President Biden Introduces Plan to Address Migration at the Southern Border

On February 2, 2021, President Biden issued an executive order to address the root causes of migration from Central America and improve the asylum system, requiring interagency review of several border processing and asylum policies enacted during the Trump Administration.

First, President Biden announced the development of interagency strategies for addressing the root cause of migration from Central America and for collaborating with governmental and nongovernmental partners in the region.

Next, President Biden ordered the Department of Homeland Security (DHS) to end the Prompt Asylum Claim Review (PACR) and the Humanitarian Asylum Review Process (HARP) pilot programs.  Under these programs, those seeking asylum at the border were placed, not in Immigration and Customs Enforcement (ICE) detention, but in short-term Customs and Border Protection (CBP) detention facilities while they awaited expedited removal proceedings. Both of these programs came under harsh criticism because many individuals were denied an opportunity to speak with or meet with their attorney prior to their credible fear interviews, the first step in the asylum process.  The program was also criticized because, although CBP is not supposed to hold anyone in custody for more than 72 hours, many were being held for a week or longer.  Many were also held in substandard conditions with limited access to hygiene, food, and water.  On January 5, 2020, the DHS Office of Inspector General issued a report, finding DHS had not effectively implemented either program.

President Biden also ordered the Secretary of State and the Secretary of Homeland Security to review and propose mechanisms for individuals to apply for immigration status in the U.S. from El Salvador, Guatemala, and Honduras, including use of the refugee resettlement program, renewal of the Central American Minors Program (which allowed certain at-risk children in Central America to enter the U.S. to be reunited with their parents), or the use of discretionary parole to permit beneficiaries of approved family-sponsored petitions to join their family in the United States. In doing so, President Biden also revoked several of President Trump’s Executive Orders related to the asylum process and border processing.

Finally, President Biden ordered the Attorney General and Secretary of Homeland Security to review several asylum and border processing rules, regulations and policies enacted during the Trump Administration, including:

• Migrant Protection Protocols (MPP) Program: More commonly known as “Remain in Mexico,” this program requires migrants seeking asylum at the southern border to remain in Mexico for the duration of their immigration proceedings.
• Expulsions under Title 42: The Centers for Disease Control and Prevention (CDC) issued an order permitting Customs and Border Protection officials to immediately remove migrants who attempted to enter the United States, without an opportunity to request asylum or other humanitarian protections. In doing so, the CDC invoked 42 U.S.C. § 265, which allows the president to prevent foreign nationals from entering the U.S. when there is a serious threat of a dangerous disease.
• Expansion of Expedited Removal: Expands the use of expedited removal (removal from the United States without a hearing) to include those without proper documentation, those who have committed fraud and misrepresentation, and those apprehended anywhere in the United States and who have not been physically present in the United States for at least two years prior to apprehension. Expedited removal was previously limited to those apprehended within 100 miles of the U.S.-Mexico or U.S.-Canadian border and who were apprehended within 2 weeks of arrival in the United States.
• Asylum Entry Ban: Bars individuals from seeking asylum if they did not enter the United States at an official port of entry or border checkpoint.
• Third Country Transit Ban: Requires asylum seekers, with limited exceptions to seek asylum in one of the countries they traveled through on the way to the United States, regardless of whether those countries could offer protection.
• Asylum Cooperative Agreements with Guatemala, El Salvador, and Honduras: Agreements the United States signed in 2019 with the governments of El Salvador, Guatemala, and Honduras, requiring that migrants seeking asylum in the United States first apply for protection in those countries, more commonly known as “Safe Third Country” agreements.

President Biden also ordered the Attorney General and Secretary of Homeland Security to draft joint regulations on the meaning of “particular social group”.  Under current U.S. asylum law, an individual seeking asylum in the United States must demonstrate they have suffered persecution or fear they will suffer persecution due to race, religion, nationality, political opinion, or membership in a particular social group.  There is not, however, a clear definition of “particular social group” in either statute or regulation, including how that may apply to those fleeing domestic and/or gang violence.