By Robert Law on April 18, 2022
The Biden administration entered office laser-focused on undoing every immigration policy issued by President Trump. They wasted no time, moving swiftly to end policies that had successfully deterred illegal immigration and restored order at the southern border. Most notable was President Biden’s dissolution of the Migrant Protection Protocols (MPP, commonly known as Remain in Mexico), arguably the Trump administration’s most effective policy at preventing economic migrants from exploiting the asylum system as a means of gaining entry to the interior. Career Border Patrol agents warned the Biden transition team of the need to keep MPP in place, advice that was ignored. Predictably, this opened the floodgates of illegal aliens trying to cross the southern border, resulting in an all-time record of 1.659 million encounters in fiscal year 2021.
The Biden administration also moved quickly to undo Trump-era immigration regulations through a new side-door process that circumvents the time-consuming requirements of the Administrative Procedure Act (APA). While it is an administration’s prerogative to change regulations, they are supposed to be bound by the same developmental steps that its predecessor followed. Instead, the Biden administration has refused to defend regulations in lawsuits brought by advocacy groups, teeing them up for friendly judges to simply ax the regulations.
Having successfully cleared the deck, you would think Biden’s Department of Homeland Security (DHS) would be churning out new immigration regulations. Except that isn’t exactly the case. While the most recent Unified Agenda indicates that DHS is working on a number of immigration regulations, mostly through U.S. Citizenship and Immigration Services (USCIS), very few proposals have actually come out through the Biden administration’s first 15 months. With the notable exception of an illegal final rule that will allow USCIS asylum officers instead of immigration judges to hear asylum claims at the border, the agency has little to show to date. Currently, there is only one immigration regulation under review at the White House Office of Information and Regulatory Affairs (OIRA), a rule that has to do with automatically extending work permits that does not even appear in the unified agenda.
Having led the USCIS policy office at the end of the Trump administration, I am well aware of how difficult the rulemaking process can be. That said, when you have a clear vision — as I did when in that role — you can expedite the development of regulations. It seems like other than being “anti-Trump”, the Biden political team is struggling to affirmatively articulate its immigration policies that require regulations to implement.
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