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Monday, March 1, 2021

PROGRESSIVES – DID DONALD TRUMP SUCCESSFULLY STYMIE PRESIDENT JOSEPH BIDEN ON IMMIGRATION?
COMPILATION AND COMMENTARY
BY LUCY WARNER
MARCH 1, 2021

I LOOK AT THE NEWS STORIES FOR INTERESTING OR IMPORTANT CONTENT NEARLY EVERY DAY, BUT SOMETIMES I MISS ONE AS I DID THIS. FORMER PRESIDENT DONALD TRUMP PUT IN A CHANGE TO POLICY WHICH WAS MEANT TO PREVENT OR DELAY THE IMPLEMENTATION OF ICE REFORMS BY THE BIDEN ADMINISTRATION. WHILE STILL CLAIMING THAT THE 2020 PRESIDENTIAL ELECTION IS ILLEGITIMATE, TRUMP INSERTED A UNION AGREEMENT INTO THE WORKS THAT WOULD ALLOW THE ICE UNION TO REFUSE GOOD AND FAIR PROCESSING OF IMMIGRANTS. SEE THE ARTICLES BELOW.

 

DHS HAS ACTED DECISIVELY TO PREVENT THIS HANDOVER OF POLICY MAKING DECISIONS OVER TO A PRO-TRUMP UNION OF ICE WORKERS, THANK GOODNESS. WILL IT STAND? THERE ARE ALREADY SOME LAWSUITS FROM TRUMP FOLLOWERS. 

 https://www.cbsnews.com/news/ice-officers-union-agreement-trump-homeland-security/
Homeland Security officials scrap Trump-era union deal that could have stalled Biden's immigration policies
BY NICOLE SGANGA AND CAMILO MONTOYA-GALVEZ
FEBRUARY 16, 2021 / 5:41 PM / CBS NEWS 

IMMIGRATION
*Biden admin scrambles to expand housing for migrant children
*The facts about how the U.S. processes unaccompanied migrant children
*Biden rescinds Trump's pandemic-era ban on certain immigrant visas
*Judge indefinitely blocks 100-day pause on most deportations 

The Department of Homeland Security on Tuesday moved to scrap a contract signed at the tail end of the Trump administration that could have allowed a union of deportation officers to stall the implementation of certain immigration policy changes. 

The agreement, signed the day before President Biden's inauguration by Ken Cuccinelli, the second-in-command at DHS at the time, gave a union representing Immigration and Customs Enforcement (ICE) deportation officers the ability to "indefinitely delay" the implementation of agency policies, according to a whistle-blower complaint filed by the Government Accountability Project. 

The complaint, filed earlier this month, said the contract would effectively grant AFGE National ICE Council 118, a 7,500-member organization that twice endorsed former President Donald Trump, "veto authority" over certain policy-making at ICE. 

"The agreements grant NIC 118 extraordinary power and benefits — far more than what DHS agreed upon with its other employee unions which did not endorse President Trump," the Government Accountability Project said in its complaint. 

A DHS spokesperson said the Chief Human Capital Officer at DHS notified ICE and the union in writing that the agreement had been "disapproved." 

"As part of routine process and provided for by statute, the Department conducted a review of the terms of the agreement and determined that it was not negotiated in the interest of DHS and has been disapproved because it is not in accordance with applicable law," the DHS spokesperson told CBS News on Tuesday. 

"DHS will make policy decisions in accordance with the law and based on what's best for national security, public safety, and border security while upholding our nation's values," the spokesperson continued. 

Under a federal law, an agency head has 30 days to review and approve or disapprove such an agreement once it is signed. 

The whistle-blower complaint accused Cuccinelli of "gross mismanagement, gross waste of government funds and abuse of authority" over the labor agreement. 

"This abuse of authority is shocking," wrote David Seide, a lawyer representing the whistle-blower, who is described as a current federal employee that "possesses information concerning significant acts of misconduct." 

"We are gratified that the head of the agency disapproved before it was too late," Seide said when reached for comment on Tuesday. 

The Office of the Special Counsel has opened an investigation into the whistleblower complaint, sources familiar with the case tell CBS News. 

Cuccinelli, an outspoken defender of Mr. Trump's hardline immigration policies, was tapped to be the deputy secretary at DHS in late 2019 after leading U.S. Citizenship and Immigration Services. A federal court and the Government Accountability Office, Congress' investigative arm, found that he had been unlawfully appointed to the roles. 

"We resolved many long-lingering issues with the ICE union, and it was done with strong legal guidance all along the way from the Office of the General Counsel, so we know it was thoroughly legal," Cuccinelli told CBS News in response to DHS' decision to scrap the agreement. "If I was not confident that the contract was both legal and good policy for ICE, I would not have signed off on it." 

Moving forward, the ICE union could appeal DHS' move to block its agreement with the Federal Labor Relations Authority, challenging the Biden administration to a prolonged legal fight. 

CBS News reached out to the ICE union that signed the agreement with the Trump administration. 

First published on February 16, 2021 / 5:41 PM 

© 2021 CBS Interactive Inc. All Rights Reserved. 

 

THE WHISTLE-BLOWER COMPLAINT AND BACKGROUND INFORMATION, FEBRUARY 1, 2021
 
https://www.nytimes.com/2021/02/01/us/politics/cuccinelli-biden-ice.html 
Trump Official’s Last-Day Deal With ICE Union Ties Biden’s Hands
A whistle-blower accused Kenneth T. Cuccinelli II of an abuse of power in making sweeping concessions to pro-Trump Immigration and Customs Enforcement agents.
By Zolan Kanno-Youngs and Charlie Savage
Feb. 1, 2021

 PHOTOGRAPH -- Kenneth T. Cuccinelli, a homeland security official in the Trump administration, is accused of acting without legal authority to sabotage President Biden’s ability to manage Immigration and Customs Enforcement. Credit...Pool photo by Joshua Roberts 

WASHINGTON — A whistle-blower complaint filed on Monday said a top Trump homeland security official sought to constrain the Biden administration’s immigration agenda by agreeing to hand policy controls to the pro-Trump union representing Immigration and Customs Enforcement. 

The complaint accuses Kenneth T. Cuccinelli II of “gross mismanagement, gross waste of government funds and abuse of authority” over the labor agreements he signed with the immigration agents’ union the day before President Biden’s inauguration. 

Mr. Cuccinelli — an immigration hard-liner whose legal legitimacy to serve in senior positions at the Department of Homeland Security was contested — essentially sought to tie Mr. Biden’s hands, according to the complaint. 

“This abuse of authority is shocking,” wrote David Z. Seide, a lawyer representing the whistle-blower, whom he described as “a current federal employee who wishes to remain anonymous” and who “possesses information concerning significant acts of misconduct” by Mr. Cuccinelli. 

LINK -- Read the documents, The whistle-blower complaint and ICE labor agreements 

A senior homeland security official confirmed that since Mr. Biden’s inauguration, officials have been meeting to discuss the implications of the ICE labor agreements. The official spoke on the condition of anonymity to discuss internal deliberations. 

One clause in the contract requires homeland security leaders to obtain “prior affirmative consent” in writing from the union on changes to policies and functions affecting agents. It also appears to allow the ICE union to argue that it can reject changes such as Mr. Biden’s recent order to focus on violent criminals and not prioritize other undocumented immigrants. 

Under a federal law, an agency head has 30 days to cancel such an agreement once it is signed, after which it goes into effect. 

The agreements essentially require the homeland security secretary — currently David Pekoske in an acting capacity — to notify the union in writing about any elements of the agreements that he may disapprove. In each case, that element would be sent back for further negotiations. 

But the agreements signed by Mr. Cuccinelli suggest that the union could appeal any such rejection to the Federal Labor Relations Authority. And once the agreements take effect, they purport to “irrevocably” block the government’s ability to challenge anything about the concessions to the ICE union for the next eight years. 

Mr. Cuccinelli said in an email that the previous labor agreement with the ICE union had “languished for many years, through several administrations” and argued that the new deal he signed was in the best interest of the agency. 

“I absolutely deny any mismanagement, waste of government funds and any misuse of authority,” Mr. Cuccinelli said. “The agreement is entirely legal and appropriate, or we wouldn’t have executed it.” 

He declined to respond to a question inquiring how the agreement would affect Mr. Biden’s directives to ICE. 

Chris Crane, the union president who signed the agreements with Mr. Cuccinelli, did not respond to a request for comment. The ICE union, which represents more than 7,500 agents and employees, endorsed Donald J. Trump in the 2016 and 2020 elections. 

Mr. Seide, a senior counsel at the Government Accountability Project, which represents whistle-blowers, filed the six-page complaint with Congress, the Department of Homeland Security’s inspector general and the Office of the Special Counsel, which protects whistle-blowers. He attached copies of three “memorandums of understanding” signed on Jan. 19 by Mr. Cuccinelli and Mr. Crane. 

Among other things, Mr. Seide’s complaint portrayed the agreements as “effectively giving the union unprecedented veto authority in many areas,” including enhancing its power “to slow and impede agency activities by requiring its express written approval prior to implementing changes in the conditions of employment” for agents. 

One of the agreements, for example, says: “No modifications whatsoever concerning the policies, hours, functions, alternate work schedules, resources, tools, compensation and the like of or afforded employees or contractors shall be implemented or occur without the prior affirmative consent” in writing by the union. 

The complaint also characterized the agreements as granting “outsize” levels of “official time” — compensation for time spent on union activities — that vastly exceeded what other public employee unions received, the complaint said. Mr. Seide estimated that these concessions by Mr. Cuccinelli would cost taxpayers several million dollars a year. 

The agreements also require the government to cover union-related travel expenses, granting it a benefit that Mr. Trump had banned in 2018. 

“When the evidence is collected — the agreements’ last-second timing, their outsized conveyance of power and benefits, their purported invulnerability and Mr. Cuccinelli’s extraordinary involvement — it is clear that they are another example of the prior administration’s effort in its waning hours to cement a legacy at taxpayer expense,” Mr. Seide wrote in the complaint. 

The last-minute labor deal is one of several ways the departing Trump administration sought to tie its successors’ hands on policy. On Jan. 8, for example, Mr. Cuccinelli signed an agreement with the government of Texas that he hoped would block the Department of Homeland Security from changing deportation policy without giving the state 180 days’ advance notice. 

Citing that agreement, Attorney General Ken Paxton of Texas, a Republican, said that Mr. Biden’s 100-day moratorium on most removals of undocumented immigrants was “illegal.” 

Texas filed a lawsuit, and a Trump-appointed federal judge last week issued a nationwide restraining order blocking the moratorium. But Mr. Biden’s directive to immigration agents to prioritize undocumented immigrants who recently crossed the border or those with a violent criminal history remains in effect. 

Notably, the acting head of ICE at the end of the Trump administration did not sign the new labor agreement, which came together during a period of bureaucratic turmoil. One acting director of ICE, Tony Pham, abruptly resigned at the end of December. He was succeeded by Jonathan Fahey, who abruptly resigned on Jan. 13. 

Mr. Fahey was replaced by Tae D. Johnson, who did not sign the agreement. Instead, on the signature lines, Mr. Cuccinelli is identified “for the agency” but without a title. Mr. Cuccinelli said it was appropriate for him to sign as the acting deputy secretary, and he did so after gathering guidance from the general counsel. 

Before he resigned, Mr. Fahey had for days pushed back against the efforts to bolster the ICE union and ultimately refused to sign the agreement, according to the senior homeland security official familiar with the matter. 

The Trump administration had in various ways tried to give Mr. Cuccinelli a senior leadership role in the Department of Homeland Security without going through Senate confirmation, but the legal legitimacy of his appointment to various positions was a recurring dispute. 

In 2019, Mr. Trump tried to make Mr. Cuccinelli the acting head of the department’s Citizenship and Immigration Services agency. But in March 2020, a federal judge ruled that his appointment had been illegal, nullifying policies he had made because he lacked the legal authority to be in the position. The Trump administration did not appeal that ruling. 

The administration also tried to make Mr. Cuccinelli the No. 2 at the department, giving him the title of senior official performing the duties of deputy secretary. In August, the Government Accountability Office issued an opinion that this appointment was legally invalid as well, although it is not a court ruling. 

Mr. Cuccinelli has repeatedly pressured ICE leadership to adopt tougher policies. Soon after joining Citizenship and Immigration Services, Mr. Cuccinelli pushed the agency to add new restrictions to the student visa program, which is under ICE’s authority and not the agency he was supposed to be leading at the time. His actions angered other department officials and prompted an intervention by Kevin K. McAleenan, a former acting homeland security secretary. 

The complaint filed on Monday is the second major accusation against Mr. Cuccinelli by a whistle-blower in recent months. Brian Murphy, the former intelligence chief for the Homeland Security Department, claimed in September that Mr. Cuccinelli had ordered him to modify intelligence assessments to make the threat of white supremacy “appear less severe” and include information on violent “left-wing” groups. Mr. Cuccinelli denied the accusations. 

RELATED ARTICLES -- Kenneth T. Cuccinelli Continues Making Waves
*Cuccinelli’s Appointment to Immigration Post Is Illegal, Judge Rules, March 1, 2020
*D.H.S. Downplayed Threats From Russia and White Supremacists, Whistle-Blower Says, Sept. 9, 2020
*Ken Cuccinelli Emerges as Public Face, and Irritant, of Homeland Security, Sept. 5, 2019 

Zolan Kanno-Youngs is the homeland security correspondent, based in Washington. He covers the Department of Homeland Security, immigration, border issues, transnational crime and the federal government's response to national emergencies and security threats. @KannoYoungs

 Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage • Facebook

 A version of this article appears in print on Feb. 2, 2021, Section A, Page 14 of the New York edition with the headline: Last-Day ICE Union Deal Aimed to Tie Biden’s Hands, Whistle-Blower Says. Order Reprints | Today’s Paper | Subscribe

 

BETTER PROTECTION FOR IMMIGRANTS IS MUCH NEEDED, FEBRUARY 26, 2021 
 https://immigrationimpact.com/2021/02/26/immigrants-need-federal-defender-system/#.YD09SWhKgf0
A Federal Defender System for Immigrants Is Long Overdue
Posted by Jocelyn Dyer | Feb 26, 2021 | Due Process & the Courts, Immigration Courts, Right to Counsel

 The stakes in immigration court could not be higher—many people face the possibility of being permanently torn away from their families and communities in the United States. Others seeking protection in the U.S. risk being forced back to dangerous conditions in their home countries. Despite these extraordinarily high stakes, immigrants are not entitled to publicly funded lawyers. 

A new policy brief from the Vera Institute of Justice explains why this needs to change now.

 The Value of an Immigration Lawyer 

An attorney can make a tremendous difference in someone’s immigration case. And unlike the criminal justice system, those in the immigration removal process do not have the right to a public defender. Even children are forced to defend themselves in immigration court alone.

 According to the Vera Institute brief, immigrants who have lawyers are 3.5 times more likely to be granted bond, which lets them fight their cases outside of detention. Immigrants who have a lawyer are also up to 10 times more likely to establish their right to remain in the United States than those who do not.

 These statistics, while sobering, are not surprising. Immigrants without lawyers are forced to navigate a complex legal system. They must learn immigration law; draft and file legal documents; face off against trained trial attorneys from the Department of Homeland Security; and appear before immigration judges entirely on their own, often in a language they do not know. 

The challenges for those in immigration detention are even worse. The majority are cut off from legal resources and are often unable to communicate with and obtain evidence from the outside world. 

The Numbers on Legal Representation 

Despite the importance of having legal representation, many immigrants are unable to access it. 

In fiscal year 2019, a staggering 77% of people with completed immigration court cases did not have lawyers.  The need in immigration detention is particularly high—70% of individuals in detention over the past five years have not had lawyers.

 A Public Defender Program Can Help Address Systemic Problems

Vera’s policy brief calls for a federal defender system that is universal, zealous, and person-centered. It explains that this service is necessary to address our immigration system’s racist history and current harms. 

Our immigration system has a long history of excluding immigrants of color, dating back to the Chinese Exclusion Act in the 19th century. Since then, racism has continued to permeate all facets of the immigration system. 

More recently, the Trump administration worsened racial inequities through its actions and policies. This included its Muslim ban, family separation policy, and the Migrant Protection Protocols—a program that forced asylum seekers to wait in dangerous conditions in Mexico while their immigration court cases proceeded in the U.S.  A federal defender service for immigrants is necessary to begin addressing this ugly history.

 Providing a universal federal defender service will help address the criminalization-to-deportation pipeline and mitigate the discriminatory effects of the criminal legal system.  Black and other overpoliced immigrants of color are at a higher risk of deportation as a result of any law enforcement contact, even if it is incidental and does not result in a criminal charge or conviction. 

The harmful effects of our closely linked criminal and deportation systems can be reduced by guaranteeing that immigrants have legal representation at every step of the process.

 We need a way to make sure that immigrants are never deported simply because they lack the economic resources to pay for a quality legal defense. According to Vera, a significant majority of people in the United States—67%—support government-funded representation for immigrants facing deportation.  The Biden administration has the opportunity to build a federal defender service for all immigrants.  The administration should embrace the opportunity to do so now.


 Jocelyn Dyer 

Jocelyn Dyer is the Senior Managing Attorney for the Immigration Justice Campaign at the American Immigration Council, where she oversees the training and mentorship program. Jocelyn helps ensure that all lawyers volunteering with the Campaign have the training, resources, and mentorship required to succeed in their pro bono cases. Jocelyn joined the Campaign from Human Rights First, where she mentored and trained pro bono attorneys representing asylum seekers. Prior to that, she practiced corporate litigation at private law firms in Boston while maintaining a robust pro bono practice. Jocelyn graduated from the University of Pennsylvania Law School cum laude and clerked for the Honorable Judge F. Dennis Saylor, IV of the U.S. District Court, District of Massachusetts. Jocelyn earned her B.A. with distinction from Cornell University. 

FILED UNDER: immigration lawyers 

 

NOTHING IN GOVERNMENT IS A DONE DEAL: SOME LEGAL ISSUES, FEBRUARY 25, 2021 

 https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/legal-snags-and-possible-increases-in-border-arrivals-complicate-biden-s-immigration-agenda
Legal Snags and Possible Increases in Border Arrivals Complicate Biden’s Immigration Agenda
Muzaffar Chishti and Jessica Bolter, Feb. 25, 2021 

"Though eager to move on from the policies of its predecessor, President Joe Biden’s administration is facing challenges enacting its immigration enforcement agenda, both in the interior and at the U.S.-Mexico border. Court injunctions, administrative resistance, and novel bureaucratic hurdles put in place by the Trump administration shortly before its end, as well as mounting pressures at the southwest border, have complicated the Biden administration’s efforts to roll back the Trump legacy. Though Biden’s presidency is still in its infancy and leaders have yet to be confirmed at some agencies with key roles in the immigration system, these challenges demonstrate the difficulties of achieving quick results that some of his supporters had taken for granted. 

The Biden team began with an ambitious plan to soften some elements of the enforcement-first approach that characterized the Trump administration. In the interior, it established a 100-day moratorium on most deportations while it worked on a review of policies for the longer term and issued interim guidelines with narrowed immigration enforcement priorities. At the border, it has temporarily kept intact the Trump administration policy that permits expulsions of almost all border crossers, while also ending the Migrant Protection Protocols (MPP, also known as the “Remain in Mexico” policy) and working to develop a revised system to receive and process new asylum seekers. 

The administration has advanced some elements of its agenda, but the challenges of redirecting the enforcement apparatus, the tangled web of legal agreements signed by prior Department of Homeland Security (DHS) leadership, and anxieties about a new large-scale influx of migrants and asylum seekers have posed early challenges. 

Narrowing Interior Enforcement, but Not Without Stumbles 

On Inauguration Day, DHS issued a 100-day freeze on deportations, with narrow exceptions for noncitizens believed to pose threats to national security as well as those who entered the United States on or after November 1, 2020, who waived their rights to remain, or whose removal was required under law. The moratorium was immediately challenged by the state of Texas and subsequently temporarily blocked by a federal judge within a week, then indefinitely halted by a preliminary injunction on February 23. U.S. District Judge Drew Tipton of the Southern District of Texas found that the pause in deportations likely violated a statutory requirement that noncitizens with final removal orders be removed within 90 days, and was likely arbitrary and capricious under the Administrative Procedures Act because DHS failed to provide a sufficient explanation for the new policStill, the administration has imposed constraints on some removals. For example, on February 3 a flight carrying Angolan, Cameroonian, and Congolese deportees was cancelled at the last minute to allow those on board to be interviewed as part of an investigation of alleged assault by Immigration and Customs Enforcement (ICE) agents. Such last-minute holds on deportations of potential witnesses are not themselves a change; the Trump administration, for example, pulled several witnesses off a flight in November 2020 during an investigation into alleged sexual assault by an ICE-contracted gynecologist. But that happened only after lawmakers and the witnesses’ lawyers intervened in the cases. The February 3 flight suspension, on the other hand, was pursuant to internal agency instructions and could indicate a high-level agency review. 

Enforcement Guidelines Represent Narrowest Focus in Years 

Adjustments to DHS enforcement priorities are critical in carrying out Biden’s agenda in the long run. New interim priorities went into effect February 1, were amended and operationalized with a February 18 memorandum, and will remain in place until DHS completes a review of its enforcement policies and issues final guidelines (expected before the end of May). The priorities set out whom U.S. Immigration and Customs Enforcement (ICE) targets for arrest and detention as well as to whom it might grant discretionary relief in removal proceedings. ICE’s new guidelines thus promise that fewer noncitizens will be apprehended and placed in the removal system, instead of just focusing on removals, as the moratorium did. 

The February 18 interim guidelines, although slightly broader than those that the Biden administration initially put into effect, represent the narrowest enforcement priorities that have been implemented in recent years (see Table 1). They ensure that the overwhelming majority of unauthorized immigrants are not a priority for arrest and removal, as was the case toward the end of the Obama administration. The Migration Policy Institute (MPI) has estimated that 87 percent of the unauthorized population was not a target for enforcement under the 2014 enforcement guidelines, which were later reversed by the Trump administration. That share remains at least as high under the interim Biden priorities.  

TO READ TABLE, SEE WEBSITE: Table 1. Interior Immigration Enforcement Priorities under Presidents Obama, Trump, and Biden 

Table Sources: Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement (ICE); R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection (CBP); Leon Rodriguez, Director, U.S. Citizenship and Immigration Services (USCIS); and Alan D. Bersin, Acting Assistant Secretary for Policy, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, November 20, 2014, available online; Memorandum from John Kelly, Secretary of Homeland Security, to Kevin McAleenan, Acting Commissioner, CBP; Thomas D. Homan, Acting Director, ICE; Lori Scialabba, Acting Director, USCIS; Joseph B. Maher, Acting General Counsel; Dimple Shah, Acting Assistant Secretary for International Affairs; and Chip Fulghum, Acting Undersecretary for Management, Enforcement of the Immigration Laws to Serve the National Interest, February 20, 2017, available online; and Memorandum from Tae D. Johnson, Acting Director, ICE, to All ICE Employees, Interim Guidance: Civil Immigration Enforcement and Removal Priorities, February 18, 2021 available online.

Yet there are instances where, despite the new guidelines, enforcement has gone forward against noncitizens who would appear to be lower priorities. Since Biden took office, a witness in the case against the alleged perpetrator of the 2019 shooting that killed 23 people at an El Paso Walmart was deported to Mexico, and a stateless man was deported to Haiti despite the intervention of lawmakers and advocates. Members of the Congressional Black and Hispanic Caucuses have called on the Biden administration to rein in deportations of people who may face dangerous conditions in their countries of origin, including Haiti and Cameroon, and adhere to the new enforcement priorities. These instances—while not violations of the February 1 enforcement guidelines in effect at the time, which allowed agents to use their discretion to conduct enforcement outside the stated priorities—demonstrate the disconnect between the president’s agenda and ICE practices, and the difficulty of dramatically and instantaneously reorienting the culture of an agency that had previously been encouraged to maximize enforcement at all costs and does not yet have a Biden-appointed director in place. 

Notably, the updated February 18 guidelines do not allow agents to exercise such broad discretion, requiring agents to get preapproval from their field office directors to conduct non-priority enforcement actions. And even with these highly visible examples of enforcement that may be at odds with the goals of the Biden administration, preliminary ICE data indicate that in the first two weeks of February, detention of noncitizens arrested by ICE were occurring at roughly half the rate as in January. While the new enforcement strategy may not yet be universally followed, these initial data show they are likely having a real effect. 

Trump Administration Obstacles to Biden’s Changes 

Though the new enforcement guidelines have escaped legal challenge thus far, the rapid litigation over the deportation freeze is evidence that many of the Biden administration’s policy changes will be challenged in court, continuing a trend of increased and multipronged immigration litigation. This trend started in the Obama administration, with the number of immigration lawsuits spiking during Trump’s presidency. The University of Michigan’s Civil Rights Litigation Clearinghouse catalogued 122 immigration or border-related lawsuits filed during Obama’s eight years in office, compared to 333 during the four-year Trump term. 

Trump administration officials seeded their own legal maneuvers to make it more difficult for the Biden administration to implement its agenda. Two of these actions were the unprecedented agreements signed by Ken Cuccinelli, who at the time was the senior official performing the duties of the deputy secretary of Homeland Security, with at least four states and one local sheriff’s office, and with the union representing 7,600 ICE employees, the National ICE Council, in the final two weeks of the Trump presidency. 

The agreements with the states and locality—Arizona, Indiana, Louisiana, Texas, and the sheriff’s office in Rockingham County, North Carolina—are known as Sanctuary for Americans First Enactment (SAFE) agreements. Although not all have been made public, those that have require DHS to notify the states six months in advance of any policies that would reduce immigration enforcement or relax the standards for granting relief from deportation, review states’ feedback on the proposed policy changes, and, if the department chooses not to accept the response, provide an explanation. The Texas lawsuit challenging the deportation moratorium argued that DHS had violated this agreement, but the judge declined to take a position on that question even as he accepted the challenge on other grounds. On February 2, DHS notified Texas that it would terminate the agreement immediately, though the text requires 180 days’ notice. 

These agreements effectively give the signatories unprecedented power over immigration policy, furthering what has been an ongoing partisan divide between states and the federal government over the issue. This divide has deepened over the past decade as state attorneys general—both Republicans and Democrats—have taken a more activist stance in challenging federal immigration policy and asserting a bigger role in making their own local policies that affect immigration enforcement. 

The agreement with the ICE union, signed the day before Trump left office, gave the union broad powers to delay ICE policy changes. DHS disapproved the agreement on February 16, within its 30-day period for review, thereby preventing it from being implemented. Had the deal gone into effect, ICE would have had to work with the union to agree on the terms of any policy changes prior to implementation. There remains the possibility that the union, which endorsed Trump’s presidential campaigns, could appeal the rejection of the agreement to the Federal Labor Relations Authority. 

These agreements may initially impede the Biden administration’s policymaking, but they are unlikely to survive court challenges. And though the deportation moratorium—Biden’s most symbolic interior enforcement effort—has been halted in its tracks, other longer-lasting policies such as the narrower enforcement guidelines so far have proceeded unchallenged. 

Continuity of Border Enforcement in the Face of Possible Increases in Arrivals 

Despite its hopes for a slower pace of border crossings, the Biden administration is facing signs that suggest increased arrivals may be forthcoming. In January, there were 75,000 interceptions of migrants at the southwest border, outpacing every January since 2006. And the number of migrants traveling as families apprehended at the U.S.-Mexico border increased 62 percent from December to January, one of the biggest month-to-month increases since 2014, indicating that arrivals may be growing rapidly. Though many of these incidents may have been of the same people trying to cross multiple times—DHS has acknowledged that 38 percent of those encountered between March 2020 and February 2021 had tried to enter before in the same year, up from 7 percent in fiscal year 2019—anecdotal reports indicate the number of fresh arrivals is increasing as well. 

The administration has kept in place the federal Centers for Disease Control and Prevention (CDC) order issued in March 2020 allowing the United States to expel almost everyone who crosses the border illegally without giving them the opportunity to seek asylum or other relief. In addition to continuing public-health concerns surrounding COVID-19, maintaining the order was meant to deter a predicted surge of migrants trying to reach the United States after Biden’s inauguration, on the theory that his administration would relax border enforcement. Biden himself warned against such a surge, and his spokeswoman argued that the new administration needed time to put in place a fairer and more efficient asylum system at the border. “Asylum processes at the border will not occur immediately; it will take time to implement,” White House Press Secretary Jen Psaki said in mid-February. 

Still, the administration has made some exceptions under circumstances that remain unclear. In late January, some migrant families apprehended along certain border sectors began to be released to U.S. communities rather than expelled to Mexico under the CDC order. This may be due to at least two factors: increased space restrictions in U.S. Customs and Border Protection (CBP) holding facilities due to COVID-19 protocols and Mexican localities’ refusal to accept expelled families due to a new law prohibiting holding migrant children in detention. However, the Biden administration has not communicated exactly where and under what circumstances it is releasing families into U.S. communities, and it is unclear whether they are part of a pattern or are policy exceptions. The administration also declared it will not expel unaccompanied children under the CDC order, in a switch from the Trump era. But it is not moving fast enough for some: in late February, 61 Democratic House members sent a letter to Homeland Security Secretary Alejandro Mayorkas urging him to end all expulsions under the order “as soon as practicable.” 

A Slow End to Remain in Mexico 

Unlike its tinkering around the edges of the CDC order, the administration has begun to roll back some of the most restrictive policies of the Trump administration. It started with ending MPP, announcing a process for those enrolled in the program with open immigration court cases to enter the United States. However, MPP enrollees allowed back into the United States through this system are not processed in special courts empaneled to hear their asylum claims, but funneled into the same immigration court backlogs that have been plaguing the system for years. Of course, there are arguments for moving swiftly: the population waiting in Mexico under MPP is one of the most vulnerable and Biden had promised to end the program as one of his first actions. But the administration has done so without also creating a dedicated system to process the asylum cases of recent border crossers. This could incentivize increases in flows. 

Finally, Biden has ended policies that the Trump administration enacted in 2019 and paused during the pandemic, including the Asylum Cooperation Agreements with El Salvador, Guatemala, and Honduras, which allowed U.S. asylum seekers arriving at the border to be sent to seek asylum in those countries, as well as implementation of two rapid asylum adjudication programs: the Prompt Asylum Claim Review program and the Humanitarian Asylum Review Process. Both sets of policies blocked access to U.S. territory and the asylum system. Ending these programs has no effect in practice while the CDC order remains in place, since the public-health rule blocks access to the U.S. asylum system more broadly. But once it is lifted, these policies will not encumber the new administration’s intended border policies. And while the administration has not yet begun the process of revoking the regulation making ineligible for asylum anyone who had traveled through a third country before reaching the U.S.-Mexico border without seeking and being denied asylum there, a federal judge preliminarily blocked it on February 16, and the government is likely to choose not to continue defending it in court. 

Once the CDC order is lifted, none of the Trump policies that explicitly blocked access to the asylum system for border crossers will remain. Still, the narrower grounds on which asylum can be granted that were enacted during the Trump administration will continue to apply in proceedings before immigration courts. 

In all, Biden’s administration has dismantled critical elements of Trump’s strictest policies on illegal border crossings and is adjusting the implementation of those that remain. It continues to face the challenge of building an asylum processing system that provides quick protection to those who qualify and humanely returns those who do not, without applicants spending years in the immigration court backlogs. 

Such much-needed reform of the asylum system could be frustrated by large border arrivals in coming weeks and months, although over the long term the administration has committed to countering these types of movement with a greater attention to root causes of migration and a regional migration management system. And in the interior of the country, the administration is still struggling to wrap its arms around the enforcement machinery that was left to run at full steam and without guardrails under Trump, creating a climate of fear that overshadowed its mixed results because of pushback from state and local jurisdictions. The Biden administration’s supporters have been eager to see a sharp reversal of the policies of the Trump era, but the realities at the border and the impediments to advancing Biden’s enforcement agenda in the interior suggest the need for a long-term plan. 

SOURCES 

Aleaziz, Hamed. 2021. The DHS Has Signed Unusual Agreements with States That Could Hamper Biden’s Future Immigration Policies. BuzzFeed News, January 15, 2021. Available online. 

Borger, Julian. 2021. Exclusive: ICE Cancels Deportation Flight to Africa After Claims of Brutality. The Guardian, February 4, 2021. Available online. 

Carrasquillo, Adrian. 2021. Black, Hispanic Caucuses Apply Pressure to Biden to Reign in ICE, Deportations. Newsweek. February 11, 2021. Available online. 

Charles, Jacqueline. 2021. He Wasn’t Born in Haiti. But That Didn’t Stop ICE from Deporting Him There, Lawyer Says. Miami Herald, February 2, 2021. Available online. 

Flores, Adolfo and Hamed Aleaziz. 2021. Border Agents in Texas Have Started Releasing Some Immigrant Families after Mexico Refused to Take Them Back. BuzzFeed News, February 5, 2021. Available online. 

Gamboa, Suzanne and Associated Press. 2021. ICE Defies Biden, Deports El Paso Massacre Witness, Hundreds of Others. NBC News, February 2, 2021. Available online. 

O’Toole, Molly. 2020. ICE Is Deporting Women at Irwin Amid Criminal Investigation into Georgia Doctor. Los Angeles Times, November 18, 2020. Available online. 

Rose, Joel. 2020. Immigrant Advocates Vow to Keep Up the Pressure as Biden Asks for Patience. NPR, December 23, 2020. Available online.
 
Sganga, Nicole and Camilo Montoya-Galvez. 2021. Homeland Security Officials Scrap Trump-Era Union Deal that Could Have Stalled Biden's Immigration Policies. CBS News. February 16, 2021. Available online.
 
State of Arizona and Mark Brnovich v. U.S. Department of Homeland Security, et al. 2021. U.S. District Court for the District of Arizona, Exhibit C. February 3, 2021. Available online.
 
State of Texas v. United States, et al. 2021. U.S. District Court for the Southern District of Texas, Exhibit A. January 22, 2021. Available online.
 
---. 2021. U.S. District Court for the Southern District of Texas, Order Granting Plaintiff’s Emergency Application for a Temporary Restraining Order. January 26, 2021. Available online.
 
University of Michigan Law School. N.d. Civil Rights Litigation Clearinghouse. Accessed February 19, 2021. Available online.
 
U.S. Centers for Disease Control and Prevention (CDC). 2021. Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children Pending Forthcoming Public Health Determination. Federal Register 86 (30), February 17, 2021: 9942. Available online.
 
U.S. Customs and Border Protection (CBP). 2021. Southwest Land Border Encounters. Updated February 10, 2021. Available online.
 
U.S. Department of Homeland Security (DHS). 2021. DHS Announces Process to Address Individuals in Mexico with Active MPP Cases. News release, February 11, 2021. Available online.
 
---. 2021. Letter from David P. Pekoske, Acting Secretary of Homeland Security, to Texas Attorney General Ken Paxton. February 2, 2021. Available online.
 
---. 2021. Memorandum from David Pekoske, Acting Secretary of Homeland Security, to Troy Miller, Senior Official Performing the Duties of the Commissioner, U.S. Customs and Border Protection; Tae Johnson, Acting Director, U.S. Immigration and Customs Enforcement; and Tracey Renaud, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities. January 20, 2021. Available online. 

U.S. Immigration and Customs Enforcement (ICE). 2021. Memorandum from Tae D. Johnson, Acting Director of ICE, to All ICE Employees, Interim Guidance: Civil Immigration Enforcement and Removal Priorities. February 18, 2021. Available online.
 
U.S. Immigration and Customs Enforcement (ICE) and ICE Council 118, American Federation of Government Employees. 2021. Memorandum of Agreement. January 19, 2021. Available online.
 
White House. 2021. Press Briefing by Press Secretary Jen Psaki. February 10, 2021. Available online. 
Wilson, Frederica. 2021. Twitter post. February 23, 2021. Available online." 

 

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