As published in the Immigration Daily on January 4, 2021
Before he is inaugurated, Joe Biden should appoint an immigration advisor who has his ear the same way that Stephen Miller has had Donald Trump’s ear during the past four years. The damage to the field of immigration and to humanity that such a close association has had – an appalling number of executive orders, regulations, interpretations, and guidances to the agencies charged with overseeing the border, points of entry, adjudications, immigration court procedures and decisions – can only be undone by a Stephen Miller clone with opposite views and energy who is close to the president. The influence that he has had with the president has been complete including a hand in over 400 immigration executive actions identified by the Migration Policy Institute by July 2020.
On day one of his presidency, Joe Biden should put a freeze on all federal regulations which have not already been implemented. An excellent article by the American Immigration Lawyers Association (AILA) on December 9, 2020, “Trump Policies That May Be Finalized before Inauguration Day 2021” listed a number of regulations that the current administration wishes to finalize before leaving office. Some of them at this point have already been implemented. A portion from the article follows:
- Regulations that are pending review at the Office of Information and Regulatory Affairs (OIRA) for publication as final rules. This means that a rule has already been issued as a proposed rule, comments have been received, and a final rule has been drafted, or the rule is being issued as a straight final rule. OIRA review can take a few months, but in the recent past it has been expedited to be concluded in 30 days or has been waived entirely. These rules are the closest to being finalized and published.
- *** Joint DHS/DOJ Procedures for Asylum and Withholding Final Rule; Credible Fear and Reasonable Fear Interviews. 85 FR 36264, 6/15/20 (OIRA review completed on 11/24/20, awaiting publication of Final Rule)
- *** DOJ/EOIR Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure Final Rule 85 FR 52491, 8/26/20 (OIRA review completed on 12/3/20, awaiting publication of Final Rule)
- *** EOIR Final Fee Rule 85 FR 11866, 2/28/20 (OIRA review completed on 12/3/20, awaiting publication of Final Rule)
- *** Security Bars and Processing due to COVID-19 Final Rule related to asylum applicants traveling through Mexico (and possibly Canada) – (Received by OIRA on 10/16/20 – was not previously published as a proposed rule), RIN # 1615-AC60.
- DHS Special Immigrant Juvenile Petitions Final Rule (Received by OIRA on 10/13/20)
- Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders Interim Final Rule (completed OIRA Review on 11/10/2020; but withdrawn).
- Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (Received by OIRA on 11/24/20)
- *** DOJ/EOIR Proposed Rule on Procedures for Asylum and Withholding Rule; 85 FR 58692, 9/23/20; (Received by OIRA on 11/24)
- DOJ/EOIR Final Rule on Jurisdiction and Venue in Removal Proceedings; 72 FR 14494, 3/28/07 (Received by OIRA on 12/4/2020)
- Interim Final Rules that have been set aside on procedural grounds by a court and comment periods have closed. These are rules that were published as interim final rules with a comment period and either took effect or were to take effect but were subsequently set aside by a Court because the government failed to take the proper steps to issue the rule. In this scenario, the government could either start afresh and issue a notice of proposed rulemaking, solicit comments, and then issue a final rule or issue a new final rule based on the comments received on the interim final rule. Given the limited time remaining in this administration, the latter is the most probable scenario.
- DOL Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872, 10/8/20 (Comments closed on 11/9/20, 2,340 comments received). Rule struck down on 12/1/20.
- Strengthening the H–1B Nonimmigrant Visa Classification Program, 85 FR 63918, 12/7/20 (Comments closed on 12/7/20, 2,467 comments received). Rule struck down on 12/1/20.
- Proposed regulations where the comment periods have closed and final rules are being drafted. The ability to finalize these rules will be dependent on how many comments they have received. Typically, it takes months to review all comments, respond and draft a final rule, and have it cleared through agency, department and OIRA review. However, the administration may have things already in motion to finalize it, especially if they do not intend to make any policy changes based on comments.
- *** DHS/DOJ Proposed Rule on Security Bars and Processing, 85 FR 41201, 7/9/20; (Comment period closed on 8/10/20; 5,081 comments received).
- *** DHS/USCIS Proposed Rule on the Use and Collection of Biometrics, 85 FR 56338, 9/11/20. (Comment period closed on 10/13/20; 5,338 comments received).
- *** DHS/ICE Elimination of Duration of Status Rule; 85 FR 60526, 9/25/20; (Comment period closed on 10/26/20; 32,083 comments received).
- *** DOJ/EOIR Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances; 85 FR 61640, 9/30/20; (Comment period closed on 10/30/20; 41 comments received).
- *** DOJ/EOIR Proposed Rule on Procedures for Asylum and Withholding Rule; 85 FR 58692, 9/23/20; (comments closed on 10/23; 2,039 comments received)
- *** DHS/USCIS Affidavit of Support Proposed Rule, 85 FR 62432, 10/2/20. (Comment period closed on 11/2/20; 326 comments received.)
- *** DHS/USCIS H-1B Lottery Proposed Rule – 85 FR 69236, 11/2/20; (Comment period closes on 12/2/20; 1,478 comments received.)
- Proposed regulations that were published but the comment period remains open. These rules will be even harder to finalize as all comments have not yet been received. The agency will need to review and respond to the comments, draft, and clear the final rule at agency and department level, as well as OIRA. To help slow down the finalization of rules, it is important for the public to submit as many unique comments as possible.
- *** DHS/USCIS H-1B Lottery Proposed Rule – 85 FR 69236, 11/2/20; (Comment period closes on 12/2/20). Submit a comment here.
- DOS NPRM Eliminating B-1 in lieu of H-1B – 85 FR 66878, 10/21/20; (Comment period closes on 12/21/2020).
- *** DHS/USCIS NPRM Elimination of Employment Authorization for individuals with Orders of Removal – 85 FR 74196, 11/19/20 (comment period closes on 12/21/20).
- DHS/CBP Proposed Rule Collection of Biometric Data from Aliens Upon Entry to and Departure from the United States – 85 FR 74162, 11/19/20 (comment period closes on 12/21/20).
- DOS Proposed Rule on Intercountry Adoptions, 85 FR 74492, 11/20/20 (comment period closes on 1/19/21).
- DOJ/EOIR Notice of Proposed Rulemaking to Define “Good Cause”, 85 FR 75925, 11/27/20 (comment period closes on 12/28/20).
- DOJ/EOIR Notice of Proposed Rulemaking on Motions to Reopen, Motions to Reconsider, and Stays of Removal, 85 FR 75942, 11/27/20 (comments period closes on 12/28/20).
- Proposed Regulations that are pending OIRA review. These regulations will be nearly impossible to finalize by January 20, 2021 given the number of steps remaining.
The sacrificed lives and continued toll on legal and undocumented immigrants, US citizens and permanent resident parents, children, brothers and sisters, US companies, innovation and the economy demand such attention from Day 1.
Without an immediate freeze, implemented regulations are harder to retract, especially without control of the Senate. At least some of the above proposed regulations will still be floating around on Inauguration Day. The Congressional Review Act (CRA) could eliminate the implemented regulations by simple resolution, but require a majority of both houses of Congress. With Mitch McConnell in charge of the Senate, that will not happen. January 5, 2021, will determine control of the Senate dependent upon the results of the two senatorial contests in Georgia.
Without an advisor solely dedicated to immigration changes and working hand-in-hand with the president, four years will not undo the damage of the last four years. So far, we have seen two cabinet picks, Susan Rice and Alejandro N. Mayorkas, whose roles impact on immigration. As the Director of the White House Domestic Policy Council, Ms. Rice is to have an expanded role over the administration’s approach to immigration, healthcare, and racial equality. Mr. Mayorkas in his post of Secretary of Homeland Security is directly charged with governing that huge agency of which there are 16 separate agencies including FEMA, the TSA, US Coast Guard, US Secret Service, and Office of the Inspector General. Their portfolios are too large to get down to the brass tacks that the job requires to reverse the work of Trump/Miller. As described in thebulwark.com article, “Uninstalling Stephen Miller,” on December 17, 2020,
As a senior advisor to the president, Miller used his position to focus on immigration while avoiding the congressional scrutiny to which agency officials are subject. Miller frequently circumvented department heads, opting instead to call lower-level staff to implement his orders, reportedly telling them things like “This is the most important thing you will do at your agency.” Without looping in cabinet secretaries, Miller would hold weekly meetings with their subordinates, occasionally helping get promotions for those who shared his beliefs. Even senior officials reported that they frequently felt torn between Miller and the actual head of their agency. Miller and his allies would go “out of their way to vilify all immigrants,” demanding press releases whenever a refugee or immigrant committed a gruesome crime. This tendency of Miller’s was underscored by his correspondence with officials at the Department of Justice (DOJ) to manufacture statistics linking immigrants to violent crime and terrorism—efforts that were the likely impetus for a misleading 2019 DOJ report claiming that immigrants now comprise 64 percent of all federal arrests, having “more than tripled,” between 1998-2018.
The job does not require someone as Machiavellian as Miller. President Biden needs a “horse whisperer” like Miller who can access the president and help coordinate immigration policy with Rice and Mayorkas. An advisor who must pass ideas through the cabinet members to get to the president would not be nearly as effective. Hopefully there will be a successful search for such a person.