The Biden campaign has set big goals for his first hundred days in office including ending Trump’s detrimental asylum policies, but is total reversal actually possible to accomplish in the first 100 days?
Unfortunately, it will likely take more than 100 days to undo all the damage Trump has done and continues to do to the asylum system. Trump’s attack against asylum was a multi-front assault. He published new regulations, published attorney general decisions, interpreted existing laws to enact inhumane policies, and issued executive orders.
Executive orders and general policies can be quickly changed or ended. For example, the Migrant Protection Protocols (“MPP”) also known as the remain in Mexico program is based on an interpretation of existing law and the enactment of a policy based on that law. Biden can immediately end the program, though it will likely take time to allow those currently in Mexico awaiting a hearing to enter the U.S. Another policy that Biden can immediately overturn is the metering policy whereby Trump only allowed a certain number of people to request asylum at the border per day. This is simply a policy and can immediately be stopped. Biden can also immediately end the quota system in immigration courts. Currently, the Department of Justice requires immigration judges to complete an unreasonable number of cases per year putting intense pressure on them to rush immigration proceedings and not carefully consider each case.
While executive orders and general policies can be quickly overturned, published decisions from the Attorney General (“AG”) are precedential legal decisions and therefore cannot simply be changed. Biden however can have his Attorney General certify certain cases to himself in order to overturn AG decisions such as Matter of A-B- which sought to end asylum protections for victims of domestic violence and gang violence and Matter of L-E-A- which sought to end protection for asylum seekers who fear persecution based on their familial ties. Additionally, Biden can have his AG carefully review the decision history of the current Board Members at the Board of Immigration Appeals (“BIA”). The AG can place more immigrant-friendly Board Members on the BIA and reassign those with inappropriately high denial rates to positions that don’t involve decision-making on cases. He can do the same for Immigration Judges at Immigration Courts across the country. These are more long-term solutions than actions that are likely to take place in the first 100 days.
Trump managed to publish several regulations that severely restrict asylum. For example, Trump published a rulemaking those who entered the United States without permission ineligible for asylum. Recently, Trump has published highly restrictive regulations on asylum. The first of which bars asylum eligibility for asylum seekers with any felony offenses, nearly any drug-related offenses, and anyone convicted of unauthorized reentry. Another recent rule seeks to place those who have been found to have a credible or reasonable fear of persecution/torture in their home countries in highly limited asylum-only proceedings where their options for relief are only asylum and withholding or removal. That rule severely restricts asylum by extremely limiting circumstances in which a person would be eligible for asylum. Each of these are regulations and cannot simply be ended with the stroke of a pen. Regulations have strict procedures that must be followed before they can be enacted. Resolving the regulatory dismantling of asylum in the United States will unfortunately take time and is not likely to be accomplished in the first 100 days. Though Biden is welcome to try!
While every attack on immigration by Trump may not be resolved in the first 100 days of the Biden presidency, we at least know someone will finally be taking steps in the right direction to protect asylum seekers.