1. CDC will reverse public health and border closures.
In July 2019, the Trump administration announced a policy — panned by critics as Asylum Ban 2.0 — barring individuals who transited through another country, like Mexico, from seeking asylum. A year after it was implemented, the transit ban was ruled unlawful by two separate courts. Still, the pandemic allowed the administration to accomplish the same goal under the guise of public health.
In March, President Trump’s Centers for Disease Control and Prevention (CDC) issued an order, based on the Public Health Service Act, prohibiting the entry of certain individuals who require processing at the Mexican and Canadian borders. While CDC guidance indicates no valid public health reason for the closures, the bans remain in place.
It’s clear that a ban is ineffective, but it remains unclear how the Biden administration can limit COVID-19 spreading between borders, and protect asylum seekers from being exposed to COVID-19 as they reach the U.S.
2. President Biden will end expedited asylum review processes (HARP/PARC).
In October 2019, the Trump administration launched two pilot programs to expedite the deportation process for asylum seekers. The Prompt Asylum Claim Review (PACR) is applied to people from countries other than Mexico, and the Humanitarian Asylum Review Process (HARP) is applied to Mexican nationals.
Under these programs, asylum seekers are rushed through the asylum process within just a few days of arriving in the U.S., without access to counsel or basic necessities. These programs are meant to move asylum cases along faster but effectively cut out necessary steps to protect asylum seekers’ right to due process. These conditions have resulted in dramatically low preliminary rates of CBI passage. The Trump administration began expanding these programs borderwide in January 2020.
President Biden has promised to increase the number of asylum officers to review cases of recent border crossers.
3. President Biden will end policies trapping asylum seekers at the border (MPP AND “metering”).
Metering was originally an Obama-era policy created in response to a surge of Haitian migrants at the southern border. Trump expanded the practice to make it standard along all Southwest border ports implementing limit lines. This had resulted in border ports turning away asylum seekers even when they could admit them.
The Migrant Protection Protocols (MPP), otherwise known as the “Remain in Mexico” program, will be one the Trump immigration policies most difficult to unravel. Since its implementation over 13 months ago, over 60,000 people have been forced to wait in life-threatening conditions in makeshift refugee camps along the southern border. On October 19, 2020, the Supreme Court agreed to review litigation against MPP; this ruling will impact how Biden can unravel this policy.
Creating refugee camps is relatively easy, but dismantling them safely and effectively during a global pandemic is extremely difficult. These policies will be complicated for the Biden administration to reverse. Still, they will also be one of the most crucial if Biden will fulfill his promise of creating a fair and humane immigration system.
4. President Biden will reunite families separated under zero tolerance.
One of the most infamous of Trump’s immigration policies, zero tolerance, resulted in the criminal prosecution of all adults who crossed into the U.S outside of a port of entry, which led to immediate separation between parents and accompanying children. The program was officially terminated within weeks of implementation. Family separations continued at the southern border in practice, and the administration is still struggling to locate the parents of separated children. By October of 2020, lawyers said there were at least 545 children who had yet to be reunited.
President Biden has promised to immediately convene a task force to reunite these families and to end the practice of separating families. Still, Biden could go further by offering impacted families legal status or reparations.
5. President Biden will end new border wall construction.
In February 2019, Trump invoked “national emergency” powers to redirect billions of dollars of military spending to build a wall along the southern border. In February 2020, the Trump administration notified Congress that it planned to divert an additional $3.8 billion from the Defense Department’s budget to construct the wall. This is in addition to the $11 billion that was already earmarked by the administration since 2017.
This action has been challenged in courts across the country; the Supreme Court has decided to hear the case out of the Ninth Circuit, but it may well be moot. Biden has promised to halt the border wall project immediately. According to Pentagon estimates, this would save the U.S. $2.6 billion.
6. The new attorney general will reverse decisions limiting asylum eligibility for victims of domestic violence and political persecution.
The Trump administration spent four years severely curtailing the opportunities for asylum. In 2018, Trump dismantled protections for victims of domestic and gang violence. The Ninth Circuit partially blocked this in the case of Grace v. Barr.
In late 2020, the administration expanded limits on asylum seekers with criminal convictions and accusations. The rule effectively gutted asylum protections for domestic violence survivors, members of the LGBTQ community, and individuals fleeing gang violence. A federal judge also struck down this rule in November 2020.
Biden has promised to reinstate asylum protections for victims of domestic violence and political persecution.
7. DHS and the new attorney general will reverse decisions expediting removals and limiting habeas corpus claims.
In July 2019, the Department of Homeland Security expanded its criteria for arresting and deporting immigrants currently in the interior of the U.S. This put any immigrant unable to prove they had resided in the U.S. for at least two years at risk of being deported without the opportunity to seek legal counsel or see an immigration judge. A court initially blocked this rule. However, in June 2020, the D.C. Circuit Court of Appeals lifted the injunction and allowed expedited removals to be implemented nationwide.
The Trump administration also challenged asylum seekers’ right to seek habeas corpus review. Habeas corpus is a means for asylum seekers to review any legal or constitutional errors an asylum officer may have made during a credible fear interview. In DHS v. Thuraissigiam, the Supreme Court ruled that asylum seekers have the right to habeas absent extraordinary situations.
8. DHS and the new attorney general will investigate immigration court biases.
The Trump administration’s control over the Department of Justice has turned the immigration court system into a deportation machine for the few asylum seekers who can have their cases heard before an immigration judge. In late 2019, six nonprofit organizations sued the Trump administration for allowing asylum-free zones (where judges deny virtually all asylum claims); policies that exacerbate the immigration court backlog; and enforcement-oriented performance metrics for immigration judges. These overlapping policies have created a system that is strongly biased against asylum seekers.
The Biden administration has promised to double the number of immigration judges, court staff, and interpreters. While this is a positive move to address the immigration court backlog, the attorney general will need to immediately end the performance metrics implemented under Trump and enforce affirmative policies to combat asylum-free zones. Flooding the system with more judges without these policy changes will exacerbate the problems of the deportation machine.
9. Release low-risk immigrants held in detention facilities
Biden has stated that “no business should profit from the suffering of desperate people fleeing violence.” He has promised to hold immigrant detention facilities to the highest standards of care and prioritize families’ safety and dignity above all. While deconstructing the overwhelming network of private detention facilities is too large a goal to accomplish in 100 days, the Biden administration should call for the immediate release of individuals and families who have been screened but continue to be held in detention facilities. In addition, immediately ending the Secure Communities program can ensure that fewer immigrants already living in the interior of the U.S. are not placed in unhealthy detention conditions during the COVID-19 pandemic.
10. Reinstate a fair standard for demonstrating credible fear.
Immediately after taking office, the Trump administration began to dismantle the asylum system by targeting credible fear interviews, which establish whether an asylum seeker’s claim is credible enough to merit full review. In February 2017, U.S. Citizenship and Immigration Services raised the threshold for demonstrating credible fear in initial asylum interviews. USCIS accomplished this by changing the lesson plan for asylum officers, with the new guidance tilting officers toward dismissing claims. A federal judge blocked this policy.
In July 2019, USCIS further complicated the credible fear process by reducing the waiting time before an initial credible fear interview. This restricted an asylum seeker’s ability to access counsel or secure necessary supporting documents or affidavits. A federal judge also blocked this policy.
In 2019, Customs and Border Protection reached an agreement with USCIS to allow CBP agents to conduct credible fear interviews. When asylum seekers enter the U.S., they have a right to a credible fear or reasonable fear interview with a trained USCIS asylum officer. This agreement was met with immediate legal challenges for violating asylum seekers’ rights to a non-adversarial interview. A federal judge granted a preliminary injunction blocking this agreement in August 2020.
The Biden administration should reinstate the standards for proving credible fear in place prior to the Trump administration.