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11 Jun, 24 tweets, 14 min read
The Uniform Regulatory Agenda is out and we now have our first OFFICIAL confirmation that the Biden administration is planning to issue its first big asylum rule through an "interim final rule," without going through notice and comment.

reginfo.gov/public/do/eAge… Image
I'm going to do a thread on all of the immigration-related new regulations and proposals included in the Spring 2021 Uniform Regulatory Agenda, which previews an administration's plans to create new regulations.

Here is a link to the full agenda. reginfo.gov/public/do/eAge…
Continuing on the theme of asylum, here is the Biden administration's preview of a *separate* asylum rule, that would go through notice and comment rulemaking, to follow the February 2 executive order that called on DHS and DOJ to strengthen asylum protections by regulation. Image
The Biden administration will also formally "rescind or substantively revise" two Trump regulations aimed at restricting eligibility for work permits to asylum seekers.

One is already blocked in full and the other has been partially blocked in court.

reginfo.gov/public/do/eAge… Image
The Biden administration will also formally rescind three Trump regulations—all currently blocked in court—that would have made it almost impossible for people to seek asylum. This includes the infamous "death to asylum" regulation.

reginfo.gov/public/do/eAge… Image
Moving way from asylum, the Biden administration previewed a new "public charge" rule that will likely put the more favorable old standards into regulations. This will be an "Advance Notice of Proposed Rulemaking," meaning they'll ask for early comment. reginfo.gov/public/do/eAge… Image
The regulatory agenda shows that the Biden administration is currently targeting August for their new regulation that would "preserve and fortify" DACA, as promised in a day one EO.

There will be a notice and comment period after the rule is proposed.

reginfo.gov/public/do/eAge… Image
Confirming comments that Secretary Mayorkas made at yesterday's conversation at the AILA conference, USCIS will be proposing a new fee rule this fall that rescinds the block-in-court Trump fees and proposes new fees.

reginfo.gov/public/do/eAge… Image
The Biden administration is also going to propose its own "specialty occupation" H-1B rule, which will also address "F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions." More details in the abstract.

reginfo.gov/public/do/eAge… Image
The Biden administration will also publish a rule to implement the 2020 Emergency Stopgap USCIS Stabilization Act which expanded "premium processing" for USCIS benefits. The rule, which will be a final rule, will set the new fees.

reginfo.gov/public/do/eAge… Image
There is also a series of actions that the Biden administration will take to rescind or modify a number of Trump immigration regulations, such as:

- The DOL discretionary review rule
- The Asylum Ban 1.0 regulation
- The Asylum Ban 2.0 regulation
- The COVID Asylum Ban ImageImageImageImage
The Biden administration says that it will formally withdraw the terrible proposed rule that would have ended "duration of status" admissions for student visas and that would have targeted students from many African countries with harsher visa rules.

reginfo.gov/public/do/eAge… Image
The Biden administration also seeks to move ICE into the 21st century by "allow[ing] delivery bond notifications requiring obligors to present noncitizens at ICE Offices or Immigration Courts to be issued electronically."

reginfo.gov/public/do/eAge… Image
Moving to the State Department, looks like there will be a State Department process similar to what USCIS did that asks for comments that "identify[] barriers that impede access to immigration benefits and fair, efficient adjudication of these benefits."

reginfo.gov/public/do/eAge… Image
Here's one of the more technical changes I've seen yet; the Biden administration proposes to make a technical amendment to an old State Department regulation that falsely suggests consular officers could grant Special Immigrant Juvenile Status.

reginfo.gov/public/do/eAge… Image
The Biden administration says that it will formally rescind the 2019 State Department "public charge" rule, given that "the 2019 [interim final rule] is based on a rule that is no longer the policy of the Department of Homeland Security."

reginfo.gov/public/do/eAge… Image
Here's a great new rule; the Biden administration will formally publish a "temporary final rule" that allows consulates to waive in-person appearances and oath requirements for "certain repeat immigrant visa applicants." That should help clear backlogs!

reginfo.gov/public/do/eAge… Image
On top of that temporary final rule on the waiver of in-person appearance at consulates, the Biden administration will also add a more permanent "limited exception to the general requirement that an immigrant visa applicant appear in person."

reginfo.gov/public/do/eAge… Image
There are also two new planned Notices of Proposed Rulemaking on exchange visitors, entitled "Records" and "Sanctions."

There is very little detail on what these rules would do.

Records: reginfo.gov/public/do/eAge…
Sanctions: reginfo.gov/public/do/eAge… ImageImage
On to the immigration courts! There are multiple proposals to modify or rescind Trump-era rules, such as:

- The 15-day filing rule
- The rule expanding the EOIR Director's authority
- The "no admin closure" rule
- The EOIR fee rule

3 of 4 of these are blocked in court already. ImageImageImageImage
The Biden administration will also reopen the comment period on two terrible midnight rules on motions to reopen and continuances that the Trump administration failed to get over the finish line. The goal will likely be to formally withdraw the rules after that. ImageImage
The Biden administration will also "rescind or modify" the 2019 rule on safe third country agreements that the Trump administration used to send nearly 1,000 people to Guatemala before the pandemic led to the asylum cooperative agreement being suspended.

reginfo.gov/public/do/eAge… Image
The Biden administration will issue an interim final rule rearranging the organizational structure of the Office of Legal Access Programs inside EOIR "to better facilitate the agency's mission." OLAP oversees legal orientation programs. reginfo.gov/public/do/eAge… Image
And that's it for new rules! There are a few parallel EOIR asylum rules that I didn't include here because they are effectively repeats of the DHS rules.

There are some lingering Trump-era rules still in the pipeline, too. I expect those to eventually be quietly withdrawn.

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More from @ReichlinMelnick

Aaron Reichlin-Melnick Profile picture
11 Jun
This week was not a great one for the Biden administration's goal of emptying out the "emergency influx shelters" for migrant children. We began the week with 16,037 children in HHS custody and ended the week with 16,035 children in HHS custody, a complete wash.
The Biden administration's progress in discharging children from HHS custody continues to be worryingly inconsistent. Here are daily averages over the past four weeks.

This week: 459/day
2 weeks ago: 496/day
3 weeks ago: 533/day
4 weeks ago: 488/day

Not the direction needed.
Making matters worse, at the same time as discharges at HHS are slowing, the number of unaccompanied children arriving at the border has begun to creep back up after falling from late March through mid-May. This week saw the highest daily average since late April.
Read 4 tweets
Aaron Reichlin-Melnick Profile picture
1 Jun
MPP was created by policy memo and now it’s been formally revoked by policy memo.
Here is a link to the formal memorandum terminating MPP that Secretary Mayorkas signed today.

It's a 7-page memo—significantly longer than the memo creating MPP. That's likely designed to insulate it from legal challenges.

dhs.gov/sites/default/…
Mayorkas highlights three main reasons to terminate MPP.

First, he notes that MPP "does not adequately or sustainably enhance border management in such a way as to justify the program's extensive operational burdens and other shortfalls." As an initial matter, my re...
Read 7 tweets
Aaron Reichlin-Melnick Profile picture
28 May
Both the Obama administration and the Trump administration created "rocket dockets" for families. They didn't work. Now the Biden administration is going for a third try.

The last seven years have proven that rushed justice is no justice at all. This is the wrong way forward.
It is unacceptable to move forward with a new rocket docket while asylum seekers are still subject to the harsh anti-asylum precedent put in place by AGs Sessions and Barr.

The priority must be restoring due process FIRST. Not as an afterthought.

There are currently no Legal Orientation Program contracts in 7 out of 10 of the cities chosen for the Biden administration's new rocket docket.

So while it is laudable to talk about expanding access to legal orientation, the cart is before the horse.
Read 5 tweets
Aaron Reichlin-Melnick Profile picture
27 May
A fantastic 4th Circuit decision finding that immigration judges must affirmatively develop the record, which includes suggesting particular social groups for those without lawyers.

Judge Wynn calls the government's objections "preposterous" and "utterly divorced from reality."
Judge Wynn telling truths! "We deem it unreasonable and fundamentally unfair to expect pro se asylum seekers...to even understand what a particular social group is, let alone fully appreciate which facts may be relevant to their claims and articulate a legally cognizable group." Thus, we deem it unreasonable and fundamentally unfair to ex
This case concerns a person recruited into MS-13 at age 16, who fled El Salvador within months of joining because he realized the mistake he'd made.

His first attempt to leave ended in a beating and death threats—not idle ones, as they brutally murdered his cousin for leaving. Petitioner feared that the gang would murder him if he were
Read 8 tweets
Aaron Reichlin-Melnick Profile picture
26 May
Less than 10 minutes into the DHS appropriations hearing with @AliMayorkas and we already got Ranking Member Fleischmann referring to CBP as "CPB" and incorrectly saying that border apprehensions are "at a record high" (they are not).

appropriations.house.gov/events/hearing…
Ranking Member Fleischmann also cites Nick Miroff's Washington Post article from yesterday that pushed a false narrative that ICE isn't doing anything anymore, despite the fact that ICE has arrested 13,000 people since February 13.
Secretary Mayorkas is now giving his opening statement, which is mostly summarizing the Biden skinny budget.

You can read the full written testimony here. docs.house.gov/meetings/AP/AP…
Read 11 tweets
Aaron Reichlin-Melnick Profile picture
25 May
As we documented in our report on immigration enforcement, Trump never got what he wanted and ICE didn't even reach half of the level of Obama's first term.

Also, that "functionally abolished" line is ridiculous propaganda. From 2/13 to 5/8 ICE arrested at least 12,438 people.
The idea that ICE officers are sitting around twiddling their thumbs is absurd.

Yes, numbers are down since Biden took office. But thousands are still being booked into detention after an ICE arrest and detentions from the border are skyrocketing.

Correction that this should say "12,388." A brain to finger mistake. That is only the count of people "booked in" to detention so it would not count anyone who is served with a Notice to Appear without an arrest, or who is released before detention.
Read 4 tweets

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