When a parent and their child are forcibly separated by hundreds of miles, every second apart is excruciating—and every delay is torture, no matter the justification.
That urgency is what immigration advocates, attorneys and activists are increasingly anxious to convey to President Joe Biden after he signed three executive orders relating to immigration on Tuesday evening. The orders each begin a long and complex process to dismantle his predecessor’s defining policy legacy, but those advocating for major reform are concerned that when the well-being of children is at stake, Biden’s deliberative approach could have disastrous consequences.
“What we need now is an immediate commitment to specific remedies, including reunification in the U.S., permanent legal status, and restitution for all of the 5,500-plus families separated by the Trump administration,” said Lee Gelernt, an attorney with the American Civil Liberties Union who led the group’s successful legal fight against family separation. “Anything short of that will be extremely troubling given that the U.S. government engaged in deliberate child abuse.”
In the view of those who have been fighting the legal battles against Trump’s immigration policies for years, immigrant communities are in need of direct, concrete action—and aren’t in a position to wait for a task force’s review in order.
“As President Biden signs these orders, some 20,000 migrants are languishing in dangerous conditions just south of the border because of the disastrous Migrant Protection Protocols,” said Kelli Garcia, federal policy counsel of the Southern Poverty Law Center’s Action Fund. “While the long-term vision offered in these orders is admirable, the administration must recognize that its predecessors, in an effort to deter migration, embraced callous policies like family separation and [the Migrant Protection Protocols] not in spite of the known harm it would cause but because of it.”
Biden’s trio of executive orders—one creating a task force for family reunification, and two aimed at reviewing former President Donald Trump’s immigration policies that impeded asylum access, granting of permanent residency and other avenues to legal immigration—are intended not to make new law, but to “eliminat[e] bad policy,” as the president put it during a signing ceremony in the Oval Office.
“We’re going to work to undo the moral and national shame of the previous administration that literally, not figuratively, ripped children from the arms of their families… with no plan, none whatsoever, to reunify children,” Biden said.
The slow-walked nomination of Secretary of Homeland Security Alejandro Mayorkas, confirmed by the Senate on Tuesday afternoon, cleared the path for Biden to begin enacting the policies that the executive orders may allow. But advocates for people in the immigration system say that the orders, while a positive first step to fulfilling Biden’s many campaign promises on immigration, may be too deliberative given the urgency.
“It’s an excellent first start, and we’re grateful that they’re prioritizing the commitment to reviewing these policies,” said Jennifer Podkul, the vice president of policy and advocacy for nonprofit Kids in Need of Defense, who described advocates as “cautiously optimistic” that the executive orders would be followed by concrete action. “But while unaccompanied kids are allowed to ask for protection at the border… there are 100 kids being referred a day. So think of it—every single day that goes by, there’s more and more kids who are being backed up and living in camps.”
One top concern is the end results of Biden’s family reunification task force. The president had vowed to create such a task force in order to reunite families separated at the border under numerous Trump-era policies, making a promise four days before the 2020 presidential election to issue an executive order “creating a federal task force to reunite these children with their parents.”
“Let’s talk about what happened,” Biden said during his final debate with Trump, following reports that hundreds of children had either not been reunited with their parents, or could not be matched with any family members at all. “Their kids were ripped from their arms and separated, and now they cannot find over 500 of the sets of those parents, and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal. It’s criminal.”
But advocates are frustrated that Biden’s administration will not commit to extending legal status to all families that were separated under Trump’s policies, instead leaving such decisions to be “examined on an individual basis, taking into account the preferences of the family and the well-being of the children,” as one administration official put it on a press call before the executive orders were announced.
“The posture of these cases are all very different, and it’s all very complicated—some parents have deportation orders, some may have withdrawn their application for admission, some have kids in the United States who are in the process of getting some sort of legal relief,” said Podkul. “It’s going to require a review of what makes sense for each family. Our hope is that they are able to resolve it for every single family so that the parents and kids can be back together in the United States, with permanent protection.”
Family reunification under circumstances that don’t force children to end their bids for asylum are just the tip of the iceberg for immigration reformers. Continued expulsions under Title 42, a public health mechanism enacted by the Trump administration that hastens rejection of asylum claims in the name of preventing further spread of the coronavirus, could be enacted with a stroke of the presidential pen, they say—as could the Migrant Protection Protocols that have left an estimated 20,000 migrants trapped in camps south of the border.
The White House has sought to frame Biden’s slow-walk as restraint, rather than reticence. In a press briefing ahead of the executive orders’ signing, White House press secretary Jen Psaki told reporters that the president intends to thoughtfully intangible the Gordian Knot of immigration rules, rather than just cleaving it in two.
“Continuing to take policy steps to address the plight of migrant families to do so in a humane and moral way is a priority of this administration,” Psaki said. “We want to put in place an immigration process here that is humane, that is moral, [and] that’s going to take some time—it’s not going to happen overnight.”
Psaki emphasized that the executive actions to be signed are “just part of our strategy” on policy steps to address the needs of migrant families, with the president’s immigration reform legislation a key part of that plan.
The authors of some of that legislative plan have commended Biden for signing the orders—but even they acknowledged on Tuesday that every day that Trump’s system remains intact means another unknown number of tragedies for migrant families.
“The Biden-Harris executive actions start righting the wrongs of the Trump administration’s barbaric ‘zero tolerance policy’ and enable separated families to be reunited here in the United States,” Sen. Richard Blumenthal (D-CT), co-author of the Families Belong Together Act, which would grant legal status for families who were separated by the Trump administration’s policies, said in a statement. “The next step is passing our bicameral bill to provide the victims of the Trump administration’s unconscionable policy with permanent legal status.”
Co-author Rep. Joaquin Castro (D-TX), echoing Blumenthal, urged the Biden administration “to reunite separated families here in the United States,” admitting that it “will not be easy, but I’m confident that the Biden-Harris administration will do everything in their power to bring families together.”
But advocates say that Biden has specific powers to help migrant kids and adults now—like releasing children from all immigrant detention facilities or ending the public charge rule for asylum admissions, as he said he would do during his campaign—that he has not yet exercised.
“All the Biden-Harris administration has to do is look at all the immigrant families suffering needlessly without essential healthcare and other public services during a global pandemic to determine that the public charge rule is racist and inhumane,” said Erin Quinn, senior staff attorney for the Immigrant Legal Resource Center. “The rule has created confusion and fear, muddying an already labyrinthian process to obtain status and unite families.”
The uncertainty in the meantime could “further destabilize” families that have already barely survived the past four years of hostile immigration policy, said Leah Chavla, a senior policy advisor in the Migrant Rights and Justice program at the Women’s Refugee Commission.
“There are families that were separated previously that are in the United States that may be facing re-separation because they had two different court proceedings,” Chavla said. “For everyone involved, it’s really very frightening and I think for children, especially… We know that folks have been returned to danger. I’m just really really hoping that that doesn’t have to be repeated.”