Last week, President Biden issued several Executive Orders (EOs) related to immigration. Here, we'll review the new EOs and discuss how they might affect asylum seekers.

Before we get to that, let's answer a basic question: What is an Executive Order? Under the Constitution and our nation's laws, the President has the authority to issue EOs directing the various Executive Branch agencies to take certain actions. These EOs cannot change the law--and if they go beyond the President's authority within the law, they can be blocked by a federal court (as happened to many Trump-era EOs). In an area such as immigration, the law gives the President a fair amount of leeway, and so EOs can have a big impact. Even so, there are limits. For example, while an EO can direct an agency to make the naturalization process faster, it cannot direct the government to grant Green Cards to Dreamers. The former action is within the President's legal authority; the latter is not, and would require a new law (passed by Congress and signed by the President).

Relying on his authority, President Biden has issued a series of EOs affecting immigration. Each of these will be discussed below, with a focus on how they impact asylum seekers, and with some editorializing by me--
  • Reunification of Families: During the Trump Administration, hundreds of children were separated from their families at the U.S.-Mexico border. This was a deliberate tactic to deter migration, and was done with little or no regard for how families would eventually be reunited. As a result, many of those children are still separated from their family members. President Biden is forming a task force to help reunite families and to make recommendations about trauma and mental health assistance for those affected by this practice.
  • Root Causes: There are several elements to President Biden's border EO. For one, it seeks to address "root causes" of migration from the Northern Triangle (El Salvador, Honduras, and Guatemala), such as corruption, human rights abuses, gender-based violence, crime, and poverty. This EO also seeks to establish partnerships with other countries in the region to accept some asylum seekers and help migrants return home where possible. While I think we should be assisting other countries in the region, it's difficult to believe that anything we do will have an impact on migration in the immediate future. The problems in Central America (and many other places) won't being going away anytime soon, and so people from those countries will continue to be "pushed" to emigrate.
  • Asylum at at the Border: President Biden has ordered a review of policies that make certain people with communicable diseases inadmissible and a review of the Migrant Protection Protocols, which require people to wait in Mexico for their asylum hearing. For many immigration advocates, these "reviews" are not adequate - they want action. As for me, I understand the Administration's concern about potential consequences if these programs end abruptly, and it makes sense that there should be an orderly transition to whatever comes next. But I don't see any easy path forward and I am not sure how the Biden Administration can handle this crisis without either opening the door to everyone (and suffering the political consequences) or continuing some version of the inhumane policies of prior Administrations (Trump and Obama).
  • The new Administration is also moving to end bilateral "asylum sharing" agreements with several Northern Triangle countries. Under these agreements, asylum seekers were shipped (against their will) from the U.S. border to a Central American country where they could request asylum. As far as I know, all such asylum claims have been denied, and in any case, the countries where these people were being sent are not safe.
  • The EO also calls for a review of the Expedited Removal Process. Under this process, the government can quickly remove non-citizens from the U.S. The Trump Administration greatly expanded the government's ability to remove people, and worked hard to deny them due process of law. Presumably, the Biden Administration will be rolling back these changes.
  • Particular Social Group: To win asylum, you must show that you face persecution on account of a protected ground, such as race, religion, nationality, political opinion or particular social group (PSG). The Trump Administration tried to exclude victims of domestic and gang violence from the definition of PSG. The intent was to prevent such people from winning asylum in the U.S. Now, the Biden Administration plans to review those changed and potentially bring our definition of PSG in line with "international standards." If that happens, it will become easier to win asylum based on domestic violence and gang-based persecution.
  • Comprehensive Review of Immigration Law and Policy: The Biden Administration is initiating a government-wide review of various immigration policies, with the aim of identifying barriers to immigration and integration. This review includes looking at fee structures (which were dramatically increased by President Trump, though those increases have mostly been blocked by federal courts) and the public charge rule, which imposes unreasonable and nonsensical burdens requiring immigrants to prove that they can support themselves in the U.S.
  • Promote Naturalization: The EO also reviews the naturalization process, with an eye towards making it faster, easier, and less expensive.

We can expect resistance to these EOs--potentially from both pro- and anti-immigration advocates. We've already seen a lawsuit from the anti-immigrant Attorney General of Texas to block President Biden's 100-day deportation moratorium, and I imagine we will see more such cases brought by those who favor restrictive immigration policies.

On the other hand, some immigration advocates are unhappy that the Biden Administration is not moving faster. I do not agree. While I think speedy action is important, I think it is more important to get things right. I characterized the Trump Administration's approach to immigration as "maliciousness tempered by incompetence," and the fact is, had they been more competent, they would have done even more damage. We don't now need "benevolence tempered by incompetence." The Biden Administration needs to spend some time to make changes in a proper way--not just legally, but politically. The various EOs impose time frames, usually in the range of 180 days, and while this seems a bit on the long side, it is not wholly unreasonable given all that needs to be done. In my opinion, we immigrant advocates need to work with the Biden Administration to push for the changes we need, but we also need to exercise some patience and give the new Administration some breathing room to get things done right.

Originally posted on the Asylumist: