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BIDEN ADMINISTRATION’S FIRST ANNOUNCEMENTS ON IMMIGRATION LAW

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Update from CLINIC

Biden Administration’s First Announcements on Immigration Law

In a series of executive actions on the evening of Jan. 20, 2021, the newly installed Biden administration announced the following significant changes in immigration law and policy. The actions listed below are not inclusive of all immigration-related actions. We are highlighting only those that immediately affect the practice of immigration law. The actions are listed in the order in which they were released to the public.

Suspension of Remain In Mexico

The Department of Homeland Security announced that it is suspending the Remain in Mexico Program, or as it was officially titled, Migrant Protection Protocols, or MPP. The suspension is in effect as of Jan. 21, 2021. No new individuals will be enrolled in the program. The memorandum advises current MPP participants to remain where they are, and additional guidance will be issued.

Repeal of Muslim and Africa Bans

One of the first of the immigration-related executive actions signed by President Biden was the Proclamation on Ending Discriminatory Bans on Entry to The United States. Characterizing the former administration’s policy as “a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all,” the Proclamation rescinds the Muslim and African Bans in their entirety, effective immediately.

Specifically, the Proclamation repeals the following four travel bans issued by the former administration:

The Proclamation lifts certain restrictions on immigrant visas for nationals of: Burma, Eritrea, Iran, Venezuela, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, and Yemen.

Additional information is available on CLINIC’s website.

Enforcement Priorities and 100-day Moratorium on Certain Removals

President Biden issued an executive order on the Revision of Civil Immigration Enforcement Policies and Priorities, which rescinds the former administration’s Executive Order 13768 of Jan. 25, 2017. The Executive Order declares that the policy of the Biden Administration is to “protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety,” while also “adher[ing] to due process of law as we safeguard the dignity and well-being of all families and communities.” The Executive Order directs relevant federal agencies to issue revised guidance that advances this policy.

Acting Department of Homeland Security Secretary Pekoske then issued a memorandum directing DHS component agencies to review enforcement policies and provide recommendations for revised policies within 100 days. The Memorandum sets interim policies for civil enforcement while the Department develops its revised policies, with the following components:

  • Orders a 100-day pause on the removal of noncitizens, effective by Jan. 22, 2021, except for the following categories of individuals:
  • Those who the Director of ICE finds have engaged in, or are suspected of, terrorism or espionage, otherwise pose a danger to national security.
  • Those who were not physically present in the United States before Nov. 1, 2020.
  • Those who “voluntarily agreed” to waive any rights to remain in the United States if they were “made fully aware of the consequences of waiver” and had a “meaningful opportunity to access counsel prior to signing the waiver.”
  • Those individuals for whom the Acting Director of ICE “makes an individualized determination that removal is required by law.”
  • Effective Feb. 1, 2021, and until superseded by revised policies, establishes the following interim enforcement priorities:
  • Those “who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.”
  • Those “apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after Nov. 1, 2020, or who were not physically present in the United States before Nov. 1, 2020.”
  • Individuals released from incarceration on or after Jan. 20, 2021, who have been convicted of an “aggravated felony” and are determined to pose a threat to public safety.
  • Rescinds a list of enforcement-related policies issued during the former administration, including the 2018 USCIS NTA Guidance Memo, replacing the latter with the 2011 USCIS NTA Guidance Memo.

Presidential Memorandum Reinstating Deferred Enforced Departure for Liberians

President Biden signed the Presidential Memorandum Reinstating Deferred Enforced Departure for Liberians, which extends DED (protection from deportation work authorization) for certain Liberians through June 30, 2022. Specifically, the Memorandum restores DED for those who were previously protected by DED, which expired under the Trump administration on Jan. 10, 2021. Further details about the process should be outlined in a forthcoming Federal Register Notice

The Memorandum also directs the Secretary of Homeland Security to ensure that the U.S. Citizenship and Immigration Services “facilitates ease of application and timely adjudication” for Liberians applying for lawful permanent resident status under the Liberian Refugee Immigration Fairness, or LRIF, program.

CLINIC has advocated for the extension of DED for Liberia, which was terminated by the former administration. CLINIC has also advocated for an extension of the LRIF filing deadline in addition to improvements in fair implementation of the program and adjudications.

Preserving and Fortifying Deferred Action for Childhood Arrivals

President Biden issued a Presidential Memorandum titled, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), directing the Secretary of DHS and the Attorney General to take all actions deemed “appropriate, consistent with applicable law, to preserve and fortify DACA.” Again, this Day One action, coupled with the President’s bold legislative proposals, demonstrates that he is standing with DACA recipients.

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