Posts

Vox, Nicole Narea – February 22, 2021. Border officials are slowly working up to processing 300 migrants daily.

Vox, Nicole Narea – February 4, 2021. He will increase refugee admissions to 125,000 annually starting in October.

Vox, Ian Millhiser – February 3, 2021.  Just a few months ago, the current Supreme Court term was likely to be one of the most consequential terms for immigration law in a long time.

Vox, Nicole Narea – February 3, 2021. In his first days in office, President Joe Biden has made immigration a key priority for his administration, seeking to distinguish himself from another “deporter in chief,” as activists once called President Barack Obama.

Vox, Nicole Narea – February 2, 2021. Biden is continuing to prioritize immigration during his first weeks in office, but isn’t going as far as activists hoped.

Originally Published in Vox

Nicole Narea – December 10, 2020

Biden has signaled a more welcoming era for immigrants – but Trump is making a last-ditch effort to push through his policy agenda.

With less than 50 days left in office, President Donald Trump appears to be rushing to implement immigration changes. The Biden administration could unravel many of them – but the latest developments add to what will already be a monumental task of reversing Trump’s nativist policy agenda.

Since the election, the Trump administration has made the citizenship test harder. It’s on track to reach its stated goal of constructing 450 miles of border wall by the end of the year, a physical reminder of Trump’s efforts to keep out asylum seekers and other vulnerable migrants. And on Thursday, it finalized a regulation that would gut the asylum system, going into effect just nine days before President-elect Joe Biden assumes office, unless anticipated legal challenges succeed in blocking it.

Other proposals could still be finalized before Inauguration Day, including regulations that would impose additional burdens on asylum seekers and foreign workers. Trump is also reportedly mulling a potential executive action aiming to put an end to birthright citizenship.

With White House senior adviser and noted immigration restrictionist Stephen Miller at his side, Trump has imposed unprecedented barriers to asylum, slashed legal immigration, vastly expanded immigration detention, and carried out wide-scale raids on unauthorized immigrants living in the US.

In the aftermath of Trump’s election loss, which he still refuses to acknowledge, his last-minute push to enact the remaining items on his policy wish list no longer appears to be about rallying his base, but rather securing a legacy. Whether he will succeed is a question of the little time he has left to leave his mark and how easily the next administration can erase it.

Even if they publish these [proposals], which are being used as scare tactics, it doesn’t change anything unless it’s actually a final rule that has taken effect, Shev Dalal-Dheini, the director of government relations for the American Immigration Lawyers Association, said. I think a lot of people are nervous when they see things. But if they don’t have effect, it doesn’t change anything.

Trump has made applying for citizenship harder

Immigrants have applied to become US citizens in increasing numbers since Trump took office, which some policy analysts say is the effect of the president’s anti-immigrant rhetoric. But the path hasn’t been easy. They’re facing ballooning processing times, higher fees, more intensive vetting, and the possibility of later losing their citizenship at the hands of the Justice Department’s denaturalization section.

Both changes represent additional barriers to citizenship for the roughly 9.2 million immigrants living in the US who are eligible to naturalize.

The new citizenship test is derived from 128 possible questions, and to pass, applicants must answer 12 of 20 questions correctly. By comparison, the previous iteration of the test featured 100 possible questions, and a passing score was six out of 10.

The administration also changed the wording of certain questions in a way that immigrant advocates see as a means of making it harder for immigrants of limited English proficiency to pass, Nicole Melaku, executive director of the National Partnership for New Americans, said in a statement.

One such question asks, Who does a US senator represent? The answer used to be all people of the state, but the new answer, which has drawn criticism, is just the citizens in the state. Immigrant advocates have consequently urged the Biden administration to abandon the new test in favor of restoring its previous iteration.

Trump is trying to drastically narrow asylum eligibility

The Trump administration has pursued a vast regulatory agenda aimed at curbing asylum and other humanitarian protections for migrants arriving on the southern border.

As part of a last-minute push, it issued a death blow to the system on Thursday with a sweeping final regulation that would bar huge swaths of asylum seekers from obtaining protection, including those who face persecution on the basis of gender and resistance to gang recruitment, and as victims of criminal coercion. Those targeted by international criminal gangs like MS-13 will therefore likely face a much narrower path to asylum under the rule.

The regulation would allow immigration officials to discard asylum seekers’ applications as frivolous without so much as a hearing or even a chance to respond to concerns about their applications. It would also refuse asylum to anyone coming from a country other than Canada or Mexico, who does not arrive on a direct flight to the US, who has resided in the US for more than one year, or who has failed to pay taxes, among other provisions.

First proposed in June, the regulation drew about 80,000 comments in response, the majority in opposition. Yet the administration only made five changes to it, keeping the vast majority of the original proposal intact.

The Death to Asylum regulation will often become death to asylees, David Bier, a policy analyst at the Cato Institute, tweeted about the policy.

Other asylum-related regulations could still be finalized and implemented before Inauguration Day.

That includes a proposed regulation to expand immigration officials’ ability to turn away asylum seekers on public health grounds, classifying anyone coming from a place where a contagious or infectious disease is prevalent as a threat to US national security. While that could certainly include Covid-19, the rule allows the departments of Homeland Security and Justice – not just the Centers for Disease Control and Prevention – to have input as to whether any one disease poses an international threat.

The Biden administration would have to issue new regulations to rescind any of the regulations Trump has finalized, including likely going through the burdensome process of giving the public notice and the opportunity to comment. It could also try to revise any regulations subject to ongoing litigation through a court settlement.

The Biden administration could also invoke the Congressional Review Act, which allows lawmakers to reverse regulations that were enacted in the last 60 working days of Congress, which extends back to March. However, using the act requires passing a joint resolution in both chambers of Congress, which could be difficult if Democrats don’t have control of the Senate.

If the regulations have yet to go into effect, the Biden administration could also delay their effective date by 60 days and then work to rescind them in the meantime.

Trump is continuing to target immigrant workers

Though Trump has often claimed that he supports legal immigration, he has put up substantial barriers to foreign workers and is continuing to do so in his final days in office.

Trump issued an executive order earlier this year that froze the issuance of visas for most foreign workers applying from outside the US through the end of the year on account of Covid-19, and he is expected to extend that order. President-elect Joe Biden has criticized the policy, calling it a yet another attempt to distract from his administration’s failure to lead an effective response to COVID-19. He told NBC News in June that the policy will not be in my administration.

The Trump administration is also pursuing regulations that would hamstring the health care industry, universities, nonprofits, and businesses that rely on foreign talent.

One top-priority regulation for the Trump administration would alter the way that H-1B skilled worker visas are distributed: Rather than being distributed at random through a lottery process, visas would go to the applicants with the highest salaries, making it difficult for employers in specialized fields to fill entry-level jobs. Another would limit the length of timethat noncitizens can stay in the US as students, exchange visitors, and journalists.

Other pending regulations would impose additional burdens on those applying for immigration benefits, requiring more evidence from US citizens or permanent residents who sponsor immigrants for green cards and additional biometrics screening, including DNA collection and voice prints.

Trump is rushing to finish the border wall

The border wall has represented a major political flashpoint of the Trump administration. The president invoked the wall as a rallying cry on the campaign trail in 2016, and he proved intent in bringing that vision to fruition while in office, waiving environmental and contracting laws and seizing private land to do it.

Now he’s racing to finish the 450 miles of border wall he promised by the end of the year. About 415 miles of wall had been completed as of November 27, though most of that construction was to replace old, existing barriers, CNN reported. Despite what he promised in 2016, Mexico never paid for it; instead, the $15 billion burden fell on taxpayers and was partially transferred from the Pentagon’s budget without congressional approval.

Biden has promised to halt wall construction once he assumes office, though that might be easier said than done. There remain questions as to whether he could terminate existing construction contracts and what will be done with the unspent funds that were transferred from the Pentagon for the purposes of building the wall.

But despite Biden’s vow that there will not be another foot of wall constructed on my administration, the hundreds of miles of wall that has already been constructed will serve as a physical testament to Trump’s restrictionist immigration policy framework. The Biden administration will likely be tasked with maintaining it.

Trump is reportedly weighing an executive order to end birthright citizenship

Over the course of his presidency, Trump has repeatedly said that he wants to end birthright citizenship, the constitutional guarantee to all children born in America, regardless of their parents’ nationality, which he sees as a factor that draws unauthorized immigrants to come live in the US. The Hill reported that he is again weighing an executive action that would achieve just that in the final weeks before Inauguration Day, and that the Justice Department has been consulted on the matter.

Any such executive action would be swiftly challenged in court. Legal experts say it has little likelihood of survival given that it would require overturning a century-old interpretation of the 14th Amendment, which states that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Courts have long taken that to mean that children of noncitizens are born in the United States and subject to its laws and are therefore citizens. But immigration restrictionists from organizations such as the Center for Immigration Studies and the Federation for American Immigration Reform – groups founded by the white nationalist John Tanton that have influenced Trump’s immigration policy – have argued that the 14th Amendment had a much narrower purpose of ensuring that emancipated enslaved people would be recognized as US citizens and was never meant to confer citizenship on the children of unauthorized immigrants.

While any such executive action may be swiftly blocked in court or revoked by the incoming Biden administration, its potential chilling effect cannot be underestimated.

They want to issue policies that scare people off because their primary objective is to deter illegal immigration, Dalal-Dheini said. The executive action would serve that purpose.

Originally Published in Vox

Nicole Narea – December 10, 2020

Biden has signaled a more welcoming era for immigrants — but Trump is making a last-ditch effort to push through his policy agenda.

With less than 50 days left in office, President Donald Trump appears to be rushing to implement immigration changes. The Biden administration could unravel many of them — but the latest developments add to what will already be a monumental task of reversing Trump’s nativist policy agenda.

Since the election, the Trump administration has made the citizenship test harder. It’s on track to reach its stated goal of constructing 450 miles of border wall by the end of the year, a physical reminder of Trump’s efforts to keep out asylum seekers and other vulnerable migrants. And on Thursday, it finalized a regulation that would gut the asylum system, going into effect just nine days before President-elect Joe Biden assumes office, unless anticipated legal challenges succeed in blocking it.

Other proposals could still be finalized before Inauguration Day, including regulations that would impose additional burdens on asylum seekers and foreign workers. Trump is also reportedly mulling a potential executive action aiming to put an end to birthright citizenship.

With White House senior adviser and noted immigration restrictionist Stephen Miller at his side, Trump has imposed unprecedented barriers to asylum, slashed legal immigration, vastly expanded immigration detention, and carried out wide-scale raids on unauthorized immigrants living in the US.

In the aftermath of Trump’s election loss, which he still refuses to acknowledge, his last-minute push to enact the remaining items on his policy wish list no longer appears to be about rallying his base, but rather securing a legacy. Whether he will succeed is a question of the little time he has left to leave his mark and how easily the next administration can erase it.

“Even if they publish these [proposals], which are being used as scare tactics, it doesn’t change anything unless it’s actually a final rule that has taken effect,” Shev Dalal-Dheini, the director of government relations for the American Immigration Lawyers Association, said. “I think a lot of people are nervous when they see things. But if they don’t have effect, it doesn’t change anything.”

Trump has made applying for citizenship harder

Immigrants have applied to become US citizens in increasing numbers since Trump took office, which some policy analysts say is the effect of the president’s anti-immigrant rhetoric. But the path hasn’t been easy. They’re facing ballooning processing times, higher fees, more intensive vetting, and the possibility of later losing their citizenship at the hands of the Justice Department’s “denaturalization section.”

Both changes represent additional barriers to citizenship for the roughly 9.2 million immigrants living in the US who are eligible to naturalize.

The new citizenship test is derived from 128 possible questions, and to pass, applicants must answer 12 of 20 questions correctly. By comparison, the previous iteration of the test featured 100 possible questions, and a passing score was six out of 10.

The administration also changed the wording of certain questions in a way that immigrant advocates see as a means of making it harder for immigrants of limited English proficiency to pass, Nicole Melaku, executive director of the National Partnership for New Americans, said in a statement.

One such question asks, “Who does a US senator represent?” The answer used to be “all people of the state,” but the new answer, which has drawn criticism, is just the “citizens” in the state. Immigrant advocates have consequently urged the Biden administration to abandon the new test in favor of restoring its previous iteration.

Trump is trying to drastically narrow asylum eligibility

The Trump administration has pursued a vast regulatory agenda aimed at curbing asylum and other humanitarian protections for migrants arriving on the southern border.

As part of a last-minute push, it issued a death blow to the system on Thursday with a sweeping final regulation that would bar huge swaths of asylum seekers from obtaining protection, including those who face persecution on the basis of gender and resistance to gang recruitment, and as victims of criminal coercion. Those targeted by international criminal gangs like MS-13 will therefore likely face a much narrower path to asylum under the rule.

The regulation would allow immigration officials to discard asylum seekers’ applications as “frivolous” without so much as a hearing or even a chance to respond to concerns about their applications. It would also refuse asylum to anyone coming from a country other than Canada or Mexico, who does not arrive on a direct flight to the US, who has resided in the US for more than one year, or who has failed to pay taxes, among other provisions.

First proposed in June, the regulation drew about 80,000 comments in response, the majority in opposition. Yet the administration only made five changes to it, keeping the vast majority of the original proposal intact.

“The Death to Asylum regulation will often become death to asylees,” David Bier, a policy analyst at the Cato Institute, tweeted about the policy.

Other asylum-related regulations could still be finalized and implemented before Inauguration Day.

That includes a proposed regulation to expand immigration officials’ ability to turn away asylum seekers on public health grounds, classifying anyone coming from a place where a contagious or infectious disease is prevalent as a threat to US national security. While that could certainly include Covid-19, the rule allows the departments of Homeland Security and Justice — not just the Centers for Disease Control and Prevention — to have input as to whether any one disease poses an international threat.

The Biden administration would have to issue new regulations to rescind any of the regulations Trump has finalized, including likely going through the burdensome process of giving the public notice and the opportunity to comment. It could also try to revise any regulations subject to ongoing litigation through a court settlement.

The Biden administration could also invoke the Congressional Review Act, which allows lawmakers to reverse regulations that were enacted in the last 60 working days of Congress, which extends back to March. However, using the act requires passing a joint resolution in both chambers of Congress, which could be difficult if Democrats don’t have control of the Senate.

If the regulations have yet to go into effect, the Biden administration could also delay their effective date by 60 days and then work to rescind them in the meantime.

Trump is continuing to target immigrant workers

Though Trump has often claimed that he supports legal immigration, he has put up substantial barriers to foreign workers and is continuing to do so in his final days in office.

Trump issued an executive order earlier this year that froze the issuance of visas for most foreign workers applying from outside the US through the end of the year on account of Covid-19, and he is expected to extend that order. President-elect Joe Biden has criticized the policy, calling it a “yet another attempt to distract” from his administration’s “failure to lead an effective response to COVID-19.” He told NBC News in June that the policy “will not be in my administration.”

The Trump administration is also pursuing regulations that would hamstring the health care industry, universities, nonprofits, and businesses that rely on foreign talent.

One top-priority regulation for the Trump administration would alter the way that H-1B skilled worker visas are distributed: Rather than being distributed at random through a lottery process, visas would go to the applicants with the highest salaries, making it difficult for employers in specialized fields to fill entry-level jobs. Another would limit the length of timethat noncitizens can stay in the US as students, exchange visitors, and journalists.

Other pending regulations would impose additional burdens on those applying for immigration benefits, requiring more evidence from US citizens or permanent residents who sponsor immigrants for green cards and additional biometrics screening, including DNA collection and voice prints.

Trump is rushing to finish the border wall

The border wall has represented a major political flashpoint of the Trump administration. The president invoked the wall as a rallying cry on the campaign trail in 2016, and he proved intent in bringing that vision to fruition while in office, waiving environmental and contracting laws and seizing private land to do it.

Now he’s racing to finish the 450 miles of border wall he promised by the end of the year. About 415 miles of wall had been completed as of November 27, though most of that construction was to replace old, existing barriers, CNN reported. Despite what he promised in 2016, Mexico never paid for it; instead, the $15 billion burden fell on taxpayers and was partially transferred from the Pentagon’s budget without congressional approval.

Biden has promised to halt wall construction once he assumes office, though that might be easier said than done. There remain questions as to whether he could terminate existing construction contracts and what will be done with the unspent funds that were transferred from the Pentagon for the purposes of building the wall.

But despite Biden’s vow that “there will not be another foot of wall constructed on my administration,” the hundreds of miles of wall that has already been constructed will serve as a physical testament to Trump’s restrictionist immigration policy framework. The Biden administration will likely be tasked with maintaining it.

Trump is reportedly weighing an executive order to end birthright citizenship

Over the course of his presidency, Trump has repeatedly said that he wants to end birthright citizenship, the constitutional guarantee to all children born in America, regardless of their parents’ nationality, which he sees as a factor that draws unauthorized immigrants to come live in the US. The Hill reported that he is again weighing an executive action that would achieve just that in the final weeks before Inauguration Day, and that the Justice Department has been consulted on the matter.

Any such executive action would be swiftly challenged in court. Legal experts say it has little likelihood of survival given that it would require overturning a century-old interpretation of the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Courts have long taken that to mean that children of noncitizens are “born in the United States and subject to its laws” and are therefore citizens. But immigration restrictionists from organizations such as the Center for Immigration Studies and the Federation for American Immigration Reform — groups founded by the white nationalist John Tanton that have influenced Trump’s immigration policy — have argued that the 14th Amendment had a much narrower purpose of ensuring that emancipated enslaved people would be recognized as US citizens and was never meant to confer citizenship on the children of unauthorized immigrants.

While any such executive action may be swiftly blocked in court or revoked by the incoming Biden administration, its potential chilling effect cannot be underestimated.

“They want to issue policies that scare people off because their primary objective is to deter illegal immigration,” Dalal-Dheini said. The executive action “would serve that purpose.”

Originally Published in Vox

Ian Millhiser – December 5, 2020

A federal judge handed immigrants a big win – and gave President-elect Biden a potential crisis.

A line of people stand outdoors in front of parked vehicles, holding signs in English and Spanish. In the front of the line is a young woman and child wearing masks and matching orange shirts, with a sign reading Here to Stay.
People hold signs during a rally in support of the Supreme Court’s ruling in favor of the Deferred Action for Childhood Arrivals (DACA) program, in San Diego, on June 18.
Sandy Huffaker/AFP/Getty Images

Late Friday afternoon, a federal district judge ordered the Trump administration to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program, which allows nearly 700,000 undocumented immigrants who came to the United States as children to live and work there.

The case is Batalla Vidal v. Wolf. Judge Nicholas Garaufis, who handed down the order, said the Department of Homeland Security (DHS) must post a public notice, within 3 calendar days of this Order … that it is accepting first-time requests for consideration of deferred action under DACA because the department’s ostensible leader tried to limit the DACA program without having the authority to do so.

The ruling is the latest blow to the Trump administration’s attempts to end the program. In 2017, Trump’s DHS issued a memo that sought to wind down the DACA program, but the Supreme Court ruled last June that DHS’s initial attempts to end it were void because the department did not adequately explain why it was doing so.

Rather than fully reinstating DACA following the Supreme Court’s order, however, DHS issued a new memo in July signed by Undersecretary of Homeland Security’s Office for Strategy, Policy, and Plans Chad Wolf – and the lawfulness of this July memo was the central issue in Batalla Vidal. I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission, Wolf wrote in that memo.

The memo directs DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA, and it provides that current DACA beneficiaries may only receive one-year renewals of their DACA status, rather than the two-year extensions they would have received prior to this memo.

Wolf, moreover, purported to be far more than a mere undersecretary in his memorandum. In November of 2019, President Trump named Wolf acting Secretary of Homeland Security, and Wolf signed his July memo as Acting Secretary. This distinction matters because as undersecretary, Wolf lacks the power to make changes to DACA, but the Secretary of Homeland Security does have the authority to make such changes.

Judge Garaufis ruled in mid-November that Wolf was not lawfully serving as Acting Secretary of Homeland Security under the Homeland Security Act (‘HSA’) when he issued the July 28, 2020 memorandum, thereby cutting the legs out from under Wolf’s attempt to water down the DACA program. If Wolf is not the acting secretary, then his July memo is void.

The order Garaufis handed down on Friday lays out some of the consequences of the judge’s mid-November decision. Because Mr. Wolf was without lawful authority to serve as Acting Secretary of OHS, the Wolf Memorandum is VACATED, Garaufis wrote in his most recent order.

So the good news for DACA-eligible immigrants is that, barring a decision from a higher court blocking Garaufis’s most recent order, those immigrants will soon be able to obtain DACA status. And even if the order is blocked, President-elect Joe Biden has also pledged to fully reinstate DACA once he takes office on January 20.

Nevertheless, the future of DACA remains uncertain. For one thing, the Supreme Court’s June decision blocking the Trump administration’s initial attempts to end the program was a 5-4 decision, with the late Justice Ruth Bader Ginsburg in the majority. Since then, Trump has replaced Ginsburg with the far more conservative Justice Amy Coney Barrett. And even before Barrett arrived at the Supreme Court, several members of the Court had signaled that they thought DACA is illegal.

So there’s a reasonable likelihood that the Court’s new 6-3 Republican majority will strike down the DACA program even as Biden tries to preserve it.

The logic of Garaufis’s November opinion – that presidents have only limited authority to make acting appointments – could also come back to bite Biden, especially if Republicans control the Senate and, with it, the power to block Biden’s nominees.

Chad Wolf is not the acting Secretary of Homeland Security

The core issue in the Batalla Vidal case turns on whether Wolf was lawfully appointed acting secretary, and therefore is empowered to make changes to the DACA program.

Garaufis’s opinion holding that Wolf was not lawfully appointed is fairly straightforward. The Homeland Security Act provides that, if DHS’s top job becomes vacant, the deputy secretary shall act as secretary. If both jobs are vacant, then the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary. A sitting secretary, moreover, may designate such other officers of the Department in further order of succession to serve as Acting Secretary.

Currently, DHS’s top ranks are a bit a of ghost town. All three of the top jobs are vacant. Kirstjen Nielsen, the last person to serve as a Senate-confirmed Secretary of Homeland Security, resigned in April of 2019. Before she left, however, she did lay out the order of succession that should apply if the top three jobs at DHS became vacant.

If all top three jobs were vacant, Nielsen determined, then the administrator of the Federal Emergency Management Agency should become secretary – but this job has been vacant since the spring of 2019. Next in line would be the director of the Cybersecurity and Infrastructure Security Agency (CISA) – a job that, until recently, was filled by Christopher Krebs.

Trump fired Krebs in mid-November after Krebs refuted false claims by Trump and some of Trump’s allies that Biden somehow stole the 2020 election. But Krebs still was in his job as head of CISA in July, when Wolf handed down his DACA memo. That means that Krebs, not Wolf, should have been the acting secretary in July.

It’s worth noting that, even with Krebs out of the picture, Wolf still is not next in line to be acting secretary. After Krebs is the DHS’s undersecretary for science and technology, but this position is vacant and the job is currently being done by a Senior Official Performing the Duties of the Under Secretary for Science and Technology. The next person in line after that is the undersecretary for intelligence and analysis, but that position is vacant as well, and the relevant office is held by an acting official. Eighth in line is the commissioner of US Customs and Border Protection, but that position is also vacant and there, too, the office is led by an acting official.

Ninth in line is the administrator of the Transportation Security Administration. The TSA actually does have a Senate-confirmed leader – David Pekoske was confirmed to lead the TSA in 2017 – and he still holds that office. So it would appear that Pekoske, not Wolf, should currently be serving as acting secretary of DHS.

Judge Garaufis’s order is bad news for Biden if Republicans try to sabotage his administration

As this litany of vacant offices and acting officials suggests, the courts have thus far been fairly tolerant of President Trump’s attempts to bypass the Senate and fill top jobs with acting officials. But Judge Garaufis’s order suggests that tolerance may be coming to an end just as Biden is preparing to take office.

We do not yet know who will control the Senate at the beginning of the Biden administration. Currently, Republicans hold a 50-48 seat majority in the incoming Senate, with two seats to be determined in a January 5 Georgia runoff election. If Democrats win both of those seats, Vice President-elect Kamala Harris’s tiebreaking vote will give them a narrow majority in the Senate.

But if Republicans prevail in either Georgia race, then Senate Majority Leader Mitch McConnell (R-KY) will continue to lead the Senate, and Republicans will have the power to block any Biden nominee to any Senate-confirmed job.

Biden, meanwhile, may find himself unable to staff his administration if Republicans choose to sabotage his presidency. While the Department of Homeland Security has a rigid order of succession for its top job, most agencies are governed by the Federal Vacancies Reform Act(FVRA) when a Senate-confirmed position becomes vacant.

Under the FVRA, the president may temporarily fill a vacant, Senate-confirmed job with an acting appointee. But the president cannot fill the job with just anyone – typically the acting appointee must either be currently serving in a Senate-confirmed job, or be currently serving as a senior civil servant.

Thus, if a vacancy arises in the middle of a presidency, that’s typically no big deal. After the first year of a new presidency, the president will normally have appointed hundreds of individuals to Senate-confirmed jobs. So that gives the president a deep bench of officials to slide into acting roles as they are needed.

But, at the beginning of Biden’s presidency, he won’t be able to rely on existing Senate-confirmed officials to serve as acting secretaries if the Senate refuses to confirm his nominees. With rare exceptions, the only people in Senate-confirmed jobs when Biden takes office will be Trump appointees.

Biden could potentially fill the vacant jobs with civil servants – that is, with senior career officials in the relevant agencies – but that could prevent Biden from naming a Cabinet that shares his political and policy vision.

The FVRA imposes rigid limits on just how long an individual may serve in an acting role. Under many circumstances, the tenure of an acting official is limited to just 210 days after a vacancy arises. So even though Biden could fill many jobs temporarily with civil servants, many of those acting appointments will expire just seven months into his presidency.

As mentioned above, the courts haven’t exactly been rigorous in enforcing these restrictions under President Trump, but they now seem likely to take a new interest in enforcing laws like the FVRA once Biden takes office. A 6-3 Republican Supreme Court is unlikely to bend the law in order to help a Democratic president – and really, the law is quite clear that Biden does not have a limitless power to make acting appointments.

A tremendous amount, in other words, is potentially at stake in the Georgia Senate runoffs. Those races could determine whether the Biden administration is able to perform many of the most basic functions of government – starting with actually getting people into top jobs within the administration.

Originally Published in Vox

Nicole Narea – December 8, 2020

Dismantling Trump’s policies that put up a wall to the asylum system is an immense task.

 

The border has been the focal point of President Donald Trump’s restrictionist immigration agenda. Beyond erecting more than 400 miles of border wall, he has put up elaborate barriers to asylum and humanitarian protections that have largely escaped widespread public scrutiny, with the exception of his policy of separating migrant families.

Unraveling these policies will prove to be an early test of President-elect Joe Biden’s commitment to not only dismantling Trump’s nativist immigration legacy but also improving on the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention.

The task before Biden is immense. Trump has limited how many asylum seekers can be processed at the border daily and forced thousands of migrants to wait in Mexico for a chance to have their day in court in the US under the “Remain in Mexico” policy, officially known as the Migrant Protection Protocols (MPP).

He has brokered agreements with Central American countries that have allowed the US to send asylum seekers back to those countries and enacted secretive programs that allow immigration officials to rapidly process and deport asylum seekers.

He has issued rules preventing drastically narrowing the circumstances under which people are eligible for asylum. And he has invoked the pandemic as a means of expelling tens of thousands of migrants, including unaccompanied children.

A plaque commemorating President Donald Trump hangs on the US-Mexico border wall in Calexico, California. The Trump administration is rushing to complete as much wall as possible in its last weeks in power.
Sandy Huffaker/Getty Images
Months before President Trump is due to leave office, workers are racing to build a steel fence along the US-Mexico border wall in New Mexico.
Herika Martinez/AFP via Getty Images

That framework of interlocking policies has been effective in keeping out all but the minuscule number arriving on the southern border. But Biden has vowed to reverse most of those policies and pursue reforms that would better facilitate the humane and orderly processing of asylum seekers.

Biden can make big strides quickly, taking administrative actions immediately after assuming office to end policies such as MPP. But some Trump policies — especially those promulgated by regulation or subject to ongoing legal challenges — could prove more time-consuming to roll back, involving additional procedural and logistical challenges.

“The president-elect has been very clear that he intends to roll back many of these policies and restore the rule of law by honoring America’s obligations under US and international law to provide refuge to people fleeing persecution,” Tom Jawetz, vice president of immigration policy at the Center for American Progress, said. “Doing this will require not only careful planning and close coordination by governmental and nongovernmental actors but also swift reversal of the changes that the Trump administration made to distort and destroy US asylum law.”

Undoing Trump’s policies is Biden’s first priority

Some of Trump’s restrictive policies on the border will be easier to undo than others.

Upon taking office, Biden will be under pressure to quickly dismantle MPP, which was created by a policy memo in January 2019 that could easily be rescinded. But it’s unclear what would happen to the more than 67,000 migrants who are currently enrolled or were previously subject to the program, including those who continue to wait in encampments along the US-Mexico border to be called in for their court dates in the US. Before the pandemic, they would often have to wait months for a hearing. Since March, the Trump administration has suspended all their hearings indefinitely on account of Covid-19.

The American Immigration Lawyers Association has proposed that the incoming Biden administration grant temporary humanitarian parole to those subject to MPP, allowing them to enter the US and later apply for more permanent immigration benefits, including asylum. But Biden has yet to elaborate on how he would process MPP asylum seekers.

Volunteers from a pro-immigration group build and fill a chainlink cage with 600 teddy bears representing children separated from their families as a result of US immigration policies on the National Mall on November 16.
Chip Somodevilla/Getty Images
The Trump administration’s policy of separating children from their parents after they enter the US to seek refuge has resulted in hundreds of children unable to be reunited with their families because of poor management and tracking.
Chip Somodevilla/Getty Images

While Biden can take action on MPP immediately, unraveling Trump’s regulatory scheme, including his regulations drastically limiting asylum eligibility for migrants arriving on the border, will likely be a months-long process.

The Biden administration would have to issue new regulations to rescind any of the regulations Trump has finalized, including likely going through the burdensome process of giving the public notice and the opportunity to comment. It could also try to revise regulations subject to ongoing litigation through a court settlement. Those regulations include one that limits asylum seekers from obtaining work authorization while they wait, sometimes for months, for their application to be processed.

The Biden administration could also invoke the Congressional Review Act, which allows lawmakers to reverse regulations that were enacted in the last 60 working days of Congress, which extends back to March. That could cover Trump’s final regulation expanding the groups of crimes that make people ineligible for asylum, including convictions for drug possession and having a fake ID.

Trump used the Congressional Review Act to overturn a total of 16 Obama-era regulations when he first took office. However, using the act requires passing a joint resolution in both chambers of Congress, which could be difficult if Democrats don’t have control of the Senate.

Advocates have also called on Biden to withdraw regulations denying asylum to people who travel through another country before arriving in the US or who apply for asylum between ports of entry, which have been blocked by federal courts, as well as a proposed rule that would vastly expand immigration officials’ authority to turn away asylum seekers.

The question remains, however, whether Biden would prioritize enacting all of these changes during his first 100 days while he is juggling competing priorities, including the pandemic response and economic recovery. CNN reported that the Biden team is overwhelmed by the prospect of unraveling Trump’s policies at the border — the legacy of Trump’s senior adviser and immigration hardliner Stephen Miller.

“They’re realizing that they have two months to figure out a really complicated mess of things,” a source familiar with the transition told CNN. “People are really overwhelmed trying to figure out the sheer issues, the sheer number of pieces you have to coordinate. This is the genius of Stephen Miller.”

It’s not clear how Biden will tackle Trump’s pandemic-related border restrictions

While Trump had made obtaining asylum near-impossible before the pandemic, he invoked Covid-19 as a means of shutting the door on virtually all asylum seekers arriving on the southern border.

The Trump administration began expelling migrants to Mexico in March under Title 42, a section of the Public Health Safety Act, that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.” It largely replaced other policies as the Trump administration’s primary means of keeping out migrants amid the pandemic, resulting in the expulsions of more than 250,000 people from March through October and effective until the director of the Centers for Disease Control and Prevention determines that the further spread of Covid-19 has “ceased to be a serious danger to public health.”

Biden has left open the possibility of maintaining the Title 42 program at least temporarily. But it’s not clear that there remains a legitimate public health rationale for keeping the policy in place, given that the level of community transmission inside the US is already so high.

Unraveling the Trump administrations policies will prove to be an early test of President-elect Joe Biden’s commitment to dismantling a nativist immigration legacy but also improving on the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention.
Alex Wong/Getty Images

Immigrant advocates have argued that the US can continue to protect vulnerable immigrants without adverse consequences to public health. Jennifer Podkul, the vice president of policy and advocacy at the legal aid group Kids in Need of Defense, said in a press call that the administration could at least create exceptions for particularly vulnerable classes of migrants.

By court order last month, unaccompanied children, for example, can no longer be expelled under the policy. But at least 13,000 such children had already been deported under the policy, often with little if any notice to their parents or legal counsel and even if they showed no symptoms of the virus. Others had been held in hotels along the border for extended periods under the program.

Still, the Biden administration might be weighing whether to maintain the Title 42 program as a means of stemming migration temporarily at a time when many Americans support such restrictions. An August NPR/Ipsos poll found that 58 percent of Americans support “banning the entry of asylum seekers and refugees into the US” to curb the spread of Covid-19.

“They’re coming into office in January. It’s highly likely that Covid conditions will continue to be in an emergency state,” Doris Meissner, a senior fellow at the Migration Policy Institute who served as commissioner of what was then called the Immigration and Naturalization Service under the Clinton administration, said in a press call. “So it is possible that we would see a new administration maintain the CDC guidance at the border, at least for some period of time, which would also then gain some time for putting changes into place that allow for a more functional system for granting asylum.”

A surge in migration at the border could present an early challenge for Biden

Under Trump, the migrants arriving at the southern border have primarily been families and unaccompanied children. But once the pandemic hit, immigration authorities observed changing migration flows: Fewer families have been apprehended, and single adults have been attempting to cross the border without authorization multiple times.

In October, CBP apprehended 4,501 families and 57,206 single adults. That’s roughly half the number of families and more than double the number of single adults who were apprehended in the same month in 2019.

Jessica Bolter, an associate policy analyst at the Migration Policy Institute, said in a press call that this shift isn’t likely to last, meaning that the incoming Biden administration should be prepared to address family migration at the border.

But the president-elect also needs to choose his next moves carefully, she added: Migrant flows often respond to changes in US policy, and his administration will likely be looking to avoid encouraging a surge on the border. In the months immediately following Trump’s inauguration, for example, there were record-low apprehensions as migrants waited for a signal of what his policies would be. And before MPP was implemented across the entire border, migrants flocked to sectors where it had yet to go into effect.

Under Trump, the migrants arriving at the southern border have primarily been families and unaccompanied children.
Sandy Huffaker/Getty Images
Once the pandemic hit, immigration authorities observed changing migration flows: Fewer families have been apprehended, and single adults have been attempting to cross the border without authorization multiple times.
Gregory Bull/AP

“If and when the future Biden administration changes these restrictive policies, it will have to do so with great care and planning, and in a way that balances humanitarian concerns while avoiding a rush on the border that could overwhelm resources and result in a renewed sense throughout the country that the border is out of control,” Bolter said.

It already appears that unaccompanied children are arriving in increasing numbers, which could potentially pose a challenge for Biden if the trend holds. CBP has taken more than 9,900 children into custody since September 8 and apprehended nearly 1,000 unaccompanied children over just six days in late November. The agency has projected in court filings that the flow of unaccompanied children could increase by 50 percent by late March 2021.

While Biden served as vice president, the Obama administration was criticized for its response to the unprecedented influx of unaccompanied children in 2014. Though Border Patrol cannot legally hold such children for more than 72 hours, many children remained in their custody for longer than that or were sent to intermediate detention centers, some of which were temporary facilities on military bases after the government ran out of beds in more suitable facilities.

That is a situation that Biden is aiming to avoid repeating. He has already vowed to “surge humanitarian resources” to the border, including asylum officers who can conduct an initial screening of migrants’ claims for protection, and ensure that US Citizenship and Immigration Services’ asylum division takes the lead on processing their cases to ease the burden on the immigration courts. But some advocates have urged him to go further in empowering asylum officers via regulation to be able to grant asylum as part of their initial interviews, speeding up processing.

“I think they’re going to be worried about a sudden flow of people coming to the border or perception of a border out of control,” Andrew Selee, president of the Migration Policy Institute, said in a press call. “Nothing says more than caravans in terms of public perception.”

 

Originally Published in Vox

Nicole Narea – December 8, 2020

Dismantling Trump’s policies that put up a wall to the asylum system is an immense task.

 

The border has been the focal point of President Donald Trump’s restrictionist immigration agenda. Beyond erecting more than 400 miles of border wall, he has put up elaborate barriers to asylum and humanitarian protections that have largely escaped widespread public scrutiny, with the exception of his policy of separating migrant families.

Unraveling these policies will prove to be an early test of President-elect Joe Biden’s commitment to not only dismantling Trump’s nativist immigration legacy but also improving on the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention.

The task before Biden is immense. Trump has limited how many asylum seekers can be processed at the border daily and forced thousands of migrants to wait in Mexico for a chance to have their day in court in the US under the Remain in Mexico policy, officially known as the Migrant Protection Protocols (MPP).

He has brokered agreements with Central American countries that have allowed the US to send asylum seekers back to those countries and enacted secretive programs that allow immigration officials to rapidly process and deport asylum seekers.

He has issued rules preventing drastically narrowing the circumstances under which people are eligible for asylum. And he has invoked the pandemic as a means of expelling tens of thousands of migrants, including unaccompanied children.

A plaque commemorating President Donald Trump hangs on the US-Mexico border wall in Calexico, California. The Trump administration is rushing to complete as much wall as possible in its last weeks in power.
Sandy Huffaker/Getty Images
Months before President Trump is due to leave office, workers are racing to build a steel fence along the US-Mexico border wall in New Mexico.
Herika Martinez/AFP via Getty Images

That framework of interlocking policies has been effective in keeping out all but the minuscule number arriving on the southern border. But Biden has vowed to reverse most of those policies and pursue reforms that would better facilitate the humane and orderly processing of asylum seekers.

Biden can make big strides quickly, taking administrative actions immediately after assuming office to end policies such as MPP. But some Trump policies – especially those promulgated by regulation or subject to ongoing legal challenges – could prove more time-consuming to roll back, involving additional procedural and logistical challenges.

The president-elect has been very clear that he intends to roll back many of these policies and restore the rule of law by honoring America’s obligations under US and international law to provide refuge to people fleeing persecution, Tom Jawetz, vice president of immigration policy at the Center for American Progress, said. Doing this will require not only careful planning and close coordination by governmental and nongovernmental actors but also swift reversal of the changes that the Trump administration made to distort and destroy US asylum law.

Undoing Trump’s policies is Biden’s first priority

Some of Trump’s restrictive policies on the border will be easier to undo than others.

Upon taking office, Biden will be under pressure to quickly dismantle MPP, which was created by a policy memo in January 2019 that could easily be rescinded. But it’s unclear what would happen to the more than 67,000 migrants who are currently enrolled or were previously subject to the program, including those who continue to wait in encampments along the US-Mexico border to be called in for their court dates in the US. Before the pandemic, they would often have to wait months for a hearing. Since March, the Trump administration has suspended all their hearings indefinitely on account of Covid-19.

The American Immigration Lawyers Association has proposed that the incoming Biden administration grant temporary humanitarian parole to those subject to MPP, allowing them to enter the US and later apply for more permanent immigration benefits, including asylum. But Biden has yet to elaborate on how he would process MPP asylum seekers.

Volunteers from a pro-immigration group build and fill a chainlink cage with 600 teddy bears representing children separated from their families as a result of US immigration policies on the National Mall on November 16.
Chip Somodevilla/Getty Images
The Trump administration’s policy of separating children from their parents after they enter the US to seek refuge has resulted in hundreds of children unable to be reunited with their families because of poor management and tracking.
Chip Somodevilla/Getty Images

While Biden can take action on MPP immediately, unraveling Trump’s regulatory scheme, including his regulations drastically limiting asylum eligibility for migrants arriving on the border, will likely be a months-long process.

The Biden administration would have to issue new regulations to rescind any of the regulations Trump has finalized, including likely going through the burdensome process of giving the public notice and the opportunity to comment. It could also try to revise regulations subject to ongoing litigation through a court settlement. Those regulations include one that limits asylum seekers from obtaining work authorization while they wait, sometimes for months, for their application to be processed.

The Biden administration could also invoke the Congressional Review Act, which allows lawmakers to reverse regulations that were enacted in the last 60 working days of Congress, which extends back to March. That could cover Trump’s final regulation expanding the groups of crimes that make people ineligible for asylum, including convictions for drug possession and having a fake ID.

Trump used the Congressional Review Act to overturn a total of 16 Obama-era regulations when he first took office. However, using the act requires passing a joint resolution in both chambers of Congress, which could be difficult if Democrats don’t have control of the Senate.

Advocates have also called on Biden to withdraw regulations denying asylum to people who travel through another country before arriving in the US or who apply for asylum between ports of entry, which have been blocked by federal courts, as well as a proposed rule that would vastly expand immigration officials’ authority to turn away asylum seekers.

The question remains, however, whether Biden would prioritize enacting all of these changes during his first 100 days while he is juggling competing priorities, including the pandemic response and economic recovery. CNN reported that the Biden team is overwhelmed by the prospect of unraveling Trump’s policies at the border – the legacy of Trump’s senior adviser and immigration hardliner Stephen Miller.

They’re realizing that they have two months to figure out a really complicated mess of things, a source familiar with the transition told CNN. People are really overwhelmed trying to figure out the sheer issues, the sheer number of pieces you have to coordinate. This is the genius of Stephen Miller.

It’s not clear how Biden will tackle Trump’s pandemic-related border restrictions

While Trump had made obtaining asylum near-impossible before the pandemic, he invoked Covid-19 as a means of shutting the door on virtually all asylum seekers arriving on the southern border.

The Trump administration began expelling migrants to Mexico in March under Title 42, a section of the Public Health Safety Act, that allows the US government to temporarily block noncitizens from entering the US when doing so is required in the interest of public health. It largely replaced other policies as the Trump administration’s primary means of keeping out migrants amid the pandemic, resulting in the expulsions of more than 250,000 people from March through October and effective until the director of the Centers for Disease Control and Prevention determines that the further spread of Covid-19 has ceased to be a serious danger to public health.

Biden has left open the possibility of maintaining the Title 42 program at least temporarily. But it’s not clear that there remains a legitimate public health rationale for keeping the policy in place, given that the level of community transmission inside the US is already so high.

Unraveling the Trump administrations policies will prove to be an early test of President-elect Joe Biden’s commitment to dismantling a nativist immigration legacy but also improving on the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention.
Alex Wong/Getty Images

Immigrant advocates have argued that the US can continue to protect vulnerable immigrants without adverse consequences to public health. Jennifer Podkul, the vice president of policy and advocacy at the legal aid group Kids in Need of Defense, said in a press call that the administration could at least create exceptions for particularly vulnerable classes of migrants.

By court order last month, unaccompanied children, for example, can no longer be expelled under the policy. But at least 13,000 such children had already been deported under the policy, often with little if any notice to their parents or legal counsel and even if they showed no symptoms of the virus. Others had been held in hotels along the border for extended periods under the program.

Still, the Biden administration might be weighing whether to maintain the Title 42 program as a means of stemming migration temporarily at a time when many Americans support such restrictions. An August NPR/Ipsos poll found that 58 percent of Americans support banning the entry of asylum seekers and refugees into the US to curb the spread of Covid-19.

They’re coming into office in January. It’s highly likely that Covid conditions will continue to be in an emergency state, Doris Meissner, a senior fellow at the Migration Policy Institute who served as commissioner of what was then called the Immigration and Naturalization Service under the Clinton administration, said in a press call. So it is possible that we would see a new administration maintain the CDC guidance at the border, at least for some period of time, which would also then gain some time for putting changes into place that allow for a more functional system for granting asylum.

A surge in migration at the border could present an early challenge for Biden

Under Trump, the migrants arriving at the southern border have primarily been families and unaccompanied children. But once the pandemic hit, immigration authorities observed changing migration flows: Fewer families have been apprehended, and single adults have been attempting to cross the border without authorization multiple times.

In October, CBP apprehended 4,501 families and 57,206 single adults. That’s roughly half the number of families and more than double the number of single adults who were apprehended in the same month in 2019.

Jessica Bolter, an associate policy analyst at the Migration Policy Institute, said in a press call that this shift isn’t likely to last, meaning that the incoming Biden administration should be prepared to address family migration at the border.

But the president-elect also needs to choose his next moves carefully, she added: Migrant flows often respond to changes in US policy, and his administration will likely be looking to avoid encouraging a surge on the border. In the months immediately following Trump’s inauguration, for example, there were record-low apprehensions as migrants waited for a signal of what his policies would be. And before MPP was implemented across the entire border, migrants flocked to sectors where it had yet to go into effect.

Under Trump, the migrants arriving at the southern border have primarily been families and unaccompanied children.
Sandy Huffaker/Getty Images
Once the pandemic hit, immigration authorities observed changing migration flows: Fewer families have been apprehended, and single adults have been attempting to cross the border without authorization multiple times.
Gregory Bull/AP

If and when the future Biden administration changes these restrictive policies, it will have to do so with great care and planning, and in a way that balances humanitarian concerns while avoiding a rush on the border that could overwhelm resources and result in a renewed sense throughout the country that the border is out of control, Bolter said.

It already appears that unaccompanied children are arriving in increasing numbers, which could potentially pose a challenge for Biden if the trend holds. CBP has taken more than 9,900 children into custody since September 8 and apprehended nearly 1,000 unaccompanied children over just six days in late November. The agency has projected in court filings that the flow of unaccompanied children could increase by 50 percent by late March 2021.

While Biden served as vice president, the Obama administration was criticized for its response to the unprecedented influx of unaccompanied children in 2014. Though Border Patrol cannot legally hold such children for more than 72 hours, many children remained in their custody for longer than that or were sent to intermediate detention centers, some of which were temporary facilities on military bases after the government ran out of beds in more suitable facilities.

That is a situation that Biden is aiming to avoid repeating. He has already vowed to surge humanitarian resources to the border, including asylum officers who can conduct an initial screening of migrants’ claims for protection, and ensure that US Citizenship and Immigration Services’ asylum division takes the lead on processing their cases to ease the burden on the immigration courts. But some advocates have urged him to go further in empowering asylum officers via regulation to be able to grant asylum as part of their initial interviews, speeding up processing.

I think they’re going to be worried about a sudden flow of people coming to the border or perception of a border out of control, Andrew Selee, president of the Migration Policy Institute, said in a press call. Nothing says more than caravans in terms of public perception.