After taking office, the Biden administration quickly moved to reverse or revoke a number of the Trump administration's immigration-related policies. On inauguration day, President Joseph Biden announced several significant changes, including termination of the national emergency at the southern border, halting border wall construction, and removal of discriminatory travel restrictions imposed primarily on Muslim-majority countries. In the following weeks, Biden continued to reverse Trump administration policies, including by overhauling the asylum-seeker regime, creating task forces to undo the harms caused by Trump-era border practices, and reimposing some COVID-related travel restrictions, while revoking others. The Biden administration's proposed immigration legislation could introduce even broader reforms going forward.
In his first immigration-related action, President Biden issued a “Proclamation on Ending Discriminatory Bans on Entry to the United States,” revoking Trump-era travel bans.Footnote 1 These travel bans were initiated shortly after Trump became president in 2017. One week after taking office, then-President Trump issued the first in a series of orders restricting entry into the United States of individuals from several Muslim-majority countries.Footnote 2 Facing multiple lawsuits and losses in court, the Trump administration issued revised versions of the travel bans,Footnote 3 and the Supreme Court ultimately upheld the third iteration in Trump v. Hawaii in 2018.Footnote 4 Following the Supreme Court victory, the Trump administration continued to revise and extend the restrictions, imposing additional restrictions with respect to nationals from Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.Footnote 5
Citing the Constitution and the Immigration and Nationality Act, Biden's Proclamation 10,141 formally revoked Trump's travel bans.Footnote 6 The proclamation explained:
The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution. Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States—first from primarily Muslim countries, and later, from largely African countries. Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.
Beyond contravening our values, these Executive Orders and Proclamations have undermined our national security. They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over. And they have separated loved ones, inflicting pain that will ripple for years to come. They are just plain wrong.
Make no mistake, where there are threats to our Nation, we will address them. Where there are opportunities to strengthen information-sharing with partners, we will pursue them. And when visa applicants request entry to the United States, we will apply a rigorous, individualized vetting system. But we will not turn our backs on our values with discriminatory bans on entry into the United States.Footnote 7
The Proclamation also ordered the secretary of state to “direct all Embassies and Consulates, consistent with applicable law and visa processing procedures, including any related to coronavirus disease 2019 (COVID-19), to resume visa processing in a manner consistent with the revocation” of the orders and proclamations and to provide within forty-five days a report including, among other things, a proposal for reconsidering visa applications that were denied on the basis of the revoked orders.Footnote 8
In his second immigration-related executive action, President Biden issued a “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.”Footnote 9 The proclamation reversed the Trump administration's long-standing efforts to, as Trump declared in announcing his run for the presidency in 2015, “build a great, great wall on our southern border” and “have Mexico pay for that wall.”Footnote 10 Congress resisted Trump's attempt to secure $5.7 billion for the border wall,Footnote 11 sparking a government shutdown.Footnote 12 Congress ultimately appropriated $1.375 billion for border wall construction.Footnote 13 Although Trump signed the appropriations bill into law, he also declared a national emergency at the U.S.-Mexico border,Footnote 14 and pursuant to the emergency declaration, the Trump administration claimed authority to divert $3.6 billion, initially allocated to military construction projects, to build the border wall.Footnote 15 Congress subsequently passed joint resolutions to terminate the emergency at the southern border, but Trump vetoed them.Footnote 16 Finally, the National Defense Authorization Act for Fiscal Year 2021, which Congress enacted on January 1, 2021 over Trump's veto, capped the amount of funding that may be diverted to domestic military construction projects based on a national emergency declaration at only $100 million throughout the duration of the national emergency—far below the $3.6 billion that the Trump administration sought to divert to border wall construction.Footnote 17
Biden's Proclamation 10,142 terminated the declared emergency.Footnote 18 The proclamation explained:
Like every nation, the United States has a right and a duty to secure its borders and protect its people against threats. But building a massive wall that spans the entire southern border is not a serious policy solution. It is a waste of money that diverts attention from genuine threats to our homeland security. My Administration is committed to ensuring that the United States has a comprehensive and humane immigration system that operates consistently with our Nation's values. In furtherance of that commitment, I have determined that the declaration of a national emergency at our southern border . . . was unwarranted. It shall be the policy of my Administration that no more American taxpayer dollars be diverted to construct a border wall. I am also directing a careful review of all resources appropriated or redirected to construct a southern border wall.Footnote 19
Citing the Constitution and the National Emergencies Act, the proclamation “declare[d] that the national emergency . . . is terminated and that the authorities invoked in that proclamation will no longer be used to construct a wall at the southern border.”Footnote 20 The proclamation further instructs the secretaries of defense and homeland security to develop a plan for the repurposing of funds earmarked for border wall construction.Footnote 21
Numerous courts had held unlawful the Trump administration's diversion of funds for the border wall,Footnote 22 and the Supreme Court was scheduled to hear the Trump administration's appeal of one of those losses in February 2021.Footnote 23 However, in early February, the Court granted the Biden administration's request to remove the case from the February argument calendar.Footnote 24
In other executive actions on inauguration day, Biden directed officials to resume including undocumented immigrants in the census,Footnote 25 to deprioritize domestic enforcement of U.S. immigration laws,Footnote 26 and to extend Deferred Enforced Departure (DED) and employment authorization through June 30, 2022, for Liberians who were under a grant of DED as of January 10, 2021.Footnote 27
In the subsequent weeks, the Biden administration continued to revise the country's immigration and asylum policies. The administration announced a three-part plan for its approach toward immigrants and asylum seekers:
First, the Administration will address the underlying causes of migration through a strategy to confront the instability, violence, and economic insecurity that currently drives migrants from their homes. Second, the Administration will collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up other countries’ capacity to provide protection and opportunities to asylum seekers and migrants closer to home. Finally, the Administration will ensure that Central American refugees and asylum seekers have access to legal avenues to the United States.Footnote 28
A February 2 executive order on “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” announced some specific reversals of Trump administration policies.Footnote 29 Among other things, the order directed the secretary of homeland security to consider modifying or terminating the Migrant Protection Protocols (MPP).Footnote 30 The MPP are an arrangement between the United States and Mexico, whereby asylum seekers arriving in the United States via Mexico remain in Mexico, rather than in the United States, during the pendency of their immigration proceedings.Footnote 31 The Ninth Circuit in February 2020 had affirmed a lower court grant of a preliminary injunction to plaintiffs challenging the legality of the MPP, but the Supreme Court stayed the injunction, allowing the MPP to go into effect, and then granted certiorari.Footnote 32 The Department of Homeland Security announced on January 20, 2021 that it would suspend new enrollments in the MPP program,Footnote 33 and in early February, the Supreme Court agreed to the Biden administration's request to hold briefing in abeyance and remove the case from its February argument calendar.Footnote 34 In the meantime, the Biden administration has begun to process the roughly 25,000 asylum seekers currently waiting in Mexico pursuant to the program.Footnote 35
Biden's order also directed executive branch officials to reconsider several Trump-era policies that limited asylum claims.Footnote 36 In particular, the order directed the secretary of state to consider whether to terminate asylum cooperative agreements with Guatemala, El Salvador, and Honduras.Footnote 37 Pursuant to the agreements, sometimes called safe third-country agreements, that the Trump administration negotiated, asylum seekers transiting one of the countries had to first seek asylum in the non-U.S. state, prior to seeking asylum in the United States.Footnote 38 The agreements prompted criticism, both domestically and internationally, for failing to adequately protect asylum seekers who were forced to remain outside the United States,Footnote 39 and sparked legal challenges.Footnote 40 On February 6, 2021, Secretary of State Antony Blinken announced that the United States “has suspended and initiated the process to terminate the Asylum Cooperative Agreements with the Governments of El Salvador, Guatemala, and Honduras,” noting that “termination of these Agreements is effective after the notice period stipulated in each of the Agreements, but their suspension is immediate.”Footnote 41 The UN high commissioner for refugees expressed approval of the suspensions.Footnote 42
The Biden administration has also taken steps to prioritize the welfare of children in the immigration context. On January 20, 2021, Biden issued a memorandum to the attorney general and the secretary of homeland security, ordering the preservation and strengthening of Deferred Action for Childhood Arrivals (DACA).Footnote 43 DACA was designed to allow individuals, brought to the United States illegally as children, to obtain higher education, work permits, and state-subsidized benefits.Footnote 44 The Supreme Court blocked the Trump administration's attempt to rescind DACA,Footnote 45 but the administration nonetheless partially suspended the program by refusing new initial requests.Footnote 46 Noting that DACA “reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns,” the memorandum orders the secretary of homeland security, in consultation with the attorney general, to “preserve and fortify DACA.”Footnote 47 Moreover, in an executive order issued on February 2, the Biden administration announced the establishment of an interagency task force, for the purpose of reuniting children separated from their families at the U.S.-Mexico border.Footnote 48 The order “condemns the human tragedy that occurred when our immigration laws were used to intentionally separate children from their parents or legal guardians (families), including through the use of the Zero-Tolerance Policy” and asserts that going forward, the administration “will protect family unity and ensure that children entering the United States are not separated from their families, except in the most extreme circumstances where a separation is clearly necessary for the safety and well-being of the child or is required by law.”Footnote 49 Near the end of the Trump administration, the government disclosed that more than six hundred children remained separated from their parents.Footnote 50 Due to the Trump administration's “poor government record keeping,” the Biden administration task force will face significant challenges in identifying and locating deported parents.Footnote 51
The Biden administration has also departed from the Trump administration's COVID-related border restrictions, tightening some, but revoking others. On January 18, 2021, Trump announced that effective January 26, while all passengers arriving into the United States by air would have to show that they had tested negative for or recovered from COVID, he would lift COVID-related travel restrictions previously imposed on travelers from the Schengen Area, the United Kingdom, Ireland, and Brazil.Footnote 52 Citing variants of COVID-19 circulating in Brazil, South Africa, and the United Kingdom, President Biden announced on January 25 that entry restrictions would be maintained.Footnote 53 In a proclamation, he declared, “entry into the United States . . . of noncitizens who were physically present within the Schengen Area, the United Kingdom (excluding overseas territories outside of Europe), . . . Ireland, and . . . Brazil during the 14-day period preceding their entry or attempted entry into the United States, is hereby suspended,” subject to certain exceptions.Footnote 54 In a proclamation on February 24, President Biden revoked the Trump administration's Proclamation 10,014 on “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak.”Footnote 55 Issued in April 2020, Proclamation 10,014 suspended entry into the United States of “aliens as immigrants,” subject to certain exceptions, including for lawful permanent residents, healthcare professionals, and spouses and children of U.S. citizens.Footnote 56 In revoking the proclamation, President Biden declared that it “harms the United States” by preventing immigration by certain family members of U.S. citizens and lawful permanent residents, as well as participants in the Diversity Visa Lottery, and also “harms industries in the United States that utilize talent from around the world.”Footnote 57
These early measures are just the start of the Biden administration's efforts to reform the U.S. immigration system, though additional efforts may hit hurdles. On January 20, the Department of Homeland Security ordered a one-hundred-day pause on removals as part of an effort to “conduct a review of policies and practices concerning immigration enforcement,” while also concentrating resources where needed, particularly in light of the increased resource strain caused by COVID-19 and its attendant protocols.Footnote 58 However, a federal district judge issued a nationwide injunction on the implementation of the moratorium on removals.Footnote 59 The administration is also facing challenges in addressing a surge of migrants arriving along the U.S.-Mexico border,Footnote 60 and President Biden's proposed immigration reform bill, the U.S. Citizenship Act,Footnote 61 faces uncertain odds in Congress.Footnote 62
