Sweeping and troubling changes in immigration and asylum policy distinguished the Trump administration. Thus, the initial efforts of the Biden administration primarily focused on reversing the damage. In the first month of his term, President Biden signed twelve executive actions that outlined his immigration agenda. But ongoing issues like the humanitarian crisis in Central America’s Northern Triangle countries, emerging climate change impacts, and the COVID-19 pandemic have continued to drive migrants to the U.S. border and have stymied optimism about improving asylum policy.
This report provides an overview of the changes to asylum policy made by the Biden administration during its first year. It also offers a timeline and a table of policies for reference at the end.
Accessing the U.S. asylum system
The Migrant Protection Protocols (MPP)
Established in 2018, the MPP program sent anyone claiming asylum at the southern border back to Mexico to await their immigration court hearings; thus subjecting thousands of asylum seekers to unregulated refugee camps in northern Mexico.
On Biden’s first day in office, the Department of Homeland Security announced that it was suspending new enrollments in MPP. U.S. officials collaborated with the Mexican government and the United Nations High Commissioner for Refugees (UNHCR) to process asylum seekers with active cases under MPP. Individuals with active MPP cases could enroll online or over the phone for processing through a port of entry.
In June, DHS issued a memorandum officially terminating the MPP program, but a U.S. district court judge blocked the program’s termination, claiming the administration did not follow the proper regulatory procedures. DHS appealed the decision while simultaneously announcing that it would issue a new memorandum after a significant review of the MPP program by the end of the year to comply with the court order. In October, Homeland Security Secretary Alejandro Mayorkas issued a new memo terminating MPP, and Biden administration officials said they would ask the court to approve it. In the interim, the Biden administration announced it would comply with the court’s ruling to reimplement MPP in early December.
Metering allows Customs and Border Protection to enforce a limit on the number of individuals allowed access to the asylum process at ports of entry daily. Once the limit is reached, CBP denies asylum seekers entry to the U.S. and puts their name on a list to await processing. Unlike MPP, metering does not provide individuals with specific details for a court hearing. This practice not only creates logistical hurdles for processing but also endangers migrants as they wait in Mexico.
In September, a San Diego federal judge ruled that metering violates the due process rights granted to migrants under the U.S. Constitution.
On November 1, 2021, DHS issued a memo formally terminating metering and any other practices that turned asylum seekers away from ports of entry. Referring to ports of entry as POEs, the memo states:
In all cases […] undocumented noncitizens who are encountered at the borderline should be permitted to wait in line, if they choose, and proceed into the POE for processing operational capacity permits. Absent a POE closure, officers also may not instruct travelers that they must return to the POE later or travel to a different POE for processing. Officers also may not preclude those in line from departing and returning at a later time. Once in the United States, an individual must be inspected and processed by CBP Officers and may not be directed to return across the land border without appropriate processing.
Although this new directive severely limits CBP agents’ ability to meter at POEs, the implementation of Title 42 effectively supplanted the need for metering.
Title 42 — Public health border closure
The federal statutes dealing with “Public Health and Welfare,” in Title 42 of the U.S. Code, allow the U.S. to close its borders to noncitizens for public health reasons. In March 2020, the Trump administration invoked Title 42 as the coronavirus spread throughout the world, despite ongoing analyses demonstrating that closing borders does little to stem disease flow.
The Biden administration continues to defend the use of Title 42 as a public health measure (though it did carve out a narrow exception for unaccompanied minors). However, many immigration observers believe it is serving as a pretext to curb the flow of migrants seeking asylum on the southern border. A district court ruling against the practice has been stayed indefinitely by a higher court. The now-infamous expulsion of migrants from the U.S. border at Del Rio, Texas, occurred under Title 42 authority.
Safe third-country agreements
Another mechanism that limited asylum access to the U.S. were the so-called “Safe Third Country Agreements,” also known as Asylum Cooperative Agreements (ACAs). At a high level, the goal of these agreements is to allow countries to manage their refugee processes better and send asylum seekers to countries offering a “high degree of protection.” U.S. law states that such an agreement must not pose a risk to an individual’s life or freedom and provide access to a fair asylum process. The U.S. has maintained such an agreement with Canada, for example, since 2004.
In January 2019, the Trump administration implemented ACAs with three Central American countries: Guatemala, Honduras, and El Salvador. The new rules required individuals to first seek asylum in one of these countries before arriving at the U.S.-Mexico border. If they did not, U.S. officials could transfer the asylum seeker back to one of the three countries, even if the individual or family never passed through them before arriving at the U.S. border. Many criticized this action, concerned these countries were not secure or properly equipped to handle an influx of refugees — in fact, many refugees arriving at the U.S. border are fleeing from these countries.
In February 2021, the Biden administration announced the official termination of these agreements, claiming there are “more suitable ways to work with our partner governments to manage migration across the region.”
Policies impacting unaccompanied children
One of the Biden administration’s priorities has been reuniting families separated under the Zero Tolerance Policy implemented by the Trump administration that resulted in the separation of children from their parents — for years, in some cases.
In February 2021, the Biden administration created a task force composed of officials from the Departments of Justice, Health and Human Services, and State to identify all children separated from their families at the U.S.-Mexico border between January 2017 and January 2021 and reunite them with their caregivers.
To that end, HHS has increased resources for case management, which the White House says has ramped up reunifications.
But despite significant public pressure, as of October the administration had successfully reunified just 52 families, leaving an estimated 1,000 to 1,500 children still separated from their families.
In October 2021, reports surfaced detailing discussions between the DOJ, HHS, and DHS on whether to provide monetary compensation for families separated under the zero-tolerance policy. The payments would address a class-action lawsuit, filed by the American Civil Liberties Union in 2019, “seeking damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.” In October, a Wall Street Journal report claimed the Biden administration planned to offer $450,000 per person affected. However, President Biden denied the exact number at a press conference in November; the talks are ongoing.
Counsel for children initiative
Another significant challenge for unaccompanied minors in the asylum system is their lack of access to legal counsel, which often results in denied asylum claims despite circumstances warranting protection.
In September, the administration announced the Counsel for Children Initiative, which will provide government-funded legal representation to unaccompanied immigrant children in deportation proceedings in Atlanta, Houston, Los Angeles, New York, San Diego, San Francisco, Seattle, and Portland.
Children in detention
However, the Biden administration continues to use concerning practices for children held in immigrant detention. In September 2021, the district court for the District of Columbia ruled that ICE violated the law by transferring detained children to adult jails when they turned 18 without weighing other options, and issued a five-year permanent injunction, halting the practice for five years while ICE makes the directed changes:
[W]hich requires ICE to re-train its officers, fill out new paperwork, re-vamp its training and policies with regards to age-outs, and provide monthly reports and documentation to class counsel on its rates of detention for age-outs.
Between March and June 2021, ICE reduced the number of unaccompanied children in detention centers from 5,676 to 570. The agency also reduced the average time children spent in detention from 131 hours in April to 26 hours in August.
Central American Minors Program (CAM)
In March, the Biden administration announced it would reopen the Central American Minors (CAM) program initially created by the Obama administration and later terminated by the Trump administration. CAM works to reunify children from El Salvador, Guatemala, and Honduras with parents living in the U.S.
On June 15, the Biden administration announced a second phase, which expanded the program to legal guardians and parents waiting for a pending asylum case in the U.S. filed before May 15, 2020. Expanding program eligibility to these individuals will likely reduce the number of unaccompanied minors arriving at the southern border, thereby protecting them from the dangerous journey and expanding processing capacity.
Changes in the adjudication process for asylum cases
Victims of domestic and gang violence
In June, the DOJ released rulings that reversed Trump-era changes and returned to long-standing asylum policy protecting victims of domestic and gang violence.
Asylum seekers must demonstrate a fear of persecution based on one of five grounds, including “membership to a particular social group.” The Trump administration previously overruled years of Bureau of Immigration Appeals (BIA) precedent when Attorney General William Barr decided that domestic and gang violence survivors do not qualify as members of a “particular social group,” limiting their access to asylum protection.
In August 2021, the administration issued a proposed rule that would allow U.S. Citizenship and Immigration Services officers to adjudicate asylum cases, rather than requiring an immigration court judge in every case following a positive credible fear screening. Currently, if an immigrant is under expedited removal proceedings and states a fear of returning to their country of origin, an asylum officer conducts a credible fear screening. If passed, they await their case to be heard by an immigration court judge in a process that can span years.
The proposed change aims to speed up the asylum process and help address the huge backlog of cases waiting to be heard and ensure that trained individuals make these critical decisions.
Detention and case management
100-day deportation moratorium
One of President Biden’s first executive orders directed federal agencies to issue new guidance about immigration enforcement policies, resulting in a DHS memorandum pausing deportations for 100 days. Shortly after that, Texas Attorney General Ken Paxton sued the administration, citing concerns the action was unconstitutional and violated an agreement between Texas and DHS. A federal judge in Texas granted a preliminary injunction requiring DHS to continue deportations.
Interior enforcement priorities
The same memorandum creating a deportation moratorium also established new priorities for interior immigration enforcement. President Biden reversed the Trump administration’s broad enforcement priorities encompassing all undocumented individuals living in the United States and returned to a focus on removing serious offenders.
The new guidance included prioritization of those who:
[…] engaged in or are suspected of terrorism or espionage, or whose arrest is otherwise necessary to protect national security; Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020; and individuals released from incarceration on or after January 20, 2021, who have been convicted of an aggravated felony and who pose a threat to public safety.
Both Texas and Louisiana sued in response, claiming the new guidance posed a risk to their citizens. In August, a U.S. court of appeals judge ruled in favor of the Biden administration. ICE arrests in FY 2021 decreased to less than half the number of FY 2018 under this guidance.
Addressing causes of migration
In February, President Biden issued a sweeping executive order offering a regional approach to migration and better processing at the U.S. border.
The executive order revoked a myriad of Trump administration policies, such as the construction of a border wall, deeming those who entered the U.S. illegally ineligible for asylum, preventing the release of immigrants from DHS custody while their case is pending, and deploying the National Guard to the U.S.-Mexico border. It also revoked a 2019 memorandum that prevented asylum seekers from pursuing other immigration relief, expedited adjudication of asylum claims, created a fee for asylum applications, and restricted work authorizations for asylum seekers.
The executive order also directed an interagency team, led by Vice President Kamala Harris, to prepare a “root cause strategy” to address migration. Furthermore, it directed DHS to stop implementing “Prompt Asylum Case Review” and “Humanitarian Asylum Review Process,” which limited asylum seekers’ access to legal assistance and preparation for asylum hearings.
The border wall
In January 2017, President Trump signed an executive order directing the construction of a physical border wall to secure the U.S.-Mexico border. In 2019, he declared a national emergency and diverted funds from Department of Defense construction projects to construct the border wall. Many groups, including the Niskanen Center, sued to contest the constitutionality of this action. As one of his initial moves, President Biden issued a proclamation ending the construction of the border wall. In October, the Supreme Court released an order stating the courts did not need to decide on cases arising from Trump’s actions because of President Biden’s halt on spending for the wall.
Biden’s proclamation initiated a review of construction contracts and the consequences of termination. In April 2021, the Department of Defense announced coordination efforts to cancel border wall projects and contracts. The department also announced steps to correct damage caused by the construction process.
Although there have been significant reversals of prior Trump administration policies, the Biden administration upholds some, such as Title 42. Emerging threats such as climate change and existing economic and political crises have increased asylum reform urgency.
Jan 2021 End border wall construction
Jan 2021 Deportation moratorium implemented
Jan 2021 Federal judge blocks deportation moratorium
Jan 2021 New guidance on interior immigration enforcement
Jan 2021 Suspension of new MPP enrollments
Jan 2021 Rescind Zero Tolerance
Feb 2021 First group of MPP is processed
Feb 2021 Reopen Central American Minors Program
Feb 2021 Taskforce for the reunification of families
Mar 2021 Rescinded public charge rule
Mar 2021 Reopening of CAM
Apr 2021 DOD terminates border wall construction
Apr 2021 DHS announcement of additional H-2B visas
Jun 2021 First official termination of MPP
Jun 2021 DOJ rulings for protections for victims of gang and domestic violence
Aug 2021 Proposal for USCIS officers to adjudicate asylum cases
Aug 2021 Federal judge blocks MPP termination
Sep 2021 Federal judge issues 5-year permanent injunction against ICE transfers
Sep 2021 Counsel for children initiative
Sep 2021 Federal judge rules metering as unconstitutional
Sep 2021 Title 42 used to expel Haitian migrants in Del Rio rapidly
Sep 2021 Federal judge upholds Biden’s use of Title 42
Oct 2021 Second termination of MPP
Nov 2021 DHS memo to end metering
|Border Wall Construction
|In January 2021, Biden overturns Trump’s 2017 executive order directing the construction of a border wall. Coordination efforts to cancel all project efforts and contracts are announced in April 2021.
|100-day pause on deportations
|DHS issues a 100-day pause on deportations, and the Attorney General of Texas files a lawsuit against this action. A district judge granted a preliminary injunction, allowing the deportations to continue.
|New Immigration Enforcement Priorities
|Eliminated Trump’s broad enforcement priorities, which encompassed all undocumented individuals living in the United States and returned to a focus on removing serious offenders.
|DHS announced in January they plan on terminating MPP but don’t issue an official memorandum until June. A U.S. District Court Judge blocks this action, and DHS appeals. In September, DHS announced they would issue a new memo to address the court’s concerns. In October, the administration announced that they would reimplement the program by mid-November.
|Zero Tolerance and Family Reunification
|In January, the DOJ rescinded the Zero Tolerance Policy. In February, Biden announced the Family reunification task force to reunify families separated by the Zero Tolerance policy.
|Asylum Cooperative Agreements or Safe Third Country Agreements
|The Biden administration terminated these agreements signed between the United States and the governments of El Salvador, Honduras, and Guatemala, which allowed U.S. officials to deny asylum seekers at the U.S.-Mexico border and send them to other countries to seek asylum there.
|Addressing Causes of Migration
|Revoked several Trump EO’s, including fees for asylum applications, expedited adjudication of asylum claims, restrictions on work authorizations, and the use of prolonged detention. The EO also directed an interagency team to create a “root cause strategy.”
|Central American Minors Program
|The State Department and DHS reopened this program in February, reuniting children separated from their parents and nationals of El Salvador, Guatemala, and Honduras, through refugee resettlement or humanitarian parole.
|Public Charge Rule
|Biden rescinded the Trump-era rule, which increased U.S. officials’ discretion to reject green card applications based on the applicant’s use of public benefits
|Proposal for USCIS officers to adjudicate Asylum cases
|Would allow USCIS officers to adjudicate cases rather than just an immigration court judge, to speed up the asylum process and address the huge backlog of cases
|Counsel for Children Initiative
|Announced in September, this program would provide government-funded legal representation to unaccompanied immigrant children in deportation proceedings. It will be active in eight cities, including Atlanta, Houston, Los Angeles, New York, San Diego, San Francisco, Seattle, and Portland.
|Reducing ICE detention for minors
|Garcia Ramirez et al. v. U.S. Immigration and Customs Enforcement et al. challenged ICE’s practice of transferring individuals from detention centers to the agency’s jails and prisons upon turning eighteen. The District Court for the District of Columbia ruled that ICE violated the law and issued a five-year permanent injunction.
|Title 42 allows the government to close U.S. borders to noncitizens on the grounds of protecting public health. In September, Biden invoked Title 42 to expel Haitian migrants arriving at the U.S. border in Del Rio, Texas. The Biden administration has continued to defend its actions in court, where a federal judge preserved the administration’s ability to use Title 42 as a means of expelling families at the Southern border.
|Metering involves CBP enforcing a limit on the number of individuals allowed access to the asylum process at ports of entry daily. In September, a Federal Judge in San Diego ruled the process unconstitutional as it violates immigrants’ 5th amendment right to due process.
|Guidance for Management and Processing of Undocumented Noncitizens at Southwest Border Land Ports of Entry
|Rescinds and supersede prior DHS memos, including November 27, 2019, June 5, 2018, Prioritization-Based Queue Management, and April 30, 2020, Metering Guidance.