A Promising Start

One week ago, the United States inaugurated Joseph R. Biden as its forty-sixth president. Hopefully, we will come to see his election as a turning point, when a critical mass of the country’s voting public began shaking off the last gasps of the nationalistic fervor that marked the world’s last century. But to make that so—steering the moral arc toward justice—will, as ever, take a lot of hard work. And the new administration is off to a promising start on immigration justice issues.

Shortly after his inauguration, President Biden entered presidential actions repealing the religious travel bans, modifying Immigration and Customs Enforcement’s enforcement priorities and initiating a 100-day pause for most deportations, directing a review aimed at strengthening the Deferred Action for Childhood Arrivals program, terminating the emergency authority that ostensibly permitted border wall construction with diverted funds, restoring deferred enforced departure for Liberian nationals, freezing the rulemaking process for many regulations not yet in effect, and directing that the decennial census include all persons residing in the United States regardless of their immigration status.

That day, the administration also sent its comprehensive immigration reform bill’s proposed legislative text to the bill’s House and Senate sponsors, Representative Linda T. Sánchez and Senator Bob Menendez. The proposal builds on many provisions in the 2007 and 2013 immigration reform efforts—the latter passed the Senate with bipartisan support—suggesting that those efforts, like the last ameliorative reform, may have been pronounced dead prematurely. As Representative Dan Lungren remarked of the 1986 Immigration Reform and Control Act, “[i]t’s been a rocky road to get here. We thought we had a corpse. But on the way to the morgue, a toe began to twitch.” That bill, too, required several Congresses.

And on January 26, 2021, Acting Attorney General Monty Wilkinson rescinded the Department of Justice’s zero-tolerance policy responsible for separating families.

The administration also withdrew several rules from the Office of Management and Budget, Office of Information and Regulatory Affairs’ review, including the last administration’s effort to remove H-4 dependent spouses’ work authorization eligibility.

A January 26, 2021 executive order—preventing the Department of Justice from renewing contracts with privately operated criminal detention facilities—is significant for immigrant justice. But it fails to address private immigration detention facilities or immigration detention more broadly.

Similarly, the administration stopped enrolling new asylum applicants in the Migrant Protection Protocols, but it has yet to grant parole to those applicants.

And we still await other moves to restore and expand noncitizens’ due process protections, including action to unwind the omnibus Executive Office for Immigration Review rule-change that I discussed in my last blog post.

And not all changes have relaxed restrictions. On January 25, 2021, President Biden reimposed COVID-19-related travel restrictions for many persons who were physically present within the Schengen Area, the United Kingdom, the Republic of Ireland, or the Federative Republic of Brazil—or imposed initial restrictions in the case of the Republic of South Africa—during the fourteen-day period preceding their entry or attempted entry into the United States.

Moreover, some of these efforts have already hit roadblocks. On January 26, 2021, District Judge Drew B. Tipton temporarily enjoined the government from implementing that section of the January 20, 2021 executive order on ICE’s enforcement priorities directing a 100-day pause on removals. He has set a status conference for tomorrow, January 29, 2021, regarding the parties’ preliminary injunction briefing schedule.

And the administration has now delayed a series of immigration-related executive orders planned for Friday, January 29, 2021, leaving in place many of the last administration’s restrictions on admitting immigrant and nonimmigrant visa-holders and processing asylees and refugees.

Finally, in a welcome sign yesterday, January 27, 2021, the Department of Justice announced that EOIR’s director, James McHenry, would be moving to another role and that Jean King would assume his duties as the agency’s new acting director.

On a personal note, I worked closely with Jean King when I served in EOIR’s front office and general counsel’s office. She is an excellent choice, whether she holds the office only temporarily or incoming Attorney General Merrick B. Garland makes her appointment permanent. An EOIR lifer with in-depth institutional know-how (she has served in nearly every one of the agency’s attorney roles), savvy, pragmatism, and enormous support from the agency’s employees, Jean is ideal to lead the agency today. But she has a monumental task ahead. She would be wise to engage her stakeholders in confronting it. 

To be continued, with hope.

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