Biden's Executive Actions: President Unilaterally Changes Immigration Policy

By Robert Law on March 15, 2021

Robert Law is the director of regulatory affairs and policy at the Center for Immigration Studies. He would like to thank Josh Timko for his extensive research and analysis that informed the substance of this Backgrounder on the Biden immigration executive actions.

President Biden issued over three dozen executive actions during his first month in office, many of them focused on immigration. Some of the immigration executive actions revoked Trump administration immigration policies and introduced sweeping new policies, while others were more messaging documents with little-to-no practical impact. While the pace of immigration-specific executive actions has slowed recently, it is expected that the Biden administration will continue to rely on executive actions as a tool to reshape immigration policy throughout his term. This Backgrounder summarizes Biden's immigration-related executive actions and analyzes their effect compared to Trump administration policies.

  1. Border
  2. Interior Enforcement
  3. Legal immigration
  4. Humanitarian
  5. Executive Amnesty

1. Border

Presidential 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

Issued January 20, 2021

Topic: Border Security

Trump Policy: One of President Trump's major immigration policies during his administration was to complete the construction of a wall along the southern border to help thwart illegal aliens from entering the country. When Congress refused to appropriate the money necessary to accomplish this task, the Trump administration declared a national emergency at the southern border, which allowed it to reprogram unspent money from the Department of Defense toward the building of the border wall. As of October 23, 2020, the Trump administration completed construction of 386 miles of physical infrastructure, with 195 miles under construction and 157 miles in the pre-construction phase. DHS states that illegal drug, border crossings, and human smuggling activities have decreased in areas with new barriers.

Biden Policy: On January 20, the Biden administration fully rescinded the Trump administration's Proclamation 9844 (February 15, 2019, extended on February 13, 2020, and on January 15, 2021), which declared a national emergency at the southern border. Biden's proclamation explicitly states that "no more American taxpayer dollars be diverted to construct a border wall" and that "authorities invoked in [the Trump] proclamation will no longer be used to construct a wall at the southern border." It also calls for an "assessment of the legality of the funding and contracting methods used to construct the wall."

Effects of Biden Policy: Not only is the Biden administration rescinding the Trump-era border policy, it is in effect nullifying the will of Congress as expressed in the 2006 Secure Fence Act to construct "physical infrastructure to prevent unlawful border entry". That bill passed the Senate with broad bipartisan support, 80 to 19, including then-Sen. Biden voting in favor. By executive decree, the Biden administration has reversed decades of bipartisan cooperation aimed at decreasing illegal entry into the U.S. The Clinton, Bush 43, Obama, and Trump administrations all constructed physical infrastructure at the southern border. The Clinton-era Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 required the number of border patrol agents to be doubled to 10,000 over the span of five years and authorized construction of a 14-mile long fence along the southern border. The Obama administration allowed border fence construction contracts signed under the Bush administration to be completed. The Bush and Obama administrations together installed 654 miles of barriers.

The result of this policy (the Biden effect) is likely a surge of illegal aliens unlawfully entering the country where the border lacks physical barriers.

2. Interior Enforcement

Executive Order 13993: Revision of Civil Immigration Enforcement Policies and Priorities

Issued January 20, 2021

Topic: Interior Enforcement

Trump Policy: On January 25, 2017, President Trump issued Executive Order 13768 "Enhancing Public Safety in the Interior of the United States". This EO scrapped the Obama administration's immigration enforcement "priorities", which exempted nearly all aliens from removal and replaced it with a policy that made all removable aliens an enforcement priority. EO 13768 also targeted sanctuary cities and made them ineligible for federal grants, except those deemed necessary for law enforcement.

Biden Policy: The Biden EO fully rescinds Executive Order 13768. In the policy section, President Biden generically says, "The task of enforcing the immigration laws is complex and requires setting priorities to best serve the national interest." However, this EO fails to detail new enforcement priorities and merely says the Biden administration will "reset the policies and practices for enforcing civil immigration laws." Other than revoking EO 13768, this EO doesn't do much else. It advances some humanitarian rhetoric and states that the Biden policy "is to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety." Biden's immigration plan is outlined in a White House fact sheet that emphasizes family reunification, addressing illegal immigration across the southern border, reforming the asylum system, and promoting integration for "new Americans" (we can assume he means both legal and illegal immigrants).

Effects of Biden Policy: The Biden administration appears to be exempting all aliens from immigration enforcement. In fact, Biden issued a memo after his inauguration instructing DHS to pause deportation efforts for 100 days. While application of the deportation freeze has been enjoined by federal judge Drew Tipton of the Southern District of Texas, the Biden administration's refusal to enforce immigration laws will result in a surge of illegal aliens trying to cross the southern border. This is particularly problematic as the U.S. continues to try to contain the spread of Covid-19 and millions of Americans remain unemployed or underemployed due to the economic impact of Covid-19-related closures. During his campaign and upon his inauguration, Biden called for an extensive review of the asylum and naturalization process. In particular, his administration is focusing on the Northern Triangle countries of Central America (Guatemala, Honduras, and El Salvador), which produce the most emigrants to the U.S. It appears that Biden's policy will focus more on foreign aid to address the root causes of alien movement to the United States, rather than enforcement. White House Press Secretary Jen Psaki said on February 10 that the Biden administration plans to keep a Trump-era health order giving authorities the power to immediately expel people found illegally crossing the border, despite calls for him to rescind it by advocates.

3. Legal Immigration

Executive Order 14012: Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans

Issued February 2, 2021

Topics: Legal Immigration; Public Charge

Trump Policy: The Trump administration implemented policies that focused on benefits integrity and ensuring that legal immigration did not harm American taxpayers. Through the public charge final rule, the Trump administration instituted, for the first time, a regulatory definition of this ground of inadmissibility found at INA 212(a)(4). Through Trump's presidential memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens (May 23, 2019), relevant federal agencies were directed to update procedures, guidance, and regulations to comply with current law and ensure that ineligible immigrants did not receive federal means-tested benefits. In accordance, USCIS required sponsors to reimburse the benefits-granting agency for every dollar of benefits received by sponsored immigrants. USCIS and other federal agencies thus placed the responsibility on sponsors/employers, rather than American taxpayers, to finance foreign workers benefiting from social programs, such as SNAP, Medicaid, and TANF. Additionally, USCIS finalized a regulation that increased fees for immigration benefits because the previous fee structure was set at insufficient levels, resulting in a $4 million shortfall each business day. (The USCIS Fee Rule developed under the Trump administration was enjoined by a district court so the 2016 fee schedule remains in effect.)

Biden Policy: On February 2, 2021, the Biden administration issued Executive Order (EO) 14012, which fully revoked the presidential memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens and took steps to rescind the public charge rule. This EO announced the review of many standard procedures in the existing naturalization process — including the N-400 application, fingerprinting, background and security checks, interviews, civics and English-language tests, and the oath of allegiance. It also seeks to prevent the Trump-era USCIS fee schedule from going into effect and to find ways to further reduce the cost of naturalization while simultaneously increasing the use of fee waivers. Finally, the EO creates a Task Force on New Americans, which will include members of agencies that implement policies that impact immigrant communities.

Effects of Biden Policy: USCIS is a fee-funded agency and has struggled to stay afloat since the Covid-19 pandemic; in FY 2020, fees paid by applicants covered 97 percent of the USCIS budget. Section 3(a)(ii) of the EO indicates that the Biden administration will not implement the 2020 USCIS fee rule, resulting in up to a $1 billion budget deficit by the time it finalizes a different fee rule. Without an additional source of funding, Biden's EO will work to further financially hinder USCIS' ability to vet immigration applications. In another drastic change from previous immigration policy, Section 5 calls to "substantially reduce current naturalization processing times" (reminiscent of the notorious Obama-era USCIS "get-to-yes" policy), reduce the naturalization fee, and restore the fee waiver process (i.e., giving away benefits without collecting fees). These policies have already bankrupted USCIS and will further contribute to the agency's financial turmoil.

4. Humanitarian

Executive Order 14010: Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border

Issued February 2, 2021

Topics: Asylum; Parole

Trump Policy: The Trump administration took numerous steps to combat the surge of fraudulent, frivolous, or otherwise non-meritorious asylum claims; discourage illegal aliens from taking the journey from the Northern Triangle to the United States; and refine the standards for asylum eligibility. First, the Trump administration implemented the Migrant Protection Protocols (MPP), also known as Remain in Mexico, which required non-Mexican aliens seeking asylum in the U.S. to wait in Mexico until they went before an immigration judge. It also signed Asylum Cooperative Agreements (ACA), or safe third-country agreements, with Guatemala, El Salvador, and Honduras. Under the ACA, an alien claiming asylum at the southern border could be transported to one of those third countries (that is, not the alien's home country) to seek humanitarian relief. The Trump administration also put in place the "Prompt Asylum Case Review" (PACR) and "Humanitarian Asylum Review Program" (HARP) to more efficiently handle asylum screenings at the southern border. Additionally, the Trump administration utilized authority under Title 42 of the United States Code to swiftly return aliens caught crossing the border unlawfully to prevent the spread of Covid-19. Finally, it ended the Obama-era Central American Minors (CAM) parole program because it was an unlawful categorical application of the DHS secretary's parole authority under section 212(d)(5) of the Immigration and Nationality Act, which is only permitted on a case-by-case basis.

Biden Policy: As my colleague Art Arthur previously observed, portions of President Biden's EO are substantive, while other sections merely call for "reviewing" certain Trump policies. Through this EO, Biden has ended PACR, HARP, and all ACAs, while reviewing MPP and the use of Title 42 authority. Section 3 of the EO calls for "better identifying" aliens from the Northern Triangle for refugee resettlement, as well as consideration of the reinstatement of CAM and of the implementation of a new (unlawful) categorical parole program for Northern Triangle aliens with approved family-based immigrant visas (green card) whose visa is not yet available. Section 4 directs a 180-day review of all asylum rules, precedential decisions, and policies to determine whether aliens qualify for asylum on the basis of domestic or gang violence "in a manner consistent with international standards", as well as a 270-day deadline for DHS and DOJ to issue joint rulemaking defining "particular social group" for asylum eligibility.

Effects of Biden Policy: The termination, and potential termination, of Trump asylum policies that successfully managed to get the southern border under control will result in a surge of illegal aliens coming to the U.S. that will overwhelm the system. MPP and the ACAs clearly showed that most aliens claiming asylum are in fact economic migrants, which is not a basis for asylum. If the Biden administration follows through with the regulatory change to the definition of "particular social group", it will greatly expand asylum eligibility beyond congressional intent and allow almost any alien fearing generalized violence or gang threats to qualify. Lastly, this EO appears to be reviving the abusive use of the DHS secretary's parole authority to allow large categories of otherwise inadmissible aliens into the country. Once paroled in, many of these aliens will be able to adjust status (obtain a green card) as the parole authority is used to bypass restrictions on adjustment of status under section 245 of the Immigration and Nationality Act.

Executive Order 14011: Establishment of Interagency Task Force on the Reunification of Families

Issued February 2, 2021

Topics: Illegal Immigration; Parole

Trump Policy: The Trump administration reversed the "catch and release" policies of the Obama administration that fueled a surge of family units, and those fraudulently posing as family units, coming to the southern border with no lawful basis to enter the United States. An overly broad application of the Flores settlement ordered by Judge Dolly Gee frustrated these efforts by severely limiting the ability, and length of time, DHS could detain family units. In response, in 2018 Attorney General Sessions issued a memorandum entitled "Zero-Tolerance for Offense Under 8 U.S.C. § 1325(a)", which resulted in the decoupling of family units — the children were sent to HHS custody and treated as unaccompanied alien children while the adults were treated as single adults for enforcement purposes. Due to a disjointed rollout of this policy and public reaction, the Zero-Tolerance Policy was short-lived.

Biden Policy: This Biden EO officially rescinds then-Attorney General Sessions' Zero-Tolerance Policy memo and establishes a task force to identify "all children who were separated from their families at the United States-Mexico border between January 20, 2017, and January 20, 2021, in connection with the operation of the Zero-Tolerance Policy." The task force is charged "to the greatest extent possible with facilitating and enabling the reunification" of separated families, including providing recommendations on (1) the possible exercise of parole under INA 212(d)(5)(A) or "issuances of visas or other immigration benefits"; (2) additional services and support to separated family units; (3) reunification with other family members; and (4) potential presidential authority to use for purposes of reuniting families. The task force is directed to provide periodic reports to the president on its progress.

Effects of Biden Policy: This EO appears to serve more as a messaging document to appease President Biden's anti-borders base, but it has the potential to undermine the integrity of the immigration system if the recommendations are implemented. Instead, the creation of the task force seems to be designed to burden American taxpayers by providing "additional services and support" to these aliens. It is unclear why a centralized task force is necessary for family reunification when HHS and ICE already perform this function and are well qualified to do so. Additionally, the relevant period of review for the task force is the entire Trump term, while the Zero-Tolerance Policy, the supposed scope of this EO, was short-lived in 2018. Either the timeframe was a typo or the Biden administration is using the Zero-Tolerance Policy as a cover to reverse all enforcement actions taken over the past four years. Alarmingly, Section 4(b) of this EO, similar to EO 14010, lays the foundation for the exploitation of parole authority to categorically allow otherwise inadmissible aliens to enter or remain in the country. This section also seems to suggest the willingness of the Biden administration to unilaterally change criteria for the "issuance of visas" or to make up new executive amnesty programs like DACA (e.g., "other immigration benefits").

Executive Order 14013: Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration

Issued February 4, 2021

Topic: Refugees

Trump Policy: One of President Trump's first immigration actions after taking office was issuing Executive Order 13769 which, in part, suspended the U.S. Refugee Admissions Program (USRAP) for 120 days while the relevant government agencies "review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States." After EO 13769 was preliminarily enjoined in court (on other bases), President Trump issued EO 13780, which continued the 120-day suspension of USRAP and reduced the maximum number of refugees who could be admitted in FY 2017 from 110,000 to 50,000. On October 24, 2017, President Trump issued EO 13815 resuming the USRAP, but with increased screening and vetting procedures. The Trump administration also issued EO 13888, which made it federal policy to "resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Replacement Program." Throughout his term, President Trump set lower levels of refugee resettlement, recognizing that humanitarian resources needed to prioritize processing the 100,000-plus asylum claims at the border because those un-vetted aliens were physically in the United States.

Biden Policy: The Biden EO fully rescinds President Trump's EO 13815 and EO 13888. This EO also revokes the Presidential Memorandum Implementing Immediate Heightened Screening and Vetting of Applications for Visas. Curiously, the EO calls for a 90-day report on whether policies developed under the Trump EOs that were just rescinded "should be maintained, reversed, or modified". The EO asks for a plan to "enhance fraud detection" and "consider ... expand[ing] refugee vetting and adjudication capacity." The Biden EO also calls for a 180-day report with recommendations on the Special Immigrant Visa program for certain Iraqis and Afghanis. Separately, the Biden EO calls for a 180-day report "on climate change and its impact on migration, including forced migration, internal displacement, and planned relocation."

Effects of Biden Policy: Like several other early Biden immigration EOs, this one does not offer much beyond rescinding various Trump administration policies. While stating that "reunifying families is in the national interest", the EO fails to establish any concrete steps to accomplish such reunification, or even explain how the Trump administration's refugee policy impeded family reunification. Substantively, the repeal of EO 13888 will deprive state and local governments of the opportunity to decide whether or not they will accept refugees. Resettling refugees in jurisdictions that cannot accommodate them is harmful for those jurisdictions and impedes the refugees' ability to properly assimilate. Section 6 of the EO bears watching to see what comes of the 180-day report on "climate change and migration". Specifically, the report is to include "options for protection and resettlement of individuals displaced directly or indirectly from climate change". The statutory definition of "refugee" is found at INA 101(a)(42) and requires persecution or a well-founded fear of persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion". By the plain letter of the law, any displacement allegedly caused by climate change does not qualify any alien for refugee status.

5. Executive Amnesty

PM: Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)

Issued January 20, 2021

Topics: DACA; Illegal Aliens; Amnesty

Trump Policy: On September 5, 2017, then-U.S. Attorney General Jeff Sessions announced the Trump administration's decision to terminate DACA. The same day, then-Acting Secretary of Homeland Security Elaine Duke issued a memorandum directing DHS to reject all initial DACA applications and associated applications for work authorization after September 5, 2017; to reject all renewal applications after October 5, 2017, from current illegal alien DACA recipients whose status expired between September 5, 2017, and March 5, 2018; and to reject all other renewal applications from DACA recipients. Amnesty advocates immediately sued and activist district courts enjoined the termination of DACA. Subsequently, in summer 2020, the Supreme Court in a 5-4 vote ruled to block Trump's plan to terminate DACA on procedural grounds rather than the legality of DACA itself.

Biden Policy: This presidential memorandum instructs the secretary of Homeland Security, in consultation with the attorney general to "take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA." Media reports indicate that Biden plans to institute a four-year extension of DACA while Congress debates legislation granting these illegal aliens amnesty and a path to citizenship.

Effects of Biden Policy: As my colleague Art Arthur previously observed, "It is not clear, what, exactly, the memorandum intends to do", because there is pending litigation in federal court in Texas to end the unlawful executive amnesty program. This memo appears to be nothing more than a simple acknowledgment of Biden's support for DACA, an unsurprising stance. While Biden supposedly has a mass amnesty bill in the works that would put illegal aliens with DACA on an expedited path to citizenship, the legislation has not been officially introduced. For now, the status quo continues for DACA pending a decision from Judge Hanen in Texas or potential congressional action.