Memo: Analysis of Latest Immigration Orders and the Road Ahead

WASHINGTON, D.C. – The SPLC Action Fund today released its analysis of two of President Biden’s recent immigration executive orders signed last week concerning the humanitarian crisis at the border, asylum processing and the families the U.S. government separated at the border that are part of a series of executive orders seeking to undo the damage done by the previous administration.

The following statement is from Kelli Garcia, federal policy counsel of the SPLC Action Fund. 

“President Biden’s recent immigration executive orders recognize the humanity of those trying to come to the United States and move us in the direction of justice for immigrants. Unfortunately, they do not do enough to provide immediate relief to the substantial number of people directly affected by the previous administration’s draconian policies, including asylum seekers trapped in Mexico and families who remain separated.

“Tens of thousands of people seeking protection remain subject to unlawful and inhumane policies, and thousands of others continue to suffer from the effects of such policies. In many cases, the orders only create reviewing committees or months-long review periods rather than immediately addressing these ongoing harms. The Biden-Harris administration can go further than this and be more proactive in remedying the injustices these policies have inflicted. 

“We’re eager to work alongside communities and with the administration to end these heinous policies and get to work building a just, humane and functional immigration system for all.”

Analysis: The administration must permanently end the Migrant Protection Protocols (MPP) and a slew of other asylum restrictions, while providing immediate relief for those currently ensnared in policies designed to undermine the right to asylum. The executive orders should have terminated these disastrous policies. 

VIEW: Text of executive order on root causes of migration and asylum processing

Rather than ending policies that continue to harm migrants, this executive order directs the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) to review these policies and make recommendations regarding whether they should be terminated or modified. 

The executive order calls for prompt review of the following policies and recommendations regarding their continued use. These policies should be immediately rescinded.

• Expulsions under Title 42: Under the pretense of protecting public health, the previous administration invoked an obscure provision of Title 42 to authorize Customs and Border Protection (CBP) officers to summarily expel migrants who are apprehended between ports of entry or who present themselves at ports of entry without documentation. Public health experts have widely criticized Title 42 expulsions as both unnecessary and ineffective. By using the pandemic as an excuse to effectively shut down access to asylum at the border, the government has misused Title 42 to expel hundreds of thousands of people, including children, from the country without due process. These expulsions continue daily.

• MPP: Under this policy, people seeking asylum are forced to wait indefinitely in Mexico under life-threatening conditions for their hearings in U.S. immigration court. More than 60,000 people seeking asylum have been deprived of access to a fair hearing, and the policy has created a humanitarian crisis, conveniently out of view of the American public. While waiting in Mexico, some people subject to MPP have been kidnapped or killed. While the order calls for a “phased strategy for the safe and orderly entry into the United States” for those who have been trapped in Mexico under MPP, it fails to end it.

• ​Asylum bans: The administration must rescind both the “Asylum Entry Ban,” an interim final rule that renders individuals who enter the U.S. between ports of entry ineligible for asylum, and the “Asylum Transit Rule,” a final rule implemented on January 19, 2021 that renders most individuals who transited through a third country en route to the southern border ineligible for asylum in the U.S. Federal courts have already found that both the Asylum Entry Ban and an earlier version of the Asylum Transit Rule are likely unlawful, and the Biden-Harris Administration should terminate them once and for all. 

• Expedited removal (ER): This policy permits DHS to rapidly remove people who have entered the United States without authorization and are apprehended within two years of their arrival. Under ER, many individuals with viable asylum claims are wrongfully removed and deprived of due process. Prior to the Trump administration, ER was used to deport individuals apprehended within two weeks of arrival and within 100 miles of the U.S. border. In July 2019, however, DHS announced that ER would be applied more broadly, regardless of an individual’s location within the United States. And in October 2019, DHS implemented the so-called Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP), which further restricted asylum seekers’ access to protection. The order halts both PACR and HARP, but the Trump administration’s unprecedented expansion of ER, and the ER process more generally, remain. 

• Improper adjudication of asylum claims: The Trump administration severely curtailed rules, regulations, precedential decisions, and internal guidelines governing the consideration of domestic or gang violence in asylum claims. The order calls for a comprehensive examination of this legal framework to assess whether it provides protections consistent with international standards. 

Combined, these polices have gutted our asylum system and left people seeking asylum trapped in unsafe conditions without any recourse. But the order fails to acknowledge a number of other harmful policies that the new administration inherited and must end. 

• The government’s “turnback” policy mandates that CBP officials turn back asylum seekers at ports of entry along the U.S.-Mexico border through a variety of tactics, including metering, and thereby denies them access to the U.S. asylum process. When metering, CBP officers refuse to inspect and process people who present themselves at ports to seek asylum, instead forcing them to return to Mexico, where they often have to put their names on waitlists and live under unsafe conditions for long periods of time. Metering is based on a lie: that ports have insufficient capacity to process arriving asylum seekers. Many people never make it back to the port to be processed at all. 

• The government detains asylum seekers in Immigration and Customs Enforcement (ICE) custody and often denies them humanitarian parole despite the lack of any public safety concerns or risk that they will not appear for their hearings. These practices illegally punish people seeking protection in the U.S. For example, the New Orleans ICE Field Office implemented a blanket parole denial policy that has left thousands of asylum seekers languishing in ICE prisons throughout the Deep South despite having followed asylum procedures at the border and having met the legal criteria for release on parole, pursuant to DHS’s own 2009 Parole Directive. Moreover, Black immigrants in detention frequently report disparate treatment, unconscionable abuse and torture. Black asylum seekers also face discriminatory denial of parole. 

• The government continues to punish asylum seekers by criminally prosecuting them for unlawful entry and unlawful re-entry, in violation of U.S. treaty obligations. These prosecutions tend to lack critical due process protections and often lead to the separation of family members.

Finally, the executive order envisions a comprehensive approach in which the root causes of migration from Central America are addressed and cooperatively managed by the United States and its partners in the region. But the order lacks specificity regarding potential involvement of U.S. government agencies in Central American countries, and this narrow regional view does not contend with the reasons for migration from other regions of the world. 

There are currently thousands of immigrants and asylum seekers from Africa, the Caribbean and Asia in ICE detention centers or waiting at the U.S. border. In rebuilding U.S. immigration policy, the Biden-Harris administration must also address the human rights of migrants from these regions of the world, and specifically root out anti-Blackness and the disparate treatment of Black immigrants inherent to the U.S. immigration system. 

Conclusion

The United States must live up to its moral and legal obligation to provide refuge and protection to those who need it. People like Dinora and her 17-year-old daughter deserve better than to be turned away at the border by CBP officers. Dinora and her daughter fled Honduras after MS-13 gangs kidnapped and raped both of them. They thought they would receive protection in the United States. Instead, they were forced to put their names on a “waitlist” and live under dangerous conditions in a Mexican border town in the hope that their numbers would eventually be called.

Any attempt to reform or modify these cruel and unlawful policies will fall short. Instead of turning people who are seeking protection away, the Biden-Harris Administration must rebuild a just, humane and functional immigration system that welcomes such individuals. 

Analysis: The administration must provide immigration relief and restitution to all families who were torn apart by the previous administration’s family separation policy. Moreover, the new administration’s task force must – and can – take action to reunite families who are still separated ahead of its initial progress report due in 120 days. 

VIEW: Text of order establishing family reunification task force

The inter-agency task force created by this order is charged with providing recommendations to facilitate the reunification of families who are still separated, including through the possible provision of immigration benefits and services to these families. The order also requires the task force to issue recommendations ensuring that the federal government does not repeat its practice of separating families at the U.S.-Mexico border. 

Unfortunately, the order ignores the thousands of families who were separated by the previous administration but have since been reunited. These families remain traumatized and desperately need mental health services and other resources to begin to heal and start rebuilding their lives. For instance, Antonio, who was separated from his father for eight months in 2017-2018 when he was seven, suffers from post-traumatic stress disorder. He has fainted numerous times, cries for no apparent reason, and is terrified of people in uniform. 

The Biden-Harris administration must create a victim compensation fund for the more than 5,500 families who were separated at the border. The administration should also offer immigration benefits to these children and parents, many of whom relinquished their asylum claims because government officials led them to believe that doing so would speed their reunification. 

Moreover, the administration must act more quickly to reunify families who remain separated. The first deadline for the task force is not for 120 days, at which point the only requirement is to provide a “progress report” on the status of their recommendations. Families subjected to the indelible trauma of separation cannot wait one more day to begin healing – let alone 120 days. 

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SPLC Action’s full immigration priorities can be found here. To schedule an interview with an SPLC Action policy expert or immigration attorney, please email jeff.migliozzi@splcenter.org.