Biden to Issue Executive Orders on Child Separation, Migrants, Public Charge, and Naturalization

Some substance, some strategy

By Andrew R. Arthur on February 2, 2021

[This is been updated to include links to the text of the executive orders.]

President Biden is scheduled to issue three executive orders (EOs) today: one on family separation; one responding to irregular flows of migrants at the border; and one on "promoting integration of New Americans". The actual EOs have not been issued at this writing, and the devil is always in the details, but the three EOs appear to be a mix of substance and strategy, and in many ways, respond to problems that likely don't exist, or that do exist but with the wrong solution.

The first EO will create a "task force" on reuniting families that have been separated since the short-lived "zero tolerance" policy of the Trump administration. Here is the key line from that fact sheet on that one (for reasons I will explain below): "This task force will work across the U.S. government, with key stakeholders and representatives of impacted families, and with partners across the hemisphere to find parents and children separated by the Trump Administration." (Emphasis added.)

Those separations were a point that was raised at the last presidential debate, on October 22. At issue were 545 children present in the United States who had been separated from, but not yet reunited with, the parents and guardians who had brought them to this country.

As I explained in an October 23 post, due to the law at the time, parents who were prosecuted for illegal entry under zero tolerance passed into DOJ custody, and their children thus became "unaccompanied alien minors" (UACs), who had to be sent to the Department of Health and Human Services (HHS), for placement in an HHS shelter and ultimately with a sponsor in the United States.

The Congressional Research Service reports that up to 3,000 children may have been separated from their parents, and as the foregoing shows, most have already been reunited. The Wall Street Journal reported that up to two-thirds of the parents of the 545 that had not been reunited were believed to have been removed from this country.

And, as I reported in the October 23 post, DHS alleged that attorneys for those children had contacted the parents of 485 of them, and none wanted to be reunited in their country of origin.

I will note that more recent reporting from USA Today had bumped the number of separated children up to 628, the parents of most of whom — 333 — had been removed. The remaining 295 were believed to be in the United States, but they likely don't (in my opinion) to want to come to the attention of DHS, for obvious reasons.

With respect to those parents who were removed, however, that means that the Biden administration will either remove the UACs to their countries of origin, or parole the parents back into the United States. Place your bets on the latter, but it is unclear why it would take a "task force" to address the issue.

As for the ones who are still here, reuniting the families is a street-level ICE officer issue (they are fairly good at finding people), not one that requires a federal task force.

The second EO will set forth a three-part strategy to limit the number of migrants entering the United States illegally.

The first part of that strategy aims to respond to the "instability, violence, and economic insecurity" in source countries that, in the administration's opinion "currently drives migrants from their homes". The second part involves collaboration with regional partners to take up some of the slack of providing protection to asylum seekers.

The third part of the strategy is unclear in its parameters, as the White House states it "will ensure that Central American refugees and asylum seekers have access to legal avenues to the United States."

Notably absent from that list (or from proposed amnesty legislation, apparently) is any proposal to close the loopholes in the law that encourage migrants — and in particular UACs and adult migrants with children ("family units" or FMUs) —to enter the United States illegally to begin with. Plugging those loopholes would be a lot easier (and cheaper) than attempting to change the economic and security situation in a foreign country.

That said, there is violence and economic insecurity in areas of many of the countries from which illegal migrants hail. That, to a large degree, is driven by corruption, a lack of resources (both economic and security-related), and limited rule of law coupled with impunity for abuses.

The resource issue can be addressed with aid (which given the corruption requires a lot of oversight), but corruption and limitations on the rule of law in any country is to a large degree institutional — and therefore intractable — at least in the short term, and likely a lot longer.

In collaborating with regional partners to expand their capacity to grant protection to refugees closer to their home countries, the Biden administration is picking up where the Trump administration left off, although Trump's efforts are not addressed in the fact sheet.

The third (more vague) part of the strategy suggests that the Biden administration is planning to reinstate the Obama administration's Central American Minors (CAM) and Protection Transfer Arrangement (PTA) programs, which my colleague Nayla Rush examined in some detail last month. Both CAM and PTA, essentially, open the back door to migrants who would otherwise enter the United States illegally and claim credible fear, and likely a number of other foreign nationals, as well.

Those programs are only as good as the degree to which they hew to the asylum standards in section 208 of the Immigration and Nationality Act (INA). To the degree that they do not as implemented (and again, the fact sheet is vague), they are simply amnesties for foreign nationals living abroad.

The third EO is a bit more complicated, and covers a variety of topics.

First, it "requires agencies to conduct a top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to our legal immigration system." What exactly constitutes a "barrier" is subjective, and therefore is open to interpretation. To the degree that this review slashes bureaucracy impeding aliens from obtaining status to which they are entitled, it is unexceptional, and to be lauded.

To the degree, however, that it expands access to benefits beyond the fairly strict parameters of the INA, however, it would be nothing more than the executive branch improperly interposing itself in Congress's jurisdiction. Immigration policymaking by executive action has to end at some point (when Congress exerts itself or the courts intervene), but I would expect the Biden administration — simply due to the president's campaign statements — to push the boundaries as far as it can for as long as it can.

Second, that EO rescinds a May 2019 memorandum (since removed from the White House website) that directed federal agencies to enforce section 213A of the INA. That provision requires certain sponsors of green card applicants to complete an affidavit of support, in which the sponsors agree to reimburse the government if the applicant receives various means-tested public benefits.

That provision (which has been in the law since 1997) has rarely, if ever, been enforced, as the Migration Policy Institute recently noted. The third EO rescinds that memorandum, in essence taking sponsors off the hook for reimbursing the government (and hence the taxpayer) for those benefits, and ignoring federal law.

That EO also directs a review of the public charge rule, a series of regulations that were issued in August 2019 and that have subsequently been the subject of numerous court orders (as I noted in a September 25 post). The rule bars certain aliens who have received or who are likely to receive certain public benefits from immigrating to the United States as lawful permanent residents.

Undoing a regulation is much more difficult than rescinding an EO or memorandum, a point I noted in a December 15 post. As the Ninth Circuit has held: "An agency reversing a prior policy must show that there are good reasons for the new policy and provide a reasoned explanation for disregarding facts and circumstances that underlay or were engendered by the prior policy." That may be difficult as relates to the public charge rule.

Finally, the third EO calls for "streamlin[ing]" of the naturalization process. The need for such streamlining is not explained in the fact sheet, but while the naturalization process was slowed by the pandemic in FY 2020, in FY 2019, USCIS naturalized 843,539 new citizens — an 11-year high.

Eight million aliens had taken the oath of citizenship in the decade ending in FY 2019 and, according to the Pew Research Center, in February 2020, one-in-10 voters were then naturalized citizens (a record).

That said, citizenship is a precious status, and speeding (aka: "streamlining") the process can lead to serious but avoidable errors, as happened with the much-derided "Citizenship USA" initiative in the mid-1990s.

Again, the three EOs are a mixture of substance and strategy. Certain parts address real issues, while others propose solutions to problems that either don't exist or for which legislation or other action would be a better (and more appropriate) response. Nonetheless, the effect of those EOs will likely be felt throughout the Biden administration, and possibly well beyond.

Topics: Politics