Biden Signs Orders on Immigration, Asylum, Family Separation

President Joe Biden signs executive orders related to immigration in the Oval Office of the White House in Washington on Feb. 2, 2021. Saul Loeb/AFP via Getty Images

WASHINGTON—After a flurry of executive actions on Jan. 20, President Joe Biden signed three more orders related to immigration on Feb. 2.

“I’m not making new law, I’m eliminating bad policy,” Biden said.

The new orders seek to loosen the criteria for asylum, reverse the Trump administration’s public charge rule, create a task force for new Americans, develop a strategy to address “irregular migration across the southern border,” and create a task force to reunify any remaining families that were separated during the previous administration.

“Biden’s strategy is centered on the basic premise that our country is safer, stronger, and more prosperous with a fair, safe and orderly immigration system that welcomes immigrants, keeps families together, and allows people—both newly arrived immigrants and people who have lived here for generations—to more fully contribute to our country,” a fact sheet issued by the White House states.

Family Reunification

Biden started a task force to reunite families that remain separated after an adult was charged with illegally entering the United States.

White House press secretary Jen Psaki said on Feb. 2 that 600 to 700 children are currently separated from their parents.

“Part of what ... the task force needs to do in the early stages is determine what the accurate number is and where these kids are and then determine case-by-case what the best process and approach is for reuniting them with their family members,” Psaki said. She said a report will be forthcoming in 120 days.

The Epoch Times has requested more detailed information from the Department of Homeland Security (DHS); the department said it would be provided within two days.

“President Biden believes that families belong together,” the fact sheet states. “He has made clear that reversing the Trump Administration’s immigration policies that separated thousands of families at the border is a top priority.”

Biden also ordered a review of the Migrant Protection Protocol program, which requires illegal border-crossers to await the adjudication of their immigration case in Mexico, rather than be released into the United States.

Family Separations Background

In April 2018, then-Attorney General Jeff Sessions announced a “zero tolerance” policy of prosecuting all adults who cross the border illegally, as required under 8 U.S.C. Section 1325(a).

That meant that parents and children who crossed the border illegally were separated, while the parent was held by the U.S. Marshals Service pending charges. Any accompanying child was transferred to the Department of Health and Human Services and reclassified as an unaccompanied minor, in accordance with the Trafficking Victims Protection Reauthorization Act. About 5,000 families were affected in the ensuing six weeks.

Both the Obama and Bush administrations separated families at the border for the same reasons.

Families are rarely separated if they enter at a port of entry and seek asylum, according to Customs and Border Protection (CBP) in a statement on July 9, 2019.

“It’s only done under exigent circumstances in order to protect the child and to ensure the well-being of the child,” said Todd Owen, executive assistant commissioner of CBP’s Office of Field Operations, in a statement at the time.

Prior to the zero tolerance policy, Border Patrol agents were discovering that illegal immigrants were renting children south of the border in order to get a quick release from custody into the interior of the United States. Single adults could easily be turned back or placed into custody, but those with children were quickly released, due to legal loopholes.

After a backlash, former President Donald Trump signed an executive order to halt family separations on June 20, 2018, and “catch-and-release” became the default again until the Migrant Protection Protocol program, also known as Remain in Mexico, was introduced at the beginning of 2020.

The Department of Health and Human Services, tasked with reuniting families, subsequently identified almost 13 percent of the initial batch of parents as serious criminals, or that they had lied about being the actual parents.

During the reunification process, then-Secretary of Homeland Security Kirstjen Nielsen was accused of deporting adults back to their home country without their children.

“I would also just note that consistent with longstanding practice in the law, before we deport any alien after they have gone through the process and receive a final order of removal, we do ask them if they'd like to take their children with them,” Nielsen said while appearing before the House Homeland Security Committee on March 6, 2019.

“At that same time, their consulate or embassy—for purposes of issuing them travel papers—also asks them would you like to be removed with your children as you’re removed. ... The judge also asked us to go back and ask the parents again, in conjunction with [American Civil Liberties Union]. Which we did. So there was no parent who has been deported, to my knowledge, without multiple opportunities to take their children with them.”

Widening Asylum Criteria

Biden’s actions also loosen the criteria for asylum, likely back to the Obama-era’s 2014 interpretation.

In July 2018, Sessions made a ruling that essentially reverted the asylum criteria to what it was before 2014, when the Obama administration opened it up to include private criminal cases, including domestic violence.

The definition of asylum hasn’t changed. Asylum-seekers have always needed to prove that they have suffered past persecution or have a well-founded fear of future persecution in their home country because of their race, religion, nationality, political opinion, or membership in a particular social group.

But persecution is generally considered state-sanctioned or condoned, which means the government of the alien’s home country is the sponsor of the persecution. For example, in North Korea, the regime itself persecutes Christians.

In the case of domestic violence, where the persecutor is a private actor, “applicants must show that their home government either condoned the private behavior or demonstrated a complete helplessness to protect them,” according to a DHS statement at the time.

“It is not enough to simply show that the government has difficulty controlling the behavior or that certain populations are more likely to be victims of crime,” the statement reads.

Before 2013, and before the Obama administration widened the criteria, approximately one out of every 100 arriving aliens claimed credible fear and sought asylum in the United States, according to DHS. By 2018, one out of every 10 claimed credible fear.

Other Actions

Other executive actions taken by Biden include the reversal of the Trump administration’s public charge rule, which required family sponsors to repay the government if non-citizen relatives receive public benefits.

He also launched a task force on new Americans, which is charged with promoting immigrant integration and inclusion. The order requires agencies to conduct a “top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to our legal immigration system.”

In Central America, the Biden administration plans to implement a three-pronged approach to “irregular migration.”

Without going into detail, the White House fact sheet states that the administration “will address the underlying causes of migration through a strategy to confront the instability, violence, and economic insecurity that currently drives migrants from their homes.”

It also promises to collaborate with other countries and NGOs to provide “opportunities to asylum-seekers and migrants closer to home.”

“Finally, the Administration will ensure that Central American refugees and asylum-seekers have access to legal avenues to the United States,” the fact sheet states.