Biden Executive Orders on Immigration

Within hours of being sworn in as President, Joseph Biden signed several Executive Orders impacting immigration in various ways – mainly to reverse failed Trump administration immigration policies.  We note that these executive orders are separate and distinct from President Biden’s proposed legislation.

These Executive Orders include:

  • DACA Reinforcement – One of the Biden Executive Orders seeks to “preserve and fortify” the DACA (Deferred Action for Childhood arrivals) program, an Obama-era program granting protections and work authorization to qualifying individuals who had been brought to the US as children without authorization (and so who never personally made a decision to enter the US without a visa). The prior administration had several times sought to eliminate the program, and although several judicial decisions rejected the trump administration’s ability to do this and ordered full reinstatement of the program, the prior administration had continued to narrowly interpret these orders so as to limit the widespread use of this program as much as possible.  This order directs the Secretary of Homeland Security, who oversees US Citizenship and Immigration Services (“USCIS”) as the agency which would grant this benefit as well as the Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”) enforcement agencies, to take all actions possible under law to preserve the program.  The Executive Order also calls upon congress to create a path to citizenship for DREAMers.
  • “Muslim Ban” – Another of the new Executive Orders ends what had been referred to as the “Muslim Ban” – orders by the prior administration seeking to block travel to the United States from several predominantly Muslim and African countries on purported national security grounds. The Trump administration went through three versions of this order before arriving at a version where at least some parts were upheld by the Supreme Court – earlier versions were quickly enjoined by the courts as blatantly unconstitutional.  This new Executive Order directs the US Department of State to again begin processing visa applications for individuals from the affected countries.   In a welcome acknowledgement of the need for accountability in the wake of the prior administration’s failed policy, this Executive Order directs the State Department to develop ways to address the harm caused to those who were prevented from coming to the United States because of the ban.
  • Deportation (removal) Efforts – Another of the new Biden Executive Orders reverses Trump administration policies with regard to US interior immigration enforcement that made any undocumented immigrant an enforcement priority. This Trump policy had in turn reversed Obama-era policies where those who had actually committed crimes and so presented a real danger were enforcement priorities. The prior administration had made virtually anyone without documentation an enforcement priority, leading to situations where parents who had committed no crime were torn from their young US citizen children and sent back to dangerous home countries.  The Biden order formally revokes the Trump order, and directs heads of various agencies (the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, and any other relevant agency) to review any action taken within the authority of their agency or department to further the original Trump order and to issue guidance on reversing those actions consistent with the new policy.
  • US Census – There had been an ongoing effort by the prior administration – which they kept losing in the courts, but nevertheless tried to implement – to exclude noncitizens from the count for purposes of the 2020 US census. One of the Biden Executive Orders reverses this, ensuring that noncitizens will be counted according to the plain language of the constitution.
  • Border Wall – Another Biden Executive Order immediately stopped construction of the border wall along America’s southern border (though obviously there’s no way to recoup the literally billions of dollars wasted on the pointless project). Trump had at one point declared a national emergency to justify diverting funds to the project, and the order immediately terminates this declaration. The order does say that it will begin a review of the legality of the prior administration’s diversion of funds for the wall, but it’s doubtful that the funds can be recovered.
  • DED for Liberians – Liberians originally granted Temporary Protected Status in the US (“TPS,” a form of protection from removal) which had ended in 2007 had been eligible for Deferred Enforced Departure (“DED,” a different form of protection which allowed continued stay in the US). DED for Liberians had been subject to an order of the prior administration which, after several extensions, expired January 10, 2021.  The Biden administration order now extends DED through June 30, 2022.
  • 60-Day Regulatory Pause – In a move that is actually typical of incoming administrations even where not attempting to fix longstanding incompetent policy formation and implementation by a prior administration, the Biden administration implemented a 60-day freeze on any still-ending regulations pending review. This will pause implementation of many last-hour regulations proposed by the Trump administration, likely to allow time for complete withdrawal or amendment.  Immigration provisions impacted include two recently announced H-1B final rules, among others.

Separately from the executive orders and the bill, the Department of Homeland Security announced it would impose a 100-day moratorium on deportations for immigrants in the U.S. who are facing removal, and suspend the so-called “remain in Mexico” policy of the previous administration which had required non-Mexican asylum-seekers to wait in Mexico for their eventual court hearings in the U.S.