‘If Biden acted quickly, we could’ve saved his life’: Immigration experts react to Biden’s new executive orders

Three new executive orders signal big changes, but leave migrants waiting – and vulnerable to Covid, writes Josh Marcus

Last week, Felix Montes de Oca, a 57-year-old Mexican migrant, died of coronavirus complications in a Georgia hospital after being held in a privately run Immigration and Customs Enforcement (ICE) detention facility for about a month.

Stewart Detention Center, which has a record of mistreating migrants in medical need and the second highest rate of Covid cases of any ICE detention centre, underscores the challenge for the Biden administration’s ambitious immigration agenda. The president made big promises for change, but is getting things off to a measured start, signing executive orders rolling back or reviewing Trump policies, but not making law that replaces them. He may be waiting for Congress to deliver the major reforms, but the human consequences of the US immigration system, straining under coronavirus and four years of massive change under Donald Trump, wait for no one.

On Tuesday, the administration took its latest steps to address what it called the “moral and national shame” of the Trump immigration agenda, signing three executive orders aiming to roll back or rectify controversial policies like family separation, asylum changes, and rules that discouraged green-card applicants from using public services. Some immigration experts say the administration is doing too little, too slowly, while others highlighted the major changes expected to come.

Most notable in Tuesday’s order was the creation of a task force to reunite the more than 600 missing parents who were intentionally separated from their children at the border under the Trump administration, beginning in 2017. The task force, which includes the heads of the Homeland Security and State departments, as well as non-governmental organisations, is tasked with reporting on its progress in 120 days. The order doesn’t specify whether parents who have been deported will be given legal status to reunite with their children in the US, and it excludes families who chose deportation back to their home countries over being separated.

Part of the challenge of reuniting families, which began in 2018 after an order from a federal court, is that the government kept poor data and didn’t establish an effective system early on to keep track of the families it separated.

Jessica Bolter, a policy analyst at the non-partisan Migration Policy Institute, cautioned: “It’s going to be a while before migrants who are in the system” to feel the effects of these changes, but they signal a new commitment from the administration to reunite these families.  

“The DHS secretary, Alejandro Mayorkas, has been very clear that this is a priority for him, and he’s approaching immigration and immigration enforcement in a different way,” she told The Independent. “With this kind of mandate from the top, and the clear buy-in from the Secretary of Homeland Security, there’s a good chance that this task force will be able to move forward with reunification.”

She also noted that the inclusion of NGOs will help the government relocate hard-to-reach parents who might have returned to rural areas in countries like Guatemala, El Salvador, and Honduras.  

Mr Biden himself acknowledged that he wasn’t making much new policy just yet, merely rolling back the work of his predecessor.

"There's a lot of talk, with good reason, about the number of executive orders that I've signed. I'm not making new law – I'm eliminating bad policy," Mr Biden said on Tuesday before signing the orders.

But eliminating past policy isn’t enough, according to some advocates like the American Civil Liberties Union (ACLU), which fought family separation in court.

"What we need now is an immediate commitment to specific remedies, including reunification in the US, permanent legal status and restitution for all of the 5,500-plus families separated by the Trump administration," the ACLU’s Lee Gelernt told NPR. "Anything short of that will be extremely troubling given that the US government engaged in deliberate child abuse.”

A second executive order from Tuesday directs authorities to review already suspended Trump-era rules like the Migration Protection Protocols (MPP), otherwise known as “Remain in Mexico”, which stranded tens of thousands of asylum seekers in poor living conditions on the other side of the border as they waited for their asylum hearings.

Immigration analyst Ms Bolter said the Biden administration’s moves on MPP reflected practical and political considerations.

“It’s clearly meant to be a strategy that’s focused more on meeting countries where they're at and providing them resources to manage migration more pragmatically and humanely, whereas the Trump administration was much more one of pressure and forcing these countries into roles they weren’t prepared to take on,” she said. “If there isn't a  system in place to step into the vacuum, it might result in a chaotic situation at the border. It might result in something like a rush to the border, something that could overwhelm and frankly would look like a crisis they wouldn’t want to deal with in the early months of the administration.”

Yet every moment the administration waits is another in which thousands languish at the border, according to Edwin Carmona-Cruz, of the California Collaborative for Immigrant Justice, which offers legal aid to migrants. He also hopes the replacement to MPP isn’t taking migrants waiting in camps in Mexico and putting them into detention centres in the US during the pandemic, citing the recent death of Montes de Oca, the migrant in ICE custody in Georgia.

“There are thousands of people, thousands of lives that have been left in limbo,” he said. “The human consequences of moving slowly and being super cautious are really a death sentence for many. If Biden acted quickly, we could’ve saved his life, as well as many that have been lost in the country.”

White House Press Secretary Jen Psaki cautioned on Tuesday that the administration wouldn’t be able to move too rapidly though.

"We want to put in place an immigration process here that ... is humane, that is moral, that considers applications for refugees, applications for people to come into this country at the border in a way that treats people as human beings," she told reporters. "That’s going to take some time. It’s not going to happen overnight."

The third of the executive orders orders a "top-to-bottom review of recent regulations, policies and guidance that have set up barriers to our legal immigration system”, including the Trump administration’s so-called “public charge” rule, which created a de-facto wealth test for green card applicants by penalising those likely to use public services. Still, without fully replacing the rule, Carmona-Cruz argued migrants across the country have been wary of accessing needed public services during the pandemic.

“We’re talking about many community members and immigrants who are afraid to access lifesaving services because they're afraid of being a public charge,” he said. “We’re talking about the health and wellbeing of our society.”

Outside of Tuesday’s executive orders, the Biden administration has also affected migration by rolling back the so-called Muslim travel ban and making immigration arrest priorities more focused on national security threats and convicted criminals.

The centrepiece of its agenda is legislation it submitted to Congress soon after taking office, which would create a pathway to citizenship for the roughly 11 million immigrants in the US illegally, though even Democrats are acknowledging it will be unlikely to make it through the Senate because it needs the support of at least 10 Republicans to clear procedural hurdles.

Challenges have cropped up in the courts as well. On 26 January, a federal court suspended Mr Biden’s 100-day freeze on deportations after a challenge from the state of Texas.

Mr Biden's plans to jettison Trump-era policies and establish a new line on immigration reform have been widely praised by his supporters and migrant advocates, but with time not on his side, the pressure to take meaningful action is only set to increase.