, the government reverted to the 2008 version of the naturalization civics test. 

U.S. Citizenship Act of 2021

The Biden-Harris administration introduced a sweeping immigration reform bill, U.S. Citizenship Act of 2021, that would create a pathway to citizenship for undocumented individuals who are living in the U.S. as of January 1, 2021. The proposal legislation is welcomed, as comprehensive immigration legal reform is certainly overdue. On the plus side, it creates immediate paths to permanent legal residency (“green cards”) for those who arrived in the U.S. as children (“Dreamers”), Temporary Protected Status (TPS) holders, and certain farmworkers. 

The legislation also proposes to: reduce the waitlists to obtain family visas; expand protections and the number of visas for immigrant survivors of crimes; and repeal the 3-year, 10-year-, and permanent bars that commonly trap undocumented immigrants in the U.S. and prevent them from obtaining status. On the other hand, the proposed legislation keeps in place most of the criminal bars and adds additional criminal disqualifying grounds for the legalization program. It therefore buys into the divisive (and racist) narrative of good immigrants who deserve benefits versus bad immigrants, without recognizing but further perpetrating the institutionalized injustice in our criminal system that disproportionately harm communities of color. This legislation may eventually be divided into several parts to get through Congress. 

All this just goes to show how much work it will take to untangle the mess left by the prior administration(s). The Immigration Policy Tracking Project (IPTP) has been tracking the 1000+ immigration policy changes under Trump (and now Biden) administrations, and hopefully will be useful for reversing Trump-era policies—the developer of the tracker was an advisor on Biden’s transition team. (For more information about the tracker and the insidious ways that Trump-era changes have all made it difficult for immigrants, the New York Times and New Yorker articles are highly recommended.)

For now, it is good to remind the community that the Biden-Harris bill is just a proposal and that currently there is still no new legalization program. Communities are therefore advised to stay alert and beware of possible scams, and to consult with an immigration lawyer or legal representative to determine legal options. It is important to know your rights and have access to the resources available in the community. Below are some resources in Washington State: