Jessica Bolter
Emma Israel
Sarah Pierce
Four Years of Profound Change
Immigration Policy during the Trump Presidency
U.S. IMMIGRATION POLICY PROGRAM
Jessica Bolter
Emma Israel
Sarah Pierce
Migration Policy Institute
February 2022
Four Years of Profound Change
Immigration Policy during the Trump Presidency
Contents
1 Introduction ......................................................................................................................................................................................1
A. What Has Changed?....................................................................................................................................................................2
B. Driving Reform through Layered Changes ...................................................................................................................5
C. Pushback and the Search for Alternatives .....................................................................................................................7
D. Cataloging a Period of Intense Change ..........................................................................................................................8
2 Pandemic Response ...............................................................................................................................................................9
A. Travel Bans and Visa Processing ........................................................................................................................................ 10
B. Border Security and Asylum Processing at the U.S.-Mexico Border ........................................................... 16
C. Interior Enforcement ...............................................................................................................................................................20
D. The Immigration Court System ......................................................................................................................................... 24
E. Immigration Benets ............................................................................................................................................................... 26
3 Immigration Enforcement .......................................................................................................................................... 30
A. Border Security ............................................................................................................................................................................ 31
B. Interior Enforcement ............................................................................................................................................................... 42
4 U.S. Department of Justice ........................................................................................................................................56
A. Instructions to Immigration Judges ............................................................................................................................... 65
B. Attorney General Referral and Review ......................................................................................................................... 69
5 Humanitarian Migration ...............................................................................................................................................73
A. Refugees .......................................................................................................................................................................................... 74
B. Asylum Seekers ........................................................................................................................................................................... 79
C. Unaccompanied Children .................................................................................................................................................... 89
D. Temporary Protected Status Recipients ...................................................................................................................... 96
E. Victims of Tracking and Other Crimes ...................................................................................................................... 99
6 U.S. Department of State ..........................................................................................................................................100
7 U.S. Citizenship and Immigration Services and U.S. Department of
Labor
......................................................................................................................................................................................................110
A. Deferred Action for Childhood Arrivals ......................................................................................................................122
B. Immigrant Visas .........................................................................................................................................................................124
C. Nonimmigrant Visas ..............................................................................................................................................................129
D. Parole ...............................................................................................................................................................................................138
8 Other Actions ............................................................................................................................................................................. 140
9 Conclusion .....................................................................................................................................................................................144
About the Authors ......................................................................................................................................................................... 146
Acknowledgments ........................................................................................................................................................................ 147
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1 Introduction
The Trump administration set an unprecedented pace for executive action on immigration.
1
In four
years, it completed 472 executive actions aecting U.S. immigration policy, with 39 more proposed but
unimplemented when the administration ended. Some of these changes were sweeping—undoing the
priorities of the entire interior enforcement apparatus, for example—while others were smaller, more
technical adjustments—such as lengthening the amount of time an asylum seeker had to wait to receive a
work permit, or requiring more extensive information
on visa applications. Donald Trump was the only
presidential candidate in modern U.S. history to run
and win on an immigration-centered platform. And
while his administration may not have delivered on
his most extreme promises, such as deporting millions
of unauthorized immigrants or building a wall along
the entire, 2,000-mile U.S.-Mexico border, changes to
the immigration system during his tenure—some of which are likely to remain on the books for years to
come—successfully narrowed grants of humanitarian protection, increased enforcement, and made legal
immigration more dicult. These actions were often carried out in the name of protecting U.S. national
security and promoting economic advancement for U.S. workers.
This transformation was made possible by the increasing power of the executive branch in immigration
policymaking. Congress has failed for decades to update the country’s immigration laws; at the same time,
Americans and their elected ocials of all political allegiances believe the immigration system is broken
and want change. A vacuum has thus opened that the executive branch has lled in recent years, with little
chance of Congress pushing back. Trump was the rst president to take full advantage of this vacuum to
advance an extensive policy agenda across the immigration system.
This report chronicles the immigration actions, large and small, that President Trump and his administration
took throughout the four years of his presidency. It is a nal update to work originally published in July
2020, which catalogued the administration’s actions through its rst three years.
2
This compendium covers
the period from January 20, 2017, through January 20, 2021. It is a snapshot of the immigration system
as it stood when Trump departed the White House, and thus it does not include any changes to Trump
administration policies—imposed either by the courts or by subsequent administrations—that occurred
beyond this period.
1 This exercise of cataloging the many actions related to immigration taken by the Trump administration has beneted from the
time and expertise of many colleagues. Sarah Pierce, one of this report’s coauthors, is no longer an analyst at the Migration Policy
Institute (MPI) and her work on this project occurred while she was still at the institute.
2 Sarah Pierce and Jessica Bolter, Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes under the Trump
Presidency (Washington, DC: MPI, 2020).
The Trump administration set an
unprecedented pace for executive
action on immigration. In four years,
it completed 472 executive actions
aecting U.S. immigration policy.
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A. What Has Changed?
The Trump administration made changes across the immigration system, with a plurality relating to the
agencies involved in granting immigration benets—U.S. Citizenship and Immigration Services (USCIS)
and the Department of Labor (see Figure 1). Indeed, Trump’s election brought into mainstream political
discourse the previously fringe idea that legal immigration is a threat to the United States’ economy and
security. USCIS was increasingly tasked with immigration enforcement duties: the number of charging
documents it issued, which enter immigrants into removal proceedings, increased by 52 percent from
scal year (FY) 2016 to FY 2019, from 92,000 to 140,000.
3
Chilling eects from increased enforcement and
new barriers to applying for immigration benets contributed to 17 percent fewer immigrants submitting
applications for permanent residence in the United States in FY 2019, and 22 percent fewer in FY 2020, than
in FY 2016. And changes made to the public-charge grounds on which a noncitizen could be considered
inadmissible, implemented both at USCIS and the State Department, made it more dicult for lower-
income immigrants to come to and stay in the United States, and likely had a disproportionate impact on
women, the elderly, children, and migrants from Mexico and Central America.
4
FIGURE 1
Executive Actions on Immigration Taken during the Trump Presidency, by Category, 2017–21
Pandemic
Response
17%
Immigration
Enforcement
18%
Department of
Justice
15%
Humanitarian
Migration
18%
Department of
State
8%
U.S. Citizenship and
Immigration Services &
Department of Labor
22%
Other Actions
2%
Note: In this gure, “pandemic response” includes all pandemic-related actions, regardless of policy area. For other categories, actions
that could be classied in multiple ways are counted in their primary policy area, so there is no double-counting.
Source: Author analysis of actions described in this report.
3 Mike Guo, Immigration Enforcement Actions: 2019 (Washington, DC: Department of Homeland Security, 2020).
4 Jeanne Batalova, Michael Fix, and Mark Greenberg, “Millions Will Feel Chilling Eects of U.S. Public-Charge Rule That Is Also Likely
to Reshape Legal Immigration” (commentary, MPI, Washington, DC, August 2019).
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Perhaps Trump’s strongest rhetoric was reserved for immigration enforcement, at U.S. borders and in
the interior of the country. Even so, his presidency in FY 2019 witnessed the highest number of migrant
apprehensions at the southwest border since FY 2007.
5
In response, the U.S. Department of Homeland
Security (DHS) instituted a combination of interlocking policies that signicantly limited asylum at the
border, at the same time successfully pressuring Mexico to increase its own immigration enforcement.
6
These policies included a regulation making migrants ineligible for asylum if they failed to apply for it
elsewhere en route to the United States, Asylum Cooperative Agreements with Central American countries
allowing the United States to send asylum seekers abroad, and a ramping up of the Migrant Protection
Protocols (MPP, also known as Remain in Mexico), requiring migrants, mainly asylum seekers, to wait in
Mexico for their U.S. immigration court adjudications. Together, the policy regime blocked asylum access or
eligibility for the vast majority of asylum seekers and contributed to a decrease in arrivals at the U.S.-Mexico
border.
In 2020, the pandemic gave the administration the opportunity to further close o the border. Invoking the
power given to the surgeon general in 1944 to block the entry of foreign nationals who pose a public-health
risk, the director of the Centers for Disease Control and Prevention (CDC) issued an order on March 20,
2020, mandating that all foreign nationals without authorization to enter the United States be pushed back
to Mexico (or Canada) or returned to their countries. Under the order, and as mobility restrictions spiked
worldwide, encounters at the border initially dropped and asylum applications at the border plummeted, as
the few who did arrive were expelled without the opportunity to seek refuge.
7
However, border encounters
rose again through the summer and fall of 2020. While the Trump administration implemented some of the
most restrictive border policies in U.S. history, with life-changing impacts on many migrants who arrived
at the border, periodic and dramatic increases in arrivals at the border continued because the underlying
factors that push migrants to leave Central America and Mexico and that draw them to the United States
remained unaddressed.
In the U.S. interior, the administration’s policies centered on enacting the maximum penalty for any
removable noncitizen, with few exceptions. A January 2017 executive order eectively made every
unauthorized immigrant a priority for arrest. However, with resources and policy focus drawn to the border,
and pushback from some jurisdictions limiting the ability of U.S. Immigration and Customs Enforcement
(ICE) to work with local law enforcement, interior immigration arrests and removals ultimately decreased
in comparison to the prior four years under the Obama administration. ICE made 549,000 arrests from FY
2017 through FY 2020, compared to 640,000 from FY 2013 through FY 2016. Similarly, it removed 935,000
noncitizens from the country during Trump’s term in oce, compared to 1,160,000 in the prior four years.
8
5 U.S. Border Patrol, “Southwest Border Sectors: Total Encounters by Fiscal Year,” accessed October 8, 2021.
6 Muzaar Chishti and Jessica Bolter, “Interlocking Set of Trump Administration Policies at the U.S.-Mexico Border Bars Virtually All
from Asylum,” Migration Information Source, February 27, 2020.
7 MPI analysis of U.S. Citizenship and Immigration Services (USCIS), “Semi-Monthly Credible Fear and Reasonable Fear Receipts and
Decisions,” updated June 22, 2020.
8 U.S. Immigration and Customs Enforcement (ICE), U.S. Immigration and Customs Enforcement Fiscal Year 2020 Enforcement and
Removal Operations Report (Washington, DC: ICE, n.d.); U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement
and Removal Operations Report (Washington, DC: ICE, n.d.); ICE, Fiscal Year 2018 ICE Enforcement and Removal Operations Report
(Washington, DC: ICE, n.d.); ICE, Fiscal Year 2017 ICE Enforcement and Removal Operations Report (Washington, DC: ICE, n.d.);
ICE, Fiscal Year 2016 ICE Enforcement and Removal Operations Report (Washington, DC: ICE, 2016); Bryan Baker and Christopher
Williams, Immigration Enforcement Actions: 2015 (Washington, DC: DHS, 2017); Randy Capps et al., Revving Up the Deportation
Machinery: Enforcement under Trump and the Pushback (Washington, DC: MPI, 2018).
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But even as the number of arrests and removals decreased, the broader net cast by the administration’s
enforcement eorts showed through. The noncriminal share of noncitizens arrested by ICE more than
doubled over the course of the Trump administration: in FY 2020, 32 percent of those arrested had never
been convicted of a crime compared to 14 percent in FY 2016.
9
The backlog of more than 1 million cases in the immigration court system also haunted the administration’s
eorts to scale up removals. Yet, by placing a massive amount of pressure on the courts—to the point
of raising concerns about due process implications—the administration started to increase the pace of
adjudications.
10
Between FY 2016 and FY 2020, the total number of cases adjudicated per year rose 61
percent, from 143,000 to 232,000 (even with the intermittent closures of immigration courts in 2020 due
to the COVID-19 pandemic), and the total number of deportation orders per year (including both removal
orders and voluntary departures) rose by 102 percent, from 90,000 in FY 2016 to 181,000 in FY 2020.
11
The administration’s attempts to end Deferred Action for Childhood Arrivals (DACA), a program providing
protection from deportation and work authorization to unauthorized immigrants brought to the United
States as children, were thwarted by federal courts. In January 2018, a court mandate ordered USCIS to
continue adjudications, though this applied only to existing DACA participants and left out new applicants.
The Migration Policy Institute (MPI) estimates that between September 2017—when the administration
stopped accepting new applicants—and July 2020, as many as 500,000 young foreign nationals who met
eligibility criteria for DACA were unable to apply, including 66,000 who became eligible during that time.
12
The U.S. Supreme Court ruled in June 2020 that the administration’s attempt to end DACA violated federal
law, and in July 2020 a federal court ordered USCIS to consider applications from new applicants.
13
However,
the administration in short order implemented a new approach to DACA as of July 28, 2020: deny all rst-
time applications, and grant renewals for one year rather than two-year periods, while undertaking a review
of the program as a whole.
14
In December 2020, a federal court ordered the administration to restore DACA
to its original form, once again allowing new applicants to request benets.
15
9 ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2020 Enforcement and Removal Operations Report; ICE, Fiscal Year 2016
ICE Enforcement and Removal Operations Report.
10 Executive Oce for Immigration Review (EOIR), “Pending Cases, New Cases, and Total Completions,” updated October 19, 2021;
Sarah Pierce, “As the Trump Administration Seeks to Remove Families, Due-Process Questions over Rocket Dockets Abound”
(commentary, MPI, Washington, DC, July 2019).
11 MPI analysis of data from EOIR, “New Cases and Total Completions - Historical,” updated October 19, 2021; Transactional Records
Access Clearinghouse (TRAC) Immigration, “Outcomes of Deportation Proceedings in Immigration Court,” accessed October 8,
2021.
12 Post by MPI on Twitter, June 18, 2020; MPI calculations based on Deferred Action for Childhood Arrivals (DACA) immediately
eligible population, July 2020.
13 Department of Homeland Security v. Regents of the University of California, No. 18-587 (Supreme Court of the United States, June
18, 2020); Casa de Maryland v. Department of Homeland Security, No. PWG-17-2942 (U.S. District Court for the District of Maryland,
July 17, 2020).
14 The administration also decided to deny DACA recipients’ requests for advance authorization to travel (i.e., advance parole),
except in exceptional circumstances. Memorandum from Chad Wolf, Acting Secretary of Homeland Security, to Mark Morgan,
Senior Ocial Performing the Duties of Commissioner, U.S. Customs and Border Protection (CBP); Matthew Albence, Senior
Ocial Performing the Duties of Director, ICE; and Joseph Edlow, Deputy Director of Policy, USCIS, Reconsideration of the June
15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as
Children”, July 28, 2020.
15 Batalla Vidal, et al., v. Wolf, et al. and State of New York, et al., v. Trump, et al., Nos. 16-CV-4756 (NGG) (VMS) and 17-CV-5228 (NGG)
(VMS) (U.S. District Court for the Eastern District of New York, December 4, 2020).
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Finally, humanitarian forms of admission were the target of some of the administration’s most focused
eorts to curtail immigration. Refugee admissions dropped to 11,814 in FY 2020, down from 84,994 in FY
2016, reaching the lowest level since the modern U.S. refugee resettlement program began in 1980.
16
The
low level of admissions in FY 2020 was partly due to the pandemic, but two years prior, in FY 2018, the
Trump administration had set the same record; the 22,560 refugee admissions that year represented the
lowest number since 1980 up to that point. While refugees are selected to receive protection in the United
States while they wait in third countries, migrants who arrive in the United States with another immigration
status or without any status can seek asylum if they fear persecution on certain grounds in their origin
country. Under the Trump administration, the share of asylum applications approved in immigration courts
decreased from 43 percent in FY 2016 to 26 percent in FY 2020.
17
B. Driving Reform through Layered Changes
The Trump administration delivered on its aims by maintaining a rapid-re pace and layering each initiative
with a series of regulatory, policy, and programmatic changes. For example, beginning with a single
measure, a 2019 regulation from USCIS barring foreign nationals who receive or are deemed likely to
receive public benets from becoming legal permanent residents, the administration may have signicantly
changed the face of U.S. immigration. MPI analysis found that the “public-charge” regulation put a large
share of green-card applicants at risk of denial: among recent green-card recipients, 69 percent had at least
one of the characteristics weighed negatively under the regulation.
18
But despite the concentrated power of this one regulation, it was only one among a broad set of policies
introduced with the aim of discouraging public benets use, with a disproportionate impact on lower-
income immigrants. Others included:
16 MPI analysis of data from Refugee Processing Center, “Admissions and Arrivals—Refugee Admissions Report,” accessed October 8,
2021.
17 MPI analysis of data from EOIR, “Asylum Decision Rates,” updated July 8, 2021.
18 Batalova, Fix, and Greenberg, “Millions Will Feel Chilling Eects.”
► A 2018 change to guidance for State Department consular ocers, which went into eect before the
later public-charge regulation was issued, encouraging them to consider a broader range of criteria to
determine whether a visa applicant is likely to become a public charge (see Section 6).
► A separate 2019 public-charge regulation published by the State Department that mirrors USCIS’s, but
that is to be applied to all would-be immigrants outside of the United States (see Section 6).
► The 2019 elimination of proof of receipt of a means-tested benet as a way to qualify for a fee waiver
for an immigration benets application or for biometric services (see Section 7).
► A 2019 presidential memorandum ordering the administration to begin enforcing the nancial
commitments of immigrant sponsors, who pledge to reimburse the government should the
immigrants they sponsor receive means-tested public benets. The Centers for Medicare and Medicaid
Services and the U.S. Department of Agriculture subsequently issued guidance encouraging state
agencies to seek such reimbursements (see Section 7).
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► A 2019 presidential proclamation stating that all new immigrants could be denied entry into the
country unless they prove that they can obtain eligible health insurance within 30 days or that they
will have sucient resources to pay for foreseeable medical costs (see Section 6).
► A 2020 regulation by the Social Security Administration that removed lack of English prociency as a
factor that can help make someone eligible for Social Security disability insurance (see Section 8).
► A regulation proposed by the Department of Housing and Urban Development in 2019 that, had it
been enacted, would have prevented unauthorized immigrants from living in subsidized housing,
even if they were in mixed-status families where other members were eligible (see Section 8).
This layered approach helped insulate the administration’s goals from court injunctions. For example,
while the president’s proclamation requiring proof of health insurance before admission was enjoined, the
State Department’s public-charge guidance and regulation as well as another policy change attempting
to prevent “birth tourism” ensured that consular ocers would continue to look at applicants’ health
conditions and conrm they had the means to pay for treatment before granting them a visa.
This multifaceted strategy and brisk pace also made it dicult for opponents of the administration’s policies
to keep up and counter each measure. While immigrant advocacy organizations were quick to challenge the
USCIS public-charge regulation in court, they had fewer resources available to track and oppose measures
with a smaller impact, such as changes in the factors weighed in Social Security Administration disability
insurance determinations.
While many of the administration’s changes appear small and technical, in combination they had much
larger impacts on the U.S. immigration system. For example, in January 2018 the State Department quietly
revised its consular manual to empower ocers to limit the period for which nonimmigrant visas are valid.
Previously, ocers were encouraged to issue
visas for the full available validity period, typically
ten years. This meant that nonimmigrants,
such as students and tourists, had visa stamps
that expired more quickly and had to apply for
renewals more often. As such, foreign nationals
were subject more frequently to other Trump
administration changes that increased vetting, including requirements that they disclose more information
about themselves (e.g., social media usernames and previous email addresses), public-charge review, and
expanded consideration of whether they ever violated the terms of their nonimmigrant status.
The technical nature of many of these changes reected the administration’s knowledge of and willingness
to enforce the many immigration laws and regulations in place that have rarely if ever been put into
practice, but that have the potential to greatly restrict immigration and increase enforcement. For example,
the administration put into force provisions from the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act that previously had not been implemented. Under statutory authority created by that
law, DHS created and began implementing Remain in Mexico. Also under a provision of the 1996 law,
ICE began levying nes of up to $813 per day for unauthorized immigrants who remained in the country
While many of the administration’s
changes appear small and technical,
in combination they had much larger
impacts on the U.S. immigration system.
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in violation of a removal order. The administration also stretched the application of laws prohibiting the
harboring of unauthorized immigrants in an attempt to withhold federal grants from jurisdictions that limit
their cooperation with federal immigration enforcement agencies. And it consistently argued that, out of
a responsibility to enforce the law to the fullest extent, ICE should not apply prosecutorial discretion to
protect certain noncitizens—such as those awaiting the adjudication of immigration benets applications—
from removal, and that U.S. attorneys should prosecute as many migrants who cross the border illegally as
possible.
The administration also ventured into uncharted territory in immigration policymaking, testing the outer
bounds of what the executive branch can do on immigration unilaterally. At rst, the courts regularly slowed
or blocked the administration’s eorts. But as time went on, and especially in 2019 as cases reached higher
courts, the Justice Department’s legal arguments began to gain traction, and judges increasingly showed
deference to the executive’s authority in immigration matters. In 2019, the Supreme Court overruled
injunctions against the transit-country asylum ban, MPP, the use of billions of dollars in diverted Pentagon
funding for a border wall, and USCIS’s public-charge regulation. An appeals court also lifted an injunction
preventing the Justice Department from limiting federal grant funding for sanctuary cities. And in 2020,
while the Supreme Court did not allow the administration’s attempt to terminate DACA to go into eect,
it made clear that the administration did have the authority to end DACA—it just had to follow proper
procedures to do so.
Not hesitating to employ the full breadth of the executive’s powers to further its immigration agenda, the
administration also took advantage of a wide range of foreign policy tools. It banned travel from certain
countries to push them to make changes to their internal security and identity-management measures,
and it denied visas to nationals of other countries to pressure their governments to accept their citizens
when ordered removed from the United States. Under the threat of taris, the president convinced Mexico
to increase its own enforcement of immigration laws and participate in MPP. And over the course of 2019,
DHS got three of the top ve origin countries for those seeking asylum in the United States—El Salvador,
Guatemala, and Honduras—to agree to allow the U.S. government to send some asylum seekers to these
countries to seek protection there.
C. Pushback and the Search for Alternatives
As the administration pushed ahead with its immigration agenda, resistance seemed in some ways to lose
steam. The rst two years of the Trump administration saw widespread protests, including against the
travel ban in 2017 and family separations at the U.S.-Mexico border in 2018. But despite implementing a
policy regime in 2019 and 2020 that eectively ended asylum at the southern border, public pushback
was more limited. Still, some civil-society groups continued to expand “Know Your Rights” education and
legal assistance, at times backed by local government funds. Employees at a handful of large technology
companies also protested their employers’ contracts with federal immigration agencies, though few of these
eorts succeeded in changing the companies’ decisions.
19
19 Muzaar Chishti and Jessica Bolter, “‘Cubicle Activism’: Companies Face Growing Demands from Workers to Cut Ties with ICE and
Others in Immigration Arena,” Migration Information Source, October 30, 2019.
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While congressional inaction and resistance thwarted some of Trump’s legislative goals, his administration
often found ways around these obstacles. After Congress repeatedly refused the president’s outsized
spending asks, the administration procured money for enforcement, including immigrant detention and
the border wall, through an emergency declaration, fees on legal immigrants, and transfers of otherwise
appropriated funds. Congress did come together to formally rebuke the president on three immigration
policies: (1) it twice passed legislation to block the president’s emergency declaration for wall funding,
which the president vetoed both times; (2) it restricted ICE from using information on sponsors of
unaccompanied children for immigration enforcement; and (3) it reversed a USCIS policy that made it more
dicult for about two dozen children born to U.S. military members serving abroad to receive citizenship.
Congress also passed a bill, which the president signed, that made several thousand Liberian immigrants
with temporary protection from deportation eligible for legal permanent residence. But on the hundreds of
other policy changes documented in this report, Congress was eectively silent.
Some states and localities continued to resist the administration’s immigration agenda, particularly its
enforcement eorts. For example, New York State implemented a law in December 2019 that, in addition
to making unauthorized immigrants eligible to receive driver’s licenses, cuts o federal immigration
enforcement agencies’ access to the state Department of Motor Vehicles (DMV) database (though it was
later amended to allow for limited information sharing). A May 2019 law in Washington State prohibited
state and local law enforcement from conducting enforcement solely to determine immigration status and
limited information sharing with federal authorities. The administration worked to undermine such eorts
to help unauthorized immigrants feel safe by increasing at-large operations in sanctuary communities—
arresting noncitizens outside of the criminal justice system, including at home, at work, or out in the
community. Still, the lack of cooperation from some major state and local governments signicantly
disrupted the administration’s interior enforcement eorts, contributing to its inability to reach prior arrest
and removal levels.
D. Cataloging a Period of Intense Change
In an attempt to chronicle both the transformation of the U.S. immigration system and how it was achieved
during this historic period, this report documents the 472 immigration-related policy changes the Trump
administration made during its four years in oce, the last of which included the onset of the COVID-19
pandemic.
20
The sections that follow break these many changes down by issue area, starting with the administration’s
coronavirus response, followed by border and interior enforcement; actions involving the Department
of Justice and the immigration court system; the admission of refugees, asylum seekers, and other
humanitarian migrants; and changes to vetting and visa processes, which involve the State Department,
USCIS, and the Department of Labor.
20 The other major eort to track immigration actions during the Trump administration counted 1,059 total changes; see Lucas
Guttentag, “Immigration Policy Tracking Project,” accessed January 15, 2022. Because MPI’s methodology sometimes groups
together multiple smaller changes under a thematic umbrella, this report’s total number is smaller. For example, the USCIS
policy instructing ocers to increase issuances of notices to appear, or NTAs, is counted as one action by MPI (see Section
7) but three by the Immigration Policy Tracking Project: once when the policy memorandum was issued, once when USCIS
announced it would continue implementing the policy, and once when the policy was expanded to include applicants for certain
humanitarian immigration benets.
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2 Pandemic Response
As the COVID-19 pandemic spread across the globe in early 2020, the Trump administration put in place a
sweeping response in the immigration sphere. While many measures were necessary and proportionate to
this crisis, others introduced dramatic changes that may have done more to advance the administration’s
longstanding immigration goals than to halt the spread of the virus. The pandemic response touched
each part of the U.S. immigration system and included some of the administration’s boldest actions
on immigration: a ban on travel from 31 countries, a suspension of immigration for most family- and
employment-based visa categories and four temporary worker programs, and the invocation of a 1944
public-health statute allowing the U.S. government to expel migrants at the border without providing
access to the asylum system. The White House also negotiated agreements with Mexico and Canada to limit
travel across shared borders to essential trac.
Three particular actions allowed the
administration to accomplish goals it was
working toward prior to the pandemic. After
two years of the administration making it more
dicult to apply for asylum and narrowing
the eligibility criteria for the few who were
able to apply, the March 2020 order to expel
unauthorized arrivals, issued by the director of
the CDC, eectively ended asylum at the U.S.
southern border. The president’s April proclamation suspending certain categories of immigration mirrored
earlier attempts by the administration to convince Congress to limit family migration, as 80 percent of the
blocked immigrants came from family-based categories.
21
It also eectively ended the Diversity Visa Lottery,
another program the administration had pushed Congress to quash. The June proclamation suspending
some temporary work programs included visas—such as the H-1B—that the administration had spent
years scrutinizing for fraud. The pandemic thus presented opportunities, in the name of public health, to
unilaterally restrict entry.
Inside the United States, meanwhile, the administration’s management of response policies aecting
immigrants and their communities was uneven at best. ICE narrowed its enforcement priorities, focusing
on arresting and detaining noncitizens who posed a public safety risk or had serious criminal records.
From April through December 2020, ICE booked into detention an average of 6,000 immigrants monthly,
compared to a monthly average of 11,000 during the same period in 2019.
22
However, COVID-19 still spread
quickly in detention facilities: on average, between April and August 2020, ICE detainees were 13 times
more likely to contract the virus than the U.S. general population.
23
U.S. immigration courts also continued
their operations during the pandemic. Despite repeated calls from immigration judges, attorneys, and even
21 MPI analysis of data from U.S. Department of Homeland Security (DHS), “Table 7. Persons Obtaining Lawful Permanent Resident
Status by Type and Detailed Class of Admission: Fiscal Year 2018,” updated January 16, 2020.
22 MPI analysis of data from ICE, “Detention Management—Detention Statistics, FY 2019-2021,” updated December 29, 2021.
23 Parsa Erfani et al., “COVID-19 Testing and Cases in Immigration Detention Centers, April-August 2020,” Journal of the American
Medical Association 325, no. 2 (2021): 182–84.
While many measures were necessary
and proportionate to this crisis, others
introduced dramatic changes that
may have done more to advance the
administration’s longstanding immigration
goals than to halt the spread of the virus.
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ICE prosecutors to completely shut down the courts, the Executive Oce for Immigration Review (EOIR)
refrained from doing so, instead limiting hearings to foreign nationals who were detained. Finally, closures
of USCIS oces and Application Support Centers caused a signicant slowdown in legal immigration
processes. The USCIS backlog grew 11 percent between December 2019 and December 2020, when it
reached 6.4 million cases.
24
In comparison, it had grown 2 percent and 4 percent during the same period in
each of the prior two years.
25
A. Travel Bans and Visa Processing
The U.S. Department of State, which is responsible for the adjudication of visa applications and
dissemination of visa stamps to foreign nationals seeking to enter the United States, suspended routine
visa services on March 18, 2020. While this step protected consulate and embassy sta and visitors from
contracting COVID-19, it also sharply curtailed visa issuance. U.S. immigrant visa issuance abroad decreased
35 percent between February and March 2020, as global travel started to slow, and then dropped 94 percent
between March and April following the consular closures.
26
Even though the State Department permitted
consulates and embassies to start reopening in July, they were not able to reach full capacity; by January
2021, one-third of diplomatic posts still had not scheduled a single immigrant visa interview.
27
The State Department is also responsible for enforcing coronavirus-related travel and immigration
restrictions. Under the Trump administration, this included the president’s ban on foreign nationals traveling
from 31 countries (exempting U.S. permanent residents), most employment- and family-based immigration,
and nonimmigrants on certain temporary work visas. The consular closures coupled with these bans made
FY 2020 one of the lowest years of in-migration in recent history. The number of immigrant visas issued
abroad in FY 2020 dipped 48 percent from a year earlier, and the number of temporary (nonimmigrant) visas
issued decreased 54 percent.
28
While those waiting for immigrant visas had to wait a little longer to be able
to immigrate permanently to the United States, it is likely that many of those who were unable to receive
temporary visas were fully blocked from coming to the country as oers for temporary employment could
have expired.
24 USCIS, “Number of Service-Wide Forms by Quarter, Form Status, and Processing Time. Fiscal Year 2021, Quarter 1,” accessed
October 10, 2021; USCIS, “Number of Service-Wide Forms Fiscal Year to Date by Quarter and Form Status, Fiscal Year 2020,”
accessed October 10, 2021.
25 USCIS, “Number of Service-Wide Forms Fiscal Year to Date by Quarter and Form Status, Fiscal Year 2020”; USCIS, “Number of
Service-Wide Forms by Fiscal Year to Date, Quarter, and Form Status. 2019,” accessed October 10, 2021; USCIS, “Number of
Service-Wide Forms by Fiscal Year to Date, Quarter, and Form Status. 2018,” accessed October 10, 2021.
26 Muzaar Chishti and Jessica Bolter, “The ‘Trump Eect’ on Legal Immigration Levels: More Perception than Reality?” Migration
Information Source, November 20, 2020.
27 Bob Ortega, “Huge Trump-Era and Pandemic Immigrant Visa Backlog Poses Challenge for Biden,” CNN, April 12, 2021.
28 MPI analysis of U.S. Department of State, “Monthly Nonimmigrant Visa Issuance Statistics,” accessed September 29, 2021; MPI
analysis of U.S. Department of State, “Monthly Immigrant Visa Issuance Statistics,” accessed September 29, 2021.
► Geographical COVID-19 Travel Bans—2020—Trump issued proclamations banning entries of foreign
nationals from areas with high rates of COVID-19 transmission.
J Ban on Travel from China—January 31, 2020—Trump issued a proclamation banning the entry
of foreign nationals, with signicant exceptions, who were in mainland China during the 14
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days preceding their intended entry to the United States.
29
Foreign nationals subject to the
ban are prevented from being granted visas, boarding airplanes destined for the United States,
and entering at U.S. ports of entry.
J Ban on Travel from Iran—February 29, 2020—The president issued a proclamation banning
the entry of foreign nationals, with signicant exceptions, who were in Iran during the 14 days
preceding their intended entry to the United States.
30
J Ban on Travel from the Schengen Area of Europe—March 1, 2020—In one proclamation, the
president banned the entry of foreign nationals, with signicant exceptions, who were in one
of the 26 European countries comprising the Schengen Area during the 14 days preceding
their intended entry to the United States.
31
The State Department exempted people with
student visas from this ban on July 16, 2020.
32
J Ban on Travel from the United Kingdom and Ireland—March 14, 2020—Trump issued a
proclamation banning the entry of foreign nationals, with signicant exceptions, who were
in the United Kingdom or Ireland during the 14 days preceding their intended entry to the
United States.
33
The State Department exempted people with student visas from this ban on
July 16, 2020.
34
J Ban Exemption for Professional Athletes—May 23, 2020—Acting Secretary of DHS Chad Wolf
issued a statement declaring that professional athletes are exempt from the president’s bans
on travel from countries with high rates of COVID-19 transmission, citing the “national interest
exemption.”
35
J Ban on Travel from Brazil—May 24, 2020—The president issued a proclamation banning the
entry of foreign nationals, with signicant exceptions, who were in Brazil during the 14 days
29 White House, “Proclamation 9984 of January 31, 2020: Suspension of Entry as Immigrants and Nonimmigrants of Persons Who
Pose a Risk of Transmitting 2019 Novel Coronavirus and Other Appropriate Measures to Address This Risk,” Federal Register 85, no.
24 (February 5, 2020): 6709–12.
30 White House, “Proclamation 9992 of February 29, 2020: Suspension of Entry as Immigrants and Nonimmigrants of Certain
Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” Federal Register 85, no. 43 (March 4, 2020): 12855–
58. The administration also restricted all ights carrying travelers from the banned countries to landing at 11 designated airports.
See CBP and Transportation Security Administration (TSA), “Notication of Arrival Restrictions Applicable to Flights Carrying
Persons Who Have Recently Traveled from or Were Otherwise Present within the People’s Republic of China or the Islamic
Republic of Iran,” Federal Register 85, no. 43 (March 4, 2020): 12731–33.
31 White House, “Proclamation 9993 of March 11, 2020: Suspension of Entry as Immigrants and Nonimmigrants of Certain
Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” Federal Register 85, no. 51 (March 16, 2020): 15045–
48. The administration also restricted all ights carrying travelers from the banned countries to landing at 13 designated airports.
See CBP and TSA, “Notication of Arrival Restrictions Applicable to Flights Carrying Persons Who Have Recently Traveled from or
Were Otherwise Present within the Countries of the Schengen Area,” Federal Register 85, no. 52 (March 17, 2020): 15059–60.
32 U.S. Department of State, Bureau of Consular Aairs, “National Interest Exceptions for Certain Travelers from the Schengen Area,
United Kingdom, and Ireland,” updated July 16, 2020.
33 White House, “Proclamation 9996 of March 14, 2020: Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional
Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” Federal Register 85, no. 53 (March 18, 2020): 15341–44. The
administration also restricted all ights carrying travelers from the banned countries to landing at 13 designated airports. See
CBP and TSA, “Notication of Arrival Restrictions Applicable to Flights Carrying Persons Who Have Recently Traveled from or Were
Otherwise Present within the United Kingdom or the Republic of Ireland,” Federal Register 85, no. 54 (March 19, 2020): 15714–15.
34 U.S. Department of State, Bureau of Consular Aairs, “National Interest Exceptions for Certain Travelers.”
35 DHS, “National Interest Exemption from Presidential Proclamations 9984, 9992, 9993, and 9996 Regarding Novel Coronavirus for
Certain Professional Athletes and Their Essential Sta and Dependents” (guidance document, May 23, 2020).
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preceding their intended entry to the United States.
36
One day later, without explanation, the
president issued an amendment, moving the eective date of the ban from May 28 to May
26.
37
J Requirement Not to Prohibit Diversity Visa Issuance—September 14, 2020—A federal district
judge ruled that the State Department could not require diversity visa grantees living in the
banned countries to quarantine outside those countries for 14 days before issuing them their
visas.
38
J Termination of Three Bans—January 18, 2021—Trump issued a proclamation terminating the
bans on entry of foreign nationals who were in the Schengen Area, the United Kingdom or
Ireland, or Brazil in the 14 days preceding their U.S. entry, eective January 26, 2021.
39
► Refugee Resettlement Interviews Curtailed and Cancelled—March 2020—Overseas trips by USCIS
ocers to interview refugees for resettlement (called “circuit rides”) that were in progress in mid-March
were cut short, and the rest of the scheduled circuit rides for the scal year were cancelled.
40
► Exclusion of Students in Online-Only Programs—2020–21—On March 9, 2020, ICE, which manages
the Student and Exchange Visitor Program (SEVP), announced exibility with online courses, advising
that nonimmigrant students could maintain their status even if all of their courses were online, but
that this did not apply to new students.
41
On July 24, 2020, ICE further claried that new students
would not be able to enter the United States to pursue a full course of study that is 100 percent
online.
42
(For more information, see Section 2.C.)
► Pause on International Exchange Programs—March 12, 2020—The State Department suspended
any exchange program funded by the department’s Bureau of Educational and Cultural Aairs,
including the Fulbright Program and International Visitor Leadership Program, that involves travel
to and from countries with heightened coronavirus-related advisories from the CDC or State
Department.
43
36 White House, “Proclamation 10041 of May 24, 2020: Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional
Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” Federal Register 85, no. 103 (May 28, 2020): 31933–36. The
administration also restricted all ights carrying travelers from the banned countries to landing at 15 designated airports. See
CBP and TSA, “Notication of Arrival Restrictions Applicable to Flights Carrying Persons Who Have Recently Traveled from or Were
Otherwise Present within the Federative Republic of Brazil,” Federal Register 85, no. 103 (May 28, 2020): 31957–58.
37 White House, “Proclamation 10042 of May 25, 2020: Amendment to Proclamation of May 24, 2020, Suspending Entry as
Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” Federal
Register 85, no. 103 (May 28, 2020): 32291–92.
38 Arreguin Gomez, et al. v. Trump, et al., No. 20-cv-01419 (APM) (U.S. District Court for the District of Columbia, amended order,
September 14, 2020).
39 White House, “Proclamation 10138 of January 18, 2021: Terminating Suspensions of Entry into the United States of Aliens Who
Have Been Physically Present in the Schengen Area, the United Kingdom, the Republic of Ireland, and the Federative Republic of
Brazil,” Federal Register 86, no. 13 (January 22, 2021): 6799–801.
40 Letter from Tracy L. Renaud, Senior Ocial Performing the Duties of Director of USCIS, to Representative Gerald E. Connolly,
Chairman of the Subcommittee on Government Operations, U.S. House of Representatives, “U.S Citizenship and Immigration
Services’ Response to Chairman Connolly’s October 27, 2020 Letter,” March 2, 2021.
41 Message from Student and Exchange Visitor Program (SEVP) to all Student and Exchange Visitor Information System (SEVIS) users,
“Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptations for F and M Nonimmigrant Students,” March 9, 2020.
42 Message to all SEVIS users, “Follow-Up: ICE Continues March Guidance for Fall School Term,” July 24, 2020.
43 U.S. Department of State, “Temporary Pause of International Exchange Programs due to COVID-19” (news release, March 12,
2020).
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o May 12, 2020—The Bureau of Educational and Cultural Aairs suspended all remaining
international exchange programs.
44
44 U.S. Department of State, Bureau of Educational and Cultural Aairs, “Due to State Department Global Level 4 Health Advisory, All
ECA Funded In-Person Programs Will Remain Paused until Further Notice” (news release, May 12, 2020).
45 Letter from the Oce of Private Sector Exchange to J-1 Program Sponsors, Two-Month Extension of Certain Program End Dates,
March 14, 2020.
46 U.S. Department of State, “Suspension of Routine Visa Services” (news release, March 20, 2020).
47 U.S. Department of State, “Important Announcement on H2 Visas” (news release, March 26, 2020).
48 U.S. Department of State, “Update on H and J Visas for Medical Professionals” (news release, March 26, 2020).
49 Post by the State Department on Twitter, June 13, 2020.
50 Ortega, “Huge Trump-Era and Pandemic Immigrant Visa Backlog.”
51 U.S. Department of State, Bureau of Consular Aairs, “Important Notice for K Visa Applicants Aected by COVID-19” (news release,
August 31, 2020).
52 U.S. Department of State, “Phased Resumption of Routine Visa Services,” updated November 12, 2020.
► Automatic Extension for Exchange Visitors—March 14, 2020—The State Department, which
manages the J-1 exchange visitor temporary visa program, issued an automatic two-month extension
for any exchange visitors with a program end date between April 1and May 31, 2020, providing them
the opportunity to complete either their educational or training programs or nalize travel plans to
return home.
45
► Suspension of Routine Visa Services—March 18, 2020—On March 18, the State Department
suspended routine visa services in most countries and, two days later, expanded this to all countries.
46
The suspension meant that, subject to limited exceptions, foreign nationals abroad were unable to
apply for or receive the new or renewed visa stamps needed to enter the United States.
J Exception for H-2 Visas—March 26, 2020—Acknowledging H-2 visa holders as essential to the
U.S. economy and food security, the State Department announced that despite the suspension
of visa services, consulates and embassies would try to continue processing H-2A visas for
agricultural workers and H-2B visas for nonagricultural workers.
47
J Exception for Medical Professionals—March 26, 2020—The State Department announced U.S.
embassies and consulates would continue to provide visa services to the extent possible to
medical professionals seeking nonimmigrant or immigrant visas to enter the United States.
48
J Phased Reopening—July 13, 2020—The State Department announced a phased resumption
of routine visa services.
49
However, two-thirds of consular posts had not scheduled any
immigrant visa interviews by August 2020, and by January 2021, one-third still had not
scheduled any.
50
J Priority Given to K Visa Applicants—August 28, 2020—The State Department authorized
consular posts to prioritize applications for K visas (visas for ancé(e)s of U.S. citizens) as they
began to reopen.
51
J Prioritization of Additional Visa Categories—November 12, 2020—In addition to K visas, the
State Department announced that posts processing immigrant visa applications would
prioritize those of immediate relatives of U.S. citizens and certain Special Immigrant Visa
applicants.
52
Posts processing nonimmigrant visa applications would prioritize those needing
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to travel urgently or traveling to aid the U.S. pandemic response and diplomats, followed by
students and temporary workers.
J Fee Extension—2020—At some point in 2020, the State Department extended the validity
of visa application fee payments through December 31, 2021, so that applicants who could
not schedule an appointment due to the suspension of routine visa services would not have
to pay the fee a second time.
53
On December 30, 2020, validity was further extended through
September 30, 2022.
54
► Suspension of Refugee Resettlement—March 19, 2020—The State Department paused refugee
arrivals.
55
The pause came after the International Organization for Migration, which is in charge of
booking refugees on their travel, and the United Nations High Commissioner for Refugees announced
a temporary suspension of resettlement travel.
56
On July 29, 2020, Secretary of State Michael Pompeo
approved the resumption of refugee admissions.
57
Due to the suspension of resettlement and other
pandemic-related issues, almost 7,000 of the 18,000 allotted slots for refugee admissions in FY 2020
were unused.
58
► Ban on Certain Types of Permanent Immigrants—April 22, 2020—After promising to “temporarily
suspend immigration into the United States,” Trump signed a proclamation suspending, for 60 days,
the issuance of visas to persons outside the United States who are parents, adult children, and siblings
of U.S. citizens; spouses and children of permanent residents; Diversity Visa Lottery winners; and
nearly all types of employment-based immigrants.
59
On June 22, the president issued a proclamation
suspending the entry of certain types of nonimmigrants that also extended the April 22 ban on
permanent immigrants through December 31, 2020, and on December 31, Trump extended the
April ban through March 31, 2021.
60
On September 4, 2020, a federal district judge ruled that the
administration could not prohibit the adjudication of diversity visa applications or the issuance of
diversity visas for FY 2020 under the ban.
61
On December 11, 2020, a federal district judge ruled that
the State Department could not apply the ban to the family members abroad of 181 U.S. citizens and
green-card holders who sued the government.
62
53 U.S. Department of State, “Department of State/AILA Liaison Committee Meeting,” December 11, 2020.
54 U.S. Department of State, Bureau of Consular Aairs, “Phased Resumption of Routine Visa Services” (news release, December 30,
2020).
55 Priscilla Alvarez, “Refugee Admissions to the US Temporarily Suspended,” CNN, March 18, 2020.
56 United Nations High Commissioner for Refugees (UNHCR), “IOM, UNHCR Announce Temporary Suspension of Resettlement Travel
for Refugees” (news release, March 17, 2020).
57 Priscilla Alvarez, “Refugee Admissions to the US Resume after Being on Pause due to Coronavirus,” CNN, August 12, 2020.
58 U.S. Department of State, “Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021,” accessed June 30, 2021.
59 Post by Donald Trump, President of the United States, on Twitter, April 20, 2020; White House, “Presidential Proclamation 10014
of April 22, 2020: Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market during the Economic
Recovery Following the 2019 Novel Coronavirus Outbreak,” Federal Register 85, no. 81 (April 27, 2020): 23441–44.
60 White House, “Proclamation 10052 of June 22, 2020: Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk
to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak,” Federal
Register 85, no. 123 (June 25, 2020): 38263–67; White House, “Proclamation 10131 of December 31, 2020: Suspension of Entry
of Immigrants and Nonimmigrants Who Continue To Present a Risk to the United States Labor Market During the Economic
Recovery Following the 2019 Novel Coronavirus Outbreak,” Federal Register 86, no. 3 (January 6, 2021): 417–19.
61 Arreguin Gomez, et al. v. Trump, et al., No. 20-cv-01419 (APM) (U.S. District Court for the District of Columbia, September 4, 2020).
62 Young, et al. v. Trump, et al., No. 20-cv-07183-EMC (U.S. District Court for the Northern District of California, amended order
granting plaintis’ motion for preliminary injunction and denying defendants’ motion to transfer, December 11, 2020).
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► Ban on Certain Types of Nonimmigrants—June 22, 2020—Trump issued a proclamation suspending
the issuance of certain types of temporary work visas through December 31, 2020.
63
The suspension
included H-1B visas, for professionals in certain high-skilled occupations; H-2B visas, for temporary
nonagricultural workers; certain categories of J visas, for summer work travel program participants
and au pairs, among others; L visas, for intracompany transferees; as well as visas issued to dependents
of nonimmigrants in these categories (i.e., holders of H-4, L-2, and J-2 visas). The proclamation was
limited to foreign nationals who were outside the United States and did not have valid visas in the
aected categories on June 24, 2020.
64
On July 16, 2020, the State Department exempted several
categories of visa holders from this ban, including spouses and children of nonimmigrant visa holders
already in the United States, some au pairs, and some health-care and public-health professionals and
medical researchers with H-1B or L-1 visas.
65
On August 12, the State Department further spelled out
who may qualify for exceptions, including H-1B and L visa applicants traveling to resume ongoing
employment and H-1B and H-2B workers who were needed to support the U.S. economic recovery,
among others.
66
On October 1, a federal district judge found that the president’s proclamation
was unlawful, and blocked its use against the plaintis who brought the legal challenge: the U.S.
Chamber of Commerce, the largest manufacturing and retail trade associations in the United States,
a cultural exchange company, and a network of technology CEOs including those of Amazon, Apple,
and Google.
67
On December 31, Trump issued a new proclamation extending the June proclamation
through March 31, 2021.
68
J Grants to Train U.S. Workers—September 24, 2020—Following the suspension of H-1B visa
issuances, the Department of Labor announced $150 million in grant funds to U.S. businesses
and organizations to upskill unemployed and underemployed U.S. workers in order to qualify
for middle- to high-skilled H-1B occupations, such as information technology and advanced
manufacturing.
69
The program will be nanced by the user fees collected from employers
participating in the H-1B visa program.
70
► Allowing Refugee Oces to Serve Fewer People—Summer 2020—The State Department lowered
its requirement that local refugee resettlement organizations must serve at least 100 refugees to
50 refugees to be eligible to resettle new arrivals since, due to the pandemic, fewer refugees were
entering the country.
71
63 White House, “Proclamation 10052 of June 22, 2020.”
64 White House, “Proclamation 10052 of June 22, 2020.”
65 U.S. Department of State, Bureau of Consular Aairs, “Exceptions to Presidential Proclamations (10014 & 10052) Suspending the
Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market during the Economic Recovery
Following the 2019 Novel Coronavirus Outbreak,” updated July 17, 2020.
66 U.S. Department of State, Bureau of Consular Aairs, “National Interest Exceptions to Presidential Proclamations (10014 &
10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market during the
Economic Recovery Following the 2019 Novel Coronavirus Outbreak,” updated August 12, 2020.
67 National Association of Manufacturers, et al. v. DHS, et al., No. 20-cv-04887-JSW (U.S. District Court for the Northern District of
California, order granting plaintis’ motion for a preliminary injunction, October 1, 2020).
68 White House, “Proclamation 10131 of December 31, 2020.”
69 U.S. Department of Labor, “U.S. Department of Labor Announces Availability of $150 Million to Invest in Workforce Training for
Key U.S. Employment Sectors” (news release, September 24, 2020).
70 U.S. Department of Labor, “H-1B One Workforce Grant Program Frequently Asked Questions (FAQs),” updated November 9, 2020.
71 National Conference on Citizenship and the Penn Biden Center for Diplomacy and Global Engagement, A Roadmap to Rebuilding
the U.S. Refugee Admissions Program (N.p.: National Conference on Citizenship and the Penn Biden Center for Diplomacy and
Global Engagement, 2020), 18.
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► Expansion of In-Person Interview Waiver Eligibility—August 25, 2020—The State Department made
additional nonimmigrants applying for a visa in the same classication as an expired visa eligible for
waivers of the in-person interview requirement.
72
Previously, they were only eligible if their prior visa
had expired within 12 months, but this change made them eligible if their visa had expired within 24
months. This policy was initially in eect through December 31, 2020, then extended through March
31, 2021.
73
► Requirement of Negative COVID-19 Test for UK Travelers—December 27, 2020—The CDC requires
airline passengers arriving in the United States from the United Kingdom to have tested negative for
COVID-19 in the three days prior to their ight’s departure.
74
72 U.S. Department of State, Bureau of Consular Aairs, “Expansion of Interview Waiver Eligibility” (news release, August 25, 2020).
73 U.S. Department of State, Bureau of Consular Aairs, “Expansion of Interview Waiver Eligibility” (news release, December 29,
2020).
74 Centers for Disease Control and Prevention (CDC), “Requirement for Negative Pre-Departure COVID-19 Test Result for All Airline
Passengers Arriving into the United States From the United Kingdom,” Federal Register 85, no. 251 (December 31, 2020): 86933–
36.
75 CBP, “Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions,” updated August 12, 2021; CBP,
“FY2020 Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions,” updated November 20, 2020.
76 U.S. Border Patrol, “Total Illegal Alien Apprehensions by Month,” accessed October 8, 2021; CBP, “Southwest Land Border
Encounters,” updated September 15, 2021.
77 MPI analysis based on data from CBP, “Southwest Land Border Encounters.”
B. Border Security and Asylum Processing at the U.S.-Mexico Border
When the pandemic set in, U.S. border agencies were tasked with managing new travel regulations,
including the prohibition on nonessential travel across U.S. land borders and routing of ights from certain
countries to limited airports. However, the pandemic did not sway the Trump administration’s steady focus
on illegal immigration at the southern border and asylum. In one of its most sweeping actions since the
start of the public-health crisis, the administration relied on a 1944 public-health statute under Section 265
of Title 42 of the U.S. Code to issue an order barring the entry of asylum seekers and other unauthorized
arrivals at the United States’ northern and southern land borders. Through December 2020, U.S. Customs
and Border Protection (CBP) carried out more than 390,000 expulsions under this order.
75
While migration
at the U.S.-Mexico border initially slowed due to COVID-19 mobility restrictions along common migration
routes and in migrants’ origin countries, and possibly due to a deterrent eect of expulsions at the U.S.
southern border, it picked up from May 2020 onwards. Border Patrol agents encountered migrants at the
border in December 2020 more times than they had in any previous December since 1999.
76
The vast majority—88 percent—of encounters of migrants crossing the border illegally from April through
December 2020 were of single adults, rather than unaccompanied children or families.
77
In the same period
in 2019, unaccompanied children and families made up 61 percent of such encounters. Ironically, the Title
42 order, as it came to be known, incentivized more single adults to attempt to cross the border more
times. Before the implementation of Title 42, families and children apprehended at the border had some
pathways—if narrow ones—into the United States, but almost all single adults faced formal consequences.
This could include criminal prosecution and conviction, ICE detention, and formal removal from the country.
Those with convictions and removal orders on their records faced higher-level consequences if they were
apprehended trying to cross illegally again. So, for families and children, the Title 42 order cut o access
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to existing pathways into the United States. But for single adults, it eliminated the consequences they
previously faced. Instead of undergoing criminal or immigration proceedings, they were simply turned
around to Mexico, with no formal mark on their record. Thus, it became easier for them to attempt to cross
the border multiple times, until they could get through without getting caught.
78 DHS, “DHS Issues Supplemental Instructions for Inbound Flights with Individuals Who Have Been In China” (news release,
February 2, 2020).
79 CBP, “Notication of Termination of Arrival Restrictions Applicable to Flights Carrying Persons Who Have Recently Traveled from
or Were Otherwise Present within Certain Countries,” Federal Register 85, no. 179 (September 15, 2020): 57108–09.
80 CBP, “Frequently Asked Questions,” accessed July 16, 2021.
81 CBP, “Notication of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service between the United
States and Mexico,” Federal Register 85, no. 57 (March 24, 2020): 16547–48.
82 CBP, “Notication of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service between the United
States and Mexico,” Federal Register 86, no. 11 (January 19, 2021): 4967–69; CBP, “Notication of Temporary Travel Restrictions
Applicable to Land Ports of Entry and Ferries Service between the United States and Canada,” Federal Register 86, no. 11 (January
19, 2021): 4969–70.
83 Lauren Villagran, “CBP: Nonessential Travelers Will Face Greater Scrutiny at US-Mexico Border,” El Paso Times, August 21, 2020.
► Limits on Airports Receiving Flights from Banned Countries—February 2, 2020—The Acting
Secretary of DHS, Chad Wolf, issued implementing instructions for the president’s January 31, 2020,
ban on foreign nationals traveling from mainland China, instructing ights from China to route
through one of eight specied U.S. airports.
78
Seven additional airports were later added, and the
restrictions were extended to ights coming from Iran, the Schengen Area of Europe, the United
Kingdom, Ireland, and Brazil. On September 14, these airport restrictions were terminated.
79
(For
additional details on the bans and arrival limits placed on ights from various countries, see
Section 2.A.)
► Cancelation of Visa Waiver Program Participants in Violation of Presidential Proclamation—
March 16, 2020—In the wake of a presidential ban on travel from the United Kingdom and Ireland,
two countries that participate in the Visa Waiver Program, CBP announced that foreign nationals
participating in the program who attempt to travel to the United States in violation of the ban would
have their visa-free travel authorization cancelled.
80
► Restrictions on Nonessential Travel across Land Borders—March 20, 2020—After the White House
negotiated agreements with Mexico and Canada, CBP published temporary travel restrictions that
limited nonessential travel across land borders.
81
Travel deemed essential—and thus exempt from
the restrictions—included returning U.S. citizens, legal permanent residents, and members of the U.S.
armed forces, as well as travel for medical or public-health purposes, work, trade, and military-related
purposes. Initially, the restrictions were to be in place until April 20, but they were renewed monthly,
with the last renewal of the Trump administration extending through February 21, 2021.
82
J Further Scrutiny of Nonessential Travelers—In August 2020, CBP said it would increase
secondary inspection referrals at the U.S.-Mexico border to try to discourage nonessential
travel by those who were exempt from the March order, such as U.S. citizens and lawful
permanent residents.
83
► Expulsion of Unauthorized Arrivals—March 20, 2020—The CDC and Department of Health and
Human Services (HHS) published an interim nal rule creating a procedure under the 1944 Public
Health Services Act for the CDC director to suspend the introduction into the United States of persons
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from designated countries or places in the interest of public health.
84
The same day, the CDC director
issued an order requiring the expulsion of unauthorized arrivals at the U.S. southern and northern
borders—whether the migrants arrived at or between ports of entry—citing a “danger to the public
health that results from the introduction of such persons into congregate settings at or near the
borders.”
85
The order was originally eective for 30 days but was extended indenitely on May 21,
2020.
86
A nal rule was issued on September 11, 2020.
87
On October 13, the CDC issued a new order
that was mostly the same as the March order, but exempted migrants whose countries of origin
required them to test negative for COVID-19 before being returned.
88
J Expulsion of Arriving Unaccompanied Minors—Unaccompanied child migrants were among
those being turned away at the border under the CDC’s order, despite federal law requiring
the United States to accept such children.
89
As of August 2020, ICE was reportedly testing
most, if not all, unaccompanied minors for COVID-19 before expelling them, which was
not done for adults.
90
On November 18, 2020, a federal district judge issued a preliminary
injunction blocking the government from expelling unaccompanied minors; by that time,
more than 15,000 unaccompanied children had been expelled.
91
After the injunction was
issued, 66 children were expelled in violation of the court’s order.
92
J Use of Hotels for Detention—In late March, ICE started housing some unaccompanied
children and families in hotels, under the supervision of a contracted private transportation
company, for periods of four to ve days on average while they waited for expulsion ights.
93
They generally did not have access to recreation, education, or mental health care. Between
March and July, at least 660 minors—577 unaccompanied and 83 with family members—
84 CDC and Department of Health and Human Services (HHS), “Control of Communicable Diseases; Foreign Quarantine: Suspension
of Introduction of Persons into United States from Designated Foreign Countries or Places for Public Health Purposes,” Federal
Register 85, no. 57 (March 24, 2020): 16559–67.
85 CDC and HHS, “Notice of Order under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain
Persons from Countries Where a Communicable Disease Exists,” Federal Register 85, no. 59 (March 26, 2020): 17060–88.
86 CDC and HHS, “Extension of Order under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction
of Certain Persons from Countries Where a Communicable Disease Exists,” Federal Register 85, no. 78 (April 22, 2020): 22424–27;
CDC and HHS, “Amendment and Extension of Order under Sections 362 and 365 of the Public Health Service Act; Order
Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists,” Federal Register 85, no. 101
(May 26, 2020): 31503–09.
87 CDC and HHS, “Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition
of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes,” Federal
Register 85, no. 177 (September 11, 2020): 56424–60.
88 CDC, “Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease
Exists,” Federal Register 85, no. 201 (October 15, 2020): 65806–12.
89 Arelis Hernández and Nick Miro, “Facing Coronavirus Pandemic, Trump Suspends Immigration Laws and Showcases Vision for
Locked-Down Border,” Washington Post, April 3, 2020; Dara Lind, “Leaked Border Patrol Memo Tells Agents to Send Migrants Back
Immediately—Ignoring Asylum Law,” ProPublica, April 2, 2020.
90 Dara Lind and Lomi Kriel, “ICE Is Making Sure Migrant Kids Don’t Have COVID-19 — Then Expelling Them to ‘Prevent the Spread’
of COVID-19,” ProPublica, August 10, 2020.
91 P.J.E.S. v. Wolf, No. 20-2245 (EGS) (U.S. District Court for the District of Columbia, November 18, 2020); MPI calculation based on
CBP, “Southwest Land Border Encounters,” updated April 23, 2021.
92 P.J.E.S. v. Wolf, No. 1:20-cv-02245-EGS (U.S. District Court for the District of Columbia, declaration of Jerey D. Lynch, December
2, 2020); P.J.E.S. v. Wolf, No. 1:20-cv-02245-EGS (U.S. District Court for the District of Columbia, defendants’ notice to the court,
December 12, 2020).
93 Jenny Lisette Flores, et al. v. William P. Barr, et al., No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of
California, interim report on the use of temporary housing for minors and families under Title 42 by independent monitor, July
22, 2020).
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were held in hotels.
94
On September 4, 2020, a federal district judge blocked ICE from holding
children in hotels for more than one to two nights.
95
J U.S.-Citizen and Central American Children Expelled to Mexico—In violation of U.S. and
Mexican policy, a handful of unaccompanied children from Central America, as well as at least
11 U.S.-citizen newborns, were expelled to Mexico in 2020.
96
► Suspension of Trusted Traveler Programs—March 20, 2020—CBP suspended enrollment in
trusted traveler programs, which allow pre-vetted travelers expedited entry into the United States.
97
Enrollment centers were closed until September 8, 2020.
98
► Active-Duty Military Deployment to the Southern Border—April 2020—The Defense Department
deployed 500 active-duty personnel to the U.S.-Mexico border, joining 5,000 troops already there.
99
These troops helped CBP enforce the March 20 CDC order, bolstering their ranks as border agents
grappled with possible exposure to COVID-19. (For more on the deployment of troops to the border,
see Section 3.A.)
► Extensions on Visa Waiver Program Participants’ Period of Stay—April 17, 2020—CBP announced
that Visa Waiver Program participants who apply for and receive a 30-day extension on their stay in the
United States (called “satisfactory departure”) could apply for an additional 30-day stay if they were
unable to depart because of the pandemic.
100
► Expansion of Interior Repatriation Initiative—May 19, 2020—CBP and ICE began deporting
Mexican nationals on ights to the interior of Mexico from San Diego through the Interior Repatriation
Initiative, which had previously been in eect only in the Tucson sector.
101
The agencies stated that one
of the reasons for the expansion was to prevent COVID-19 from spreading in the United States. (For
more on this program, see Section 3.A.)
► Communicable Disease Bar to Asylum Eligibility—December 23, 2020—DHS and the Justice
Department issued the nal version of a rule that would bar migrants from eligibility for asylum and
withholding of removal if they were coming from a place where a contagious or infectious disease is
prevalent by classifying them as a danger to the security of the United States.
102
The rule was set to
take eect January 22, 2021.
94 Camilo Montoya-Galvez, “ICE Held 660 Migrant Kids Set for Expulsion in Hotels, Independent Monitor Reveals,” CBS News, August
27, 2020.
95 Jenny L. Flores, et al. v. William P. Barr, et al., No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, in
chambers—order re plaintis’ motion to enforce settlement as to “Title 42” class members [920], September 4, 2020).
96 Caitlin Dickerson, “U.S. Expels Migrant Children from Other Countries to Mexico,” New York Times, October 30, 2020; Tanvi Misra,
“Revealed: US Citizen Newborns Sent to Mexico Under Trump-Era Border Ban,” The Guardian, February 5, 2021.
97 DHS, “Trusted Traveler Programs,” accessed June 29, 2020.
98 CBP, “CBP to Reopen Trusted Traveler Programs Enrollment Centers September 8” (news release, September 4, 2020).
99 Ellen Mitchell, “Pentagon to Send 540 More Troops to Southern Border amid Coronavirus Concerns,” The Hill, April 1, 2020.
100 CBP, “CBP Oers Flexibility to Departing Visa Waiver Program Travelers” (news release, April 17, 2020).
101 CBP, “USBP & ICE Ramping up Repatriation Flights; Eort Aimed at Reducing COVID-19 Exposure in U.S.” (press release, May 19,
2020).
102 DHS and Justice Department, “Security Bars and Processing,” Federal Register 85, no. 247 (December 23, 2020): 84160–98.
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C. Interior Enforcement
While ICE slightly adjusted and limited immigration enforcement in the interior of the country following
the onset of the pandemic, it continued to detain tens of thousands of immigrants in settings where social
distancing and quarantine were often impossible. ICE did not make any moves to release immigrants
from detention until a series of lawsuits were led in March 2020 demanding that individual vulnerable
immigrants be released. After that, ICE reduced its detained population from an average of 39,000 in
February 2020 to an average of 16,000 in December 2020.
103
Among those released as of January 20, 2021,
were about 2,700 people freed due to judicial orders, as courts around the country found that detention
facilities did not adequately protect detainees from the virus.
104
ICE guidance for detention facilities was slow to catch up to developments on the ground, and it was not
always fully implemented in practice. Despite ample evidence that transfers of migrants between detention
centers contributed to the spread of the virus,
105
ICE guidance did not limit such transfers until September
2020 and did not require new arrivals at detention centers to be tested for COVID-19 until October 2020—a
requirement with which not all facilities complied.
106
ICE also only minimally adjusted its deportation procedures in light of the pandemic. Except when
foreign governments protested signicantly, removals continued apace, contributing to the spread of the
coronavirus in other countries, many of which were less equipped to manage the virus than the United
States.
103 ICE, “Detention Management—Detention Statistics,” updated September 16, 2021.
104 ICE, “ICE Guidance on COVID-19—Judicial Releases,” updated January 21, 2021; Zepeda Rivas, et al. v. Jennings, et al., No. 20-cv-
02731-VC (U.S. District Court for the Northern District of California, order granting motion for second preliminary injunction,
December 3, 2020); Aditi Shah, “The Role of Federal Courts in Coronavirus-Related Immigration Detention Litigation,” Lawfare,
June 29, 2020.
105 Hamed Aleaziz, “ICE Moved Dozens of Detainees across the Country during the Coronavirus Pandemic. Now Many Have
COVID-19,” BuzzFeed News, April 29, 2020; Lisa Riordan Seville and Hannah Rappleye, “ICE Keeps Transferring Detainees around
the Country, Leading to COVID-19 Outbreaks,” NBC News, May 31, 2020; Mica Rosenberg, Kristina Cooke, Reade Levinson, “U.S.
Immigration Ocials Spread Coronavirus with Detainee Transfers,” Reuters, July 17, 2020.
106 ICE Enforcement and Removal Operations (ERO), COVID-19 Pandemic Response Requirements, Version 4 (Washington, DC: ICE,
2020); ICE, ERO, COVID-19 Pandemic Response Requirements, Version 5 (Washington, DC: ICE, 2020); DHS Oce of Inspector
General (OIG), ICE’s Management of COVID-19 in Its Detention Facilities Provides Lessons Learned for Future Pandemic Responses
(Washington, DC: DHS, 2021).
107 Message from SEVP to all SEVIS users, “Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptations.”
108 Message to all SEVIS Users, “COVID-19 and Fall 2020,” July 6, 2020.
109 President and Fellows of Harvard College and Massachusetts Institute of Technology v. U.S. Department of Homeland Security, No.
1:20-cv-11283 (U.S. District Court for the District of Massachusetts, electronic clerk’s notes for proceedings, July 14, 2020).
► Flexibility for International Students—March 9, 2020—The Student and Exchange Visitor Program
(SEVP), a component of ICE, advised that nonimmigrant students could maintain their status as long
as they continued to make progress on a full course of study, even if courses took place online or at
alternate physical locations.
107
On July 6, SEVP notied participating schools that it would reduce
this exibility for the Fall 2020 semester in several ways, most notably by not allowing nonimmigrant
students attending schools holding classes entirely online to be issued a visa or permitted to enter or
remain in the United States.
108
In response to a lawsuit led by Harvard and the Massachusetts Institute
of Technology (MIT) challenging the policy, DHS on July 14, 2020, agreed to rescind it, reverting to the
policy issued in March.
109
However, the March 9 guidance provides exibility only for currently enrolled
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students, meaning that despite the reversion, new students could not enter the United States in Fall
2020 if they had an online course load of more than one class or three credits.
110
New international
student enrollment decreased 72 percent in calendar year 2020, compared to 2019.
111
► Social Visits Suspended in Detention Centers—March 13, 2020—ICE stated that it was suspending
social visitation at all detention facilities.
112
Legal visitation continued.
► Revised Procedures for ICE In-Person Check-Ins—March 16 and 17, 2020—ICE stated that it would
suspend in-person check-ins, typically required for immigrants who have nal orders of removal
but have been allowed to stay in the United States temporarily because they are not priorities for
deportation.
113
Specic procedures varied by eld oce. The Boston eld oce, for example, shifted to
conduct check-ins by phone.
114
► Limits on ICE Enforcement Operations—March 18, 2020—ICE shifted to focus enforcement actions
on people it considered public-safety risks and those with criminal histories,
115
a signicant narrowing
of the priorities ICE had employed throughout the Trump administration. The agency said that
for other removable immigrants, it would either delay enforcement or make use of alternatives to
detention.
J September 25, 2020 to January 12, 2021—ICE updated the agency’s guidance on COVID-19,
indicating that it would resume regular enforcement operations.
116
The agency cited
precautionary measures implemented among sta to mitigate the spread of the virus. On
January 12, the updated guidance was removed and replaced with the March 18 guidance
once more.
117
► Acceptance of Stay of Removal Requests by Mail—March 18, 2020—ICE announced it would
temporarily accept applications for stays of removal sent by mail, along with the associated payment
or request for a fee waiver, rather than requiring them to be led in person.
118
► ICE Check-ins for Migrants Released at the Southwest Border—March 18, 2020—ICE announced
check-ins for migrants apprehended and released at the southwest border would be scheduled for 60
days later, rather than the previous practice of scheduling them in 30 days or fewer.
119
► Custody Reassessment—March 18 and April 4, 2020—ICE instructed sta to evaluate whether
detainees with characteristics that make them particularly vulnerable to COVID-19 should be
110 Message to all SEVIS users, “Follow-Up: ICE Continues March Guidance for Fall School Term.”
111 ICE, “ICE Report on International Students in US Details Impact of COVID” (news release, March 19, 2021).
112 American Immigration Lawyers Association (AILA), “3/13/2020 Updated ICE Statement on COVID-19,” updated March 13, 2020.
113 Camila DeChalus and Tanvi Misra, “Immigration Authorities Hit Pause amid Coronavirus Concerns,” CQ Roll Call, March 18, 2020.
114 Steph Solis, “Coronavirus Response: Ice Boston to Start Conducting Scheduled Immigration Check-Ins by Phone,” MassLive.com,
March 16, 2020.
115 AILA, “ICE Guidance on COVID-19,” updated September 25, 2020.
116 AILA, “ICE Guidance on COVID-19.”
117 ICE, “ICE Guidance on COVID-19,” updated January 12, 2021.
118 ICE, “ICE Guidance on COVID-19.”
119 ICE, “ICE Guidance on COVID-19.”
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released.
120
On March 18, sta received instructions to assess whether detainees over age 70 and
pregnant detainees should be released. On April 4, ICE expanded the populations to be considered
for release; the new list included detainees who are pregnant, those who gave birth in the past two
weeks, those over age 60, and those who are immunocompromised.
► Suspensions of Removals—March and April 2020—Deportations to a handful of countries were
paused.
J March 18, 2020—ICE suspended removal ights to China, Italy, and South Korea.
121
J April 6, 2020—Guatemala’s Foreign Ministry said that deportation ights from the United
States would be suspended for one week.
122
J April 17, 2020—Guatemala again suspended deportation ights from the United States after
nding that 44 out of 73 migrants arriving on a prior deportation ight had COVID-19.
123
Flights resumed in early May, when the United States promised to test all Guatemalans for the
virus before they were returned.
124
Absent a specic agreement with a foreign government to
test all detainees before deportation, ICE does not routinely test deportees for COVID-19, but
rather asks about their symptoms and takes their temperature.
125
► Suspension of Physical Presence Requirement for New Hires—March 20 to December 23, 2020—
ICE announced that if employers were unable to inspect a new hire’s identity and employment
authorization documents in person due to COVID-19 restrictions on physical proximity, they could
temporarily do so remotely, such as over video conferencing or email.
126
Once normal operations
resume, they would be required to inspect the previously remotely inspected documents again, in
person. These exceptions were renewed seven times, through January 31, 2021.
127
► Personal Protective Equipment Required for Detention Visitors—March 21, 2020—ICE requires
those still permitted to visit detention facilities (legal visitors, and members of Congress and
congressional sta conducting oversight) to wear personal protective equipment while visiting.
128
► Initial COVID-19 Guidance Issued to Detention Facility Sta—March 27, 2020—ICE updated several
of its policies for ICE-dedicated facilities (those that hold only immigration detainees) in response to
COVID-19.
129
It suspended inspections of ICE detention facilities scheduled to be conducted by an
outside contractor between March 27 and April 27, 2020. ICE directed enhanced health screenings
120 ICE, “Updated ICE Statement on COVID-19” (news release, March 18, 2020); memorandum from Peter B. Berg, Assistant Director,
Field Operations, ERO, ICE, to Field Oce Directors and Deputy Field Oce Directors, COVID-19 Detained Docket Review, April 4,
2020.
121 Priscilla Alvarez, “Trump Administration Has Made Sweeping Changes to the US Immigration System during the Coronavirus
Pandemic,” CNN, April 21, 2020.
122 Soa Menchu, “U.S. Flights Returning Guatemalan Deportees Halted One Week: Guatemala,” Reuters, April 6, 2020.
123 Al Jazeera, “Guatemala: Many Migrants on US Deportation Flight Had Coronavirus,” Al Jazeera, April 18, 2020.
124 Associated Press, “Guatemala Says It Will Receive 3 US Deportation Flights,” Associated Press, May 4, 2020.
125 Suzanne Monyak, “ICE Tells Senate It Lacks Testing Policy for Deportations,” Law360, June 2, 2020.
126 ICE, “DHS Announces Flexibility in Requirements Related to Form I-9 Compliance” (news release, March 20, 2020).
127 ICE, “ICE Announces Extension to I-9 Compliance Flexibility” (news release, December 23, 2020).
128 AILA, “ICE Issues Guidance on COVID-19,” updated June 2, 2020.
129 Memorandum from Enrique M. Lucero, Executive Associate Director, ERO, ICE, to detention wardens and superintendents,
Memorandum on Coronavirus Disease 2019 (COVID-19) Action Plan, Revision 1, March 27, 2020.
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of sta in areas with “sustained community transmission.”
130
These screenings include verbal self-
reporting of symptoms and temperature checks. ICE also instructed facility administrators and
wardens to implement social distancing as much as practicable, for example by staggering meals and
recreation times.
► Pandemic Response Requirements (PRR) for Detention Facilities—April 10 to October 27, 2020—
ICE issued ve versions of its pandemic-related policies for detention operations during the Trump
administration.
J April 10, 2020—The rst version of the policy set out both requirements and best practices for
detention operators.
131
Mandatory responses included reporting conrmed and suspected
COVID-19 cases, ensuring that symptomatic sta stayed home, reducing sta to minimum
levels, providing unlimited hand-washing supplies, and conducting temperature checks and
a verbal check for symptoms for all sta and new detainees before they enter the facility.
The document also recommended reducing the detained population to 75 percent capacity,
having detainees sleep “head to foot,” keeping a distance of at least six feet when possible,
quarantining cohorts of new arrivals for 14 days, and isolating individuals with conrmed
cases individually or in cohorts if necessary. Finally, the document identied characteristics
of high-risk detainees who should be reported to the ICE eld oce, including those over
age 65; those with underlying conditions, such as heart, lung, kidney, or liver disease; and
immunocompromised individuals.
J June 20, 2020—The updated document expanded the denition of high-risk detainees to
include those age 55 and over, pregnant people, those with high blood pressure, people with
cancer, and anyone with a physical or mental health condition that substantially limits at least
one major life activity, among others.
132
It also required that all new detainees be evaluated
within ve days to determine whether they are included in this population so that their cases
can be reviewed for potential release, pursuant to litigation.
133
The revised document directed
all facility sta to wear personal protective equipment when interacting with detainees within
six feet or when detainees are symptomatic.
J July 28, 2020—The revised requirements expanded the population considered high risk and
for the rst time required that cloth face masks be provided to detainees for free.
134
It also
suggested that facility operators consider testing new detainees for COVID-19 before they mix
with other detainees.
J September 4, 2020—The new version suspended transfers of ICE detainees between detention
facilities, except when necessary for medical evaluation, medical isolation, clinical care,
130 Lucero, Memorandum on Coronavirus Disease 2019.
131 ICE ERO, COVID-19 Pandemic Response Requirements, Version 1 (Washington, DC: ICE, 2020).
132 ICE ERO, COVID-19 Pandemic Response Requirements, Version 2 (Washington, DC: ICE, 2020).
133 Faour Abdallah Fraihat, et al. v. ICE, et al., No. EDCV 19-1546 JGB (SHKx) (U.S. District Court for the Central District of California,
order (1) granting motions to le amicus briefs (Dkt. Nos. 117, 119); (2) granting plaintis’ emergency motion to certify subclass
(Dkt. No. 83); (3) granting plaintis’ motion for preliminary injunction (Dkt. No. 81); and denying as moot plaintis’ ex parte
application to le supplement (Dkt. No. 127) (in chambers), April 20, 2020); Faour Abdallah Fraihat, et al. v. ICE, et al., No. EDCV
19-1546 JGB (SHKx) (U.S. District Court for the Central District of California, order on plaintis’ emergency motion for provisional
class certication, April 20, 2020).
134 ICE ERO, COVID-19 Pandemic Response Requirements, Version 3 (Washington, DC: ICE, 2020).
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security concerns, to allow for release or removal, or to prevent overcrowding.
135
It noted that
critical infrastructure workers, including those in the corrections and detention industry, could
return to work after possible exposure to COVID-19 if they remained asymptomatic.
J October 27, 2020—The nal update during the Trump administration required all new arrivals
to be tested for COVID-19 within 12 to 24 hours.
136
It also claried that medical isolation must
be dierent from disciplinary segregation, for example by allowing isolated detainees access
to books, phone calls, and recreation as much as possible.
► Penalties for Recalcitrant Countries—April 10, 2020—Trump issued a memorandum directing the
State Department to issue visa sanctions on countries not accepting deportations of their nationals,
saying that delays in executing deportations risk the health of Americans.
137
(For more on policies
aimed at recalcitrant countries, see Sections 3.B. and 6.)
► Medical Screening of Deportees—April 17, 2020—ICE announced that any individual who has
a temperature of 99°F or above prior to boarding a deportation ight will be referred for further
evaluation.
138
Since March 15, the temperature threshold at which immigrants being removed would
be referred for further evaluation had been above 100.4°F.
139
► Suspension of In-Person Check-Ins for Alternative to Detention (ATD) Programs—April 17, 2020—
ICE suspended the requirement that participants in ATD programs, such as electronic ankle bracelet
monitoring, report for in-person check-ins.
140
It also suspended home visits.
► Testing Detainees—June 2020—On June 2, ICE began voluntary COVID-19 testing for all detainees
at the Northwest ICE Processing Center in Tacoma, Washington State. On June 9, it did the same at
the Aurora Contract Detention Facility in Aurora, Colorado, with plans to expand the practice to other
facilities.
141
ICE began oering tests to new admissions at its three family detention centers in June.
142
The agency also began providing voluntary tests to all those in custody at family detention centers in
late June, after reports emerged of infections in those facilities.
143
135 ICE ERO, COVID-19 Pandemic Response Requirements, Version 4 (Washington, DC: ICE, 2020).
136 ICE ERO, COVID-19 Pandemic Response Requirements, Version 5 (Washington, DC: ICE, 2020).
137 Memorandum from President Donald Trump to the Secretary of State and the Secretary of Homeland Security, Visa Sanctions,
April 10, 2020.
138 ICE, “ICE Guidance on COVID-19.”
139 ICE, “ICE Guidance on COVID-19,” updated March 30, 2020.
140 ICE, “ICE Guidance on COVID-19,” updated January 12, 2021.
141 ICE, “ICE Oers Voluntary COVID-19 Testing to All Detainees at 2 Facilities” (news release, June 9, 2020).
142 ICE, “ICE Expands Voluntary COVID-19 Testing to All at Family Residential Centers” (news release, July 2, 2020).
143 ICE, “ICE Expands Voluntary COVID-19 Testing.”
D. e Immigration Court System
Hearings at U.S. immigration courts, which are managed by the Justice Department, are frequently
crowded events, with attorneys, foreign nationals, their children, and other family members sharing
benches as they wait for their turn before the judge. Despite the high risk of virus transmission in such
environments, immigration court hearings continued long past the rst detection of COVID-19 in the United
States. On March 15, 2020, the National Association of Immigration Judges, the American Immigration
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Lawyers Association, and a union representing immigration court prosecutors (the American Federation
of Government Employees Local 511) called for a complete, temporary closure of all immigration courts
nationwide.
144
Two days later, EOIR agreed to postpone all hearings for nondetained immigrants, eective
March 18. Hearings for detainees continued without pause. EOIR also paused hearings for those enrolled
in the Migrant Protection Protocols (MPP) program, leaving them indenitely stranded in Mexico with no
access to the U.S. courts where they had cases pending.
144 National Association of Immigration Judges, “Immigration Judges, Prosecutors and Attorneys Call for the Nationwide Closure of
All Immigration Courts” (news release, March 15, 2020).
145 Post by EOIR on Twitter, March 15, 2020; memorandum from James McHenry, Director of EOIR, Justice Department, to all of EOIR,
Immigration Court Practices during the Declared National Emergency Concerning the COVID-19 Outbreak, March 18, 2020; EOIR,
“EOIR Operational Status during the Coronavirus Pandemic,” updated June 26, 2020.
146 AILA, “AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic,” updated March 5, 2021; memorandum from
James McHenry, Director of EOIR, to all of EOIR, EOIR Practices Related to the COVID-19 Outbreak, June 11, 2020.
147 Camila DeChalus, “Coronavirus Cases Prompt DOJ to Close More Immigration Courts,” CQ Roll Call, March 24, 2020.
148 DHS, “Joint DHS/EOIR Statement on MPP Rescheduling” (news release, March 23, 2020); DHS, “Joint DHS/EOIR Statement on
MPP Rescheduling” (news release, April 1, 2020); DHS, “Joint DHS/EOIR Statement on MPP Rescheduling” (news release, April 30,
2020); DHS, “Joint DHS/EOIR Statement on the Rescheduling of MPP Hearings” (news release, May 10, 2020); DHS, “Joint DHS/EOIR
Statement on MPP Rescheduling” (news release, June 16, 2020).
149 DHS, “Joint DHS/EOIR Statement on the Rescheduling of MPP Hearings” (news release, May 10, 2020).
150 Suzanne Monyak, “‘Remain in Mexico’ Changes Spark Confusion at the Border,” Law360, May 12, 2020.
151 Justice Department, “Department of Justice and Department of Homeland Security Announce Plan to Restart MPP Hearings”
(press release, July 17, 2020).
152 EOIR, “Filing by Email - Immigration Courts,” updated June 25, 2020.
► Suspension of Nondetained Hearings—March 15, 2020—After initially deferring only preliminary
hearings for migrants not in detention, EOIR postponed all hearings for nondetained migrants.
145
EOIR
began resuming nondetained hearings in June 2020 with updated procedures, including mandatory
masks and a policy of encouraging immigration judges to resolve as many cases as practicable
without the need for a hearing.
146
Hearings for foreign nationals in immigration detention were never
postponed, but courts that conducted hearings for detainees frequently closed temporarily when
court employees tested positive for the virus.
147
► Suspension of Hearings for Migrant Protection Protocols (MPP) Participants—March 23, 2020—
After suspending hearings for MPP participants several times starting in March, EOIR and DHS
announced on June 16 a plan to resume hearings on July 20.
148
After the initial suspension of hearings
in March, DHS required MPP participants to arrive at ports of entry on the day of their originally
scheduled hearing in order to receive notices with their new hearing date. However, on May 10, DHS
began suspending this in-person documentation service.
149
Because DHS had limited avenues for
direct communication with MPP participants, who are forced to wait in Mexican communities along
the U.S. border, frequently in precarious living conditions, many participants continued to show up at
ports of entry on their hearing dates, only to be turned away empty handed.
150
On July 17, DHS and
the Justice Department said hearings would remain suspended, and they would notify the public 15
days before their resumption.
151
Criteria for resumption included evaluating public-health conditions
on both sides of the border. (For further discussion of the MPP program, see Section 3.A.)
► Filing by Email—March 31 to June 2020—Both EOIR and the Board of Immigration Appeals (BIA)
established guidelines to allow foreign nationals to submit court lings by email.
152
As individual
courts began to resume hearings for nondetailed migrants in June 2020, the Justice Department
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announced that each court’s account for emailed lings would be shut down as nondetained hearings
resumed.
153
► Permitting Copies—April 3, 2020—EOIR made a permanent change to its policies, accepting digital or
electronic signatures and copies of original documents.
154
153 McHenry, EOIR Practices Related to the COVID-19 Outbreak.
154 Memorandum from James R. McHenry III, Director of EOIR, Justice Department, to all EOIR, Filings and Signatures, April 3, 2020.
155 USCIS, “USCIS Averts Furlough of Nearly 70% of Workforce” (press release, August 25, 2020).
156 Email from USCIS, USCIS Response to the 2019 Coronavirus, February 5, 2020.
157 USCIS, “Public Charge,” updated March 27, 2020.
158 USCIS, “If You Feel Sick, Please Consider Canceling and Rescheduling Your USCIS Appointment” (news release, June 5, 2020);
USCIS, “USCIS Temporarily Closing Oces to the Public March 18-April 1” (news release, March 17, 2020).
159 AILA, “USCIS Provides Updates on Application Support Centers,” updated December 29, 2020.
E. Immigration Benets
USCIS, which is tasked with immigration benets adjudication, temporarily closed its oces to all in-
person services due to the pandemic. This decision prevented USCIS employees and immigrants from
engaging in interviews and other services in close contact that would have left them vulnerable to virus
transmission—a halt in core operations that had signicant long-term eects on foreign nationals in the
United States. Without in-person services, processing of green-card applications (which require interviews)
was suspended, and for several months, no foreign nationals were able to receive U.S. citizenship (which
requires an interview and, as a nal step, an oath ceremony).
The suspension of services, in addition to the worldwide travel shutdown, signicantly decreased the
number of applications—and thus fees—the agency received in this period. However, USCIS had predicted
a budget shortfall even before the pandemic began, due in part to decreasing petitions and also to its
increased spending on operations aiming to detect immigration-benet fraud. Thus, in Spring 2020 USCIS
requested emergency funding from Congress to prevent a furlough of more than half of its sta; though it
did not receive the funding, it managed to avoid furloughs.
155
► Temporary Closure of Oces in China—February 5, 2020—USCIS temporarily closed its international
eld oces in Beijing and Guangzhou, China.
156
► Claried Relevance of COVID-19 Testing and Treatment for Public Charge—March 13, 2020—
USCIS claried that seeking treatment or preventive services for COVID-19 will not negatively aect
foreign nationals in a future public-charge analysis.
157
(For a more thorough discussion of the agency’s
public-charge policies, see Section 7.)
► Temporary Closure of USCIS Oces in the United States—March 17 to June 4, 2020—After
initially advising individuals potentially exposed to COVID-19 to cancel or reschedule interviews and
services, USCIS closed its oces to the public, ending naturalization ceremonies, interviews, and
biometric services.
158
As a result of the closure, most eligible foreign nationals were unable to become
U.S. citizens and applications that required interviews—including all applications for permanent
residence and citizenship—could not move forward. Between March and June, 280,000 biometrics
appointments were cancelled due to the closure of USCIS Application Support Centers (ASCs).
159
USCIS
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extended the closure twice, before beginning to reopen some domestic oces on June 4.
160
ASCs were
still functioning at only 65 percent of their pre-COVID-19 capacity by late October, and as of December
2020, some applicants whose ASC appointments were cancelled at the beginning of the pandemic still
had not had them rescheduled.
161
► Assistance for Agricultural Worker Employers—March 19, 2020—The U.S. Departments of
Agriculture and Labor announced a partnership to assist employers in the agricultural sector who
may have diculty bringing in foreign labor amid the worldwide travel shutdown.
162
The departments
identied nearly 20,000 positions held by temporary agricultural workers (H-2A holders) and
nonagricultural workers (H-2B holders) with expiring contracts in the coming weeks, giving employers
the opportunity to ll their openings with temporary workers already in the country.
► Increased Flexibility on Signatures—March 20, 2020—USCIS announced increased exibility in
its signature requirements, allowing applicants to submit documents with reproduced original
signatures.
163
► Suspension of Premium Processing—March 20 to June 2020—Due to the pandemic, USCIS
announced the suspension of expedited, “premium processing” for all qualifying nonimmigrant and
immigrant petitions.
164
On May 29, USCIS announced it would resume premium processing for all
aected petitions in June.
165
► Temporary Closure of Oces in Italy and Kenya—March 25, 2020—USCIS temporarily closed
its international eld oces in Nairobi and Rome to the public.
166
USCIS later updated the notice
to announce the Rome oce’s permanent closure. (For further discussion of USCIS’s closure of
international oces, see Section 7.)
► Flexibility for Late Responses—March 27, 2020—USCIS announced an extension of 60 days for any
requests for additional information or responses to notices of intent to deny that were due between
March 1 and May 1, 2020.
167
USCIS announced four additional 60-day extensions, covering responses
due between March 1 and January 31, 2021.
168
160 USCIS, “USCIS Temporary Oce Closure Extended until at least May 3” (news release, April 1, 2020); USCIS, “USCIS Oces
Preparing to Reopen on June 4” (news release, April 24, 2020); USCIS, “USCIS Preparing to Resume Public Services on June 4”
(news release, March 27, 2020).
161 USCIS Public Engagement Division, “Stakeholder Message: USCIS Application Support Centers Updates,” updated December 29,
2020.
162 U.S. Department of Agriculture, “USDA and DOL Announce Information Sharing to Assist H-2A Employers” (news release, March
19, 2020).
163 USCIS, “USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency” (news release,
March 20, 2020).
164 USCIS, “USCIS Announces Temporary Suspension of Premium Processing for All I-129 and I-140 Petitions Due to the Coronavirus
Pandemic” (news release, March 20, 2020).
165 USCIS, “USCIS Resumes Premium Processing for Certain Petitions” (news release, May 29, 2020).
166 USCIS, “USCIS Temporarily Closes Rome (June 5, 2020 UPDATE: Closed Permanently) and Nairobi Oces to the Public” (news
release, June 5, 2020).
167 USCIS, “USCIS Announces Flexibility for Requests for Evidence, Notices of Intent to Deny” (news release, March 27, 2020). Three
days later, USCIS expanded this to include other types of responses, such as responses to the agency’s notices of intent to revoke.
See USCIS, “USCIS Expands Flexibility for Responding to USCIS Requests” (news release, March 30, 2020).
168 USCIS, “USCIS Extends Flexibility for Responding to Agency Requests” (news release, May 1, 2020); USCIS, “USCIS Extends
Flexibility for Responding to Agency Requests” (news release, July 1, 2020); USCIS, “USCIS Extends Flexibility for Responding to
Agency Requests” (news release, September 11, 2020); USCIS, “USCIS Extends Flexibility for Responding to Agency Requests”
(news release, December 18, 2020).
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► Continued Processing of Work Authorization Extensions—March 30, 2020—USCIS announced
it would reuse previously submitted ngerprints in order to process applications to extend work
authorization.
169
Without this change, foreign nationals who must le separate applications for work
authorization, such as Deferred Action for Childhood Arrivals (DACA) recipients, would have been
unable to receive an extension while in-person services—including ngerprinting—were closed.
► Pause on the Planned Expansion of the H-2B Visa Program—April 2, 2020—DHS announced that it
had placed on hold its plan to increase the H-2B cap by 35,000 additional visas.
170
► Flexibility for Late Applications—April 13, 2020—Rather than automatically extend the status of
temporary visitors, USCIS issued a press release detailing established processes for ling extensions
and stating that the agency can be exible when applications are led late due to extraordinary
circumstances beyond applicants’ control, such as a pandemic.
171
► Maximizing the Use of Already Present Agricultural Workers—April 20, 2020 to June 16, 2021—
USCIS published a temporary nal rule, eective through August 18, 2020, that aimed to make it easier
for employers in the agricultural sector to quickly hire temporary workers already in the United States,
including temporarily allowing H-2A agricultural workers to stay in the United States beyond the
normal three-year maximum.
172
The parts of the rule that made it easier to quickly hire already present
H-2A workers were later extended through June 16, 2021, but the provision allowing for stays longer
than three years was not.
173
► Flexibility for Foreign Physicians—May 11, 2020—USCIS announced exibility for foreign physicians
participating in the Conrad 30 program and similar public-interest programs, which allow them to
serve populations in need for three years in exchange for a waiver on a provision of U.S. immigration
law that would otherwise require them to return to their home countries for two years before
receiving a U.S. visa.
174
Under the new guidance, USCIS will still consider foreign physicians as fullling
the waiver requirements, even if they practice telehealth or, as a consequence of the pandemic, are
not able to work full time.
► Maximizing the Use of Already Present Temporary Workers—May 14, 2020 to May 15, 2023—USCIS
published a temporary nal rule making it easier for employers to hire or extend the status of H-2B
nonimmigrants already in the United States if their work is essential to the U.S. food supply chain.
175
169 USCIS, “USCIS to Continue Processing Applications for Employment Authorization Extension Requests Despite Application
Support Center Closures” (news release, March 30, 2020).
170 Post by DHS on Twitter, April 2, 2020.
171 USCIS, “COVID-19 Delays in Extension/Change of Status Filings” (news release, April 13, 2020).
172 USCIS, “Temporary Changes to Requirements Aecting H-2A Nonimmigrants due to the COVID-19 National Emergency,” Federal
Register 85, no. 76 (April 20, 2020): 21739–45.
173 USCIS, “Temporary Changes to Requirements Aecting H-2A Nonimmigrants due to the COVID–19 National Emergency:
Partial Extension of Certain Flexibilities,” Federal Register, 85, no. 162 (August 20, 2020): 51304–12; USCIS, “Temporary Changes
to Requirements Aecting H-2A Nonimmigrants due to the COVID–19 National Emergency: Extension of Certain Flexibilities,”
Federal Register 85, no. 244 (December 18, 2020): 82291–99.
174 USCIS, “Temporary Policy Changes for Certain Foreign Medical Graduates during the COVID-19 National Emergency” (policy
memorandum, May 11, 2020).
175 USCIS, “Temporary Changes to Requirements Aecting H-2B Nonimmigrants due to the COVID-19 National Emergency,” Federal
Register 85, no. 94 (May 14, 2020): 28843–51.
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► Smaller Naturalization Ceremonies—June 2020—As USCIS reopened in-person services, it began to
hold naturalization ceremonies again but limited them to small groups, rather than the hundreds that
would typically gather.
176
► Unauthorized Immigrants Ineligible for Emergency Aid—June 17, 2020—The Department of
Education issued an interim nal rule restricting disbursement of emergency student nancial
aid funds to students who qualify for federal nancial aid.
177
Unauthorized immigrant students,
international students, as well as students with DACA or Temporary Protected Status (TPS), were thus
ineligible for funds set aside through the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).
Federal courts blocked the rule from being applied to community colleges in California and all higher
education institutions in Massachusetts and Washington State.
178
► Allowing Use of Alternate Documents to Verify Work Authorization—August 19, 2020—Because of
delays in issuing employment authorization documents due to COVID-19, employees were permitted
to demonstrate employment eligibility by showing employers the notice that their employment
authorization had been approved.
179
The notice had to have been issued between December 1, 2019,
and August 20, 2020, and it was valid as proof of employment eligibility through February 1, 2021.
By then, employees who took advantage of this option had to present new evidence of employment
authorization.
► CW-1 Visa Departure Requirements—August 25, 2020—USCIS announced changes to the CW-1 visa,
for foreign workers in the Commonwealth of the Northern Mariana Islands. In response to pandemic-
related disruptions to the program, USCIS would now only consider applications approved on or
after June 18, 2020, when considering whether CW-1 visa holders must depart the United States
temporarily before a renewal of their visa.
180
► No Longer Requiring In-Person Interpreters for Asylum Interviews—September 23, 2020—
DHS issued a temporary nal rule ending the requirement for asylum seekers to bring a personal
interpreter to their interviews, with the aim of limiting the spread of COVID-19 in USCIS oces.
181
Instead, applicants speaking one of 47 listed languages would be required to use a telephonic,
government-provided interpreter. Speakers of other languages could still bring an interpreter.
176 Miriam Jordan, “Trump Administration Faces Bipartisan Calls to End Citizenship Delays,” New York Times, June 17, 2020.
177 U.S. Department of Education, “Eligibility of Students at Institutions of Higher Education for Funds under the Coronavirus Aid,
Relief, and Economic Security (CARES) Act,” Federal Register 85, no. 117 (June 17, 2020): 36494–504.
178 Eloy Ortiz Oakley, et al. v. Betsy DeVos, et al., No. 20-cv-03215-YGR (U.S. District Court for the Northern District of California, order
granting plaintis’ motion for preliminary injunction; motions for leave to le amicus briefs, June 17, 2020); State of Washington v.
Betsy DeVos, No. 2:20-CV-0182-TOR (U.S. District Court for the Eastern District of Washington, order granting plainti’s motion for
preliminary injunction, June 12, 2020); Commonwealth of Massachusetts v. U.S. Department of Education, No. 1:20-11600-LTS (U.S.
District Court for the District of Massachusetts, order on plainti’s motion for a preliminary injunction (Doc. No. 3), September 3,
2020).
179 USCIS, “Form I-9 Verication During EAD Production Delays due to COVID-19” (news release, August 19, 2020); USCIS, “Extension
of Validity of Certain Forms I-797 due to Continued Employment Authorization Document (EAD) Delays” (news release, November
23, 2020).
180 USCIS, “USCIS Policy Update on CW-1 Departure Requirement” (news alert, August 25, 2020).
181 DHS, “Asylum Interview Interpreter Requirement Modication due to COVID-19,” Federal Register 85 no. 185 (September 23, 2020):
59655–61.
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► Virtual Naturalization and Asylum Interviews—2020—USCIS eld oces began piloting
naturalization and asylum interviews that took place over video.
182
While applicants were still
required to be physically present at a USCIS oce, they sat in separate rooms from the USCIS ocers
conducting the interview via a video conferencing service to allow for social distancing. In December
2020, USCIS started conducting virtual naturalization interviews for eligible U.S. Armed Forces
members serving overseas and their families.
183
182 USCIS, USCIS Response to the Citizenship and Immigration Services Ombudsman’s (CISOMB) 2020 Annual Report to Congress
(Washington, DC: USCIS, 2020), 5; Mark Rockwell, “COVID Prompts USCIS’ Pivot to Video,” FCW, December 3, 2020.
183 USCIS, “USCIS Commemorates Veterans Day with Special Naturalization Ceremonies” (press release, November 8, 2021).
184 AILA, “ICE Guidance on COVID-19.”
185 ICE, Fiscal Year 2017 ICE Enforcement and Removal Operations Report.
186 Muzaar Chishti and Sarah Pierce, “Trump’s Promise of Millions of Deportations Is Yet to Be Fullled,” Migration Information Source,
October 29, 2020.
3 Immigration Enforcement
President Trump entered oce having promised to ramp up U.S. immigration enforcement by removing
millions of unauthorized immigrants from inside the United States and building a wall along the U.S.-
Mexico border. After focusing on enforcement in the interior of the country for the rst year and a half,
his administration’s focus shifted to the border starting in mid-2018, implementing a series of policy
changes that virtually shut down the U.S. asylum system at the southwest border. In early 2020, with
border apprehensions down and options to remain in the country by crossing the border illegally severely
limited, resources were initially shifted back to interior enforcement, specically targeting jurisdictions that
restricted cooperation with ICE, known as “sanctuary” jurisdictions. However, in the face of the pandemic,
ICE in mid-March 2020 announced that enforcement would generally focus on individuals presenting risks
to public safety and those with criminal convictions.
184
The administration again turned its attention to the
border, implementing blanket turn-backs of migrants crossing illegally, with minimal exceptions.
Whether at the border or in the interior, the Trump
administration aimed to exercise its statutory and
administrative authority to enforce immigration
laws to the maximum extent possible. In the rst
year and a half in oce, the Trump administration
walked away from the Obama administration’s
priorities for interior enforcement that focused
on noncitizens convicted of serious crimes, recent
arrivals, and those with recent removal orders; instead, virtually every unauthorized immigrant was to
be considered an equal target for removal. Subsequently, in FY 2017, ICE made 30 percent more arrests
than in FY 2016—and 146 percent more arrests of immigrants with no criminal convictions, causing fear
among immigrant communities.
185
Even so, the Trump administration never reached the record-high annual
numbers of removals that took place during the rst three years of the Obama administration.
186
Whether at the border or in the interior,
the Trump administration aimed to
exercise its statutory and administrative
authority to enforce immigration laws
to the maximum extent possible.
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A. Border Security
While Trump focused on the construction of a wall along the U.S.-Mexico border as the centerpiece of his
border security policy, his administration was just as, if not more, successful in executing other changes at
the border. Prior to the pandemic, these policies had largely cut o non-Mexican migrants’ access to the U.S.
asylum system, which, due to its years-long backlog, had been such migrants’ primary avenue to access the
country if they had entered by crossing the border illegally. The policy changes included the introduction
of the Migrant Protection Protocols (MPP, otherwise known as Remain in Mexico), a ban on U.S. asylum
eligibility for migrants who have not rst sought and been refused asylum in a transit country (e.g., Mexico
for those travelling from Central America), agreements to return asylum seekers from the United States to
Central American partner countries to request asylum there, and U.S. programs to speed up the adjudication
of asylum and other humanitarian protection cases.
The Trump administration’s willingness to take an increasingly muscular posture in its dealings with the
United States’ regional partners enabled many of these policies. Only after the United States threatened to
impose taris on Mexican goods did Mexico agree to receive more migrants under MPP (and to step up its
own immigration enforcement at its southern border with Guatemala and in the interior of the country).
Similarly, after Trump threatened to impose taris, tax remittances, and ban travel in response to the
decision by Guatemala’s Constitutional Court to block the Guatemalan president from signing an Asylum
Cooperative Agreement (ACA) with the United States, Guatemala signed on to the agreement within days.
At the same time, the administration continued to push forward on border wall construction. By the end
of Trump’s time in oce, his administration had obtained a total of $16.3 billion for this purpose, only 36
percent of which was appropriated by Congress, with the rest coming from repurposed funds from Defense
Department and Treasury accounts.
187
By January 2021, 458 miles of barriers had been built along the nearly
2,000-mile border, including 52 miles in areas that had previously lacked a barrier.
188
187 MPI analysis of Consolidated Appropriations Act, 2017, Public Law 115–31, U.S. Statutes at Large 131 (2017): 135–842; Consolidated
Appropriations Act, 2018, Public Law 115–141, U.S. Statutes at Large 132 (2018): 348–1225; Consolidated Appropriations Act, 2019,
Public Law 116–6, U.S. Statutes at Large 133 (2019): 13–477; Consolidated Appropriations Act, 2020, Public Law 116–93, U.S. Statutes
at Large 133 (2019): 2317–2533; Consolidated Appropriations Act, 2021, Public Law 116-260, U.S. Statutes at Large 134 (2020): 1182–
3305; William L. Painter and Audrey Singer, DHS Border Barrier Funding (Washington, DC: Congressional Research Service, 2020),
11–12; Brakkton Booker, “Trump Administration Diverts $3.8 Billion in Pentagon Funding to Border Wall,” NPR, February 13, 2020.
188 Robert Farley, “Trump’s Border Wall: Where Does It Stand?” FactCheck.org, updated February 16, 2021.
189 Kevin Sie, “The Trump Administration Used an Early, Unreported Program to Separate Migrant Families along a Remote Stretch
of the Border,” Washington Post, July 9, 2021; Written testimony of Ronald Vitiello, CBP U.S. Border Patrol Acting Chief, Senate
Committee on the Judiciary, Subcommittee on Immigration and the National Interest, Declining Deportations and Increasing
Criminal Alien Releases – The Lawless Immigration Policies of the Obama Administration, 114th Cong., 2nd sess., May 19, 2016.
► Criminal Consequence Initiative—May 2017—Border Patrol agents in the Yuma, Arizona sector
began implementing the Criminal Consequence Initiative (CCI, formerly known as Operation
Streamline), which fast-tracks prosecutions of unauthorized entry.
189
As part of the proceedings,
children who entered with their parents were separated from them so the parents could face
prosecution, resulting in 234 separations between July and December 2017. CCI was implemented in
four Border Patrol Sectors in Spring 2017, but in Yuma about half of those referred were part of families
and were separated from their children in the process.
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► Placing All Families into Expedited Removal—November 17, 2017—CBP instructed Border Patrol
agents to process all families for expedited removal, which then requires ICE to detain those families
who express a fear of persecution in their home countries and are waiting for credible-fear screenings
(the initial interview between a USCIS asylum ocer and an asylum seeker).
190
Guidance instructed
agents to place families in long-term removal proceedings and release them with a notice to appear in
immigration court only if ICE family detention centers were full.
► National Guard Deployment to Border—April 4, 2018—Trump ordered the Department of Defense
to deploy members of the National Guard to the southern border.
191
The original order to deploy up to
4,000 National Guard troops lasted through September 30, 2018.
192
The deployment was reauthorized
several times during the Trump administration, the last of which was on June 25, 2020, when the
Defense Department authorized a total of 4,000 National Guard and active-duty troops to remain at
the border through September 2021.
193
In February 2019, the governors of California and New Mexico
ordered most of their Guard troops to withdraw, while the governor of Texas sent an additional 1,000
troops in July of that year.
194
By April 2020, about 2,500 National Guard troops were stationed at the
border.
195
► Zero-Tolerance Policy—April 6, 2018—The Justice Department instructed federal prosecutors to
prioritize the prosecution of immigration crimes, and a month later announced that DHS would refer
all individuals apprehended while illegally crossing the southwest border to the Justice Department
for prosecution.
196
After the president’s June 20, 2018, executive order ending family separations, this
policy was no longer applied to parents traveling with children.
197
However, it continued to be applied
to some adults who crossed on their own.
► Family Separations—May 7 to June 20, 2018—After the attorney general’s May 7 announcement
that DHS would refer all illegal border crossers for prosecution, DHS began separating thousands
of families as parents were referred for prosecution. The practice ended when the president issued
an executive order on June 20, amid a huge public outcry over the separation of more than 2,700
children from their parents and placement in government custody.
198
Previously, family separations
occurred on a smaller scale, in Spring 2017 through the Criminal Consequence Initiative in Yuma (see
above), and from July through November 2017 as part of a pilot project in El Paso.
199
It is unclear how
190 Email to Border Patrol Field Chiefs and Field Deputies, “Tracking of ER Conversions to WA/NTA,” January 12, 2018.
191 Memorandum from the President to the Secretary of Defense, Attorney General, and Secretary of Homeland Security, Securing
the Southern Border of the United States, April 4, 2018.
192 U.S. Department of Defense, “DoD, DHS Outline National Guard Role in Securing Border” (news release, April 16, 2018).
193 Ellen Mitchell, “Trump Administration to Extend Troops at the Border through 2021,” The Hill, June 25, 2020.
194 Robert Moore, “New Mexico Governor Withdraws Most National Guard Troops from Southern Border,” Washington Post, February
5, 2019; Jazmine Ulloa and Taryn Luna, “Slamming Trump’s ‘Political Theater,’ California Gov. Gavin Newsom Pulls National Guard
from Border,” Los Angeles Times, February 11, 2019; Wesley Morgan, “2,100 More Troops Headed to the U.S.-Mexico Border,
Pentagon Says,” Politico, July 17, 2019.
195 Rose L. Thayer, “Additional 540 Troops Heading to US-Mexico Border to Back up Border Agents during Coronavirus Outbreak,”
Stars and Stripes, April 1, 2020.
196 Justice Department, “Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry” (news release, April 6,
2018); Justice Department, “Attorney General Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump
Administration” (speech, San Diego, CA, May 7, 2018).
197 White House, “Executive Order 13841 of June 20, 2018: Aording Congress an Opportunity to Address Family Separation,” Federal
Register 83, no. 122 (June 25, 2018): 29435–36.
198 White House, “Executive Order 13841.”
199 DHS OIG, DHS Lacked Technology Needed to Successfully Account for Separated Migrant Families (Washington, DC: DHS, 2019), 5.
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many children in total were forcibly separated from their parents. HHS, which ultimately cared for the
majority of the children, identied 2,814 children in its care in June 2018 who had been separated
from their parents.
200
DHS separately estimated that it separated 3,014 children from their families
while the practice was in eect.
201
The government later identied at least 1,134 additional children
who were separated and released from HHS custody between July 2017 and June 2018,
202
meaning
an estimated total of between 3,900 and 4,100 children were separated from their parents through
June 2018. Additional “for cause” separations continued after June 2018 (see below). A total of 5,636
children were separated from their parents between July 2017 and January 2021.
203
J “For-Cause” Separations—multiyear—According to a June 2018 court order, the administration
can still separate families in a number of circumstances: if the adult relative accompanying
the child is not a parent or legal guardian, if the parent has a criminal history or for another
“law enforcement purpose,” if the separation is medically necessary, or if Border Patrol
ocers determine the separation is necessary for the “welfare of the child.”
204
According to
testimony from the Government Accountability Oce (GAO) in early 2019, such “for-cause”
separations were happening at twice the rate at which they occurred in late 2016.
205
Between
the June 2018 termination of blanket family separations and March 2020, more than 1,150
for-cause separations occurred.
206
A federal court ruling in January 2020 largely armed the
administration’s ability to separate families on these discretionary grounds, though it also
required CBP to conduct rapid DNA tests before separating a child from an adult due to lack of
parentage.
207
► Active-Duty Military Deployment to Border—October 2018—At the president’s request, the Defense
Department deployed thousands of active-duty personnel to the U.S.-Mexico border, reaching a
peak of 5,900 troops at one point between October and December 2018.
208
The deployment was
scheduled to end December 15, 2018, but some orders were extended into January 2019. On February
3, 2019, the Defense Department announced another 3,750 troops would be deployed, bringing
the total number of active-duty troops at the border to about 4,350.
209
And on April 29, 2019, the
Defense Department announced a plan to send 320 additional troops to the border.
210
In the rst
week of September 2019, the Defense Department authorized the deployment of troops through
200 Ms. L v. U.S. Immigration and Customs Enforcement (ICE), No. 18cv0428 DMS (MDD) (U.S. District Court for the Southern District
of California, joint status report, December 4, 2019). Note, unaccompanied children are cared for by the Oce of Refugee
Resettlement (ORR), an oce within HHS.
201 DHS OIG, DHS Lacked Technology Needed, 8.
202 Ms. L v. ICE, Case No. 18cv428 DMS MDD (U.S. District Court for the Southern District of California, joint status report, May 27,
2020).
203 DHS, Initial Progress Report: Interagency Task Force on the Reunication of Families (Washington, DC: DHS, 2021), 6.
204 Ms. L v. ICE, No. 18cv0428 DMS (MDD) (U.S. District Court for the Southern District of California, preliminary injunction granted on
June 26, 2018); Testimony of Carla Provost, Border Patrol Chief, CBP, before the House Judiciary Committee, Oversight of the Trump
Administration’s Family Separation Policy, 116th Cong., 1st sess., February 26, 2019.
205 Testimony of Kathryn A. Larin, Director of Education, Workforce, and Income Security, U.S. Government Accountability Oce
(GAO), before the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Examining the
Failures of the Trump Administration’s Inhumane Family Separation Policy, 116th Cong., 1st sess., February 7, 2019.
206 Jeremy Stahl, “Why Did the Government Separate This Family?” Slate, May 7, 2020.
207 Ms. L v. ICE, No. 18cv0428 DMS (MDD) (U.S. District Court for the Southern District of California, order granting in part and denying
in part plaintis’ motion to enforce preliminary injunction, January 13, 2020).
208 U.S. Northern Command, “UPDATE: DoD Support to the Southwest Border” (press release, December 14, 2018).
209 Daniella Silva, “Pentagon to Deploy Additional 3,750 U.S. Forces to U.S.-Mexico Border,” NBC News, February 3, 2019.
210 Associated Press, “Pentagon Sending More Troops to the Southwest Border,” Associated Press, April 29, 2019.
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the end of September 2020, and in June 2020, as described earlier in this section, the deployment
was reauthorized through September 2021, though the share of active-duty troops, as compared to
National Guard troops, was set to decrease.
211
As of April 2020, 2,700 active-duty troops were assigned
to the border.
212
That month, 540 additional troops were deployed, for a total of 5,740 troops at the
border, though it is not clear whether that deployment included National Guard or active-duty service
members, or both.
213
J Authorization to Use Lethal Force—February and July 2019—Reporting in October 2019
revealed that Defense Department guidance issued in February and July authorized troops to
use deadly force at the border to protect soldiers and border security agents, and to prevent
vehicles from injuring civilians, subject to a “reasonable belief” that harm was imminent.
214
J Troops Deployed to Ports of Entry—March 2020—In anticipation of a Supreme Court ruling on
MPP and a possible rush of migrants attempting to enter the United States, the administration
sent two groups of 80 active-duty troops each to the San Ysidro, CA, and El Paso, TX, ports of
entry for two weeks to control trac ows.
215
► End of ICE’s Coordinated Release Program—October 23, 2018—ICE stopped its practice of assisting
detained families with their post-release plans and travel arrangements, citing the pace of migrant
arrivals.
216
► Migrant Protection Protocols/Remain in Mexico—January 28, 2019—Individuals arriving or entering
the United States from Mexico who cross the border illegally or lack proper documentation, including
asylum seekers, may be returned to Mexico for the duration of their immigration proceedings.
217
Implementation of MPP began at the San Ysidro port of entry on January 28, 2019, and was expanded
across the border.
218
Between the start of the program and the end of the Trump administration,
211 Rose L. Thayer, “Esper Approves Troop Deployments along the US-Mexico Border through 2020,” Stars and Stripes, September 11,
2019; Mitchell, ”Trump Administration to Extend Troops.”
212 Thayer, “Additional 540 Troops Heading to US-Mexico Border.”
213 Thayer, “Additional 540 Troops Heading to US-Mexico Border.”
214 Ken Klippenstein, “Military May Use Lethal Force on Civil Disturbances at Border,” TYT, October 29, 2019; James Laporta and
Chantal Da Silva, “Exclusive: Documents Show U.S. Military Allowed to Shoot at Moving Vehicles at U.S.-Mexico Ports of Entry,”
Newsweek, October 22, 2019.
215 Zolan Kanno-Youngs, “Military to Be Sent to Border before Supreme Court’s ‘Remain in Mexico’ Ruling,” New York Times, March 6,
2020.
216 Tina Vasquez, “Here’s Why ICE Is ‘Mass Releasing’ Immigrant Families from Detention Centers,” Rewire News, October 30, 2018.
217 DHS, “Migrant Protection Protocols” (news release, January 24, 2019). On April 8, 2019, a federal district court judge in California
enjoined the policy, but a three-judge panel of the Ninth Circuit Court of Appeals stayed the injunction before it could go into
eect, meaning DHS could continue implementing the Migrant Protection Protocols (MPP). See Innovation Law Lab v. Kirstjen
Nielsen, Case No. 19-cv-00807-RS (U.S. District Court Northern District of California, April 8, 2019); Innovation Law Lab v. Kirstjen
Nielsen, Case No. 19-15716 (U.S. Court of Appeals for the Ninth Circuit, April 12, 2019).
218 Memorandum from Kevin K. McAleenan, Commissioner of CBP, to Todd C. Owen, Executive Assistant Commissioner for Field
Operations, and Carla L. Provost, Chief of U.S. Border Patrol, Implementation of the Migrant Protection Protocols, January 28,
2019. MPP was implemented at the following ports of entry: San Ysidro (San Diego sector), Calexico (El Centro sector), El Paso
(El Paso sector), Laredo (Laredo sector), Brownsville (Rio Grande Valley sector), Eagle Pass (Del Rio sector), and Nogales (Tucson
sector). Some migrants apprehended in Yuma sector were reportedly transferred to Calexico and placed in MPP there, and some
apprehended in Big Bend were transferred to El Paso and placed in MPP there. See Rafael Carranza, “How Trump’s ‘Remain in
Mexico’ Program Aects Arizona Border Despite No Formal Policy,” Arizona Republic, October 10, 2019; Human Rights Watch,
“Q&A: Trump Administration’s ‘Remain in Mexico’ Program,” updated January 29, 2020; Carlos Morales, “Migrant Protection
Protocols Quietly Expands to Big Bend Sector,” Marfa Public Radio, September 13, 2019.
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68,000 people were placed in MPP.
219
Court challenges were unsuccessful in blocking MPP, with the
Supreme Court allowing the program to continue while legal proceedings went forward.
220
J Tent Courts—September 2019—DHS installed tent courts in Brownsville and Laredo, Texas, to
hear the immigration cases of migrants placed in MPP across the border from those cities.
221
Judges heard these cases via videoconference from courts around the country. Initially,
members of the public were barred from the tent courts, though they could observe some
hearings from the judge’s location.
222
The courts were opened to the public in December 2019.
J Supplemental Guidance—December 7, 2020—Further guidance issued by DHS allows the
lawyers of migrants who are placed in MPP and who fear persecution in Mexico to participate
over the phone in nonrefoulement assessments in some cases; previous DHS policy did
not allow for any access to counsel during these interviews.
223
CBP also provided updated
guidance, including that neither pregnancy nor sexual orientation alone is a reason to exclude
someone from MPP, and that migrants with signicant disabilities can be included in MPP if
they are traveling with a caretaker who is either their parent or child.
224
J Paperwork Issues—multiyear—CBP ocers often did not list physical addresses on migrants’
notices to appear (NTAs, the charging documents that provide hearing information to
migrants and contact information to DHS and the Justice Department) when migrants
were sent to Mexico under MPP, making it dicult for the U.S. government to communicate
changes to a scheduled hearing.
225
DHS’s Oce of Inspector General conducted a review of
106 NTAs issued to migrants in MPP and found that about 20 percent of them had been issued
with incorrect information or were legally decient.
226
Some migrants who completed their
immigration cases were sent to Mexico with paperwork from CBP bearing false future court
dates (Mexican authorities will not receive migrants without a U.S. court date scheduled).
227
► Suspension of Foreign Aid to Central America—March 2019—The Trump administration suspended
most foreign aid to El Salvador, Guatemala, and Honduras, asserting that the three countries had
failed to prevent their citizens from migrating without authorization to the United States.
228
Of
219 DHS, Explanation of the Decision to Terminate the Migrant Protection Protocols (Washington, DC: DHS, 2021).
220 Wolf v. Innovation Law Lab, No. 19A960 (U.S. Supreme Court, March 11, 2020).
221 Molly Hennessey-Fiske, “Tent Courts Open as Latest Hurdle for Migrants Seeking Asylum in the U.S.,” Los Angeles Times, September
16, 2019.
222 Michelle Hackman, “U.S. Opens Immigration ‘Tent Courts’ to Public,” Wall Street Journal, December 29, 2019.
223 DHS, “Supplemental Policy Guidance for Additional Improvement of the Migrant Protection Protocols” (guidance document,
December 7, 2020).
224 CBP Enforcement Programs Division, “Supplemental Migrant Protection Protocols Guidance” (guidance document, December 7,
2020).
225 Tom K. Wong, “Seeking Asylum: Part 2, Appendix 1” (appendix, U.S. Immigration Policy Center, University of California San Diego,
San Diego, CA, December 13, 2019); Adolfo Flores, “Border Patrol Agents Are Writing ‘Facebook’ as a Street Address for Asylum-
Seekers Forced to Wait in Mexico,” BuzzFeed News, September 27, 2019.
226 DHS, OIG, CBP Generally Provided Accurate Notices to Appear to Migrant Protection Protocols Enrollees, but Could Improve Procedures
to Reduce Future Errors (Washington, DC: DHS OIG, 2021).
227 Gustavo Solis, “CBP Agents Wrote Fake Court Dates on Paperwork to Send Migrants Back to Mexico, Records Show,” San Diego
Union-Tribune, November 7, 2019.
228 Peter J. Meyer, U.S. Strategy for Engagement in Central America: An Overview (Washington, DC: Congressional Research Service,
2021); Lesley Wroughton and Patricia Zengerle, “As Promised, Trump Slashes Aid to Central America over Migrants,” Reuters, June
17, 2019.
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the withdrawn aid, $396 million was reprogrammed to other State Department activities.
229
After
negotiating ACAs with the three countries, along with a number of other agreements on migration
management, the administration announced in October 2019 that it would restore the suspended
aid, targeting it at reducing migration, implementing the ACAs, supporting U.S. security interests, and
creating economic opportunities.
230
By June 2020, all the withheld funds had been released.
231
► CBP Starts Direct Releases of Families—March and April 2019—At the height of a year that saw
record apprehensions of families, capacity issues caused CBP to begin releasing migrant families on
their own recognizance rather than transferring them to ICE custody to be either detained or released
with some form of supervision.
232
► Increased Investigations into Family Units—April 29, 2019—Amid the arrival of unprecedented
numbers of family units
233
at the U.S. southern border, ICE reallocated resources to the border to
investigate human smuggling operations and the use of fraudulent documents to create fake
families.
234
In some cases, this included collecting ngerprints from minors under age 14, if their
parents consented.
235
As of late 2019, 400 ICE Homeland Security Investigations agents were
participating in this eort, which included two rapid DNA-testing pilot programs to help identify
individuals posing as families.
236
The second pilot—Operation Double Helix 2.0—was implemented at
ten border locations, and between July and November 2019 it identied 432 fraudulent families (25
percent of the total tested).
237
ICE identied a total of 653 fraudulent families through October 2019,
both through these pilots and other means.
238
► ICE and CBP Training Guatemalan Agents—May 2019—The United States and Guatemala signed
a memorandum of cooperation to allow ICE and CBP agents to train Guatemalan security forces in
immigration enforcement.
239
The U.S. agents deployed later in 2019.
► U.S.-Mexico Agreement—June 7, 2019—After Trump threatened to impose taris on Mexican imports
to the United States, Mexico signed an agreement with the United States in which it pledged to
increase its own immigration enforcement operations, target smuggling networks, and accept more
229 Meyer, U.S. Strategy for Engagement.
230 U.S. Department of State, “Progress Report for the United States Strategy for Central America’s Plan for Monitoring and
Evaluation,” accessed July 23, 2021; Secretary of State, “United States Continues U.S. Foreign Assistance for El Salvador, Guatemala,
and Honduras” (press release, April 13, 2020).
231 Meyer, U.S. Strategy for Engagement.
232 Astrid Galvan and Colleen Long, “Border Patrol Orders Quick Releases of Families,” Associated Press, March 29, 2019; Jenny
Aldrich, Savitri Arvey, and Gustavo López, The Release of Families Seeking Asylum across the U.S. Southwest Border (San Diego, CA:
University of California, School of Global Policy and Strategy, 2019).
233 “Family unit” is the term CBP uses to describe individuals (a child under age 18, parent, or legal guardian) apprehended with a
family member by the U.S. Border Patrol.
234 ICE, “ICE Shifts Resources to Address Crisis at Southwest Border” (news release, April 29, 2019).
235 Nomaan Merchant, “Border Patrol Expands Fingerprinting of Migrant Children,” Associated Press, April 26, 2019.
236 Statement of Derek Benner, Acting Deputy Director of ICE, before the Senate Committee on Homeland Security and
Governmental Aairs, Unprecedented Migration at the U.S. Southern Border: The Year in Review, 116th Cong., 1st sess., November
13, 2019.
237 DHS, “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services,” Federal Register 85, no. 177 (September 11,
2020): 56338–422.
238 Statement of Derek Benner, Acting Deputy Director of ICE.
239 DHS, “DHS Signs Memorandum of Cooperation with Guatemala to Confront Irregular Migration and Combat Human Smuggling”
(press release, May 28, 2019); Soa Menchu, “U.S. to Deploy up to 89 DHS Agents to Guatemala: Document,” Reuters, June 25,
2019.
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migrants back under MPP.
240
As a result, Mexico deployed more than 25,000 members of its National
Guard to enforce immigration laws at Mexico’s northern and southern borders and in the interior,
particularly along highways popular with smugglers.
241
If the United States concludes that Mexico’s
eorts were not suciently reducing illegal immigration, the countries agreed to put in place “a
binding bilateral agreement to further address burden-sharing” of asylum claims.
242
► Electronic Nationality Verication (ENV)—July 25, 2019—The United States implemented a more
streamlined removal process for nationals of El Salvador, Guatemala, and Honduras, wherein the
nationality of a migrant with a nal order of removal can be veried electronically if the migrant
does not have a passport, rather than waiting for the consulate to do so, and travel documents can
be issued electronically.
243
Between the end of July 2019 and September 2020, more than 53,000
individuals were removed via ENV.
244
► Asylum Cooperative Agreements—July through September 2019—The United States reached
agreements with Guatemala, El Salvador, and Honduras to send some asylum seekers arriving at the
U.S.-Mexico border to seek asylum in these three countries instead. (See Section 5.B. for more details.)
► Detention of Children and Families—August 23, 2019—A nal rule implementing the legal
settlement in Flores v. Reno allowed DHS to indenitely detain families, in an attempt to eliminate the
likelihood that adults arriving at the border with children would be quickly released into the country,
one of the pull factors that drew families to migrate.
245
The rule was blocked in court in September
2019 before it was set to go into eect.
246
(For more, see Section 5.B.)
► Rapid Asylum Review Programs—October 2019—DHS implemented the Humanitarian Asylum
Review Process (HARP), targeted at Mexicans, and Prompt Asylum Case Review (PACR), targeted at
migrants from El Salvador, Guatemala, and Honduras, in the El Paso border sector as pilot programs to
more quickly screen asylum claims and remove asylum seekers.
247
Between then and February 2020,
DHS expanded both programs to eight out of the nine southwestern border sectors.
248
(For more, see
Section 5.B.)
► Resumption of Interior Repatriation Initiative—December 19, 2019—The United States began
sending deported Mexican nationals on ights to the interior of Mexico, rather than border cities,
240 U.S. Department of State, “Joint Declaration and Supplementary Agreement Between the United States of America and Mexico,”
June 7, 2019.
241 Ariel G. Ruiz Soto, One Year after the U.S.-Mexico Agreement: Reshaping Mexico’s Migration Policies (Washington, DC: MPI, 2020).
242 Rachel Withers, “Mexico Releases the Full Text of Trump’s Immigration ‘Deal’,” Vox, June 15, 2019.
243 ICE, “Enhanced Coordination Results in Increased, Faster Removals to Guatemala” (news release, August 20, 2019); American
Immigration Council, “The Electronic Nationality Verication Program: An Overview” (fact sheet, January 2021); DHS, “Department
of Homeland Security, U.S. Immigration and Customs Enforcement: Budget Overview” (budget document, Washington, DC, DHS,
n.d.).
244 DHS, “Department of Homeland Security, U.S. Immigration and Customs Enforcement: Budget Overview.”
245 ICE, CBP, and ORR, “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children,” Federal
Register 84, no. 164 (August 23, 2019): 44392–535.
246 Jenny L. Flores v. William P. Barr, No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, order re
plaintis’ motion to enforce settlement [516] and defendants’ notice of termination and motion in the alternative to terminate
the Flores settlement agreement [639], September 27, 2019).
247 Robert Moore, “Trump Administration Testing Rapid Asylum Review, Deportation Process in Texas,” Washington Post, October
24, 2019; Hamed Aleaziz, “The Trump Administration Launched a Secretive Program to More Quickly Deport Mexican Asylum-
Seekers,” BuzzFeed News, November 6, 2019; Letter from Mark A. Morgan, Acting Commissioner, CBP, to Veronica Escobar,
Representative from Texas, U.S. Congress, February 28, 2020.
248 DHS OIG, DHS Has Not Eectively Implemented the Prompt Asylum Pilot Programs (Washington, DC: DHS, 2021), 6.
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through this joint program between the U.S. and Mexican governments.
249
The initiative, which began
during the Obama administration but had been inactive, aims to make it more dicult for deported
migrants to cross the border again.
250
By February 14, 2020, more than 1,000 migrants had been
repatriated through this program.
251
J Expansion to San Diego Sector—May 19, 2020—First implemented in the Tucson Sector, the
Interior Repatriation Initiative expanded to San Diego in May 2020.
252
CBP stated that the
expansion was part of eorts to prevent the spread of COVID-19, and to address an increase in
apprehensions of Mexicans crossing the border illegally.
► Guidance for Medical Treatment—December 30, 2019—Acting CBP Commissioner Mark Morgan
issued a directive outlining the medical treatment that migrants in CBP custody at the U.S.-Mexico
border must receive. CBP must tell migrants to alert ocers if they have medical issues, ll out health
questionnaires for all migrants under age 18, and provide medical assessments—if resources allow—
for children under age 12 and anyone else who reports a medical issue.
253
Until the December 2019
directive was issued, medical care at the U.S.-Mexico border was governed by an interim directive
from January 2019, which ensured medical assessments for anyone in CBP custody under age 18.
254
On March 30, 2020, CBP issued implementation plans for Oce of Field Operations and Border Patrol
agents, further detailing standard operating procedures for providing medical care to juveniles,
managing public health and infectious diseases, and providing health care during migration surges,
among other things.
255
► CBP Enforcement Operation in Guatemala—January 2020—In an unauthorized operation, CBP
agents working in Guatemala stopped and returned Honduran migrants to the Guatemala-Honduras
border.
256
► Detentions of Iranian Americans and Iranian Foreign Nationals—January 3-4, 2020—CBP ocers
detained 277 people entering the United States from Canada at the port of entry in Blaine, Washington
State, reportedly based on their nationality.
257
Ocial guidance from the Seattle eld oce after the
United States killed Iranian General Qassem Suleimani reportedly instructed ocers to detain for
further investigation certain people who were born in Iran, Lebanon, and Palestine. U.S. citizens and
green-card holders were among those detained.
► CBP Designated as “Security Agency”—January 31, 2020—The federal Oce of Personnel
Management designated CBP as a security agency, reducing the range of transparency measures with
249 ICE, “US and Mexico Resume Interior Repatriation Initiative” (news release, December 19, 2019).
250 ICE, “United States and Mexico Begin Interior Repatriation Initiative” (news release, October 2, 2012).
251 CBP, “Aliens Returned to Mexico under Interior Repatriation Initiative Reaches 1,000” (press release, February 14, 2020).
252 CBP, “USBP & ICE Ramping Up Repatriation Flights.”
253 Directive from Mark Morgan, Acting Commissioner of CBP, Enhanced Medical Support Eorts, December 30, 2019.
254 Directive from Kevin McAleenan, Commissioner of CBP, CBP Interim Enhanced Medical Eorts (January 2019), January 28, 2019.
255 CBP, “CBP Medical Implementation Plan – Overall Summary” (news release, July 30, 2020).
256 U.S. Senate Committee on Foreign Relations, DHS Run Amok? A Reckless Overseas Operation, Violations and Lies (Washington DC:
U.S. Senate Committee on Foreign Relations, 2020).
257 Richard Read and Sarah Parvini, “Customs Agents Held More Iranian Americans and Others at U.S.-Canada Border Than It
Admitted, Records Show,” Los Angeles Times, November 17, 2020.
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which the agency must comply.
258
This designation allows CBP to withhold the names of ocers when
disclosing documents to the public.
► Targeting Development Aid to Migrants’ Points of Origin—March 13, 2020—CBP signed a
memorandum of understanding with the U.S. Agency for International Development (USAID),
agreeing to share anonymized data on the demographic characteristics and origin communities of
migrants from El Salvador, Guatemala, and Honduras who are apprehended or determined to be
inadmissible at the U.S.-Mexico border.
259
USAID will use the data to target development aid that aims
to prevent irregular migration.
► Construction of Barriers along the Southern Border—multiyear—Between FY 2017 and FY
2021, Congress appropriated and Trump signed into law a total of $5.8 billion for the repair or new
construction of physical barriers along the southwest border.
260
The administration also redirected
about $10.5 billion in funds otherwise appropriated.
261
With these funds, DHS built 458 miles of new
and replacement walls and fences during the Trump administration, including 52 miles of barriers
where none existed before.
262
When Trump left oce, 211 additional miles were under construction.
263
J Waivers of Environmental and Contracting Laws—multiyear—Since 2017, DHS in multiple
instances waived environmental laws and regulations in order to avoid conducting
environmental impact assessments in places it planned to build border barriers.
264
In February
2020, for the rst time, DHS also waived federal contracting laws that require, for example,
open competition for contracts.
265
J Acquisition of Private Land through Eminent Domain—multiyear—Between January 2017 and
August 2020, the Justice Department led 51 cases in federal court to permanently acquire
private land through eminent domain to be used for border wall construction.
266
Most of this
land was in south Texas.
J Emergency Declaration—February 15, 2019—After Congress appropriated $1.375 billion for
border barriers in FY 2019, well short of the president’s request for $5.7 billion, Trump ordered
$3.1 billion in additional funds to build the wall be transferred from counterdrug activities and
258 Ken Klippenstein, “Exclusive: Customs and Border Protection Gains an Extra Layer of Secrecy,” The Nation, February 4, 2020.
Though not included in the reported rationale for this change, there are indications that designating CBP employees as ”national
security employees” has been under consideration since the Obama administration as a way to allow the agencies to take
disciplinary action against employees without being subject to arbitration. See Homeland Security Advisory Council, Final Report
of the CBP Integrity Advisory Panel (Washington, DC: DHS, 2016), 17–18.
259 CBP, “CBP Signs Memorandum of Understanding with USAID” (press release, March 13, 2020).
260 Consolidated Appropriations Act, 2017; Consolidated Appropriations Act, 2018; Consolidated Appropriations Act, 2019; Consolidated
Appropriations Act, 2020; Consolidated Appropriations Act, 2021.
261 Painter and Singer, DHS Border Barrier Funding; Booker, “Trump Administration Diverts $3.8 Billion.”
262 Farley, “Trump’s Border Wall.”
263 Molly O’Toole, “Trump Put Migrants in Border Limbo. So Far Biden Has Left Them There,” Los Angeles Times, January 20, 2021.
264 See, for example, DHS, “Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, as Amended,” Federal Register 82, no. 147 (August 2, 2017): 35984–85; DHS, “Determination Pursuant to Section 102
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended,” Federal Register 84, no. 211 (October
31, 2019): 58400–02.
265 DHS, “Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as
Amended,” Federal Register 85, no. 34 (February 20, 2020): 9794–96.
266 GAO, Southwest Border: Information on Federal Agencies’ Process for Acquiring Private Land for Barriers (Washington, DC: GAO, 2020),
30.
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a Treasury Department fund for forfeitures, and he declared a national emergency to access
$3.6 billion from military construction projects.
267
ο February 13, 2020—The president renewed the emergency declaration for another
year.
268
The administration also notied Congress that it would transfer another $3.8
billion in Defense Department funds to build the border wall.
269
ο January 15, 2021—The president extended the emergency declaration for another
year.
270
J Transfers of Public Land—September 2019 and July 2020—The Department of the Interior
transferred jurisdiction of 560 acres of land in September 2019
271
and 66 acres of land in July
2020
272
to the Army so the Army could build border barriers and access roads on the land. The
Army requested the transfer based on the president’s emergency declaration.
J Using Overseas Contingency Operations Funding for Wall Construction—April 25, 2020—The
Defense Department restored $546 million in domestic military construction funds that had
been slated to be transferred to the border wall account, proposing instead to use money
appropriated for military projects overseas.
273
J Legal Challenges:
ο Counterdrug Funds—multiyear—On May 24, 2019, in Sierra Club v. Trump, a federal
district judge in California blocked the administration from using the $2.5 billion in
counterdrug funds for the wall construction it had proposed, which the Ninth Circuit
Court of Appeals upheld in June 2020.
274
However, the Supreme Court in July 2019
allowed the administration to proceed with that construction while legal proceedings
continued.
275
In July 2020, the Supreme Court again armed that construction could
go forward.
276
267 Consolidated Appropriations Act, 2019; White House, “Presidential Proclamation 9844 of February 15, 2019: Declaring a National
Emergency Concerning the Southern Border of the United States,” Federal Register 84, no. 34 (February 20, 2019): 4949–50.
268 White House, “Notice of February 13, 2020: Continuation of the National Emergency with Respect to the Southern Border of the
United States,” Federal Register 85, no. 31 (February 14, 2020): 8715.
269 Booker, “Trump Administration Diverts $3.8 Billion.”
270 White House, “Notice of January 15, 2021: Continuation of the National Emergency With Respect to the Southern Border of the
United States,” Federal Register 86, no. 13 (January 22, 2021): 6557.
271 U.S. Department of the Interior, Bureau of Land Management, “Secretary of the Interior Transfers Jurisdiction of Five Parcels of
Land to the Department of the Army to Secure the Southwest Border” (press release, September 18, 2019).
272 U.S. Department of the Interior, Bureau of Land Management, “Secretary of the Interior Transfers Jurisdiction of 65.74 Acres of
Federal Land to the Department of the Army in Arizona and New Mexico” (press release, July 21, 2020).
273 Connor O’Brien and David Rogers, “Pentagon Pulls Money from Overseas Projects to Pay for Border Wall,” Politico, April 28, 2020.
274 Sierra Club v. Donald J. Trump, No. 19-cv-00892-HSG (U.S. District Court for the Northern District of California, order granting in
part and denying in part plaintis’ motion for preliminary injunction, May 24, 2019); Sierra Club v. Trump, No. 19-cv-00892-HSG
(U.S. District Court for the Northern District of California, order granting in part and denying in part plaintis’ motion for partial
summary judgment, denying defendants’ motion for partial summary judgment, certifying judgment for appeal, and denying
request to stay, June 28, 2019); State of California v. Donald J. Trump, and Sierra Club v. Donald J. Trump, Nos. 19-cv-00872-HSG and
19-cv-00892-HSG (U.S. District Court for the Northern District of California, order granting in part and denying in part plaintis’
motions for partial summary judgment and denying defendants’ motions for partial summary judgment, December 11, 2019).
275 Donald J. Trump, et al. v. Sierra Club, et al., No. 19A60 (U.S. Supreme Court, July 26, 2019).
276 Donald J. Trump, et al. v. Sierra Club, et al., No. 19A60 (U.S. Supreme Court, July 31, 2020).
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ο Military Construction Funds—multiyear—A federal district judge in Texas in January
permanently blocked the government from using the $3.6 billion in military
construction funds for the wall in December 2019, as did a federal district judge in
California one day later.
277
Neither ruling took eect. In the Texas case, an appeals court
allowed construction to go forward during legal proceedings in January and then,
in December 2020, fully reversed the injunction.
278
In the California case, the district
court stayed its own injunction, and an appeals court ruling upholding the injunction
in October 2020 was not implemented due to expected forthcoming Supreme Court
litigation.
279
► Border Patrol Stang Increases—multiyear—In his January 2017 executive order on border security,
Trump directed the hiring of 5,000 additional Border Patrol ocers. By the end of 2019, there were
21,370 Border Patrol agents authorized by Congress (the same number as authorized since FY 2011)
but only about 19,600 agents were employed.
280
Despite plans to add 2,700 agents annually, CBP
gained just 120 Border Patrol agents in 2018 and 112 in 2019.
281
J DHS Volunteer Force—March 2019—In response to a request from then Homeland Security
Secretary Kirstjen Nielsen, at least 550 employees from across DHS volunteered to deploy to
the U.S.-Mexico border to assist CBP with tasks such as transportation, medical assessments,
and meal distribution, and to assist ICE with tasks such as health-care provision and litigation
in immigration court.
282
J CBP Ocers Reassigned—March to September 2019 and August 2020—For about six months
in 2019, 731 CBP Oce of Field Operations ocers from the San Diego, Tucson, El Paso,
and Laredo ports of entry were reassigned to Border Patrol processing facilities, where they
assisted with processing and transporting recently apprehended migrants.
283
In August 2020,
600 CBP ocers were temporarily reassigned to assist Border Patrol agents, 200 in the Laredo
sector and 400 in the Rio Grande Valley sector.
284
277 El Paso County, Texas and Border Network for Human Rights v. Donald J. Trump, No. EP-19-CV-66-DB (U.S. District Court for the
Western District of Texas, December 10, 2019); State of California, et al.; Sierra Club, et al. v. Donald Trump, et al., Nos. 19-cv-00872-
HSG and 19-cv-00892-HSG (U.S. District Court for the Northern District of California, order granting in part and denying in part
plaintis’ motions for partial summary judgment and denying defendants’ motions for partial summary judgment, December 11,
2019).
278 El Paso County, Texas; Border Network for Human Rights v. Donald J. Trump, No. 19-51144 (U.S. Fifth Circuit Court of Appeals,
January 8, 2020); El Paso County, Texas; Border Network for Human Rights v. Donald J. Trump, No. 19-51144 (U.S. Fifth Circuit Court of
Appeals, December 4, 2020).
279 Donald J. Trump, et al. v. Sierra Club, et al. (U.S. Supreme Court, petition for a writ of certiorari, November 2020), 11–12.
280 U.S. Border Patrol, “Border Patrol Agent Nationwide Stang by Fiscal Year,” accessed February 6, 2019; Testimony of Mark Morgan,
Acting Commissioner of CBP, before the Senate Committee on Homeland Security and Governmental Aairs, Unprecedented
Migration at the U.S. Southern Border: The Year in Review, 116th Cong., 1st sess., November 13, 2019.
281 Molly O’Toole, “Trump Ordered 15,000 New Border and Immigration Ocers—But Got Thousands of Vacancies Instead,” Los
Angeles Times, January 27, 2019; DHS, FY 2021 Budget in Brief (Washington, DC: DHS, 2020).
282 Memorandum from Kirstjen Nielsen, Secretary of Homeland Security, to DHS Component Heads and Joint Task Forces, Request
for DHS Volunteers at the Southern Border, March 27, 2019; Nicole Ogrysko, “At Least 550 DHS Employees Have Filled Temporary
Volunteer Assignments along Southern Border,” Federal News Network, July 22, 2019.
283 CBP, “Temporary Re-Assignment of CBP Ocers to Border Patrol Sectors” (press release, March 27, 2019); Julián Aguilar, “Hundreds
of CBP Ocers Returned to Port Duty after Assisting U.S. Border Patrol,” Texas Tribune, September 24, 2019.
284 Jorge Velas, “Around 200 CBP Agents Coming to Laredo for ‘Surge Operation’,” Laredo Morning Times, August 24, 2020.
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► Pending at end of administration
J Use of Data from Commercial License Plate Readers—CBP reported in July 2020 that it had
plans to access license plate information from commercial vendors to track suspects and
develop new leads throughout the country, as well as to identify people that may require
enhanced screening when crossing the border.
285
J Entry/Exit Process Using Facial Recognition—On November 19, 2020, CBP published a
proposed rule that would establish a nationwide biometric entry/exit system, going into eect
rst at airports, and later at land and sea ports. Under the proposed rule, all foreign nationals
entering or departing the country may be required to have their photograph taken and
analyzed by facial recognition technology.
286
Under the existing system, foreign nationals ages
14 to 79 are ngerprinted upon entry, but no biometrics are taken again prior to exit.
J Body Cameras for Border Patrol Agents—In September 2020, CBP announced it would provide
body cameras for 3,800 agents in the San Diego, Yuma, Tucson, El Paso, Big Bend, Del Rio, and
Rio Grande Valley sectors of the southwest border and the Swanton sector of the northern
border.
287
The cameras were expected to be rolled out in Spring 2021.
J Trusted Traveler Program Fee Changes—CBPpublished a proposal in September 2020 to
standardize the applicationprocess andfees for the Secure Electronic Network for Travelers
Rapid Inspection (SENTRI), Global Entry, and NEXUS programs.
288
The programs allow certain
pre-approved travelers to bypassfull CBP processing atdesignatedports of entry. Under the
proposal, each program would have a $120 application fee.
285 DHS, Privacy Impact Assessment for the CBP License Plate Reader Technology (Washington, DC: DHS, 2020).
286 DHS, “Collection of Biometric Data from Aliens Upon Entry to and Departure from the United States,” Federal Register 85 no. 224
(November 19, 2020): 74162–93
287 CBP, “CBP Awards Contract for Agent Body Cameras” (news release, September 23, 2020).
288 CBP, “Harmonization of the Fees and Application Procedures for Global Entry and SENTRI Programs and Other Changes,” Federal
Register 85, no. 175 (September 9, 2020): 55597–619; CBP, “Harmonization of the Fees and Application Procedures for the Global
Entry and SENTRI Programs and Other Changes,” Federal Register 85, no. 231 (December 1, 2020): 77016.
289 Capps et al., Revving Up the Deportation Machinery.
290 Capps et al., Revving Up the Deportation Machinery.
B. Interior Enforcement
Unlike border enforcement, which is largely controlled by the federal government, interior immigration
enforcement, which entails the investigation, arrest, detention, and removal of unauthorized or otherwise
removable noncitizens in the interior of the United States, often relies on cooperation between federal
and local authorities. Over the past decade, political polarization has led some jurisdictions to restrict
cooperation with federal immigration authorities, particularly ICE, while others have actively encouraged it.
Local attitudes toward immigration enforcement became more uneven during the Trump administration; as
a result, ICE was able to make more immigration arrests through the criminal justice system in cooperative
jurisdictions and fewer in noncooperative jurisdictions.
289
Noncooperation policies also contributed to the
Trump administration’s inability to make as many immigration arrests in the interior of the country as the
Obama administration did in FY 2010 and FY 2011.
290
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At the same time, the administration used other means to eliminate the sense of safety that unauthorized
immigrants might feel in noncooperative jurisdictions, often called “sanctuary” jurisdictions. ICE scaled up
the number of arrests it made outside of jails (i.e., in the community), exceeding so-called at-large arrest
numbers during prior peaks in FYs 2009–11.
291
The agency also quadrupled the number of immigration
investigations at worksites. And it used new strategies to exert pressure on jurisdictions that limit their
cooperation, such as reducing their access to federal law enforcement grants, issuing subpoenas for
information on detainees, and ling lawsuits against noncooperative jurisdictions.
Finally, the Trump administration, more so than any past administration, made use of its authority to limit
the visas granted to people from countries that did not consistently accept back their nationals when the
United States ordered them removed.
292
Through visa sanctions and other forms of diplomatic pressure, the
Trump administration reduced the number of countries that refused to accept the return of their nationals
from 23 to 13, as of mid-2020.
293
291 Capps et al., Revving Up the Deportation Machinery.
292 Jill H. Wilson, Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals
(Washington, DC: Congressional Research Service, 2020).
293 Wilson, Immigration: “Recalcitrant” Countries; Franklin Foer, “How Trump Radicalized ICE,” The Atlantic, September 2018.
294 White House, “Executive Order 13768 of January 25, 2017: Enhancing Public Safety in the Interior of the United States,” Federal
Register 82, no. 18 (January 25, 2017): 8799–8803.
295 Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting Director of ICE; R. Gil
Kerlikowske, Commissioner of CBP; Leon Rodriguez, Director of USCIS; and Alan D. Bersin, Acting Assistant Secretary for Policy,
Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, November 20, 2014.
296 Memorandum from Ronald D. Vitiello, U.S. Border Patrol Chief, to all chief patrol agents and all directorate chiefs, Removal of
the Requirement to Draft Operation Orders for Routine Transportation Check Operations, April 20, 2017; Adiel Kaplan and Vanessa
Swales, “Border Patrol Searches Have Increased on Greyhound, Other Buses Far from Border,” NBC News, June 5, 2019.
297 Gene Johnson, “AP Exclusive: Agency Memo Contradicts Greyhound Bus Raids,” Associated Press, February 14, 2020.
298 Gene Johnson, “Greyhound to Stop Allowing Immigration Checks on Buses,” Associated Press, February 21, 2020.
► New Interior Enforcement Regime—January 25, 2017—In a January 25 executive order on interior
enforcement, the president initiated sweeping changes to immigration enforcement in the U.S.
interior, including greatly expanding the classes of noncitizens considered priorities for removal
and directing agencies to execute U.S. immigration laws against “all removable aliens.”
294
The order
abolished the prosecutorial discretion guidelines used by ICE under the Obama administration, which
prioritized for removal only those noncitizens who had criminal convictions, had recently crossed the
border illegally, or had recently been ordered removed.
295
► Increased Checks by CBP on Buses and Trains—April 20, 2017—The Trump administration
reversed Obama-era policies that required CBP agents to receive approval from headquarters before
conducting checks of people’s immigration status on buses and trains, such as Greyhound and
Amtrak.
296
Following this change, checks within 100 miles of the border (the zone within which CBP
has authority to undertake such actions) increased.
J CBP Guidance Limits Practice—January 28, 2020—A memo from CBP Chief Carla Provost
told agents they are constitutionally required to obtain permission from the bus company or
one of its employees before boarding a bus.
297
Greyhound, the nation’s largest bus company,
announced a week later it would no longer allow CBP agents to board busses without a
warrant.
298
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► Victims of Immigration Crime Engagement (VOICE) Oce—April 26, 2017—DHS created ICE’s
VOICE oce to assist victims of crimes committed by removable immigrants.
299
Among the services
oered: A new DHS-Victim Information and Notication Exchange (DHS-VINE) automated service to
help victims track the immigration custody status of foreign nationals charged or convicted of certain
crimes.
► Limits on Privacy Rights for Nonimmigrants and Unauthorized Immigrants—April 27, 2017—In
line with the January 25 executive order on interior enforcement, which stated that agencies may
no longer extend the protections of the Privacy Act to individuals other than U.S. citizens and lawful
permanent residents (i.e., green-card holders), DHS issued a new policy on the collection, use, and
dissemination of personally identiable information.
300
The policy gives DHS more discretion to share
the information of nonimmigrants (those on temporary visas) and unauthorized immigrants. And it
permits nonimmigrants and unauthorized immigrants to access their records only through Freedom of
Information Act (FOIA) requests and makes them ineligible to correct their personal information.
► Limits on Stays of Removal Related to Private Immigration Bills—May 5, 2017—ICE limits when
and for how long it will issue stays of removal in connection with private immigration bills sponsored
for individuals by members of Congress and allows the agency to limit congressional requests for
investigative reports.
301
► End of the Family Case Management Program—June 20, 2017—The administration ended this
alternative to detention (ATD) program for arriving families, which provided participants with case
management, access to support services, and reintegration planning for those ordered removed. The
Obama administration started the program in January 2016, and by its end, it had served 954 families
who were approved for release from family detention.
302
Of the total participants, 99 percent attended
their court appearances and ICE check-ins.
J Funds Approved to Restart Program—2019 and 2020—In a reversal, the FY 2019
appropriations package approved by Congress and signed into law on February 15, 2019,
provided $30.5 million to restart the program, and the FY 2020 package signed into law on
December 20, 2019, provided $15 million for it.
303
However, the program was not restarted,
but rather components of the program, such as having case managers help families identify
community resources and develop goals, were incorporated into ICE’s existing ATD program
under the name Extended Case Management Services (ECMS).
304
ECMS is meant to serve
individuals who have experienced serious trauma and families.
299 DHS, “DHS Announces Launch of New Oce for Victims of Illegal Immigrant Crime” (news release, April 26, 2017).
300 Memorandum from Jonathan R. Cantor, Acting Chief Privacy Ocer, DHS, DHS Privacy Policy Regarding Collection, Use, Retention,
and Dissemination of Personally Identiable Information, April 27, 2017.
301 Letter from Thomas D. Homan, Acting Director of ICE, to Senator Charles E. Grassley, May 5, 2017.
302 DHS OIG, U.S. Immigration and Customs Enforcement’s Award of the Family Case Management Program Contract (Washington, DC:
DHS, 2017).
303 U.S. Congress, “Explanatory Statement Submitted by Mrs. Lowey, Chairwoman of the House Committee on Appropriations,
Regarding H.J. Res. 31,” accessed April 29, 2019; U.S. Congress, “Explanatory Statement Submitted by Mrs. Lowey, Chairwoman of
the House Committee on Appropriations Regarding H.R. 1158, Consolidated Appropriations Act, 2020,” Congressional Record 165,
no. 204 (December 17, 2019): H11016.
304 DHS, “U.S. Immigration and Customs Enforcement Budget Overview: Fiscal Year 2021 Congressional Justication,” accessed
September 21, 2021.
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► Narrowing of Prosecutorial Discretion—August 15, 2017—In a memo to ICE attorneys, DHS greatly
narrowed the instances in which the government should grant prosecutorial discretion to noncitizens
identied for removal.
305
The memo also instructed ICE attorneys to review cases the agency had
administratively closed for prosecutorial discretion to determine whether the basis for closure was still
appropriate under the administration’s revised enforcement priorities.
► Enforcement Actions against U Visa Applicants—October 26, 2017—ICE informed the American
Immigration Lawyers Association that it would take enforcement action against noncitizens with nal
orders of removal, even if they had pending U visa applications.
306
U visas are reserved for victims of
certain crimes who are helpful to U.S. law enforcement or government ocials in the investigation
or prosecution of the crime. After encountering such an immigrant, ICE will contact USCIS to get a
recommendation on whether the U visa application will likely be approved. If USCIS does not respond
within ve days, ICE will initiate removal proceedings. (For more, see Sections 5.E. and 7.)
► Detention of Pregnant Women—December 2017—ICE ended an Obama-era policy that ordered the
agency to generally release pregnant women from federal custody.
307
Between calendar years 2016
and 2018, the number of detained pregnant women increased from 1,400 to 2,100.
308
► E-Verify Upgrade—2017—USCIS upgraded the E-Verify system so it can handle an increased number
of concurrent users.
309
E-Verify allows employers to check whether new hires are authorized to
work by entering their names and other biographic information into an online system. E-Verify is a
voluntary program, but some states have implemented some type of E-Verify mandate and all federal
contractors and subcontractors are required to participate.
► Expansion of Expedited Removal—July 23, 2019—DHS issued a regulation drastically expanding
the unauthorized immigrant population subject to expedited removal
310
—a form of administrative
removal where immigrants do not have the chance to make their case before a judge, unless they
express a fear of return to their country of origin. Previously, noncitizens encountered within 100 miles
of a land border who were not admitted or paroled into the country and could not demonstrate that
they had been in the United States for more than 14 days were subject to this form of removal.
311
The
July 2019 regulation expanded the target population to noncitizens encountered anywhere in the
country who were not admitted or paroled, and who could not demonstrate that they had been in
the United States for at least two years. However, the administration did not immediately implement
this regulation, and a federal district court ruling on September 27, 2019, blocked it from going
305 Hamed Aleaziz, “An ICE Memo Lays Out the Dierences between Trump and Obama on Immigration Enforcement,” BuzzFeed
News, October 8, 2018.
306 AILA, “AILA/ICE Liaison Meeting Minutes” (unpublished meeting notes, October 26, 2017).
307 ICE, “Identication and Monitoring of Pregnant Detainees” (ICE Directive 11032.3, December 14, 2017).
308 GAO, Immigration Enforcement: Arrests, Detentions, and Removals, and Issues Related to Selected Populations (Washington, DC: GAO,
2019), 38.
309 Statements by Tammy M. Meckley, Associate Director of the Immigration Records and Identity Services Directorate, USCIS, at the
Citizenship and Immigration Services Ombudsman Seventh Annual Conference, Washington, DC, December 7, 2017.
310 DHS, “Designating Aliens for Expedited Removal,” Federal Register 84, no. 141 (July 23, 2019): 35409–14.
311 DHS, “Designating Aliens for Expedited Removal,” Federal Register 69, no. 154 (August 11, 2004): 48877–81. Much less commonly,
noncitizens who arrived by sea without being admitted or paroled and were in the United States for two years or less could also
be subjected to expedited removal. See Justice Department, Immigration and Naturalization Service, “Notice Designating Aliens
Subject to Expedited Removal under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act,” Federal Register 67, no. 219
(November 11, 2002): 68924–26.
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into eect.
312
A federal appeals court ruling in June 2020 reversed the district court’s ruling, and a
directive sent to the lower court to implement the reversal on September 30, 2020, cleared the way for
implementation by ICE.
313
ICE agents and employees were directed to start implementing the policy
on October 16, 2020, though they were instructed to exempt migrants who had arrived before the
regulation was rst established in July 2019.
314
Between October 2020 and January 20, 2021, 17 foreign
nationals were removed through expanded expedited removal.
315
► End of a Detention Hotline—August 7, 2019—ICE shut down a detention hotline that provided
immigrants in custody with a way to report abuse, connect with their families, and obtain legal
resources.
316
The National Immigration Detention Hotline was launched by a California advocacy
group, Freedom for Immigrants, in 2013. In February 2020, a federal district court judge issued a
preliminary injunction, forcing the government to restore the hotline while the case is litigated.
317
► Reopening DACA Recipients’ Removal Cases—October 2019—ICE began to request that
immigration courts reopen the removal cases of immigrants protected by the DACA program.
318
This would allow ICE to more quickly remove former DACA recipients if the DACA program were
terminated. (For more on DACA, see Section 7.A.)
► Revisions to ICE’s National Detention Standards—December 2019—ICE implemented new National
Detention Standards (NDS), which govern the conditions of federal prisons and local jails that contract
with ICE to hold immigrant detainees.
319
The new standards, which updated standards published in
2000, made a number of changes, including reducing the maximum time a detainee can spend in
segregation, increasing medical evaluations of such detainees, and adding a section on preventing
sexual abuse and assault; however, they also generally relaxed many standards in deference to the
standards of individual facilities.
320
For example, the new NDS lowered food preparation standards,
removed a requirement that new facilities or those renewing their contracts with ICE have outdoor
recreation spaces, and loosened requirements for timeliness in providing medical care.
► Deportations of Venezuelans through Third Countries—2019 to March 2020—Venezuelans were
deported indirectly from the United States to Venezuela, with stopovers for some in Panama and for
others in Trinidad and Tobago, after the Federal Aviation Administration banned ights to and from
Venezuela in May 2019.
321
312 Make the Road New York v. Kevin McAleenan, No. 19-cv-2369 (KBJ) (U.S. District Court for the District of Colombia, September 27,
2019).
313 Make the Road New York v. Wolf, No. 19-5298 (U.S. Circuit Court of Appeals for the District of Columbia, June 23, 2020); AILA,
“Practice Alert: Implementation of Expedited Removal Expansion,” updated October 27, 2020.
314 Shaun Courtney, “Undocumented Migrants Face Fast Removals in Renewed Trump Push,” Bloomberg Government, October 6,
2020; Hamed Aleaziz, “ICE Is Planning to Fast-Track Deportations across the Country,” BuzzFeed News, October 7, 2020.
315 Hamed Aleaziz, “The Biden Administration Has Suspended a Trump-Era Policy that Put Immigrants at Risk of Being Deported
Without Due Process,” BuzzFeed News, October 14, 2021.
316 Freedom for Immigrants v. U.S. Department of Homeland Security, Case No. 2:19-cv-10424-AB (U.S. District Court Central California,
February 11, 2020).
317 Freedom for Immigrants v. U.S. Department of Homeland Security.
318 Bob Ortega, “ICE Reopening Long-Closed Deportation Cases against Dreamers,” CNN, December 21, 2019.
319 ICE, “2019 National Detention Standards for Non-Dedicated Facilities,” updated December 19, 2019.
320 American Civil Liberties Union (ACLU), “Summary of Changes to ICE National Detention Standards” (fact sheet, ACLU, New York,
n.d.).
321 Letter from Senator Robert Menendez to Michael Pompeo, Secretary of State; Elaine Chao, Secretary of Transportation, and Chad
Wolf, Under Secretary for Strategy, Policy, and Plans, DHS, October 16, 2020.
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► Expanding DNA Collection from Immigration Detainees—January 2020—After a proposed rule to
expand DNA collection to most immigration detainees was published in October 2019, but before the
nal rule was issued, CBP began piloting expanded DNA collection. The nal rule was published on
March 9, 2020.
322
By December 31, 2020, CBP was collecting DNA nationwide.
323
The agency collects
DNA from noncitizens ages 14 to 79 in its custody who are facing removal and U.S. citizens ages 14
to 79 arrested and facing federal charges, or subject to a federal warrant. ICE said it would collect
DNA from all detainees ages 14 and older booked into one detention facility, and its pilot program
reportedly began at a facility in Dallas on May 1, 2020.
324
By the end of September 2020, DNA testing of
detainees was operational across Michigan and Ohio as well.
325
It is not clear whether DNA testing was
in eect nationwide for those in ICE custody. (For more on DNA collection from detainees, see
Section 4.)
► Subpoenaing Information from Sanctuary Cities—January 2020—ICE adopted a new tactic of
issuing administrative subpoenas for information on state and local detainees deemed by ICE to
be removable and whom the agency says states are withholding from it. Between January 13 and
February 21, 2020, ICE issued subpoenas on state and local law enforcement agencies in Connecticut;
New York State; Oregon; San Diego County, CA; Washington, Wasco, and Clackamas Counties, OR; the
City and County of Denver, CO; and the city of Hillsboro, OR.
326
San Diego County, CA, and Washington
County, OR, volunteered to comply, and a federal judge ordered Denver to comply.
327
The other
jurisdictions resisted the subpoenas.
► Blocking New York State Residents from Trusted Traveler Programs—February 5, 2020—DHS
cut o New Yorkers’ ability to enroll or re-enroll in Trusted Traveler Programs—Global Entry, NEXUS,
SENTRI, and the Free and Secure Trade (FAST) program—in response to a state law that bars the
state DMV from sharing information with federal immigration authorities.
328
DHS said that without
access to DMV data, it cannot verify that applicants meet program requirements. New York amended
its law in April 2020 to allow for some data sharing relevant to these programs.
329
On July 23, 2020,
DHS announced it would once again allow New York residents to enroll.
330
Government lawyers
322 Justice Department, “DNA-Sample Collection from Immigration Detainees,” Federal Register 85, no. 46 (March 9, 2020): 13483–93.
323 CBP, “CBP to Meet Legal Requirement to Collect DNA Samples from Certain Populations of Individuals in Custody” (news release,
December 3, 2020).
324 Betsy Woodru Swan and Daniel Lippman, “DHS Begins Collecting DNA from Undocumented Immigrants after Whistleblower
Complaints,” Politico, May 15, 2020.
325 Darcie Moran and Sarah Alvarez, “More Immigration Detainees Face DNA Collection before End of the Year,” Detroit Free Press,
October 6, 2020.
326 ICE, “ICE Serves 5 Immigration Subpoenas in Oregon for Criminal Alien Information from Local Law Enforcement” (press release,
February 21, 2020).
327 Elliot Spagat, “San Diego Sheri Agrees to Share Immigration Information,” Associated Press, February 21, 2020; ICE, “Washington
County Provides Criminal Alien Information Previously Refused under Oregon Sanctuary Policies” (press release, February 27,
2020); United States Immigration and Customs Enforcement v. Fran Gomez, No. 20-mc-00011-WJM-MEH (U.S. District Court for the
District of Colorado, April 20, 2020).
328 Letter from Chad Wolf, Acting Secretary of Homeland Security, to Mark J. F. Schroeder, Acting Commissioner, and Theresa L. Egan,
Executive Deputy Commissioner, New York State Department of Motor Vehicles, February 5, 2020.
329 Marina Villeneuve, “As Budget Passes, Cuomo Says: ‘The State Has No Money’,” Associated Press, April 3, 2020.
330 DHS, “New York Amends Dangerous Green Light Law to Cooperate with Federal Law Enforcement on DMV Records” (press
release, July 23, 2020).
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revealed later that day in a court ling that DHS ocials had falsely claimed that no other state limited
information sharing in the way New York did.
331
► Border Patrol Agents Tasked with Interior Enforcement—February 2020—CBP conrmed that it
would send 100 Border Patrol agents to ten cities in the United States—reportedly Atlanta, Boston,
Chicago, Detroit, Houston, Los Angeles, New Orleans, New York, Newark, and San Francisco—to
support ICE’s interior enforcement operations.
332
The cities varied in the degrees to which they limited
cooperation with ICE, from Houston, which had no such restrictive policies, to New York City, which
had barred local law enforcement from honoring ICE detainers and limited information sharing with
the agency, with some exceptions.
► Round-the-Clock Surveillance of Unauthorized Immigrants—February 2020—ICE is attempting to
implement 24-7 monitoring of unauthorized immigrants in order to increase arrests in major cities that
limit cooperation with ICE, reportedly including Atlanta, Boston, Chicago, Detroit, Los Angeles, New
Orleans, New York, Newark, and San Francisco.
333
To do so, it requested the help of at least 500 agents
from the Homeland Security Investigations subdivision of ICE, which typically focuses on international
criminal and tracking investigations. The initiative was scheduled to last through December 31, 2020.
► ICE Designated as “Security Agency”—June 11, 2020—The federal Oce of Personnel Management
designated ICE as a security agency, reducing the range of transparency measures with which
the agency must comply.
334
This designation allows ICE to withhold the names of personnel when
disclosing documents to the public.
► Increased Standards for Companies Providing Immigration Bonds—July 31, 2020—DHS adopted
a rule giving ICE greater ability to decline bonds from surety companies, which can underwrite bonds
when immigrants cannot aord them.
335
The rule allows ICE to reject new bonds from companies that
have yet to pay ICE a certain number of or amount in past bonds or that have seen 35 percent or more
of their underwritten bonds breached in the past year. It also requires companies challenging ICE’s
determination that a bond has been breached to le an administrative appeal before appealing the
decision to federal courts.
► Coercion to Consent to Deportation at ICE Facilities—Fall 2020—In October 2020, a coalition of
immigrant rights groups led by the Southern Poverty Law Center and Freedom for Immigrants led
a complaint against ICE for allegedly using violent force to get Cameroonian detainees at the Adams
County Correctional Center in Mississippi to sign deportation documents.
336
The complaint also
cited similar allegations from the Winn Correctional Center in Louisiana. Cuban immigrants detained
331 Ed Shanahan and Zolan Kanno-Youngs, “Homeland Security Dept. Admits Making False Statements in Fight with N.Y.,” New York
Times, July 23, 2020.
332 Caitlin Dickerson and Zolan Kanno-Youngs, “Border Patrol Will Deploy Elite Tactical Agents to Sanctuary Cities,” New York Times,
February 14, 2020.
333 Caitlin Dickerson, Zolan Kanno-Youngs, and Annie Correal, “‘Flood the Streets’: ICE Targets Sanctuary Cities with Increased
Surveillance,” New York Times, March 5, 2020.
334 Ken Klippenstein, “ICE Just Became Even Less Transparent,” The Nation, July 2, 2020.
335 DHS, “Procedures and Standards for Declining Surety Immigration Bonds and Administrative Appeal Requirement for Breaches,”
Federal Register 85 no. 148 (July 31, 2020): 45968–90.
336 Complaint by Freedom for Immigrants et al. to DHS, “Re: Immigration and Customs Enforcement Ocers’ Use of Torture to Coerce
Immigrants into Signing Immigration Documents at Adams County Correctional Facility,” October 7, 2020.
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in Georgia and Louisiana reported being asked if they wanted to be reunited with their family and
subsequently being forced to unknowingly sign commercial travel documents for travel to Cuba.
337
It is
unknown whether anyone was deported using these documents.
► Billboards Displaying Noncitizens Released from Criminal Custody—October 2, November 6,
and December 22, 2020—ICE launched billboard campaigns in Philadelphia, PA, and Charlotte and
Asheville, NC, featuring pictures of local noncitizens who were previously arrested or convicted of
crimes but were released rather than transferred to ICE custody.
338
► New Requirements for Bond Cancellations—November 2020—ICE revised the terms of its
immigration bonds, no longer cancelling them when ICE is notied that an immigrant has been in
criminal custody for more than 30 days. Instead, they would be cancelled only once the immigrant is
in ICE custody.
339
This change was in response to states and localities increasingly refusing to honor ICE
detainers.
► More Permissive 287(g) Memoranda of Agreement—2020—ICE updated the language of
the memoranda of agreement (MOAs) it signs with state and local law enforcement agencies
participating in the 287(g) program, under which selected law enforcement ocers may be deputized
as immigration ocers within jails and prisons. The new MOAs expand the authority of 287(g)
participating agencies, reduce requirements for deputized ocers, and remove the expiration dates of
the agreements, making them indenite.
340
► Agreements Giving States Authority over DHS Policy—January 2021—DHS signed agreements
with at least ve states—Arizona, Indiana, Louisiana, Montana, and Texas—and a county sheri’s
department in North Carolina that would require DHS to notify them of all proposed policy changes
aecting immigration enforcement, legal immigration, and immigration benets, as those changes,
the agreements argued, would aect states and localities.
341
The jurisdictions would then have six
months to review and comment before DHS implements any changes.
► Reinstatement of Secure Communities—multiyear—The president’s January 25, 2017, executive
order on interior enforcement mandated the termination of the Priority Enforcement Program, which
was a more tailored version of the Secure Communities program ended by the Obama administration.
Secure Communities is a federal-state information-sharing program that examines the ngerprints
of individuals booked into state or local custody and ags them for enforcement if they are identied
as removable. From the reactivation of Secure Communities on January 25, 2017, through April
337 Monique O. Madan, “Cuban Detainees: ICE Forces Us to Sign Forms Saying We Wanted to Go Back, ‘Visit’ Family,” Miami Herald,
October 29, 2020.
338 ICE, “ICE Launches Billboards in Pennsylvania Featuring At-Large Public Safety Threats” (news release, October 2, 2020); ICE, “ICE
Launches Billboards in Charlotte Featuring At-Large Public Safety Threats” (news release, November 6, 2020); ICE, “ICE Launches
Billboards in Asheville Featuring At-Large Public Safety Threats” (news release, December 22, 2020).
339 ICE, “Agency Information Collection Activities; Revision of a Currently Approved Collection: Immigration Bond,” Federal Register 84,
no. 166 (August 27, 2019): 44913–15; ICE, “ICE Form I-352,” updated November 2020.
340 Lena Graber and Noah Feldman, “Changes to the 287(g) Program” (policy brief, Immigrant Legal Resource Center, October 2020).
341 Hamed Aleaziz, “The DHS Has Signed Unusual Agreements with States that Could Hamper Biden’s Future Immigration Policies,”
BuzzFeed News, January 15, 2021; State of Texas v. United States, et al., (U.S. District Court for the Southern District of Texas, Exhibit
A, January 22, 2021); Keith Schubert, “‘Cynically Driven:’ Experts Question Montana’s Lawsuit Challenging Change in Federal
Immigration Policy,” Daily Montanan, March 12, 2021.
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2019, more than 150,000 noncitizens with criminal convictions were removed as a result of Secure
Communities.
342
► Limits on Visas for Nationals of Recalcitrant Countries—multiyear—In the president’s January
25, 2017, executive order on interior enforcement, he ordered DHS and the State Department to
cooperate in refusing to grant visas to nationals of recalcitrant countries (those that systematically
refuse or delay cooperation on the return of their nationals). The aim of such visa sanctions is to
pressure these countries to accept the return of their nationals when they are subject to removal from
the United States. Much of this work appears to have occurred away from the public eye. In April 2019,
the State Department published a nal rule allowing ocers to suspend the issuance of a visa already
in process if the applicant falls within the scope of visa sanctions placed on recalcitrant countries.
343
By June 2020, the number of recalcitrant countries had been reduced from 23 at the start of the
administration to 13.
344
And as of July 2020, seven countries were subject to visa sanctions as a result
of noncompliance: Burundi, Cambodia, Eritrea, Laos, Myanmar (also known as Burma), Pakistan, and
Sierra Leone, while at least six more had either been subject to sanctions or the threat of sanctions.
345
J Vietnam—2017—At some point in its rst year, the Trump administration abandoned the
U.S. government’s practice of not deporting Vietnamese nationals who arrived before 1995,
pursuant to a 2008 diplomatic agreement between the United States and Vietnam.
346
Saying
they were renegotiating an agreement with Vietnam, the administration began detaining
Vietnamese nationals who had previously had their removals stayed, with the intention of
removing them. This eort was abandoned in August 2018 when it became clear that Vietnam
would not comply with the return eort, but reports later surfaced that the administration was
renewing these eorts.
347
J Mauritania—2017—Under pressure from the Trump administration, the Mauritanian embassy
started issuing travel documents, called “laissez-passers,” so its nationals could be sent back.
348
This raised serious concerns about the racial and ethnic discrimination and slavery these
immigrants could face in Mauritania if deported.
349
J Cambodia, Eritrea, Guinea, and Sierra Leone—September 2017—DHS announced the
implementation of visa sanctions on nationals of Cambodia, Eritrea, Guinea, and Sierra Leone
342 ICE, “Secure Communities,” updated March 20, 2018; TRAC Immigration, “Removals under the Secure Communities Program,”
accessed February 28, 2020.
343 State Department, “Refusal Procedures for Visas,” Federal Register 84, no. 77 (April 22, 2019): 16610–13.
344 As of June 3, 2020, the recalcitrant countries were Bhutan, Burundi, Cambodia, China, Cuba, Eritrea, Hong Kong, India, Iran, Iraq,
Laos, Russia, and Pakistan. See Wilson, Immigration: “Recalcitrant” Countries.
345 Wilson, Immigration: “Recalcitrant” Countries; DHS, “DHS Announces Imposition of Visa Sanctions on Burundi” (press release, June
19, 2020).
346 The agreement provides that “Vietnamese citizens are not subject to return to Vietnam under this agreement if they arrived
in the United States before July 12, 1995.” See Governments of the United States and Vietnam, “Agreement between the
Government of the United States of America and the Government of the Socialist Republic of Vietnam on the Acceptance of the
Return of Vietnamese Citizens,” January 22, 2008. See also Hoang Trinh v. Thomas D. Homan, Case No. 8:18-cv-316 (U.S. District
Court Central District of California, February 22, 2018).
347 Charles Dunst and Krishnadev Calamur, “Trump Moves to Deport Vietnam War Refugees,” The Atlantic, December 12, 2018.
348 Nellie Peyton, “Mauritanians Who Sought Refuge in U.S. Face Deportation, then Jail,” Reuters, December 17, 2018.
349 Letter from Senator Kamala Harris et al. to Homeland Security Secretary Kirstjen Nielsen and Secretary of State Mike Pompeo,
October 12, 2018.
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in an eort to pressure the countries’ governments to accept their nationals ordered deported
from the United States.
350
The administration removed the sanctions on Guinea in August
2018, in recognition of its agreement to accept its deported nationals.
351
J Laos and Myanmar—July 2018—DHS announced visa sanctions for certain government
ocials from Laos and Myanmar in an eort to pressure these governments to accept their
nationals ordered deported from the United States.
352
In April 2020, the visa sanctions for Laos
were expanded to include all immigrant visas for Lao citizens.
353
J Ethiopia—January 18, 2019—DHS led a Federal Register notice on countries whose nationals
were eligible to participate in the H-2A and H-2B nonimmigrant worker programs. In the
notice, DHS explained that Ethiopia had been removed from the list of eligible countries
because it had been “at risk of noncompliance” with ICE repatriation eorts since 2016.
354
J Ghana—January 31, 2019—DHS announced visa sanctions for certain nationals of Ghana to
pressure the country’s government to accept its nationals ordered deported from the United
States.
355
The sanctions were lifted in January 2020.
356
J Pakistan—April 5, 2019—DHS put into eect visa sanctions against Pakistan, a country
identied as recalcitrant.
357
J Brazil—June 2019—Following U.S. threats of sanctions, Brazil’s Federal Police agreed to loosen
travel document requirements for nationals ordered removed from the United States in order
to facilitate their repatriation. In October 2019 and January 2020, Brazil received the rst mass
deportation ights from the United States since 2006.
358
J Burundi—June 12, 2020—The State Department instructed consular ocers to stop issuing
all nonimmigrant visas, except transit visas and those for diplomats and international
organization employees, to Burundians applying in Burundi, as a consequence of the country
not accepting its nationals ordered removed from the United States.
359
350 The visa restrictions were applied against certain government ocials from Cambodia, Guinea, and Sierra Leone, as well as to
all citizens of Eritrea. See DHS, “DHS Announces Implementation of Visa Sanctions on Four Countries” (press release, September
13, 2017). As the government began increasing removals to Cambodia, a federal court issued a temporary restraining order
protecting nearly 2,000 Cambodian nationals from detention and removal. See Nak Kim Chhoeun v. David Marin, No. SACV 17-
01898-CJC (U.S. District Court Central District of California Southern Division, January 3, 2019).
351 Wilson, Immigration: “Recalcitrant” Countries, 2.
352 DHS, “DHS Announces Implementation of Visa Sanctions” (press release, July 10, 2018).
353 U.S. Embassy in Laos, “Important Information Regarding Suspension of Issuance of Immigrant Visas,” accessed July 9, 2020.
354 DHS, “Identication of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker
Programs,” Federal Register 84, no. 13 (January 18, 2019): 133–36.
355 DHS, “DHS Announces Implementation of Visa Sanctions on Ghana” (press release, January 31, 2019).
356 Wilson, Immigration: “Recalcitrant” Countries, 2.
357 Details regarding the breadth of the visa sanctions against Pakistan have yet to be released. See Wilson, Immigration:
“Recalcitrant” Countries, 2.
358 Lisandra Paraguassu, “Exclusive: Brazil Facilitates Deportation of Its Nationals after U.S. Pressure,” Reuters, August 26, 2019;
Lisandra Paraguassu, “Brazil Green Lights U.S. Deportation of More Brazilians by Plane,” Reuters, January 23, 2020.
359 DHS, “DHS Announces Imposition of Visa Sanctions on Burundi.”
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► Directing an Increase in ICE Ocers—multiyear—In his January 2017 executive order on interior
enforcement, Trump directed DHS to hire 10,000 additional ICE ocers. When the president took
oce there were about 5,800 deportation ocers and immigration enforcement agents within ICE
Enforcement and Removal Operations (ERO).
360
No additional ERO ocers were authorized under
Trump, despite his administration requesting funding for at least 1,000 new ocers in its budget
request each year.
361
► Funding Restrictions for “Sanctuary” Cities—multiyear—The president’s January 25, 2017, executive
order on interior enforcement directed that “sanctuary” jurisdictions not receive federal grants. A
district court injunction on April 25, 2017, prevented the government from making additional federal
grants conditional on a jurisdiction’s compliance with 8 U.S. Code 1373, a federal statute that prohibits
localities from placing restrictions on sharing citizenship and immigration status information with
federal authorities.
362
The court did, however, allow these conditions to remain in place for the two
Justice Department grants to which they had been applied before the Trump administration: the
Edward Byrne Memorial Justice Assistance Grant (JAG) Program, which funds a variety of local law
enforcement programs, and grants from the Oce of Community Oriented Policing Services (COPS),
which funds community policing ocers, equipment, and training. The court made the injunction
permanent on November 20, 2017, and the Ninth U.S. Circuit Court of Appeals upheld the permanent
injunction on August 1, 2018.
363
In the wake of this injunction, the Justice Department tried to nd
other ways to limit federal grants to sanctuary jurisdictions:
J Adding New Immigration Conditions to Byrne JAG Grants—July 25, 2017—The Justice
Department tried to increase the number of localities that could be prohibited from receiving
FY 2017 Byrne JAG funds by expanding the initial requirements for the grants: instead of
just requiring recipients to comply with federal law and allow for the sharing of information
about citizenship and immigration status, the Justice Department required recipients to also
allow federal immigration ocials access to jails and prisons to interview detainees (known as
the Access Condition) and alert ICE of the release dates of suspected removable noncitizens
(the Notice Condition).
364
Several cities and states sued, and there are injunctions in some
jurisdictions preventing the government from requiring these conditions be met, including
in Chicago, Philadelphia, and San Francisco, as well as the state of California.
365
Some of these
360 DHS, Budget-in-Brief: Fiscal Year 2016 (Washington, DC: DHS, 2015), 47.
361 DHS, FY 2018 Budget in Brief (Washington, DC: DHS, 2017), 36; U.S. Congress, “Explanatory Statement Submitted by Mrs. Lowey,
Chairwoman of the House Committee on Appropriations Regarding H.J. Res. 31”; U.S. Congress, “Explanatory Statement
Submitted by Mrs. Lowey, Chairwoman of the House Committee on Appropriations Regarding H.R. 1158.”
362 County of Santa Clara v. Donald J. Trump, and City and County of San Francisco v. Donald J. Trump, Case No. 17-cv-00574-WHO and
Case No. 17-cv-00485-WHO (U.S. District Court Northern District of California, order granting motions to enjoin, April 25, 2017).
363 County of Santa Clara v. Donald J. Trump, and City and County of San Francisco v. Donald J. Trump, Case No. 17-cv-00574-WHO
and Case No. 17-cv-00485-WHO (U.S. District Court for the Northern District of California, order granting motion for summary
judgment, November 20, 2017); City and County of San Francisco v. Donald J. Trump, and County of Santa Clara v. Donald J. Trump,
No. 17-17478 and No. 17-17480 (U.S. Court of Appeals for the Ninth Circuit, August 1, 2018).
364 Justice Department, “Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial
Justice Assistance Grant Programs” (press release, July 25, 2017).
365 City of Chicago v. Jeerson Beauregard Sessions III, Case No. 17 C 5720 (U.S. District Court for the Northern District of Illinois, July
27, 2018); City of Philadelphia v. Jeerson Beauregard Sessions III, Civil Action No. 17-3894 (U.S. District Court for the Eastern District
of Pennsylvania, June 6, 2018); City and County of San Francisco v. Jeerson Beauregard Sessions III and State of California v. Jeerson
Beauregard Sessions III, Case No. 17-cv-04642-WHO and Case No. 17-cv-04701-WHO (U.S. District Court for the Northern District of
California, October 5, 2018).
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have been upheld by federal appeals courts.
366
A lower court injunction had also prohibited
imposing these conditions on grants to seven states including New York, but an appeals court
decision in February 2020 allowed the Justice Department to apply them.
367
J Prioritizing Non-Sanctuary Cities for COPS Grants—September 7, 2017—The Justice
Department announced it would give priority consideration for FY 2017 COPS grants to
jurisdictions that attest to their cooperation with the Notice and Access Conditions.
368
Of those
jurisdictions granted COPS funding two months later, the Justice Department announced
that 80 percent met these conditions.
369
A federal appeals court ruled against the City of Los
Angeles in a lawsuit challenging this prioritization.
370
J Adding New Immigration Conditions to Various Justice Department Grants—multiyear—The
Justice Department took additional steps to limit grants to sanctuary jurisdictions, adding
essentially the same conditions in FY 2018 as in FY 2017 plus some new ones to at least
ve additional Justice Department grants, but wording them in a way that used existing
immigration law to justify them.
371
New conditions included certifying compliance with
immigration laws that prohibit harboring noncitizens who are in the country illegally and
certifying that the jurisdiction is not impeding Justice Department reporting requirements
on the number of unauthorized immigrants in prison. On February 15, 2019, a federal judge
in the Los Angeles case issued a permanent nationwide injunction, preventing the Justice
Department from making Byrne JAG funding and a juvenile gang prevention grant conditional
on these certications.
372
The judge temporarily narrowed the injunction to aect only Los
Angeles on April 19, 2019, and on July 1, 2019, agreed to vacate the injunction as it related to
the gang prevention grant, taking away much of its impact.
373
But in another case, a federal
district judge in Illinois ruled on September 26, 2019, that the conditions could not be used to
deny FY 2018 funding or any future funding to the City of Evanston, IL, or to the 1,400 cities
represented in the U.S. Conference of Mayors.
374
366 See, for example, City of Philadelphia v. Attorney General, No. 18-2648 (U.S. Third Circuit Court of Appeals, February 15, 2019); City
of Providence and City of Central Falls v. William P. Barr, No. 19-1802 (U.S. First Circuit Court of Appeals, March 24, 2020).
367 The seven states were Connecticut, New Jersey, New York, Rhode Island, Washington, and the Commonwealths of Massachusetts
and Virginia. See New York v. U.S. Department of Justice, Nos. 19‐267(L); 19‐275(con) (U.S. Court of Appeals for the Second Circuit,
February 26, 2020).
368 Justice Department, “Department of Justice Announces Priority Consideration Criteria for COPS Oce Grants” (press release,
September 7, 2017).
369 Justice Department, “Attorney General Sessions Announces $98 Million to Hire Community Policing Ocers” (press release,
November 20, 2017).
370 City of Los Angeles v. William P. Barr, No. 18-55599 (U.S. Circuit Court of Appeals for the Ninth Circuit, July 12, 2019).
371 Justice Department, Oce of Justice Programs, “Forms: Certications Relating to 8 U.S.C. § 1373 and Certain Other Federal
Statutes Related to Immigration,” updated November 2018.
372 City of Los Angeles v. Jeerson B. Sessions, III, Case No. CV 18-7347-R (U.S. District Court for the Central District of California,
February 15, 2019).
373 City of Los Angeles v. William P. Barr, Case No. 2:18-cv-07347-R-JC (U.S. District Court for the Central District of California, order for
partial stay of injunction pending appeal, April 19, 2019); City of Los Angeles v. William P. Barr, Case No. 2:18-cv-07347-R-JC (U.S.
District Court for the Central District of California, order on joint motion for partial vacatur, July 1, 2019).
374 City of Evanston and the U.S. Conference of Mayors v. William P. Barr, Case No. 18 CV 4853 (U.S. District Court for the Northern
District of Illinois, September 26, 2019).
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► Lawsuits against State and Local Laws and Policies—multiyear—The Justice Department
led lawsuits challenging laws and policies that restrict state and local collaboration with federal
immigration authorities.
J March 6, 2018—The Justice Department led a lawsuit challenging three California laws
attempting to restrict the reach of ICE.
375
One law limits employers’ cooperation with ICE
during worksite enforcement actions, another requires the state attorney general to inspect
ICE detention facilities in the state, and the third restricts the circumstances under which
local ocers can provide ICE with information about a detainee’s release date and under
which local detainees can be transferred directly to ICE custody.
376
Federal courts upheld the
main provisions of the laws but struck down a bar on employers voluntarily consenting to
ICE agents entering nonpublic areas of their places of employment.
377
On October 22, 2019,
the Justice Department led a request for the Supreme Court to rule on the case, which was
denied in June 2020.
378
J January 24, 2020—The administration led suit to challenge a California law that prevents ICE
from operating private detention facilities in the state.
379
J January 24, 2020—The administration led a brief supporting two New Jersey counties that
sued the state over its Immigrant Trust Directive, which bars local law enforcement from
complying with ICE detainers and generally limits the extent to which local ocers can
participate in immigration enforcement.
380
The suit was dismissed in July 2020.
381
J February 10, 2020—The Justice Department led its own lawsuit challenging New Jersey’s
Immigrant Trust Directive.
382
J February 10, 2020—The Justice Department sued King County, WA, and the county executive
for a policy directing the relevant county agency and the local airport to insert prohibitions
375 United States v. California, No. 18-264 (U.S. District Court for the Eastern District of California, complaint, March 6, 2018).
376 State of California, An Act to Add Sections 7285.1, 7285.2, and 7285.3 to the Government Code, and to Add Sections 90.2 and 1019.2
to the Labor Code, Relating to Employment Regulation, Chapter 492, Statutes of 2017 (2017); State of California, An Act to Amend
Sections 384 and 1010.6 of the Code of Civil Procedure, … and to Repeal and Add Sections 270 and 271 Of, the Welfare and Institutions
Code, Relating to Public Safety, Making an Appropriation Therefor, to Take Eect Immediately, Bill Related to the Budget, Chapter 17,
Statutes of 2017 (2017); State of California, An Act to Amend Sections 7282 and 7282.5 Of, and to Add Chapter 17.25 (Commencing
With Section 7284) to Division 7 of Title 1 Of, the Government Code, and to Repeal Section 11369 of the Health and Safety Code,
Relating to Law Enforcement, Chapter 495, Statutes of 2017 (2017).
377 United States v. California, No. 2:18-cv-490-JAM-KJN (U.S. District Court for the Eastern District of California, order re: the United
States of America’s motion for preliminary injunction, July 5, 2018).
378 United States v. California, No. 19-532 (U.S. Supreme Court, Petition for a Writ of Certiorari, October 22, 2019); U.S. Supreme Court,
“Search Results: No. 19-352,” accessed August 25, 2021.
379 United States v. Gavin Newsom, Civil Action No. ‘20CV0154 MMAAHG (U.S. District Court for the Southern District of California,
complaint for declaratory and injunctive relief, January 24, 2020).
380 Monsy Alvarado, “Trump Administration Backs Two NJ Counties in Lawsuits Challenging Limited ICE Cooperation,” NorthJersey.
com, January 25, 2020.
381 Monsy Alvarado, “Federal Judge Dismisses Lawsuit Filed by NJ Counties Challenging Limits on ICE Cooperation,” NorthJersey.com,
July 29, 2020.
382 United States v. New Jersey (U.S. District Court for the District of New Jersey, complaint for declaratory and injunctive relief,
February 10, 2020).
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on working with ights carrying deportees into future contracts for service providers at the
airport.
383
► 287(g) Expansion—multiyear—The Trump administration placed a high priority on expanding the
287(g) program, under which certain state or local law enforcement ocers are authorized to assist
with the investigation, apprehension, or detention of unauthorized immigrants. As of January 2021,
ICE had 287(g) Jail Enforcement Model agreements with 72 law enforcement agencies in 21states, a
140 percent increase from the 30 agreements in eect in January 2017.
384
It also had 287(g) Warrant
Service Ocer agreements with 76 law enforcement agencies in 11 states.
J Warrant Service Ocer Program—May 6, 2019—ICE created the Warrant Service Ocer
Program as a type of 287(g) agreement in an attempt to avoid liability issues that arise when
local law enforcement agencies, pursuant to ICE detainers, hold detainees past their release
date and to work around restrictions that sanctuary localities may place on such cooperation.
Ocers in participating agencies are deputized after a day of training to issue administrative
immigration arrest warrants, which ICE says allows them to hold detainees for two days to
execute a transfer of custody to ICE.
385
The program began in Florida but was expanded to
other states.
► Worksite Enforcement—multiyear—In FY 2018 and FY 2019, the Trump administration put a much
stronger emphasis on worksite enforcement, as evidenced by the promise of Acting ICE Director
Thomas Homan that his agency would quintuple worksite investigations in FY 2018.
386
Though
investigations did not increase quite that sharply, they did rise fourfold in FY 2018 and held roughly
steady in FY 2019, before declining slightly in FY 2020:
J FY 2017: 1,691 opened worksite investigations
J FY 2018: 6,848 opened worksite investigations
387
J FY 2019: 6,812 opened worksite investigations
388
J FY 2020: 4,326 opened worksite investigations
389
► Fines for Immigrants Ordered Removed—multiyear—In December 2018, ICE began issuing nes
to immigrants who had been ordered removed but had not departed the United States.
390
The
action stemmed from an executive order issued on January 25, 2017, in which Trump instructed DHS
to collect all the nes it was authorized to from immigrants illegally in the country.
391
Immigrants
remaining in the country after being ordered removed can be ned up to $813 for each day they
383 United States v. King County, No. 2:20-cv-203 (U.S. District Court for the Western District of Washington, complaint, February 10,
2020).
384 ICE, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,” updated January 13, 2021.
385 ICE, “ICE Launches Program to Strengthen Immigration Enforcement” (press release, May 6, 2019).
386 Tal Kopan, “ICE Chief Pledges Quadrupling or More of Workplace Crackdowns,” CNN, October 17, 2017.
387 ICE, “ICE Worksite Enforcement Investigations in FY18 Surge” (press release, December 11, 2018).
388 Michelle Hackman, “Workplace Immigration Inquiries Quadruple under Trump,” Wall Street Journal, December 5, 2019.
389 DHS, “U.S. Immigration and Customs Enforcement Budget Overview: Fiscal Year 2022 Congressional Justication,” accessed
December 20, 2021, 80.
390 Franco Ordoñez, “Trump Administration Hits Some Immigrants in U.S. Illegally with Fines up to $500,000,” NPR, July 2, 2019.
391 White House, “Executive Order 13768.”
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violate their removal order.
392
By December 2019, ICE had issued notices of intention to ne to about
230 people—meanwhile, there were 1.16 million immigrants with outstanding nal orders of removal
as of March 2020.
393
392 While the statute sets the ne at $500, it is regularly adjusted for ination, most recently to $813 in June 2020. See DHS, “Civil
Monetary Penalty Adjustments for Ination,” Federal Register 85, no. 117 (June 17, 2020): 36469–83.
393 Stephen Dinan, “Exclusive: ICE Revives Six-Figure Fines against Illegal Immigrants Living in Sanctuary,” Washington Times,
December 7, 2019; Testimony of Matthew Albence, Deputy Director and Senior Ocial Performing the Duties of the Director of
ICE, before the House Appropriations Committee, Subcommittee on Homeland Security, Immigration and Customs Enforcement
Budget Request for FY2021, 116th Cong., 2d sess., March 11, 2020.
394 DHS and EOIR, “Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims,”
Federal Register 83, no. 218 (November 9, 2018): 55934–53; EOIR and USCIS, “Asylum Eligibility and Procedural Modications,”
Federal Register 84, no. 136 (July 16, 2019): 33829–45.
395 Matter of A-B-, 27 I&N Dec. 316 (Attorney General, June 11, 2018); Matter of L-E-A-, 27 I&N Dec. 581 (Attorney General, July 29,
2019).
396 Sarah Pierce, Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review (Washington, DC:
MPI, 2021).
4 U.S. Department of Justice
Under the Trump administration, the U.S. Department of Justice played an uncommonly vigorous role in
immigration policymaking—a function more traditionally driven by DHS. While the Justice Department’s
only immediate area of inuence over immigration is the immigration court system, which is housed in the
department, under the leadership of Attorney General Je Sessions (February 2017–November 2018) and
his successors Matthew Whittaker (November 2018–February 2019), William Barr (February 2019–December
2020), and Jerey Rosen (December 2020–January 2021), it also shaped border security and interior
enforcement policy.
The Justice Department played a central role in the
administration’s infamous family separation policy,
placing a high priority on prosecuting cases of
illegal entry, including those that would cause family
separations. The Justice Department also contributed
to the administration’s eorts to redene asylum and
narrow eligibility. With DHS, the Justice Department
authored two regulations that blocked asylum
applications from anyone who crossed the border between ports of entry or who failed to apply for asylum
in at least one transit country on their way to the United States.
394
Attorneys General Sessions and Barr
each issued decisions narrowing legal interpretations of the types of persecution that qualify for asylum—
making it especially dicult for victims of domestic or gang violence to qualify.
395
They did this using the
referral and review power, which allows attorneys general to overrule decisions made by the Board of
Immigration Appeals and set new precedent for the immigration courts. Attorneys general used this power
more under the Trump administration than in any other administration.
396
The administration exercised countervailing approaches to the immigration court system: while tirelessly
pushing to speed adjudications to reduce the court’s sizable backlog, it also made it more dicult for judges
to eciently manage their dockets and accelerated the addition of new cases. While completed cases
While the Justice Department’s only
immediate area of inuence over
immigration is the immigration court
system ... it also shaped border security
and interior enforcement policy.
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increased, so did the backlog, rising 92 percent between the end of FY 2017 and the end of FY 2020.
397
As of
September 30, 2020, there were 1,260,039 immigration cases in the backlog.
397 MPI analysis of data from EOIR, “Pending Cases, New Cases, and Total Completions.”
398 The memorandum changes the multistep hiring process put in place by former Attorney General Alberto Gonzales in March 2007
after it was revealed that the Justice Department hired immigration judges and other sta based on political and ideological
considerations. See memorandum from Dana J. Boente, Acting Deputy Attorney General, Justice Department, Immigration Judge
Hiring Process, April 4, 2017.
399 Memorandum from James R. McHenry, III, Director of EOIR, to the Deputy Attorney General, Immigration Judge and Appellate
Immigration Judge Hiring Process, February 19, 2019.
400 Memorandum from Je Sessions, Attorney General, to all federal prosecutors, Renewed Commitment to Criminal Immigration
Enforcement, April 11, 2017.
401 University of Las Vegas William S. Boyd School of Law, “Trump Administration Ending AmeriCorps Legal Aid Program for
Unaccompanied Children, but UNLV Law’s Work Continues” (news release, June 12, 2017); AILA, “AILA South Florida Chapter
Board Meeting Minutes” (unpublished meeting notes, October 20, 2017).
402 Catholic Legal Immigration Network, Inc. (CLINIC), “FOIA Disclosures on the Oce of Policy,” updated October 24, 2019.
403 EOIR, “Organization of the Executive Oce for Immigration Review,” Federal Register 85, no. 213 (November 3, 2020): 69465–82.
404 EOIR, “Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal,”
Federal Register 82, no. 232 (December 5, 2017): 57336–40.
► Changes to Immigration Judge Hiring Process—April 2017—In a memorandum approved by
Attorney General Sessions, the Justice Department made a number of changes to the immigration
judge hiring process to reduce delays, decrease the role of the immigration court’s leadership, and
grant greater discretion and inuence to Justice Department political appointees.
398
The Justice
Department made two more updates to this process, as well as the process for hiring appellate
immigration judges, in March 2018 and March 2019, that, among other things, increased exibility,
shortened process deadlines, and transferred some of the hiring responsibilities from the attorney
general and to the director of EOIR.
399
► Prioritization of Immigration Crime Prosecutions—April 11, 2017—The Justice Department
instructed federal prosecutors to prioritize the prosecution of immigration crimes and to appoint one
border security coordinator per oce to oversee such prosecutions and coordinate with DHS.
400
► End of a Program Providing Free Attorneys for Unaccompanied Minors—June 2017—The
administration phased out an AmeriCorps initiative that provided lawyers for thousands of
unaccompanied children.
401
► Creation of the Oce of Policy—December 11, 2017—EOIR launched a new Oce of Policy to
manage all agency policy and regulatory review and development, coordinate with other agencies,
manage internal and external communications, and supervise the provision of legal and policy
trainings, among other responsibilities.
402
A nal rule published on November 3, 2020, codied the
oce.
403
► Immigration Judges Allowed to Deny Cancellation Requests after Cap Reached—January 4,
2018—EOIR published a nal rule allowing immigration judges to issue nal decisions denying
nonmeritorious cancellation of removal cases, regardless of whether the annual limitation has been
reached.
404
Cancellation of removal allows certain immigrants to terminate removal proceedings and
receive permanent residence in the United States if they can show they have lived in the United States
for an extended period of time, meet certain good moral character requirements, and, in some cases,
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that their removal would cause certain U.S.-citizen or permanent resident relatives unusual hardship.
The Justice Department is limited from cancelling the removal of more than 4,000 unauthorized
immigrants per year. Before this change, judges were required to suspend both negative and positive
decisions on cancellation applications if the 4,000 slots were already taken for the year.
► Expansion of the Board of Immigration Appeals—February 27, 2018—EOIR published a nal rule
expanding the size of the immigration court’s appellate body, the BIA, from 17 judges to 21 judges.
405
Then in April 2020, EOIR published a nal rule that expanded it further to 23 judges.
406
As of June 2020,
the Trump administration had appointed ten permanent judges to the BIA.
407
► Zero-Tolerance Policy—April 6, 2018—Building on an April 2017 memorandum, the Justice
Department instructed federal prosecutors along the southwest border to prosecute all illegal entry
cases referred to them.
408
In May 2018, the department announced that DHS would refer 100 percent
of individuals illegally crossing the southwest border to the Justice Department for prosecution.
409
After the president’s June 2018 executive order ending family separations, this policy was no longer
applied to parents traveling with children (see also Section 3.A.). According to reports, some areas
of the border have since rolled back zero tolerance and are refraining from charging migrants who
cross illegally.
410
The Justice Department announced that in FY 2019 it prosecuted more people for the
misdemeanor crime of entering the United States illegally—81,000—than in any year since record-
keeping began more than 25 years prior.
411
► Review of the Legal Orientation Program—April 2018—The administration announced a pause
on the Legal Orientation Program, which provides more than 50,000 noncitizens in immigration
detention per year information on navigating the legal system.
412
After much public outcry over the
announcement, the administration backtracked and said the program would continue while EOIR
conducted a review of it.
413
J September 5, 2018—EOIR released the rst phase of its analysis, nding program participants
had longer detention stays and were less likely to obtain representation than other detained
405 EOIR, “Expanding the Size of the Board of Immigration Appeals,” Federal Register 83, no. 39 (February 27, 2018): 8321–23.
406 EOIR, “Expanding the Size of the Board of Immigration Appeals,” Federal Register 85, no. 63 (April 1, 2020): 18105–07.
407 Board of Immigration Appeals (BIA) members appointed by the Trump administration include William Cassidy, V. Stuart Couch,
Deborah K. Goodwin, Stephanie E. Gorman, Keith E. Hunsucker, Philip J. Montante Jr., Aaron R. Petty, Kevin W. Riley, David H.
Wetmore (Chief Appellate Immigration Judge), and Earle B. Wilson. The administration also appointed three temporary members.
See EOIR, “Board of Immigration Appeals,” updated June 5, 2020.
408 Memorandum from Je Sessions, Attorney General, to federal prosecutors along the Southwest border, Zero-Tolerance for
Oenses under 8 U.S.C. § 1325 (a), April 6, 2018.
409 Justice Department, “Attorney General Announces Zero-Tolerance Policy”; Justice Department, “Attorney General Delivers
Remarks.”
410 Alicia A. Caldwell, “Border Patrol Stops Prosecuting First-Time Border Crossers in Texas Region,” Wall Street Journal, March 28, 2019.
411 Justice Department, “Department of Justice Prosecuted a Record-Breaking Number of Immigration-Related Cases in Fiscal Year
2019” (press release, October 17, 2019).
412 Departments of Commerce and Justice, Science, and Related Agencies Appropriations Bill, 2019, Senate Report 115–275, 115th Cong.,
2nd sess. (June 14, 2018).
413 Testimony of Je Sessions, Attorney General, before U.S. Senate Appropriations Subcommittee on Commerce, Justice, Science,
and Related Agencies, Review of the FY2019 Budget Request for the U.S. Dept. of Justice, 115th Cong., 2d sess., April 25, 2018.
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immigrants.
414
The Vera Institute of Justice, which administers the program, said the review
had “insurmountable methodological aws.”
415
J January 29, 2019—EOIR nished the second phase of its analysis.
416
The study found
participants had marginally longer hearings and were more likely to le applications for relief
or protection.
J March 7, 2019—EOIR’s director testied before the House of Representatives, saying the
second phase of the analysis found the program not cost eective. He declined to say whether
the administration would again move to end the program but did say he wanted to engage
with Congress about it going forward.
417
► Moving to an Electronic Filing System—July 19, 2018—The immigration court piloted its new
electronic ling system, EOIR Court and Appeals System (ECAS), at ve immigration courts and the
BIA. An electronic system was intended to improve case scheduling and adjudication eciency.
418
As of December 2020, the system was in use at 33 out of 68 courts and two out of three adjudication
centers.
419
That month, EOIR published a proposed rule that would expand and make permanent the
electronic records program, including making electronic ling required for represented cases.
420
(See
“Expansion of Electronic Filing System and Limits on Law Student Representation” below.)
► Allowing Decient Court Notices—August 31, 2018—The BIA ruled that a decient court notice
(i.e., a notice to appear or NTA), one that fails to include the time and place of the foreign national’s
removal hearing, can be rectied by issuing a subsequent notice of hearing that includes the missing
information.
421
The ruling stopped a rash of thousands of court terminations after the Supreme Court
ruled that, at least in the context of a specic immigration benet called cancelation of removal,
paperwork that failed to designate a hearing’s time and place did not constitute a legal notice to
appear in court.
422
In 2020, the BIA built upon this in a series of rulings, holding that court notices
that lack information about the foreign national’s immigration status, fail to include the address of
the immigration court, or are not provided in the native language of the foreign national are still
sucient.
423
► Claried and Streamlined Court Scheduling Process—December 21, 2018—Following a Supreme
Court decision calling into question the validity of NTAs if they fail to designate a specic hearing date
414 EOIR, LOP Cohort Analysis (Washington, DC: EOIR, 2018).
415 Vera Institute of Justice, “Statement on DOJ Analysis of Legal Orientation Program” (press release, September 5, 2018).
416 EOIR, LOP Cohort Analysis: Phase II (Washington, DC: EOIR, 2019).
417 Testimony of James McHenry, Director of EOIR, Justice Department, before the House Committee on Appropriations,
Subcommittee on Commerce, Justice, Science, and Related Agencies, Executive Oce for Immigration Review, 116th Cong., 1st
sess., March 7, 2019.
418 EOIR, “EOIR Launches Electronic Filing Pilot Program” (news release, July 19, 2018); Testimony of James McHenry, Director of EOIR,
Justice Department, before the House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related
Agencies, Executive Oce for Immigration Review, 116th Cong., 1st sess., March 7, 2019.
419 EOIR, “EOIR Courts & Appeals Systems (ECAS) Locations,” updated December 17, 2020.
420 EOIR, “Executive Oce for Immigration Review Electronic Case Access and Filing,” Federal Register 85, no. 234 (December 4, 2020):
78240–58.
421 Matter of German Bermudez-Cota, 27 I&N Dec. 441 (BIA, August 31, 2018).
422 Reade Levinson and Kristina Cooke, “U.S. Courts Abruptly Tossed 9,000 Deportation Cases. Here’s Why,” Reuters, October 17, 2018.
423 Matter of Jonathan Said Herrera-Vasquez, 27 I&N Dec. 825 (BIA, May 8, 2020); Matter of Juana Rosales Vargas, Jonathan Jair Rosales
Rosales, 27 I&N Dec. 745 (BIA, January 9, 2020); Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA, January 31, 2020).
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and place, EOIR was inundated with foreign nationals who had received NTAs from DHS that had “false”
dates, including dates that do not exist, such as September 31, 2018, or dates on which the court is not
open.
424
In the wake of these problems, EOIR provided DHS access to its Interactive Scheduling System
(ISS) to allow the DHS ocers who issue NTAs to control scheduling on EOIR’s dockets and determine
which cases are scheduled for particular dates and times.
425
Previously, a case would not be scheduled
with EOIR until the DHS ocer had led the NTA with the court.
► Dual Appeals Court-Immigration Judge Positions—March 2019—The Justice Department posted
six vacancies for the BIA that noted the board members would be able to serve from immigration
courts throughout the country and act in a dual capacity, adjudicating cases at the trial court level
and also reviewing court decisions appealed to the BIA.
426
Previously, the entire appellate board solely
reviewed appeals cases and worked out of EOIR’s headquarters in Virginia.
► Fast-Track Hiring Procedures for Appeals Court Judges—March 18, 2019—EOIR created new hiring
procedures for BIA members, allowing sitting immigration judges to bypass the typical two-year
probationary period to be appointed immediately on a permanent basis.
427
The following August, six
new BIA members were hired through this process.
428
► “No Dark Courtrooms”—March 29, 2019—The director of EOIR issued a memorandum memorializing
policy changes made since 2017 to minimize the number of immigration courtrooms that go unused
each day.
429
Such changes have included increased hiring of immigration judges, increasing the
availability of video teleconferencing, and improving scheduling and docketing practices.
► Ending Interpretations at Master Calendar Hearings—June 2019—The Justice Department began
replacing in-court interpreters at initial immigration court hearings with videos informing foreign
nationals of their rights.
430
The pre-recorded video advisals are in English and Spanish and targeted
separately to detained and nondetained individuals.
431
J June 9, 2020—An audit of EOIR’s nancial management revealed that calculations showing
the high cost of interpreters in immigration court were signicantly overestimated. That
calculation had led to the usage of video advisals. After the audit, EOIR abandoned its plan to
expand the use of the recordings and their use declined in courts where they were piloted.
432
424 See Maria Gabriella Pezzo and Roberto Daza, “ICE Is Sending out Fake Court Dates to Immigrants. Here’s Why,” VICE News,
November 1, 2018.
425 Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, Acceptance of Notices to Appear and Use of
the Interactive Scheduling System, December 21, 2018.
426 Tanvi Misra, “DOJ Changed Hiring to Promote Restrictive Immigration Judges,” Roll Call, October 29, 2019.
427 Memorandum from James R. McHenry III, Director of EOIR, to the Deputy Attorney General, Candidate for an Appellate
Immigration Judge Position, July 18, 2019.
428 Misra, “DOJ Changed Hiring to Promote Restrictive Immigration Judges.”
429 Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, No Dark Courtrooms, March 29, 2019.
430 Tal Kopan, “Trump Administration Ending In-Person Interpreters at Immigrants’ First Hearings,” San Francisco Chronicle, July 3,
2019.
431 EOIR, “Proactive Disclosures,” accessed December 30, 2019.
432 Nanette Asimov, “Trump Ocials Cut Immigration Court Interpreters After Misstating Costs, Report Finds,” San Francisco Chronicle,
June 9, 2020; DOJ Oce of the Inspector General, Audit of the Executive Oce for Immigration Review’s Fiscal Year 2019 Financial
Management Practices (Washington DC: DOJ, 2020).
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► Allowing the EOIR Director to Adjudicate Appeals—August 26, 2019—In an interim nal regulation,
EOIR expanded the powers of the EOIR director, allowing the director to adjudicate cases before the
BIA if those cases have been pending for more than 90 days (for appeals assigned to a single board
member) or more than 180 days (for those assigned to a three-member panel).
433
Such cases were
previously adjudicated by the attorney general. On November 3, 2020, the nal rule was published.
434
► Expanding the Authority of the BIA—September 3, 2019—EOIR issued a regulation expanding the
authority of the BIA.
435
The rule allows the BIA to consider any issue on appeal, regardless of whether
the parties raised it. The rule also states that when foreign nationals appeal BIA decisions to federal
court, the court must assume the BIA considered all issues and arguments, even if the BIA did not
mention them in its nal decision. Without being able to see the BIA’s reasoning, this will make it more
dicult for foreign nationals to demonstrate the BIA was mistaken on appeal.
► Expanding the Authority of the Director of EOIR—September 3, 2019—EOIR issued a regulation
expanding the authority of the director of EOIR over the agency’s accreditation program for non-
attorneys.
436
EOIR runs a Recognition and Accreditation (R&A) Program through which non-attorneys
and their associated nonprot organizations may become accredited in order to represent foreign
nationals before immigration court. The EOIR director has the power to review denied requests, and
this regulation expanded that power by allowing the director to make these decisions precedential
and to refer such cases to the attorney general for review.
► Expedited Appellate Review—October 1, 2019—In the interest of speeding the appeals process, the
director of EOIR issued a memo placing new case processing and performance requirements on the
BIA.
437
► Online Case Status Information—February 25, 2020—EOIR announced an online resource for
checking case information.
438
Previously, automated case information was only available through a
call-in hotline.
► Creation of Denaturalization Section—February 26, 2020—The Justice Department added a
denaturalization section to its Oce of Immigration Litigation in anticipation of an increased number
of denaturalization referrals.
439
► Increasing DNA Collection from Immigration Detainees—March 9, 2020—The Justice Department
published a nal rule that would greatly increase instances in which DNA samples are collected from
foreign nationals in immigration custody.
440
Because the national mandate for DNA collection until
433 EOIR, “Organization of the Executive Oce for Immigration Review.”
434 EOIR, “Organization of the Executive Oce for Immigration Review.”
435 EOIR, “Board of Immigration Appeals: Armance without Opinion, Referral for Panel Review, and Publication of Decisions as
Precedents,” Federal Register 84, no. 127 (July 2, 2019): 31463–71.
436 EOIR, “Board of Immigration Appeals: Armance without Opinion.”
437 Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, Case Processing at the Board of Immigration
Appeals, October 1, 2019.
438 EOIR, “Executive Oce for Immigration Review Expands Automated Case Information Channels” (news release, February 25,
2020).
439 Justice Department, “The Department of Justice Creates Section Dedicated to Denaturalization Cases” (press release, February 26,
2020).
440 Justice Department, “DNA-Sample Collection from Immigration Detainees,” Federal Register 85, no. 46 (March 9, 2020): 13483–93.
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then had broad exceptions for individuals in immigration custody, the rule was expected to increase
DHS’s collection of DNA samples from 7,000 annually to approximately 755,000.
441
ICE ocials
conducted a pilot of the practice in Dallas beginning in May 2020 and planned to begin expanding
across the country in October.
442
(For more on DNA collection from detainees, see Section 3.B.)
► Hearings for Children over Video Teleconference (VTC)—March 9, 2020—The administration
launched a pilot program in Houston to hear all immigration court cases of unaccompanied minors in
government custody via VTC.
443
The initiative was likely intended to speed up proceedings for these
children.
► Creation of Regional Deputy Chief Immigration Judge Positions—August 2020—EOIR started
advertising to ll new roles of regional deputy chief immigration judges in six locations: Chicago,
Houston, Las Vegas, Miami, New York, and San Francisco.
444
They would be responsible for overseeing
immigration judges in a certain region.
► Creation of the Chief Administrative Law Judge—October 7, 2020—EOIR issued a rule creating the
position of chief administrative law judge in the Oce of the Chief Administrative Hearing Ocer.
445
The position supervises administrative law judges and their sta, taking those responsibilities from the
chief administrative hearing ocer, whose duties shifted to cover more administrative responsibilities.
► Orders Requiring Filings by Mail—November 2020—Immigration judges or supervisory immigration
judges mailed orders directing attorneys representing some immigrants in court proceedings to le
applications for relief with the court within a ve- to six-week period, or their clients would be ordered
removed.
446
This posed particular diculties for immigrants, many of them children, who had been
planning to le for relief with USCIS instead, but now risked being ordered removed if they did that.
► Decertication of Immigration Judge Union—November 2, 2020—The Federal Labor Relations
Authority (FLRA) ruled that immigration judges were management ocials and therefore not eligible
for collective bargaining, eectively decertifying the National Association of Immigration Judges,
which had been the recognized union since 1979.
447
This decision was the culmination of an eort by
the Justice Department to decertify the union, which started in August 2019 when the agency rst
petitioned the FLRA to take away judges’ collective bargaining power.
441 Justice Department, “DNA-Sample Collection from Immigration Detainees,” Federal Register 84, No. 204 (October 22, 2019): 56400.
442 Hamed Aleaziz, “ICE Is Planning to Expand DNA Collection of Detained Immigrants Nationwide,” BuzzFeed News, September 18,
2020.
443 Lomi Kriel, “New Trump Administration Policies Fast-Track Some Children’s Immigration Court Hearings, Including Video Pilot in
Houston,” Houston Chronicle, March 4, 2020.
444 USA Jobs, “Regional Deputy Chief Immigration Judge,” accessed June 4, 2021; EOIR, “Composition of the Oce of the Chief
Immigration Judge,” updated March 18, 2021.
445 EOIR, “Oce of the Chief Administrative Hearing Ocer, Chief Administrative Law Judge,” Federal Register 85, no. 195 (October 7,
2020): 63204–08.
446 Priscilla Alvarez, “Justice Department Places New Pressure on Immigrants Facing Deportation,” CNN, November 24, 2020; Shannon
Dooling, “‘We’ve Never Seen These Orders Issued Before’: New Deadlines In Immigration Court Have Attorneys Scrambling,”
WBUR, November 24, 2020.
447 U.S. Department of Justice, EOIR and National Association of Immigration Judges, International Federation of Professional and
Technical Engineers, Judicial Council 2, No. WA-RP-19-0067 (National Labor Relations Authority, November 2, 2020).
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► Delegation of Regulation-Issuing Authority—November 17, 2020 to January 20, 2021—Attorney
General Barr issued an order delegating to the EOIR director the authority to issue regulations related
to immigration through January 20, 2021.
448
► A Grant of TPS Does Not Constitute an Admission—November 23, 2020—The BIA ruled that a grant
of Temporary Protected Status (TPS) does not count as an admission to the country that would allow
a TPS holder who entered the country illegally to be eligible to apply for a green card, outside of the
Sixth, Eighth, and Ninth Circuits, which have ruled otherwise.
449
(For more on TPS and adjustment of
status, see Section 5.D.)
► Eliminating Master Calendar Hearings for Certain Noncitizens—December 1, 2020—A policy
memorandum went into eect requiring that noncitizens in removal proceedings who are not
detained and who have representation have their master calendar hearings vacated.
450
Instead,
they are to submit written pleadings, evidence, and applications for relief, after which they will be
scheduled for merits hearings or have their cases resolved without a hearing.
► Adjustments to the Asylum Clock—December 4, 2020—A memorandum from the EOIR director
created separate systems to track the days elapsed in an asylum case, to determine when certain
actions can or must be taken.
451
One system is a 180-day Asylum Clock, by the end of which a case is
supposed to be completed by an immigration judge, absent exceptional circumstances. The other
system is a 180-day Employment Authorization Document (EAD) Clock, by the end of which asylum
applicants may be granted work authorization if their case is still pending and they have submitted
a separate application for an EAD. The Asylum Clock is paused only in exceptional circumstances,
according to the discretion of individual immigration judges. The EAD Clock is paused if any applicant-
caused delays arise in the case. Previously, these two clocks were not separated.
► Speeding Up Appellate Review and Eliminating Administrative Closure—January 15, 2021—A
nal rule published in December 2020 gave the BIA new powers to issue orders of removal and
voluntary departure and grants of relief, while limiting the ability of the BIA and immigration judges
to reopen cases or reconsider decisions. It also shortened the maximum length of brieng extensions
before the BIA.
452
The rule largely eliminated the authority of appeals board members and immigration
judges to administratively close cases, a tool that previously allowed them to temporarily remove
some cases from the active docket.
► Fee Increases—January 19, 2021—The Justice Department issued a nal rule on December 18, 2020,
eective January 19, 2021, that would raise ling fees on a range of EOIR forms for the rst time since
1986.
453
Many of the increases were signicant; the cost of appealing an immigration judge decision
448 William P. Barr, Attorney General, Order No. 4910-2020: Delegation of Authority to the Director, Executive Oce for Immigration
Review, to Issue Regulations Related to Immigration Matters within the Jurisdiction of the Executive Oce for Immigration Review,
November 17, 2020.
449 Matter of Roberto Carlos Padilla Rodriguez, 28 I&N Dec. 164 (BIA, November 23, 2020).
450 Memorandum from James R. McHenry, Director, EOIR, to all of EOIR, Enhanced Case Flow Processing in Removal Proceedings,
November 30, 2020.
451 Memorandum from James R. McHenry, Director, EOIR, to all of EOIR, Asylum Processing, December 4, 2020.
452 EOIR, “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” Federal Register 85, no.
242 (December 16, 2020): 81588–656.
453 EOIR, “Executive Oce for Immigration Review; Fee Review,” Federal Register 85, no. 244 (December 18, 2020): 82750–95.
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to the BIA would increase from $110 to $975. The proposed rule also claried that the $50 asylum fee
imposed by USCIS in August 2020 (see Section 5.B.) would apply to asylum applications led before
the courts as well. However, a federal district court judge enjoined most of the rule the day before it
went into eect.
454
The increased fee for motions to reopen or reconsider, which rose from $110 to
$145, as well as one other fee increase were allowed to go into eect.
► Increasing the Immigration Judge Corps—multiyear—Through a series of strategies, including
decreasing the time required to hire new immigration judges and hiring back retired immigration
judges, the administration increased the corps of immigration judges from 289 judges in FY 2016 to
517 at the end of FY 2020.
455
► Pending at end of administration
J Requiring Filings with Immigration Courts when Providing Legal Advice—On September 30,
2020, the Justice Department proposed a rule that would require practitioners (both attorneys
and others providing services) to le a notice of appearance with the immigration court any
time they provided legal advice or judgment to a noncitizen in court proceedings.
456
The
proposed rule had the potential to curtail services oered by legal orientation programs to
noncitizens representing themselves in court, if indeed those services fell under the umbrella
of providing legal advice or judgment, because it would not be feasible for these providers to
le notices of appearance for every person they worked with.
457
J Dening “Good Cause” for Continuances—On November 27, 2020, the Justice Department
proposed a rule that would narrow the situations in which immigration judges could rule that
the “good cause” standard for granting continuances had been met.
458
It would also codify
scenarios that would not constitute good cause, such as when a continuance would not aect
the outcome of the proceedings, or when the continuance is being requested so an immigrant
could seek parole, deferred action, or an exercise of prosecutorial discretion.
J Limiting Circumstances for Granting Motions to Reopen or Reconsider and Stays of Removal—
EOIR proposed a rule on November 27, 2020, that would sharply limit the situations in which
immigrants could le motions to reopen or reconsider their cases with immigration courts
or the BIA.
459
The proposed rule, for example, would prohibit granting these motions on the
basis of an applicant having an application for relief pending before USCIS. The proposed
rule would also make it more dicult for immigrants to win a stay of removal before EOIR,
454 Catholic Legal Immigration Network, Inc., et al. v. EOIR et al., No. 20-cv-03812 (APM) (U.S. District Court for the District of Columbia,
January 18, 2021).
455 EOIR, “Immigration Judge (IJ) Hiring,” updated July 2021; EOIR, “Backgrounder on EOIR Strategic Caseload Reduction Plan,”
accessed January 3, 2019; memorandum from James McHenry, Acting Director of EOIR, Justice Department, to Deputy Attorney
General, Executive Oce for Immigration Review’s Strategic Caseload Reduction Plan, October 23, 2017.
456 EOIR, “Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances,” Federal Register 85,
no. 190 (September 30, 2020): 61640–53.
457 Letter from Patricia Lee Refo, President, American Bar Association, to Lauren Alder Reid Assistant Director, Oce of Policy, EOIR,
Professional Conduct for Practitioners – Rules and Procedures, and Representation and Appearances, EOIR Docket No. 18-0301; A.G.
Order No. 4841-2020, October 30, 2020.
458 EOIR, “Good Cause for a Continuance in Immigration Proceedings,” Federal Register 85, no. 229 (November 27, 2020): 75925–41.
459 EOIR, “Motions to Reopen and Reconsider; Eect of Departure; Stay of Removal,” Federal Register 85, no. 229 (November 27, 2020):
75942–59.
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requiring them to le stay requests with DHS rst, increasing the documents that must be
led with a stay request, and also prohibiting EOIR adjudicators from granting stays if the DHS
prosecutor in the case opposes them.
J Expansion of Electronic Filing System and Limits on Law Student Representation—EOIR
proposed a rule on December 4, 2020, that would expand the electronic ling system to all
courts and the BIA and make it permanent, rather than a pilot project.
460
The proposed rule
would also impose stricter regulations on law students and law graduates, newly requiring
them to submit all lings through an attorney or accredited representative and to be
physically accompanied by an attorney or accredited representative in order to represent
immigrants at hearings.
460 EOIR, “Executive Oce for Immigration Review Electronic Case Access and Filing,” Federal Register 85, no. 234 (December 4, 2020):
78240–58.
461 EOIR, “Immigration Judge (IJ) Hiring,” updated July 2021; EOIR, “Oce of the Chief Immigration Judge,” updated December 7,
2020.
462 MPI analysis of data from EOIR, “Pending Cases, New Cases, and Total Completions.”
463 MPI analysis of data from EOIR, “FY 2020 Decision Outcomes,” updated October 13, 2020; EOIR, “FY 2019 Decision Outcomes,”
updated October 23, 2019; EOIR, Planning, Analysis, and Statistics Division, Statistics Yearbook: Fiscal Year 2018 (Falls Church, VA:
EOIR, n.d.), 13; EOIR, Planning, Analysis, and Statistics Division, Statistics Yearbook: Fiscal Year 2017 (Falls Church, VA: EOIR, n.d.), 14.
464 Pierce, “As the Trump Administration Seeks to Remove Families”; House Committee on the Judiciary, “Courts in Crisis: The State of
Judicial Independence and Due Process in U.S. Immigration Courts” (hearing, January 29, 2020). The latter source includes links to
statements submitted by many advocacy organizations.
A. Instructions to Immigration Judges
The Executive Oce for Immigration Review (EOIR) is the oce within the Justice Department that houses
the immigration court system, employing more than 500 immigration judges located in 67 immigration
courts and two adjudication centers across the United States as of the end of FY 2020.
461
In the interest
of speeding the adjudication of immigration cases, and thus allowing the administration to deport more
immigrants more quickly, the Justice Department and EOIR made a number of changes to how and where
immigration judges conduct adjudications.
As a result of the Trump administration’s eorts, the number of cases adjudicated increased. During Trump’s
presidency, immigration judges completed an average of 217,000 cases per year, up from an average of
146,000 completions per year during Obama’s second term.
462
Likewise, the share of completed cases that
resulted in deportation orders (including both removal orders and voluntary departures) rose from an
average of 61 percent during the nal four years of Obama’s presidency to an average of 73 percent during
Trump’s presidency; the share that resulted in relief being granted shrank from 14 percent to 11 percent.
463
There is widespread concern that the administration’s emphasis on speed and eciency sacriced due
process and denied foreign nationals a meaningful opportunity to apply for the benets to which they were
legally entitled.
464
► Mobilization of Immigration Judges—March 2017—In his January 25, 2017, executive order on
border security, the president ordered the Justice Department to assign immigration judges to
particular detention facilities in order to increase the speed and eciency of removal hearings. In
March 2017, the Justice Department mobilized more than 100 immigration judges, assigning them
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to detention facilities across the country (including along the southwest border).
465
The mobilization
included both in-person assignments and dockets heard via VTC.
J May 2018—The Justice Department announced the assignment of 18 supervisory immigration
judges to ten immigration courts near the southwest border.
466
The judges were to hear cases
in person and using VTC.
► Limit Continuances—July 31, 2017—In a memo, the chief immigration judge instructed immigration
judges to limit continuances (when judges postpone case adjudications or hearings). To do so, the
memo encouraged the judges to carefully consider both the number and length of continuances
granted.
467
J January 8, 2021—A new memo on continuances replaced the 2017 memo. Like the 2017
memo, it directs judges to limit continuances.
468
It also aligns EOIR policy on continuances
with the attorney general decision in Matter of L-A-B-R-, making it more dicult for immigrants
to be granted continuances while waiting for USCIS to adjudicate applications for immigration
benets.
► Weakened Child-Friendly Court Practices—December 20, 2017—The chief immigration judge issued
a memo that replaced prior guidance on children in the courtroom and weakened child-friendly court
practices.
469
The memo eliminates prior language instructing judges to use the “best interests of the
child” standard to ensure that a case involving a minor takes place in a “child appropriate” hearing
environment. The memo also failed to include prior practices designed to make court proceedings
less dicult for children, such as allowing them to visit an empty courtroom before their hearing or
allowing them to call in for master calendar hearings if they do not reside close to the court.
► Discouraging Changes in Venue for Court Cases—January 17, 2018—The chief immigration judge
issued a memo instructing immigration judges to discourage changes in venue, stating they cause
“problems in caseload management and operational ineciencies” in the courts.
470
► New Court Performance Metrics—January 17, 2018—The immigration court implemented
performance measures as an accountability tool to ensure it is “operating at peak eciency.”
471
For
465 Justice Department, “Justice Department Releases Statistics on the Impact of Immigration Judge Surge” (news release, October 4,
2017).
466 Justice Department, “Justice Department Announces Additional Prosecutors and Immigration Judges for Southwest Border Crisis”
(news release, May 2, 2018).
467 Memorandum from MaryBeth Keller, Chief Immigration Judge, Justice Department, to all immigration judges, all court
administrators, all attorney advisors and judicial law clerks, and all immigration court sta, Operating Policies and Procedures
Memorandum 17-01: Continuances, July 31, 2017.
468 Memorandum from James R. McHenry III, EOIR Director, Justice Department, to all of EOIR, Continuances, January 8, 2021.
469 Memorandum from MaryBeth Keller, Chief Immigration Judge, Justice Department, to all immigration judges, all court
administrators, all attorney advisors and judicial law clerks, and all immigration court sta, Operating Policies and Procedures
Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children, December
20, 2017.
470 Memorandum from MaryBeth Keller, Chief Immigration Judge, Justice Department, to all immigration judges, all court
administrators, all attorney advisors and judicial law clerks, and all immigration court sta, Operating Policies and Procedures
Memorandum 18-01: Changes of Venue, January 17, 2018.
471 Memorandum from James McHenry, Director of EOIR, Justice Department, to the Oce of the Chief Immigration Judge, all
immigration judges, all court administrators, and all immigration court sta, Case Priorities and Immigration Court Performance
Measures, January 17, 2018.
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example, one measure of good performance is whether 85 percent of nondetained removal cases are
completed within one year of initiation.
J November 19, 2018—The director of EOIR instructed immigration judges to adjudicate all
asylum cases within 180 days.
472
Previously, certain cases referred to immigration courts from
USCIS were not subject to the 180-day adjudication deadline.
473
The EOIR director also laid
out more limited circumstances in which judges should approve continuances in asylum
cases. The memo said that beyond meeting the “good cause” standard typically required for a
grant of a continuance, asylum applicants asking for additional time before their next hearing
would need to meet the “exceptional circumstances” standard required to exceed the 180-day
adjudication deadline.
J December 21, 2018—The director of EOIR implemented performance standards for the Oce
of the Chief Administrative Hearing Ocer, a tribunal within EOIR that has jurisdiction over
cases related to employers, such as unfair immigration-related employment practices.
474
► Performance Standards for Immigration Judges—October 1, 2018—The immigration court
implemented performance standards for immigration judges, designating “satisfactory performance”
as completing 700 cases per year and having less than 15 percent of cases remanded from the BIA or
federal courts, in addition to meeting a number of other benchmarks.
475
► Limits on the Use of Status Dockets—August 16, 2019—The director of EOIR issued a memo limiting
instances in which immigration judges could use status dockets.
476
Moving a case to a status docket
allows a judge to eectively pause the case while, for example, waiting for an individual’s application
for immigration status to be adjudicated by USCIS. This practice grew increasingly important under
the Trump administration because the attorney general ended another common tool for delaying
these cases, administrative closure, and because under the administration’s case processing priorities
judges were obligated to nish 85 percent of non-status-docket cases within one year. The August
2019 memo limited the types of cases judges could place on status dockets, making it more dicult
for immigrants to seek relief before USCIS while in removal proceedings. As of July 2019, shortly before
the memo was issued, there were 21,000 cases sitting on status dockets.
477
► Expedited Case Processing—January 31, 2020—The acting deputy director of EOIR issued a
memo establishing uniform case management and docketing practices, including scheduling initial
master calendar hearings in nondetained cases within 30 and 90 days of the ling of the charging
472 Memorandum from James McHenry, Director of EOIR, Justice Department, to all of EOIR, Guidance Regarding the Adjudication of
Asylum Applications Consistent with INA § 208(d)(5)(A)(iii), November 19, 2018.
473 Memorandum from Brian M. O’Leary, Chief Immigration Judge, EOIR, Justice Department, to all immigration judges, all court
administrators, all attorney advisors and judicial law clerks, and all immigration court sta, The Asylum Clock, December 2, 2013.
474 Memorandum from James R. McHenry, Director of EOIR, Justice Department, to all of the Oce of the Chief Administrative
Hearing Ocer (OCAHO), OCAHO Case Completion Goals, December 21, 2018.
475 EOIR, “EOIR Performance Plan: Adjudicative Employees,” accessed January 3, 2019.
476 Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, Use of Status Dockets, August 16, 2019.
477 Email from Mary Cheng, Deputy Chief Immigration Judge, EOIR, Justice Department, Status Docket, July 29, 2019, obtained by
Hoppock Law Firm via Freedom of Information Act (FOIA) request.
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document.
478
The memo also contains mandatory time frames for bond hearings, credible-fear
reviews, and rescheduled cases.
► Reduced Opportunity to Retain Counsel—January 31, 2020—The acting deputy director of
EOIR issued a memo stating that there is no court policy mandating or requiring judges to grant
continuances.
479
This gives judges room to deny continuances despite past EOIR policy stating that
foreign nationals should be granted at least one continuance in order to have time to retain counsel.
480
► Speeding Cases with Pro Bono Representation—December 10, 2020—A memo largely reiterating
existing policy and encouraging pro bono representation also newly advised immigration judges
that delays in asylum proceedings, such as issuing continuances, could discourage pro bono
representation.
481
► Fee Review Policy—December 18, 2020—A memorandum established an EOIR policy of reviewing its
fees biennially, which had previously been required by an Oce of Management and Budget circular
but not regularly implemented.
482
► Revised Case Processing Priorities—multiyear—The administration made a number of changes to
ensure that certain types of cases would receive expedited treatment.
J January 31, 2017—In a memo to immigration judges, the chief immigration judge instructed
them to prioritize cases involving (1) detained immigrants, (2) unaccompanied minors in
Oce of Refugee Resettlement (ORR) custody who do not have sponsors, and (3) foreign
nationals released from custody on bond after six months or more of detention.
483
This memo
removed unaccompanied minors (as a broader group), families, and recent border-crossers
released from custody from the priorities.
J January 17, 2018—Arguing that changes in priority designations hurt docket eciency, the
EOIR director greatly narrowed which cases were prioritized, limiting them to individuals in
detention and any other cases subject to statutory or regulatory deadlines.
484
J November 16, 2018—EOIR announced that it had created expedited dockets for all cases
involving families at ten immigration court locations: Atlanta, Baltimore, Chicago, Denver,
Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.
485
The
478 Memorandum from Sirce E. Owen, Acting Deputy Director, EOIR, Justice Department, to all of EOIR, Case Management and
Docketing Practices, January 31, 2020.
479 Memorandum from Sirce E. Owen, Case Management and Docketing Practices.
480 The court rearmed the policy that judges should grant at least one continuance to give foreign nationals an opportunity to
retain counsel as recently as July 2017. See Memorandum from MaryBeth Keller, Operating Policies and Procedures Memorandum
17-01: Continuances.
481 Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, Pro Bono Legal Services, December 10,
2020.
482 Memorandum from James McHenry, Director of EOIR, Justice Department, to all of EOIR, Fees, December 18, 2020.
483 Memorandum from MaryBeth Keller, Chief Immigration Judge, Justice Department, to all immigration judges, all court
administrators, and all immigration court sta, Case Processing Priorities, January 31, 2017.
484 Memorandum from James McHenry, Case Priorities and Immigration Court Performance Measures.
485 Memorandum from James McHenry, Director of EOIR, Justice Department, to all of EOIR, Tracking and Expedition of “Family Unit”
Cases, November 16, 2018.
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expectation was that such cases would be completed within one year or less. As of January 10,
2020, 118,224 family units had been placed on this accelerated docket.
486
J November 19, 2018—EOIR announced a policy of expediting asylum applications, with the
expectation that they would be adjudicated within 180 days.
487
J January 2020—EOIR reportedly told assistant chief immigration judges in an email that
the court cases of unaccompanied children being held in government custody should be
prioritized in the same way as cases involving detained individuals, and that they should be
completed within the same 60-day period laid out for cases of detained individuals in the EOIR
director’s January 2018 memo.
488
► Pending at end of administration
J Allowing Immigration Judges Contempt Power—The Justice Department indicated that
it would publish a proposed rule that, if implemented, would allow immigration judges to
sanction by nancial penalty actions in contempt of the judge’s proper exercise of authority.
489
Congress allowed for such authority in a 1996 law, the Illegal Immigration Reform and
Immigrant Responsibility Act, but all administrations since then have declined to implement it.
486 EOIR, “‘Family Unit’ Data for Select Courts,” accessed January 2, 2020.
487 Memorandum from James McHenry, Director of EOIR, Justice Department, to all of EOIR, Guidance Regarding the Adjudication of
Asylum Applications Consistent with INA § 208(d)(5)(A)(iii), November 19, 2018.
488 Priscilla Alvarez, “Trump Administration Puts Pressure on Completing Deportation Cases of Migrant Children,” CNN, February 12,
2020.
489 Justice Department, “Civil Money Penalty for Actions in Contempt of an Immigration Judge’s Proper Exercise of Authority”
(proposed rule 1125-AB02, Spring 2020).
490 Pierce, Obscure but Powerful, 7.
491 Matter of E-F-H-L-, 27 I&N Dec. 226 (Attorney General, March 5, 2018).
B. Attorney General Referral and Review
The Trump administration made unprecedented use of the attorney general’s ability to self-refer
immigration cases for review. The referral and review power allows the attorney general to be the
nal arbiter on immigration court cases and unilaterally make law. Attorneys general under the Trump
administration far outpaced those in prior administrations in terms of use of this power, with 17 self-
referrals, compared to four under the entirety of the Obama administration and ten under Bush.
490
Using
this power, attorneys general under Trump made major changes to the denition of asylum, the docket
management strategies of immigration judges, and more.
► Limits on Asylum Hearings—March 5, 2018—In Matter of E-F-H-L-, Attorney General Sessions
overruled a case that held asylum and withholding-of-removal applicants were entitled to full
evidentiary hearings.
491
► End of Administrative Closure of Immigration Cases—May 17, 2018—In Matter of Castro-Tum,
Sessions ruled that immigration judges generally cannot administratively close cases (an option that
judges had previously used to temporarily take cases o of the court docket, usually to allow for the
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completion of immigration processes before other agencies).
492
However, the Fourth and Seventh
Circuit Courts of Appeals later rejected Castro-Tum in their jurisdictions.
493
Immigration judges and the
BIA thus retained administrative closure authority only in cases arising in Illinois, Indiana, Maryland,
North Carolina, South Carolina, Virginia, West Virginia, and Wisconsin.
J June 15, 2018—ICE’s Oce of the Principal Legal Advisor issued a memo to ICE attorneys
instructing them to le motions to place cases that had been administratively closed back
on to the court docket.
494
At that time, there were more than 355,000 administratively closed
cases. By the end of July 2020, only a small portion of cases had been moved back to the
active docket, and more than 290,000 cases remained administratively closed.
495
► Limits on Asylum for Victims of Private Violence—June 11, 2018—In Matter of A-B-, Sessions limited
the ability of victims of domestic or gang violence to qualify for asylum.
496
In December 2018, a federal
district court judge enjoined the application of this ruling to credible-fear interviews (the initial
interview between a USCIS asylum ocer and an asylum seeker), but it still applies at the ultimate
adjudication of asylum cases.
497
A federal appeals court partially upheld the district court’s decision on
July 17, 2020, allowing the government to apply some, but not all, of the attorney general’s ruling in
Matter of A-B- at the credible-fear stage of the asylum process.
498
J Further Limits on Asylum—On January 14, 2021,
Acting Attorney General Rosen made a
second attorney general decision in Matter of A-B- after self-referring the case that further
restricted which cases qualify for asylum.
499
He ruled that violence or threats experienced by
an asylum seeker do not constitute persecution if the government in the applicant’s origin
country made attempts to prevent them.
► Limits on Continuances—August 16, 2018—In Matter of L-A-B-R-, Sessions made it more dicult
for foreign nationals to have their immigration court cases postponed while they wait for USCIS to
adjudicate their applications for immigration benets.
500
J January 22, 2020—In Matter of L-N-Y-, the BIA made it even more dicult for foreign nationals
to receive continuances while waiting for USCIS adjudications, ruling that an applicant’s
eligibility for relief before USCIS and the potential eects of the relief on the proceedings
492 Matter of Castro-Tum, 27 I&N Dec. 271 (Attorney General, May 17, 2018). This decision ended the ability of foreign nationals in
removal proceedings to apply for the provisional unlawful presence waiver, which requires any pending removal proceedings be
administratively closed prior to ling. See 8 Code of Federal Regulations § 212.7(e)(4)(iii). As a result, foreign nationals in removal
proceedings who are trying to legalize as the spouse or child of a U.S. citizen or legal permanent resident must do so by applying
from within their home country.
493 Jesus Humberto Zuniga Romero v. William Barr, No. 18-1850 (U.S. Court of Appeals for the Fourth Circuit, August 29, 2019); Yeison
Meza Morales v. William P. Barr, No. 19-1999 (U.S. Court of Appeals for the Seventh Circuit, June 26, 2020).
494 Memorandum from Adam V. Loiacono, Deputy Principle Legal Advisor for Enforcement and Litigation, and Ken Padilla, Deputy
Principle Legal Advisor for Field Legal Operations, Oce of the Principal Legal Advisor (OPLA), ICE, to OPLA headquarters and
eld personnel, OPLA Guidance: Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), June 15, 2018.
495 TRAC, “The Life and Death of Administrative Closure,” updated September 10, 2020.
496 Matter of A-B-, 27 I&N Dec. 316 (Attorney General, June 11, 2018).
497 Grace v. Matthew G. Whitaker, No. 18-cv-01853 (U.S. District Court for the District of Columbia, December 19, 2018).
498 Grace v. William P. Barr, No. 19-5013 (U.S. Court of Appeals for the District of Columbia, July 17, 2020).
499 Matter of A-B-, 28 I&N Dec. 199 (Attorney General, January 14, 2021).
500 Matter of L-A-B-R-, 27 I&N Dec. 405 (Attorney General, August 16, 2018).
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alone do not justify a continuance grant.
501
The BIA held that judges, when deciding whether
to grant a continuance, should weigh how long it will take USCIS to adjudicate the benet and
whether the foreign national is held in detention.
► Limits on Terminations—September 18, 2018—In Matter of S-O-G- & F-D-B-, Sessions ruled that
immigration judges can only terminate cases in very specic scenarios.
502
► End of Bond for Asylum Seekers—April 16, 2019—In Matter of M-S-, Attorney General Barr ruled that
immigration judges do not have the authority to hold bond hearings for arriving asylum seekers.
503
Without this option, assuming ICE has the resources to hold them, many asylum seekers would be
held in custody indenitely while their immigration proceedings are pending.
504
A federal district court
judge enjoined the decision in July 2019, requiring immigration courts to continue to provide bond
hearings to certain asylum seekers.
505
The Ninth Circuit Court of Appeals upheld the district court’s
decision in March 2020.
506
However, in January 2021, the Supreme Court vacated the Ninth Circuit’s
decision and instructed the court to reconsider the case.
507
► Limits on Asylum Based on Family Membership—July 29, 2019—In Matter of L-E-A-, Barr made it
more dicult for applicants to qualify for asylum on the grounds of persecution based on one’s family
relationship, holding that most nuclear families are not suciently “socially distinct” to meet the
requirements of persecution on the basis of membership in a particular social group.
508
► Expansion of the Attorney General’s Authority—September 3, 2019—EOIR issued a regulation
expanding the authority of the attorney general to make binding law.
509
While the BIA decides around
30,000 cases each year, it only makes a handful of those precedential, or binding law. This regulation
allows the attorney general to bind immigration judges and DHS to any precedent set in those tens of
thousands of cases.
► Limits on Cancellation of Removal—October 25, 2019—In Matter of Castillo-Perez, Barr held that
foreign nationals with two or more convictions for driving under the inuence should presumptively
be denied cancellation of removal.
510
501 Matter of L-N-Y-, 27 I&N Dec. 755 (BIA, January 22, 2020).
502 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (Attorney General, September 18, 2018).
503 Matter of M-S-, 27 I&N Dec. 509 (Attorney General, April 16, 2019). Before referring Matter of M-S- to himself, then Attorney General
Je Sessions referred Matter of M-G-G- with the intention of reviewing the same issue. However, after the referral, the respondent
was removed from the country, prompting the attorney general to no longer review the case. See Matter of M-G-G-, 27 I&N Dec.
475 (Attorney General, October 12, 2018); Matter of M-S-, 27 I&N Dec. 476 (Attorney General, October 12, 2018).
504 Note, however, that because of prior law, families and unaccompanied children are exempted from this decision.
505 Yolany Padilla v. U.S. Immigration and Customs Enforcement, No. 2:18-cv-00928-MJP (U.S. District Court Western District of
Washington at Seattle, July 2, 2019).
506 Yolany Padilla v. U.S. Immigration and Customs Enforcement, No. 19-35565 (U.S. Court of Appeals for the Ninth Circuit, March 27,
2020). Previously, on July 22, 2019, the Ninth Circuit declined to stay the order requiring bond hearings. See Yolany Padilla v. U.S.
Immigration and Customs Enforcement, No. 19-35565 (U.S. Court of Appeals for the Ninth Circuit, July 22, 2019).
507 ICE, et al. v. Yolany Padilla, et al., No. 20-234 (U.S. Supreme Court, certiorari – summary dispositions, January 11, 2021); Hillel R.
Smith, Is Mandatory Detention of Unlawful Entrants Seeking Asylum Constitutional? (Washington, DC: Congressional Research
Service, 2021).
508 Matter of L-E-A-.
509 EOIR, “Board of Immigration Appeals: Armance without Opinion.”
510 Matter of Castillo-Perez, 27 I&N Dec. 664 (Attorney General, October 25, 2019).
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► Increasing the Eects of State Criminal Convictions—October 25, 2019—In Matter of Thomas-
Thompson, Barr ruled that state court orders that modify, clarify, or otherwise alter a foreign national’s
sentence, such as expungements, will be disregarded unless they are based on reasons related to
the merits of the underlying criminal proceeding.
511
Thus, a foreign national’s expunged criminal
conviction may still prevent the individual from receiving certain immigration benets.
► Limits on Relief under the Convention Against Torture—February 26, 2020—In Matter of R-A-F-, Barr
narrowed the denition of “torture” for the purposes of qualifying for deferral of removal under the
Convention Against Torture.
512
As a result of Barr’s opinion, the torture must be “specically intended”
to inict severe harm or suering and it must be motivated by a specic aim, including, among other
things, obtaining information or a confession, or punishing the victim for an act.
► Clarifying Denitions under the Convention Against Torture—July 14, 2020—In Matter of O-F-
A-S-, Barr settled developing confusion between immigration courts and federal courts of appeals
on the requirement that to be considered torture for the purposes of a claim under the Convention
Against Torture, an applicant’s pain or suering must be “inicted by or at the instigation of or with
the consent or acquiescence of a public ocial or other person acting in an ocial capacity.”
513
Barr
claried that a perpetrator must be acting in a way made possible only by their authority under the
law for them to be considered as acting in “an ocial capacity,” possibly including a misuse of such
authority.
► Increased Immigration Consequences for Foreign Nationals with Convictions—July 30, 2020—In
Matter of Onesta Reyes, Barr found that certain state court convictions can be considered aggravated
felonies for immigration purposes, even if they are broader than (and therefore dierent from) the
convictions dened in federal law as aggravated felonies, as long as every criminal act they cover is
included in the aggravated felony denition.
514
The decision thus bars convicted foreign nationals from
certain immigration benets and increases the likelihood that they will be deported.
515
► Increased Scrutiny in BIA Review of Asylum Cases—September 24, 2020—In Matter of A-C-A-A,
Barr held that in a review of an asylum case, the BIA must consider de novo the facts found by the
immigration judge and each element of the asylum claim.
516
The attorney general also reiterated
the importance of nding that the harm or threats an asylum seeker faced were “on account of”
membership in a cognizable particular social group, not simply incidental to the persecutor’s
motivation.
► Exemption from the Persecutor Bar Rejected—November 5, 2020—In Matter of Daniel Girmai
Negusie, Barr found that coercion and duress are irrelevant to the application of the persecutor bar.
517
Individuals who commit persecution are barred from receiving asylum and withholding of removal in
the United States. This decision eliminates an exemption for applicants who show that they committed
511 Matter of Michael Vernon Thomas, Joseph Lloyd Thompson, 27 I&N Dec. 674 (Attorney General, October 25, 2019).
512 The opinion also holds that the BIA should consider de novo the application of law to facts, including, for example, whether the
anticipated treatment in an applicant’s home country rises to the regulations’ denition of “torture.” See Matter of R-A-F-, 27 I&N
Dec. 778 (Attorney General, February 26, 2020).
513 Matter of O-F-A-S-, 28 I&N Dec. 35 (Attorney General, July 14, 2020).
514 Matter of Onesta Reyes, 28 I&N Dec. 52 (Attorney General, July 30, 2020).
515 Matter of Onesta Reyes, 27 I&N Dec. 708 (Attorney General, November 21, 2019).
516 Matter of A-C-A-A-, 28 I&N Dec. 84 (Attorney General 2020).
517 Matter of Daniel Girmai Negusie, 28 I&N Dec. 120 (Attorney General, November 5, 2020).
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persecution under imminent threat. Barr’s decision also concludes that, if evidence in the record
indicates the persecutor bar may apply, the burden is on the applicant to show by a preponderance of
the evidence that it does not, rather than on DHS to show that the applicant is ineligible for protection.
► Pending at end of administration
J Expansion of the Attorney General’s Referral and Review Power—The Justice Department
indicated it intended to signicantly expand the attorney general’s referral and review
power.
518
Under the established practice, the attorney general can only review cases that have
been decided by the BIA. The Justice Department intended to introduce regulations that
would enable the attorney general to also review cases pending before the BIA and those
decided by immigration judges but not yet appealed. This would increase the cases on which
the attorney general could rule by more than 700 percent, from an average of 33,000 cases per
year to 247,000.
519
J Raising the Threshold for Asylum Eligibility—On June 17, 2020, Barr referred the case Matter
of A-M-R-C- to himself to review several issues related to when applicants are barred from
receiving asylum, sucient due process, and a signicant delay between the BIA’s decision
and the attorney general’s review, but a decision was not issued before the end of the Trump
administration.
520
The BIA decisions in Matter of A-M-R-C- were issued in 2006.
521
518 Justice Department, “Referral of Decisions in Immigration Matters to the Attorney General” (proposed rule 1125-AA86, Fall 2018).
519 MPI analysis of data from EOIR, Statistics Yearbook: Fiscal Year 2017 (Washington, DC: EOIR, 2017), 10, 36.
520 Matter of A-M-R-C-, 28 I&N Dec. 7 (Attorney General, June 17, 2020).
521 Daniel M. Kowalski, “EOIR Posts Case Underlying Matter of A-M-R-C-,” Lexis Nexis, June 19, 2020.
522 MPI Data Hub, “U.S. Annual Refugee Resettlement Ceilings and Number of Refugees Admitted, 1980-Present,” accessed
September 16, 2021.
523 Chishti and Bolter, “Interlocking Set of Trump Administration Policies.”
5 Humanitarian Migration
Humanitarian migrants were a frequent target of Trump’s rhetoric and the subject of many policy changes
throughout his presidency. The administration implemented overlapping policies to decrease the number
of refugees and asylum seekers who could access protection in the United States, including setting the
lowest annual refugee admissions ceilings since the modern U.S. refugee resettlement program began in
1980.
522
The Trump administration also increased screening of refugees, slowing down the resettlement
process and leading to admissions below the already low annual caps.
On the U.S.-Mexico border, a series of policies targeting
dierent populations made almost all migrants
crossing the border or arriving without documentation
ineligible for asylum and/or subject to quick removal.
523
For example, a twin set of policies, the Humanitarian
Asylum Review Process (HARP) and Prompt Asylum Case
Review (PACR), subjected Mexican and Central American
migrants, respectively, to faster asylum screenings and,
The administration implemented
overlapping policies to decrease
the number of refugees and
asylum seekers who could access
protection in the United States.
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if unsuccessful, removal. These programs were implemented in conjunction with a rule that made Central
Americans ineligible for U.S. asylum if they had not rst sought and been denied asylum in Mexico, moving
asylum seekers more quickly through a system in which it was becoming increasingly dicult to obtain
protection.
In addition to high-prole changes to refugee resettlement and access to asylum at the U.S.-Mexico border,
the administration also reduced access to other humanitarian pathways, including by narrowing the
standards abused or neglected children and young adults must meet to receive Special Immigrant Juvenile
status, and terminating TPS for 98 percent of beneciaries.
524
A. Refugees
The Trump administration worked to shrink every aspect of the U.S. refugee resettlement system. It
set progressively lower refugee admissions ceilings, ultimately setting the FY 2021 ceiling at 15,000—
just 15 percent of what it had been when Trump took oce (110,000 in FY 2017, set by the Obama
administration). In two of its four years, the administration admitted the fewest refugees in a single year
since the resettlement program began in 1980. Throughout his term, Trump also changed the allocation
strategy for refugee admissions and instituted stricter screening of refugees prior to resettlement. Refugees
admitted from the Middle East decreased, while those admitted from Europe increased; similarly, the
share of resettled refugees who were Muslim decreased from 46 percent in FY 2016 to 16 percent in FY
2019.
525
As the number of arriving refugees dwindled, the United States lost its place as the world leader in
refugee resettlement. The decreased arrivals and associated funding cuts also damaged the United States’
resettlement infrastructure, shrinking the network of organizations across the country that assist newly
resettled refugees—a reduction in resettlement capacity that will likely take years to rebuild.
524 MPI analysis of data from Jill H. Wilson, Temporary Protected Status: Overview and Current Issues (Washington, DC: Congressional
Research Service, 2018), 5.
525 Mark Greenberg, Julia Gelatt, and Amy Holovnia, “As the United States Resettles Fewer Refugees, Some Countries and Religions
Face Bigger Hits than Others” (commentary, MPI, Washington, DC, September 2019).
526 Pursuant to the president’s March 2017 “travel ban” executive order. See White House, “Executive Order 13780 of March 6, 2017:
Protecting the Nation from Foreign Terrorist Entry into the United States,” Federal Register 82, no. 45 (March 9, 2017): 13209–19.
► Refugee Ban—June 26 to October 24, 2017—Pursuant to the president’s March 2017 “travel ban”
executive order (see Section 6), the administration suspended the travel of refugees into the
United States for 120 days, during which the administration reviewed the refugee application and
adjudication process for potential security threats.
526
J Targeted Refugee Ban—October 24 to December 23, 2017—The administration announced
it would deprioritize the resettlement applications of refugees from 11 countries deemed a
“high risk” to national security (reportedly Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia,
South Sudan, Sudan, Syria, and Yemen) while the government further reviewed these security
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risks.
527
In practice, this amounted to the continuation of the refugee ban for nationals of those
11 countries, until it was enjoined by a court in December 2017.
528
J Additional Vetting for Refugees from “High Risk” Countries—January 29, 2018—Following
the second security review of refugees from the 11 countries, the administration announced
it would implement additional screening measures for refugees from those countries and
would periodically update the list of “high risk” countries.
529
Those changes included longer
interviews, separate interviews for children, and an expanded list of “national security
indicators” that would warrant additional screenings.
530
► End of the Central American Minors (CAM) Refugee and Parole Program—August 16, 2017—The
administration ended the parole portion of the CAM Program, an in-country refugee processing
program for minors in El Salvador, Guatemala, and Honduras who had parents in the United States.
531
On November 9, 2017, the State Department stopped accepting new applications for the refugee side
of the program.
532
On January 31, 2018, USCIS stopped interviewing applicants for the CAM Program
altogether.
J March 1, 2019—A federal district court judge in Northern California ordered DHS to continue
processing the cases of 2,714 Central American minors who had been conditionally approved
to be paroled into the United States, but whose approvals were terminated with the
program.
533
In an update to the court, the government reported that 950 CAM applicants had
traveled to the United States as of December 17, 2020.
► Elimination of Oces Serving Small Numbers of Refugees—December 2017—The State
Department determined that refugee resettlement aliates, often local NGOs, that were expected to
serve fewer than 100 refugees in FY 2018 would not be allowed to resettle new refugees.
534
► Increased Data Sharing with the UN Refugee Agency—January 9, 2019—DHS signed a
memorandum of understanding with the United Nations High Commissioner for Refugees (UNHCR)
527 White House, “Executive Order 13815 of October 24, 2017: Resuming the United States Refugee Admissions Program with
Enhanced Vetting Capabilities,” Federal Register 82, no. 207 (October 27, 2017): 50055–58; memorandum from Secretary of
State Rex W. Tillerson, Acting Secretary of Homeland Security Elaine Duke, and Director of the Oce of the Director of National
Intelligence Daniel Coats, to the president, Resuming the United States Refugee Admissions Program with Enhanced Vetting
Capabilities, October 23, 2017.
528 International Refugee Assistance Project (IRAP), Debunking “Extreme Vetting”: Recommendations to Build Back the U.S. Refugee
Admissions (New York: International Refugee Assistance Project, 2020) 22–24.
529 DHS, “DHS Announces Additional, Enhanced Security Procedures for Refugees Seeking Resettlement in the United States” (press
release, January 29, 2018).
530 IRAP, Debunking “Extreme Vetting,” 25.
531 DHS, “Termination of the Central American Minors Parole Program,” Federal Register 82, no. 157 (August 16, 2017): 38926–27.
However, advocates allege the program stopped much earlier, with USCIS cancelling and stopping interviews within the rst
week of the president taking oce and stopping issuing decisions to interviewed beneciaries. See, for example, S.A. v. Donald J.
Trump, No. 18-cv-03539-LB (U.S. District Court Northern District of California, December 10, 2018).
532 USCIS, “Central American Minors (CAM): Information for Parole Applicants,” updated June 18, 2019.
533 S.A. v. Donald J. Trump, No. 18-cv-03539-LB (U.S. District Court Northern District of California, March 1, 2019); S.A. v. Donald J.
Trump, No. 18-cv-03539-LB (U.S. District Court Northern District of California, defendants’ seventh quarterly report, December 30,
2020).
534 Yeganeh Torbati and Mica Rosenberg, “Exclusive: State Department Tells Refugee Agencies to Downsize U.S. Operations,” Reuters,
December 21, 2017.
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to expand the biometric and biographic data UNHCR shares with DHS.
535
DHS will compare the data
received from UNHCR to the data it receives from refugees for identity verication as part of the
vetting process prior to resettlement in the United States.
► Requiring States and Localities to Consent to Refugee Resettlement—September 26, 2019—The
president issued an executive order requiring both states and local entities to provide written consent
in order to continue receiving refugees,
536
oering an unprecedented level of state and local control
over refugee resettlement. By the end of January 2020, 42 states and more than 100 localities had
consented to receiving refugees.
537
J January 15, 2020—A federal district judge temporarily enjoined the executive order, meaning
refugees could be resettled even in states and localities that had not opted in.
538
J January 8, 2021—A U.S. court of appeals upheld the district court’s ruling, saying that Trump’s
executive order was in conict with the Refugee Act.
539
► Refugees from Hong Kong—July 14, 2020—The president issued an executive order nding that
Hong Kong is no longer suciently autonomous to receive dierent treatment by the United States
from mainland China.
540
The order states that due to this nding, refugee slots within the FY 2020
ceiling may be reallocated to residents of Hong Kong.
► Limiting Refugee Data Availability—October 9, 2020—The State Department announced that
its Bureau of Population, Refugees, and Migration would transition to a new IT system and would
no longer publish reports on demographic information (including age, educational attainment,
languages spoken, and ethnicity) of admitted refugees by country of birth.
541
► Historic Reductions in Refugee Admissions—multiyear—In addition to suspending refugee
admissions from June 26 to October 24, 2017, the administration set lower annual refugee ceilings
each year, and annual admissions of refugees hit record low numbers.
J FY 2017: 50,000 ceiling (lowered from 110,00 after Trump entered oce), 53,716 actual
admissions
542
J FY 2018: 45,000 ceiling, 22,548 actual admissions
543
535 DHS, Privacy Impact Assessment for the United Nations High Commissioner for Refugees (UNHCR) Information Data Share
(Washington, DC: DHS, 2019).
536 White House, “Executive Order 13888 of September 26, 2019: Enhancing State and Local Involvement in Refugee Resettlement,”
Federal Register 84, no. 190 (October 1, 2019): 52355–56.
537 Muzaar Chishti and Sarah Pierce, “Despite Trump Invitation to Stop Taking Refugees, Red and Blue States Alike Endorse
Resettlement,” Migration Information Source, January 29, 2020.
538 HIAS, Inc. v. Donald Trump, Civil No. PJM 19-3346 (U.S. District Court for the District of Maryland, memorandum opinion, January
15, 2020).
539 HIAS, Inc. v. Donald Trump, No. 20-1160 (U.S. Court of Appeals for the Fourth Circuit, January 8, 2021).
540 White House, “Executive Order 13936 of July 14, 2020: The President’s Executive Order on Hong Kong Normalization,” Federal
Register 85, no. 138 (July 17, 2020): 43413–17.
541 State Department, “Migration of Refugee Case Processing System” (press release, September 25, 2020).
542 MPI analysis of data from State Department, “Worldwide Refugee Admissions Processing System (WRAPS),” accessed January 4,
2019.
543 MPI analysis of data from State Department, “Worldwide Refugee Admissions Processing System (WRAPS).”
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J FY 2019: 30,000 ceiling,
544
30,000 actual admissions
545
J FY 2020: 18,000 ceiling,
546
11,814 actual admissions
547
J FY 2021: 15,000 ceiling,
548
1,403 admissions through January 2021.
549
USCIS blamed the slowing of refugee admissions, in part, on the need to reassign sta from the
Refugee Aairs Division to the Asylum Division to address the backlog in asylum cases. During FY
2018, 100 of the 168 refugee ocers were assigned to asylum cases.
550
By February 2019, USCIS
reported that “nearly all” refugee ocers were returned to processing refugee applications.
551
The
reduction in refugee admissions, combined with the pauses in admissions and increases in security
vetting, had a particular impact on Iraqis eligible for the Direct Access Program (DAP), which allows
Iraqis who have worked for the U.S. military or U.S. government to be resettled through the refugee
program. In FY 2020, 537 Iraqis were resettled through the refugee program, in FY 2019 and FY 2018,
465 and 147 Iraqis were resettled, respectively.
552
By comparison, nearly 7,000 Iraqis were resettled
through the DAP in FY 2017.
► Admitting Refugees by Category—multiyear—Beginning in FY 2020, the president changed the
way refugee admissions are allocated. In contrast to past years, when admissions were allocated by
refugees’ region of origin, the president determined that admissions would be split among several
dierent categories. As such, the U.S. refugee program was instructed to no longer accept individual
referrals for refugees who fell outside the designated categories.
553
J For FY 2020, admissions slots were distributed among: refugees eeing religious persecution,
certain former Soviet and Indochinese nationals, and Iranian religious minorities (5,000
admissions); Iraqis who assisted the U.S. military (4,000); Guatemalans, Hondurans, and
Salvadorans (1,500); with the remaining 7,500 slots for other refugees.
554
J In FY 2021, admissions were allocated among: people who had faced or fear religious
persecution (5,000 admissions); Iraqis who assisted the U.S. military (4,000); Guatemalans,
Hondurans, and Salvadorans (1,000); with the remaining 5,000 slots allotted to other
refugees.
555
544 White House, “Presidential Determination on Refugee Admissions for Fiscal Year 2019,” Federal Register 83, no. 212 (November 1,
2018): 55091–92.
545 MPI analysis of data from State Department, “Worldwide Refugee Admissions Processing System (WRAPS).”
546 White House, “Presidential Determination on Refugee Admissions for Fiscal Year 2020,” Federal Register 84, no. 230 (November 29,
2019): 65903–05.
547 MPI analysis of data from State Department, “Worldwide Refugee Admissions Processing System (WRAPS).”
548 White House, “Presidential Determination on Refugee Admissions for Fiscal Year 2021,” Federal Register 85, no. 216 (November 6,
2020): 71219–21.
549 MPI analysis of data from State Department, “Worldwide Refugee Admissions Processing System (WRAPS).”
550 Letter from USCIS, “The Department of Homeland Security’s Response to Senator Van Hollen’s June 22, 2018 Letter,” October 1,
2018.
551 USCIS, “Asylum Division Quarterly Stakeholder Meeting” (phone call, February 19, 2019).
552 MPI analysis of data from State Department, “Worldwide Refugee Admissions Processing System (WRAPS).”
553 U.S. Department of State, “Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021,” accessed July 2, 2021; U.S.
Department of State, “Report to Congress on Proposed Refugee Admissions for Fiscal Year 2020,” accessed July 2, 2021.
554 White House, “Presidential Determination on Refugee Admissions for Fiscal Year 2020.”
555 White House, “Presidential Determination on Refugee Admissions for Fiscal Year 2021.”
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► Increased Vetting of Refugees—multiyear—Over the course of the administration, the agencies
involved in the refugee resettlement program added various new security checks and other vetting
measures, referred to by Trump as “extreme vetting.”
556
Combined, the changes slowed the review of
refugee applications and, ultimately, the number of refugees admitted to the country.
J Increased Data Collection—October 23, 2017—The Departments of State and Homeland
Security, along with the Director of National Intelligence, issued a memo mandating more
expansive data collection from refugees.
557
Agencies were required to collect contact
information going back ten years (instead of ve), more thorough address information, and
contact information for all close relatives (not just those in the United States). The memo also
expanded the number of people who required extra security checks and interviews, and those
whose social media would be reviewed.
J Vetting Quotas—February 2018—The State Department limited the number of certain security
checks (known as Security Advisory Opinions, or SAOs) resettlement ocers could request per
month and warned that the turnaround on those requests would be between one and three
months. The initial quota was set at 2,010 requests per month and was then lowered to 500
requests per month on April 30.
558
For the expanded population who had to undergo SAOs
as part of their applications, the process slowed signicantly. These limits were eliminated
sometime before February 2019.
J Pipeline DHS Review (PDR)—April 2, 2018—USCIS formally began a process of reviewing les
of refugees from the 11 “high risk” countries identied in January 2018 and other individuals
identied for extra security screening, who had already completed USCIS interviews, to
determine if they warranted a reinterview in light of other vetting changes.
559
In February
2019, about 6,000 cases were pending in the PDR, and of the 1,300 that had completed the
review, 14 percent had resulted in a reinterview.
560
► Closures of Refugee Resettlement Oces—multiyear—As of May 2020, 134 refugee resettlement
aliates (the organizations that support refugees after arrival) had closed or been “zeroed out” (i.e.,
prohibited by the State Department from resettling any refugees) since FY 2017.
561
These closures and
budget restrictions represent a 38 percent decrease in national resettlement capacity. It is unclear
whether they closed due to a December 2017 State Department decision to eliminate aliates that
resettled fewer than 100 refugees annually
562
or if they were forced to close because of a lack of funds
due to decreasing refugee admissions (the organizations receive funding per refugee served).
556 Philip Rucker, “Trump Says He Ordered U.S. to ‘Step up Our Already Extreme Vetting Program’,” Washington Post, October 31, 2017.
557 Memorandum from Rex Tillerson, Resuming the United States Refugee Admissions Program; IRAP, Debunking “Extreme Vetting,”
19–22.
558 IRAP, Debunking “Extreme Vetting,” 26–27.
559 Memorandum from Joanna Ruppel, Chief, Refugee Aairs Division, to All International Operations Division Sta and All Refugee
Aairs Division Sta, Pipeline DHS Review (PDR) Guidance, April 2, 2018.
560 IRAP, Debunking “Extreme Vetting,” 28.
561 Silva Mathema and Soa Carratala, Rebuilding the U.S. Refugee Program for the 21st Century (Washington, DC: Center for American
Progress, 2020).
562 Torbati and Rosenberg, “Exclusive: State Department Tells Refugee Agencies to Downsize.”
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B. Asylum Seekers
The Trump administration used a variety of policy measures to cut o access to protection for those seeking
safety in the United States. At the U.S.-Mexico border, the administration took steps to prevent migrants
from accessing asylum by forcing them to wait in Mexico both before requesting asylum (through metering,
a practice of allowing only a limited number of asylum seekers through ports of entry each day) and while
their claims were considered (under the Migrant Protection Protocols [MPP], also known as Remain in
Mexico). It sought to restrict asylum eligibility based on certain common grounds for seeking protection
and made groups of migrants ineligible if they had not previously applied for and been denied asylum in
a transit country. And in an eort to reduce the growing asylum case backlog, policies were put in place to
quickly remove migrants who did not pass initial credible-fear screenings. At the same time, these initial
fear screenings were made more dicult to pass: only 44 percent passed the initial screening in FY 2020,
compared with 88 percent in FY 2017.
563
Together, these programs and policies made successful asylum
claims elusive and left thousands of migrants without a means of seeking protection.
564
563 MPI analysis of USCIS, “Credible Fear Workload Report Summary,” accessed October 4, 2021; USCIS, “Semi-Monthly Credible Fear
and Reasonable Fear Receipts and Decisions.”
564 Chishti and Bolter, “Interlocking Set of Trump Administration Policies.”
565 Memorandum from John Laerty, Chief, Asylum Division, USCIS, to all Asylum Oce personnel, Release of Updated Asylum
Division Ocer Training Course (ADOTC) Lesson Plans, February 13, 2017.
566 USCIS, “Lesson Plan Overview” (lesson plan, April 30, 2019); CLINIC and AILA, “Credible Fear Lesson Plans Comparison Chart: 2006
-> 2014 -> 2017 -> 2019” (chart, CLINIC and AILA, Washington, DC, May 30, 2019).
567 Maria M. Kiakombua v. Chad F. Wolf, No. 19-cv-1872 (KBJ) (U.S. District Court for the District of Columbia, October 31, 2020).
► Raised Standards for Credible-Fear Interviews—February 2017 and April 2019—USCIS made
administrative changes to guidance documents that make the preliminary asylum interview more
dicult for applicants.
J February 13, 2017—USCIS released revised lesson plans for asylum ocers.
565
Changes include
requiring applicants to establish their identity “by a preponderance of the evidence” (rather
than the prior standard of “with a reasonable degree of certainty”) and requiring ocers to
conduct a full analysis of the credibility of the applicant’s claim (rather than the prior standard
of nding that there is a signicant possibility that the claim would be found credible during
the ultimate asylum adjudication).
J April 30, 2019—USCIS further revised the lesson plans, emphasizing that asylum ocers may
request that credible-fear interviewees submit corroborating evidence, removing reminders to
ocers to consider the eects of trauma when making a credibility determination, instructing
ocers to give more weight to discrepancies in the applicant’s recounting of their fear, and
requiring ocers to provide a written explanation of positive credible-fear ndings, not just
negative ones.
566
On October 31, 2020, a federal district court judge found the 2019 lesson
plan violated federal law by making the credible-fear screening too similar to the asylum
eligibility determination and vacated it.
567
USCIS was to revert to the 2017 version of the lesson
plan until updates were made to the newest version.
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► Limits on Asylum Hearings—March 5, 2018—In Matter of E-F-H-L-, Attorney General Sessions
overruled a case that held asylum and withholding-of-removal applicants are entitled to full
evidentiary hearings.
568
► Metering—April 2018—The Trump administration expanded the practice of limiting the number
of asylum seekers allowed to enter the United States each day at ports of entry along the southern
border, a practice begun in a less uniform way in 2016.
569
Under this practice, known as “metering,”
there is no way for asylum seekers to know how long they will need to wait and no ocial way to hold
their spot in line. While the administration did not release an ocial statement about the eects of
this practice, or even where it was being implemented, researchers estimated that more than 15,000
migrants were waiting on metering lists in nine Mexican border cities as of November 2020; however,
at its height in August 2019, they estimated that 26,000 were waiting.
570
By November 2020, most
asylum seekers on the metering lists had been waiting for at least nine months, since they were not
processed into the United States while the pandemic ban on nonessential travel at ports of entry was
in eect.
571
The capacity limitations that DHS claimed necessitated metering have been called into
question: an Associated Press analysis of government data found that CBP holding cells at 75 percent
of stations along the U.S.-Mexico border were at most half full on the majority of days between July
2018 and June 2019.
572
Even so, the DHS inspector general found that at seven ports of entry within
the Laredo and San Diego sectors, ocers routinely turned away migrants, telling them they did not
have capacity or capability to process them, regardless of actual ability to do so.
573
► Limits on Asylum for Victims of Private Violence—June 11, 2018—In Matter of A-B-, Sessions limited
the ability of victims of domestic or gang violence to qualify for asylum.
574
A federal court district
judge later enjoined the application of this ruling to credible-fear interviews, but it still applies at the
ultimate asylum adjudication.
575
A federal appeals court partially upheld the district court’s decision on
July 17, 2020, allowing the government to apply some, but not all, of the attorney general’s ruling in
Matter of A-B- at the credible-fear stage of the asylum process.
576
On January 14, 2021, Acting Attorney
General Rosen referred the case to himself and issued a new decision, written to override the federal
court decisions and again limiting the ability of victims of domestic and gang violence to qualify for
asylum.
577
► Asylum Ban—November 9, 2018—DHS and the Justice Department published an interim nal rule
that would make anyone who is subject to a presidential proclamation barring their entry into
568 Matter of E-F-H-L-.
569 Email from Todd Homan, Executive Assistant Commissioner, Oce of Field Operations, CBP, to Directors of Field Operations El
Paso, Laredo, San Diego, and Tucson, “Metering Guidance Memo,” April 27, 2018; Stephanie Leutert et al., Asylum Processing and
Waitlists as the U.S.-Mexico Border (Austin, TX: University of Texas at Austin, Robert Strauss Center for International Security and
Law, 2018), 3.
570 Stephanie Leutert, Savitri Arvey, and Ellie Ezzell, Metering Update: August 2019 (Austin, TX: University of Texas at Austin, Robert
Strauss Center for International Security and Law, 2019); Stephanie Leutert and Savitri Arvey, Metering Update: November 2020
(Austin, TX: University of Texas at Austin, Robert Strauss Center for International Security and Law, 2020).
571 Leutert and Arvey, Metering Update: November 2020.
572 Elliot Spagat, “Holding-Cell Stats Raise Questions about Trump Asylum Policy,” Associated Press, February 13, 2020.
573 DHS OIG, CBP Has Taken Steps to Limit Processing of Undocumented Aliens at Ports of Entry (Washington, DC: DHS, 2020).
574 Matter of A-B-.
575 Grace v. Matthew G. Whitaker.
576 Grace v. William P. Barr.
577 Matter of A-B-, 28 I&N Dec. 199 (Attorney General, January 14, 2021).
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the country and who enters anyway ineligible for asylum.
578
Concurrently, the president issued a
proclamation barring the entry of anyone who crosses the southern border illegally, set to expire
90 days after issuance.
579
As a result, anyone who crossed the U.S.-Mexico border between ports
of entry was no longer eligible for asylum. On November 19, a federal district court judge in San
Francisco issued a temporary restraining order, preventing the government from implementing the
regulation.
580
The Ninth Circuit upheld that ruling in February 2020.
581
In a separate case, a federal
district judge in Washington, DC, ruled on August 2, 2019, that the rule violates federal law.
582
The
administration appealed that ruling, and it remained pending when Trump left oce.
J Proclamations Barring Entry of Foreign Nationals Who Cross the Border Illegally—November
15, 2018; February 12 and May 13, 2019—The president issued three proclamations barring
entry for anyone who crosses the southern border illegally,
583
the third of which was to
expire 90 days after the administration obtained relief from the injunction blocking the rule’s
implementation. The injunction was still in place at the end of Trump’s term, and thus, the
proclamation had no eect during his term.
► Asylum Ocer Hiring and Temporary Assignments—2019—After maintaining an asylum ocer
force of between 540 and 555 from FY 2017 through FY 2019, USCIS onboarded more than 300 new
ocers to reach a total of 866 asylum ocers in FY 2020.
584
In FY 2018, 92 percent of asylum ocers
were temporarily assigned to conduct fear screenings at the U.S.-Mexico border, and in FY 2019, 74
percent were, cutting back on capacity to adjudicate armative lings.
585
In FY 2020, 21 percent were
assigned to the border.
► Migrant Protection Protocols (MPP)—January 29, 2019—While not limited to asylum seekers,
MPP cuts o access to the United States by requiring some migrants who arrive at the southwest
border, including those seeking humanitarian protection, to wait in Mexico for the duration of their
immigration court proceedings. (For more on MPP, see Section 3.A.)
► CBP Conducting Credible-Fear Interviews—April 2019—Under a CBP pilot program, Border Patrol
agents received training to conduct credible-fear interviews of some recent arrivals at U.S. borders,
578 DHS and EOIR, “Aliens Subject to a Bar on Entry.”
579 White House, “Presidential Proclamation 9822 of November 9, 2018: Addressing Mass Migration through the Southern Border of
the United States,” Federal Register 83, no. 221 (November 15, 2018): 57661–64.
580 East Bay Sanctuary Covenant v. Donald J. Trump, No. 18-cv-06810-JST (U.S. District Court Northern District of California, November
19, 2018). On December 19, 2018, the same judge issued a preliminary injunction, continuing to block the change. See East Bay
Sanctuary Covenant v. Donald J. Trump, No. 18-cv-06810-JST (U.S. District Court Northern District of California, December 19,
2018).
581 East Bay Sanctuary Covenant v. Donald Trump, No. 18-17274 (U.S. Court of Appeals for the Ninth Circuit, opinion, February 28,
2020).
582 O.A. v. Trump and S.M.S.R. v. Trump, Nos. 18-2718 (RDM) and 18-2838 (RDM) (U.S. District Court for the District of Columbia, August
2, 2019).
583 White House, “Presidential Proclamation 9822”; White House, “Presidential Proclamation 9842 of February 7, 2018: Addressing
Mass Migration through the Southern Border of the United States,” Federal Register 84, no. 29 (February 12, 2019): 3665–67; White
House, “Presidential Proclamation 9880 of May 8, 2019: Addressing Mass Migration Through the Southern Border of the United
States,” Federal Register 84, no. 92 (May 13, 2019): 21229–31.
584 USCIS Ombudsman, Annual Report 2020 (Washington, DC: DHS, 2020), 46.
585 USCIS Ombudsman, Annual Report 2020, 45.
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supplementing the USCIS asylum ocers who usually conduct these interviews.
586
As of February
2020, 75 Border Patrol agents and 16 CBP ocers were conducting interviews.
587
While the program
was initially limited to interviews with single adults, some agents began conducting credible-fear
interviews of families in September 2019.
588
CBP agents and ocers approved a smaller proportion of
claims than asylum ocers: from May 2019 through July 2020, CBP employees approved 37 percent
of credible-fear interviews, while asylum ocers approved 64 percent.
589
By the beginning of August
2020, no credible-fear cases were being decided by CBP ocers.
590
J August 29, 2020—A federal judge issued a preliminary injunction barring CBP agents from
conducting credible-fear interviews.
591
The judge found that the agents received insucient
training to serve as asylum ocers under statutory requirements.
► Reduced Preparation Time for Credible-Fear Interviews—July 2, 2019—USCIS reduced the amount
of time allotted for asylum seekers to consult with others between being detained and having their
credible-fear screenings from 48 hours to one calendar day.
592
USCIS also directed asylum ocers not
to grant extensions of this period, except in extraordinary circumstances.
J March 1, 2020—In nding that Ken Cuccinelli was unlawfully appointed to his position of
principal deputy director of USCIS, a U.S. district court in Washington, DC, also invalidated this
policy.
593
► Transit-Country Asylum Ban—July 16, 2019—The administration issued a preliminary rule, eective
immediately, that made ineligible for U.S. asylum all migrants arriving at the U.S.-Mexico land border
who passed through a third country (one other than their country of origin) on their way to the United
States, if they had not already applied for asylum and been rejected in that country, and if they arrived
on July 16, 2019, or later.
594
Excepted from the policy were Mexicans (who would not have passed
through a third country before reaching the United States) and victims of severe forms of tracking.
Those barred from asylum eligibility were still able to apply for protection under withholding of
removal and the Convention Against Torture, which have higher standards of proof than asylum. The
rule was initially blocked by lower courts, but on September 11, 2019, the Supreme Court allowed it to
go into eect nationwide while the court case against it proceeded.
595
A dierent federal district court
586 Testimony of Robert E. Perez, Deputy Commissioner of CBP, before the House Homeland Security Committee, Subcommittee
on Border Security, Facilitation, and Operations, A Review of the FY 2020 Budget Request for U.S. Customs and Border Protection,
U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services, 116th Cong., 1st sess., May 9, 2019;
Molly O’Toole, “Border Patrol Agents, Rather Than Asylum Ocers, Interviewing Families for ‘Credible Fear’,” Los Angeles Times,
September 19, 2019.
587 Testimony of Mark Morgan, Acting CBP Commissioner, before the House Appropriations Committee, Subcommittee on the
Department of Homeland Security, U.S. Customs and Border Protection Budget Request for FY2021, 116th Cong., 2nd sess., February
27, 2020.
588 O’Toole, “Border Patrol Agents, Rather Than Asylum Ocers.”
589 MPI analysis of data from USCIS, “Semi-Monthly Credible Fear and Reasonable Fear Receipts and Decisions.”
590 MPI analysis of data from USCIS, “Semi-Monthly Credible Fear and Reasonable Fear Receipts and Decisions.”
591 A.B.-B. et al v. Mark Morgan, et al., No. 20-cv-846 (RJL) (U.S. District Court for the District of Columbia, August 29, 2020).
592 L.M.-M. v. Kenneth T. Cuccinelli II, Civil Action No. 19-2676 (RDM) (U.S. District Court for the District of Columbia, March 1, 2020).
593 L.M.-M. v. Kenneth T. Cuccinelli II.
594 EOIR and USCIS, “Asylum Eligibility and Procedural Modications.”
595 William P. Barr v. East Bay Sanctuary Covenant, No. 19A230 (U.S. Supreme Court, September 11, 2019).
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blocked the policy in June 2020, and immigration ocers subsequently stopped applying the ban.
596
The nal rule, which superseded the preliminary rule and the injunctions against it, went into eect on
January 19, 2021, and was largely unchanged from the preliminary rule.
597
J Metered Migrants Exempted—November 19, 2019—A U.S. district court judge ruled that
migrants who arrived at the U.S.-Mexico border prior to July 16, 2019, but who were not
permitted to enter the United States until later because they had been subject to metering,
were not barred from asylum eligibility under the transit-country asylum ban.
598
The day
before the nal rule was scheduled to take eect, the judge issued a new order rearming
that migrants who had been subject to metering were not subject to the ban.
599
Metering at
ports of entry limits the number of asylum seekers who can enter daily.
► Limits on Asylum Based on Family Membership—July 29, 2019—In Matter of L-E-A-, Attorney
General Barr generally eliminated the possibility for applicants to qualify for asylum on the grounds of
persecution based on one’s family relationship, holding that most nuclear families are not suciently
“socially distinct” to meet the requirements of persecution on the basis of membership in a particular
social group.
600
► Asylum Cooperative Agreements—July through September 2019—The administration signed
agreements with the governments of Guatemala (on July 26), El Salvador (September 20), and
Honduras (September 25) under which the United States can send asylum seekers to one of those
countries to seek protections there instead of in the United States.
601
Asylum seekers who state that
they fear persecution or torture in the country to which they are to be sent, and who can demonstrate
that such treatment is more likely than not, are excluded from the agreements, as are unaccompanied
children.
J Guatemala Agreement Implemented—November 15, 2019—The agreement with Guatemala
was the only one implemented during the Trump administration, though Guatemala
596 Capital Area Immigrants’ Rights Coalition v. Donald J. Trump and I.A. v. William P. Barr, No. 19-2117 (TJK) and No. 19-2530 (TJK) (U.S.
District Court for the District of Columbia, June 30, 2020); Hamed Aleaziz and Adolfo Flores, “Immigration Ocers Have Been Told
to Stop Applying the Trump Administration’s Asylum Ban,” BuzzFeed News, July 1, 2020.
597 EOIR and USCIS, “Asylum Eligibility and Procedural Modications,” Federal Register 85, no. 243 (December 17, 2020): 82260–90.
598 Al Otro Lado, Inc. v. McAleenan, No. 17-cv-02366-BAS-KSC (U.S. District Court for the Southern District of California, order granting
plaintis’ motion for provisional class certication; and granting plaintis’ motion for preliminary injunction, November 19, 2019).
The Ninth Circuit Court of Appeals has since denied the administration’s motion to stay this injunction. See Al Otro Lado, Inc. v.
Wolf, No. 3:17-cv-02366-BAS-KSC (U.S. Court of Appeals for the Ninth Circuit, order, March 5, 2020).
599 Al Otro Lado, Inc. v. Peter T. Gaynor, et. al., No. 17-cv-02366-BAS-KSC (U.S. District Court for the Southern District of California,
temporary restraining order, January 18, 2021).
600 Matter of L-E-A-.
601 DHS Oce of Strategy, Policy, and Plans, “Agreement between the Government of the United States of America and the
Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims,” Federal Register 84,
no. 224 (November 20, 2019): 64095–99; DHS Oce of Strategy, Policy, and Plans, “Agreement between the Government of the
United States of America and the Government of the Republic of Honduras for Cooperation in the Examination of Protection
Claims,” Federal Register 85, no. 85 (May 1, 2020): 25462–68; John Washington, “Sweeping Language in Asylum Agreement Foists
U.S. Responsibilities Onto El Salvador,” The Intercept, September 23, 2019; Molly Hennessy-Fiske and Molly O’Toole, “U.S. to Send
Asylum Seekers to Honduras, Bypassing American Asylum,” Los Angeles Times, December 16, 2019. The administration published
an interim nal rule to implement these and any further asylum cooperative agreements under U.S law. See EOIR and USCIS,
“Implementing Bilateral and Multilateral Asylum Cooperative Agreements under the Immigration and Nationality Act,” Federal
Register 84, no. 223 (November 19, 2019): 63994–64011.
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suspended the agreement on March 17, 2020, due to COVID-19 transmission concerns.
602
By
March 16, more than 900 Salvadoran and Honduran asylum seekers had been sent to that
country, with just 34 choosing to pursue asylum there.
603
Through January 2021, none of those
asylum applications had been adjudicated. Initially, only single adults from El Salvador and
Honduras were subject to the agreement, but it was expanded to include families.
604
J Honduras and El Salvador Agreements Finalized—December 2020—The agreements with
Honduras and El Salvador were nalized and entered into force by the end of 2020, but no
asylum seekers were deported to those countries under the agreements.
605
► Prompt Asylum Case Review (PACR)—October 7, 2019—PACR is a streamlined program to hear
claims of asylum seekers from El Salvador, Guatemala, and Honduras and remove those who are
deemed ineligible for asylum due to the transit-country asylum ban and who do not meet the
requirements for other forms of protection. It began as a pilot program in the El Paso Border Patrol
sector, and by February 2020 had expanded to the Rio Grande Valley and Yuma sectors.
606
Migrants in
PACR are detained in CBP custody with limited access to counsel prior to their fear screening interview.
If they do not meet the higher fear standard required to receive protections other than asylum, they
have the option to appeal their case to an immigration judge via phone and are otherwise removed.
The program was suspended on March 20, 2020, due to the CDC order requiring the expulsion of
unauthorized arrivals at U.S. borders following the onset of the pandemic.
607
(For more on this order,
see Section 2.B.)
► Humanitarian Asylum Review Process (HARP)—October 28, 2019—HARP is a program whose aim is
to quickly remove Mexicans who do not pass their initial asylum screenings.
608
While other deterrent
measures, such as MPP and the transit-country asylum ban, cannot be applied to Mexicans, HARP
targets this population. It began as a pilot program operating in El Paso, TX in January 2020, then
expanded to Yuma, AZ; Rio Grande Valley, TX; Laredo, TX; and Del Rio, TX by February.
609
The program
was suspended on March 20, 2020, due to the CDC order requiring the expulsion of unauthorized
arrivals at U.S. borders following the onset of the pandemic.
610
(For more on this order, see Section 2.B.)
602 Camila DeChalus, “Guatemala Suspends US Flights Carrying Asylum-Seekers,” CQ Roll Call, March 17, 2020.
603 Democratic Sta of the U.S. Senate Committee on Foreign Relations, Cruelty, Coercion, and Legal Contortions: The Trump
Administration’s Unsafe Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador (Washington, DC: U.S. Senate,
2021), 23.
604 Sonia Pérez D., “US Sends First Non-Guatemalan Migrant Families to Guatemala,” Associated Press, December 12, 2019; Mica
Rosenberg, “U.S. Implements Plan to Send Mexican Asylum Seekers to Guatemala,” Reuters, January 6, 2020.
605 DHS, “Asylum Cooperative Agreement with Honduras Finalized” (news release, December 18, 2020); DHS, “DHS Announces
Guatemala, El Salvador, and Honduras Have Signed Asylum Cooperation Agreement” (news release, December 29, 2020).
606 Las Americas Immigrant Advocacy Center v. Chad Wolf, Case No. 1:19-cv-3640-KBJ (U.S. District Court for the District of Columbia,
memorandum of law in opposition to plaintis’ motion for summary judgment and in support of defendants’ cross-motion for
summary judgment, February 7, 2020).
607 DHS OIG, DHS Has Not Eectively Implemented the Prompt Asylum Pilot Programs, 11. By mid-March 2020, 3,180 migrants had been
processed through the Prompt Asylum Case Review. See GAO, Southwest Border: DHS and DOJ Have Implemented Credible Fear
Screening Pilot Programs, but Should Ensure Timely Data Entry (Washington, DC: GAO, 2021), 23.
608 Aleaziz, “The Trump Administration Launched a Secretive Program”; Las Americas Immigrant Advocacy Center v. Chad Wolf. By mid-
March 2020, 2,110 migrants were processed through the Humanitarian Asylum Review Process. See GAO, Southwest Border: DHS
and DOJ Have Implemented Credible Fear Screening, 23.
609 DHS OIG, DHS Has Not Eectively Implemented the Prompt Asylum Pilot Programs, 6.
610 DHS OIG, DHS Has Not Eectively Implemented the Prompt Asylum Pilot Programs, 37.
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► Armative Asylum Fee—August 3, 2020—USCIS issued a nal rule that largely focused on routine
fee increases for immigration benets, and would also impose a $50 fee on armative asylum
applicants.
611
The United States had never before charged a fee for asylum applications, and it
would join only three other countries in the world that do so.
612
In September 2020, a federal judge
temporarily blocked the changes from taking eect, and in December the government dropped its
appeal in the case.
613
The proposed changes never took eect.
► Reducing Likelihood of Receiving Work Authorization—August 2020—Two nal rules that went
into eect in August 2020 made it more dicult for asylum seekers to receive authorization to work
while their applications are pending. In December 2020, a collection of advocacy organizations
sued to stop both rules.
614
The suit remained pending at the end of the administration. However,
a preliminary injunction in a separate lawsuit prevented parts of the rules from being applied to
members of the two organizations who brought the suit.
615
J August 21, 2020—The rst rule eliminates a requirement that the government either approve
or deny asylum seekers’ work authorization applications within 30 days of ling.
616
J August 25, 2020—The second rule makes a slew of changes to the process by which asylum
seekers apply for work authorization and reduces the likelihood that their applications will
be approved. Among other measures, it requires that asylum seekers’ asylum applications be
pending for 365 days before they can apply for work authorization.
617
Existing practice was to
allow them to apply when an asylum application has been pending for 150 days. The rule also
makes ineligible for work authorization most asylum seekers who entered the country illegally,
and requires asylum seekers to submit biometric information—and pay the $85 biometrics
fee—when applying for work authorization.
► Expanded Criminal Bars to Asylum—November 20, 2020—EOIR and USCIS published a rule that
makes ineligible for asylum foreign nationals with various criminal convictions, including driving
under the inuence, illegally re-entering the country, and any felony.
618
The rule dramatically
expands the criminal bars to asylum, which as of January 2020 blocked people who had engaged in
persecution, those convicted of a “particularly serious crime,” and those who had committed a serious
nonpolitical crime outside of the United States.
619
Before it went into eect, a federal district court in
611 USCIS, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benet Request
Requirements,” Federal Register 85 no. 149 (August 3, 2020): 46788–829.
612 Those countries are Australia, Fiji, and Iran.
613 AILA, “Timeline of ILRC v. Wolf Litigation Related to USCIS Fee Final Rule,” accessed July 16, 2021.
614 AsylumWorks et. al., v. Chad Wolf, et. al. (U.S. District Court for the District of Columbia, complaint for declaratory and injunctive
relief, December 22, 2020).
615 Casa de Maryland, et. al., v. Chad Wolf, et. al., No. 8:20-cv-02118-PX (U.S. District Court for the District of Maryland, September 11,
2020).
616 USCIS, “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I–765 Employment Authorization
Applications,” Federal Register 85, no. 120 (June 22, 2020): 37502–46.
617 DHS, “Asylum Application, Interview, and Employment Authorization for Applicants,” Federal Register 85, no. 124 (June 26, 2020):
38532–628.
618 EOIR and USCIS, “Procedures for Asylum and Bars to Asylum Eligibility,” Federal Register 85, no. 204 (October 21, 2020): 67202–60.
619 USCIS, “Asylum Bars,” updated April 1, 2011.
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California enjoined the rule on November 19, 2020, and the injunction remained in place at the end of
the Trump administration.
620
► Changes to Asylum Process and Eligibility for Humanitarian Protection—December 11, 2020—
EOIR and USCIS published a rule that would make a number of changes.
621
The rule would place
individuals who pass credible-fear screenings in asylum-and-withholding-only proceedings as
opposed to standard removal proceedings and apply all mandatory bars to asylum at the credible-fear
stage,rather than later in the process. It also would codify and expand the transit-country asylum ban,
narrow the grounds on which applicants may base an asylum claim, make illegal entry a “signicantly
adverse” factor in asylum adjudications, and broaden the denition of rm resettlement in a third
country—a determination that, in certain circumstances, an asylum seeker’s previous presence in
another country indicates protection in the United States is unnecessary. All of these changes would
make more people ineligible for asylum in the United States. On January 8, 2021, three days before it
was scheduled to take eect, the rule was enjoined in its entirety by a federal court.
622
► Expanded “Danger to Security” Bar to Asylum and Withholding of Removal—December
23, 2020—USCIS and EOIR issued a rule that would bar migrants from eligibility for asylum and
withholding of removal if they were coming from a place where a contagious or infectious disease is
prevalent by classifying them as a danger to the security of the United States.
623
Such migrants would
still have the opportunity to apply for protection under the Convention Against Torture, but the
proposed rule would also allow DHS to remove people applying for such protection to third countries
to pursue relief there. The rule was scheduled to go into eect on January 22, 2021.
► Accelerated Timeline for Certain Asylum Proceedings—January 15, 2021— A nal EOIR rule
was scheduled to go into eect that would have set tighter timelines for adjudicating applications
for asylum and withholding of removal for the limited population of applicants in asylum-and-
withholding-only proceedings.
624
The rule would have required, among other provisions, that
applications for relief be led within 15 days of an applicant’s rst hearing in immigration court, set a
timeline of 30 days for applicants to remedy applications that were rejected for incompleteness, and
expanded the applications that may be deemed incomplete. It would also have allowed immigration
judges to submit additional evidence for consideration in an asylum decision. However, it was
enjoined by a federal district court judge the day before it would have gone into eect.
625
► Automated Fraud Review of Applications—unknown date—The USCIS Asylum Oce began using
an online document review program known as Pangaea Text, which looks for indicators of fraud,
620 Pangea Legal Services v. U.S. Department of Homeland Security, No. 20-cv-07721-SI (U.S. District Court Northern District of
California, November 19, 2020).
621 DHS and EOIR, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,” Federal Register
85, no. 239 (December 11, 2020): 80274–401.
622 Pangea Legal Services, et al. v. U.S. Department of Homeland Security, et al., No. 20-cv-09253-JD (U.S. District Court Northern District
of California, January 8, 2021).
623 USCIS and EOIR, “Security Bars and Processing.”
624 EOIR, “Procedures for Asylum and Withholding of Removal,” Federal Register 85, no. 242 (December 16, 2020): 59692–700. Asylum-
and-withholding-only proceedings are immigration court evaluations of credible- or reasonable-fear determinations for certain
asylum applicants who are not entitled to standard removal proceedings such as foreign crewmembers, stowaways, individuals
admitted under the Visa Waiver Program, and other specic cases as outlined in 8 Code of Federal Regulations § 208.2
625 National Immigrant Justice Center, et al. v. EOIR, et al., No. 21-56 (RBW) (U.S. District Court for the District of Columbia, January 14,
2021).
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national security, or public safety concerns within asylum applications.
626
The results of the automatic
analysis are reviewed by fraud detection specialists who may provide a report of the ndings to
asylum ocers for use in their adjudications.
► Detention of Arriving Families, Children, and Asylum Seekers—multiyear—Under several laws
and a legal settlement in the case Flores v. Reno, the U.S. government is prevented from detaining all
families and children while they are in immigration proceedings. The Trump administration moved to
increase detention of these immigrants, many of whom seek asylum after reaching the U.S.-Mexico
border, as well as asylum seekers more broadly, but it was still prevented from doing so under current
laws. It also tried to limit avenues for adult asylum seekers to be released from detention into the
country by denying more parole requests. However, as a result of a July 2018 court ruling, in a lawsuit
alleging that ve ICE eld oces were issuing blanket parole denials to detained asylum seekers,
ocials at those ve oces—Detroit, El Paso, Los Angeles, Newark, and Philadelphia—must make
individualized parole decisions based on the facts of each case.
627
J June 20, 2018—In his executive order ending family separations (see Section 3.A.), Trump
mandated that instead all families be held together while they have immigration proceedings
pending. He ordered the attorney general to ask a federal judge to relax a ruling that prevents
lengthy detention of children to allow for the detention of families. The court rejected that
petition on July 9, 2018.
628
J April 16, 2019—In Matter of M-S-, Barr ruled that immigration judges do not have the authority
to hold bond hearings for arriving asylum seekers.
629
In July 2019, a U.S. district judge in
Washington State enjoined this decision.
630
(For more, see Section 4.B.)
J August 23, 2019—The administration issued a rule implementing the Flores legal settlement
that allowed DHS to indenitely detain families. The rule constituted an attempt to eliminate
the likelihood that adults arriving at the border with children would be quickly released, one
of the pull factors that had drawn migrants to travel as families.
631
The rule also loosened the
standards for detention of unaccompanied child migrants. The rule was blocked by a federal
district court before going into eect.
632
However, the Ninth Circuit Court of Appeals in
December 2020 allowed most of the provisions related to the care of unaccompanied minors
to go into eect, determining they were suciently consistent with the conditions for care
outlined in the Flores settlement.
633
626 DHS, Privacy Impact Assessment for the Pangaea: Pangaea Text (Washington, DC: DHS, 2021).
627 Ansly Damus v. Kirstjen Nielsen, Civil Action No. 18-578 (JEB) (U.S. District Court for the District of Columbia, July 2, 2018). A ruling
in September 2019 similarly requires the Louisiana ICE eld oce to make individualized parole decisions. See Heredia Mons v.
Kevin K. McAleenan, Civil Action No. 19-1593 (JEB) (U.S. District Court for the District of Columbia, September 5, 2019).
628 Jenny L. Flores v. Jeerson B. Sessions, III, Case No. CV 85-4544-DMG (U.S. District Court Central District of California, July 9, 2018).
629 Matter of M-S-, 27 I&N Dec. 509 (Attorney General, April 16, 2019).
630 Yolany Padilla v. U.S. Immigration and Customs Enforcement, No. 2:18-cv-00928-MJP (U.S. District Court Western District of
Washington at Seattle, July 2, 2019).
631 ICE, CBP, and ORR, “Apprehension, Processing, Care, and Custody of Alien Minors.”
632 Jenny L. Flores v. William P. Barr, No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, order re
plaintis’ motion to enforce settlement [516] and defendants’ notice of termination and motion in the alternative to terminate
the Flores settlement agreement [639], September 27, 2019).
633 Flores v. Rosen, Case No. 19-56326 (U.S Court of Appeals for the Ninth Circuit, December 29, 2020).
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J September 23, 2019—Then Acting Secretary of Homeland Security Kevin McAleenan
announced that families who crossed into the United States illegally would no longer be
released into the country.
634
They would either be deported or, if they chose to seek asylum,
placed in MPP.
J Spring 2020—In March, the federal district judge overseeing the Flores case ordered ICE and
ORR, the two agencies holding migrant children in their custody, to promptly release those
with a suitable sponsor available.
635
In response, ICE asked parents who were being held with
their children in family detention centers whether they wished for their children to be released
without them or to remain in detention with them, essentially giving them the choice of
family separation or indenite detention.
636
J June 26, 2020—The federal judge overseeing the case ordered ICE and ORR to release all
minors in the agencies’ custody for more than 20 days by July 17, later extended to July 27.
637
On July 27, more than 100 children remained in ICE custody.
638
► Steps to Reduce the Armative Asylum Backlog—multiyear—At the beginning of the Trump
administration, the backlog of armative asylum cases (individuals who present themselves to
USCIS to request asylum, rather than doing so defensively in court during a removal proceeding) was
233,389.
639
Concerned that many applicants were ling for asylum to get work authorization, which
may be granted when an application has been pending for six months or more, and concerned that
some were ling asylum applications to trigger removal proceedings in order to get immigration
benets only granted by immigration courts (cancellation of removal), the administration enacted
strategies to reduce the backlog and inow of armative asylum applications. At the end of FY 2020,
the backlog was 386,014, though the rate of increase had slowed dramatically compared to the
previous administration.
640
J Interview Waiver Pilot Program—Late 2017 to August 2018—USCIS conducted a pilot program
oering certain asylum applicants (those who likely led applications to trigger removal
proceedings) the opportunity to waive their asylum interviews and be directly placed into
removal proceedings.
641
In August 2018, USCIS issued a second round of waiver oers. Of the
1,500 waivers oered in the rst round, 22 percent were accepted, and of the 2,500 oered
634 DHS, “Acting Secretary McAleenan Announces End to Widespread Catch and Release” (press release, September 23, 2019).
635 Jenny L. Flores v. William P. Barr, No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, in chambers -
order re: plaintis’ ex parte application for restraining order and order to show cause re: preliminary injunction, March 28, 2020).
636 Camilo Montoya-Galvez, “ICE Asked Migrant Parents Whether They Wished to Be Separated from Their Children, Agency Tells
Court,” CBS News, May 17, 2020.
637 Jenny L. Flores v. William P. Barr, No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, in chambers
- order re: updated juvenile coordinator reports, June 26, 2020); Flores v. Barr, No. CV 85-4544-DMG (AGRx) (U.S. District Court of
the Central District of California, order extending deadline to complete compliance with paragraph 1 of the court’s June 26, 2020
order, July 16, 2020).
638 Camille Squires, “ICE Has to Release Kids from Detention. It Refuses to Let Their Parents Join Them,” Mother Jones, July 27, 2020.
639 Armative asylum is a process before USCIS, available to individuals already in the United States and not in removal proceedings.
See USCIS, “Armative Asylum Statistics” (Asylum Division Quarterly Stakeholder Meeting, USCIS, April 18, 2017).
640 USCIS, “Number of Service-Wide Forms Fiscal Year to Date by Quarter and Form Status. Fiscal Year 2020,” accessed August 24,
2021.
641 Applicants selected for participation are removable foreign nationals who led their asylum applications more than ten years
after their last entry into the United States. See USCIS, “Agenda” (Asylum Division Quarterly Stakeholder Meeting, USCIS,
November 16, 2018).
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in the second, 27 percent were accepted.
642
USCIS did not run further pilots but allowed
individual asylum oces the discretion to oer waivers.
J “Last in, First out” Processing—January 31, 2018—In an attempt to stem the growth of its
asylum backlog and deter nonmeritorious claims, USCIS started scheduling asylum interviews
for recent applicants ahead of older lings.
643
Between FY 2015 and FY 2020, the average
length of time between an applicant’s interview and completion of the case dropped from 82
to 18 days.
644
J Allowing Applicants to Request Placement in Removal Proceedings—June 28, 2018—USCIS
announced it would allow immigrants whose asylum applications were denied while they
held lawful immigration status to request placement in removal proceedings once they fall
out of legal immigration status.
645
In “limited and extraordinary circumstances,” USCIS may also
place a removable foreign national in removal proceedings even before asylum adjudication, if
requested by the foreign national.
► Pending at end of administration
J Changes to Asylum Adjudications—On April 29, 2019, the president issued a memorandum
proposing a series of changes to asylum adjudications.
646
Almost all the proposed changes
were in eect or in progress by the end of the administration, with the exception of a provision
that would have eliminated asylum seekers’ ability to apply for work authorization.
642 USCIS, “Agenda” (Asylum Division Quarterly Stakeholder Meeting, USCIS, May 20, 2019).
643 USCIS, “USCIS to Take Action to Address Asylum Backlog” (news release, January 31, 2018).
644 USCIS Ombudsman, Annual Report 2020, 48.
645 USCIS, “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and
Deportable Aliens” (policy memorandum, June 28, 2018).
646 Memorandum from the president, Presidential Memorandum on Additional Measures to Enhance Border Security and Restore
Integrity to Our Immigration System, April 29, 2019.
647 See, for example, Testimony of Richard M. Hudson, Deputy Chief, Operational Programs, Law Enforcement Operations
Directorate, U.S. Border Patrol, before the Senate Judiciary Committee, Subcommittee on Border Security and Immigration,
Tracking Victims Protection Reauthorization Act (TVPRA) and Exploited Loopholes in Regards to Unaccompanied Alien Children,
115th Cong., 2d sess., May 23, 2018, characterizing the Tracking Victims Protection Reauthorization Act as a “loophole” that allows
migrants to exploit U.S. immigration laws. See also Testimony of Kirstjen Nielsen, Secretary, DHS, before the House Homeland
Security Committee, Oversight of the Department of Homeland Security, 115th Cong., 2d sess., December 20, 2018, stating, “This
crisis is the direct result of loopholes created by federal law and adverse federal court rulings that prevent the detention and
repatriation of illegal unaccompanied alien children and family units.”
C. Unaccompanied Children
Federal law and legal precedent require the United States to accept unaccompanied child migrants from
noncontiguous countries (i.e., all but Canada and Mexico) and to release such children to a parent or
guardian during processing. The Trump administration expressed the view that this practice encourages
minors to attempt to cross the border without authorization,
647
and in the absence of congressional changes
to the statutory requirements, federal agencies worked within existing statutes to ensure that fewer could
be released. These eorts involved trying to authorize ocials at more steps of the adjudication process to
determine whether an immigrant no longer meets the legal denition of an unaccompanied child, placing
more children in secure detention facilities, and creating more occasions in which standards for conditions
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in detention can be waived. In several instances, the administration moved to require more information
during the vetting of individuals who came forward as potential sponsors for unaccompanied children,
which advocates argued led to a chilling eect that made unauthorized immigrants less likely to seek to
gain custody of the children. The Trump administration also made it more dicult to obtain immigration
relief, particularly through one of the most common avenues for unaccompanied children—Special
Immigrant Juvenile status.
648 Memorandum from John Kelly, Secretary of Homeland Security, to Kevin McAleenan, Acting Commissioner of CBP, et al.,
Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, February 20, 2017.
649 Memorandum from Jean King, General Counsel of EOIR, Justice Department, to James McHenry, Acting Director of EOIR, Legal
Opinion Re: EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA,
September 19, 2017.
650 Memorandum from MaryBeth Keller, Operating Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases
Involving Juveniles.
651 Memorandum from John Laerty, Chief, Asylum Division, USCIS, to all Asylum Oce sta, Updated Procedures for Asylum
Applications Filed by Unaccompanied Children, May 31, 2019.
652 Memorandum from Ted Kim, Acting Chief, Asylum Division, USCIS, to all Asylum Oce sta, Updated Procedures for Determination
of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, May 28, 2013.
653 J.O.P. v. U.S. Department of Homeland Security, Case No.: GJH-19-1944 (U.S. District Court for the District of Maryland, August 2,
2019).
► Removal of Unaccompanied Child Designations—February 20, 2017—After the president issued his
January 25, 2017, executive order on border security, DHS published a related implementing memo in
which it advised that the department establish procedures to conrm that minors initially determined
to be “unaccompanied alien children” continue to fall within the legal denition as they move through
removal processes.
648
J September 2017—The Justice Department published a legal opinion ruling that immigration
judges are not bound by ICE’s or CBP’s original determination that a minor is an
unaccompanied child and can take away the designation during the minor’s immigration
court proceedings.
649
J December 2017—The chief immigration judge issued a memo instructing immigration
judges to root out fraud and evaluate whether a child continues to meet the denition of an
unaccompanied alien child.
650
J May 31, 2019—USCIS instructed all asylum ocers, beginning June 30, 2019, to make
independent ndings of whether people ling asylum applications with USCIS met the legal
denition of an unaccompanied alien child in cases where applicants were also in removal
proceedings before the immigration courts.
651
Previous policy guidance had instructed asylum
ocers to adopt prior determinations made by CBP or ICE.
652
ο August 2, 2019—A federal judge temporarily blocked USCIS from continuing to
implement this policy and required USCIS to retract any negative decisions on
migrants’ status as unaccompanied children that it had made prior to the court
ruling.
653
J August 23, 2019—A regulation published jointly by DHS and HHS would obligate ocers in
both agencies to assess whether a minor continues to merit the designation each time they
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interact with the minor’s case.
654
It was scheduled to take eect on October 22, but a federal
district judge in the Central District of California permanently blocked the administration from
implementing the regulation.
655
J December 29, 2020—The ICE acting director issued a memo instructing ICE ocers to review
whether migrants still qualify as unaccompanied minors every time the ocers encounter the
individuals or review records about them.
656
► Making it More Dicult for Minors in Custody to Access Abortions—March 4, 2017 to
September 29, 2020—A new policy required the director of ORR, the oce within HHS that cares for
unaccompanied children, to sign o if any unaccompanied child in ORR custody was seeking an
abortion.
657
Under the previous two administrations, the director’s approval was required only if federal
funds were being requested to pay for the abortion, which was allowed if the pregnancy was a result
of rape.
654 ICE, CBP, and ORR, “Apprehension, Processing, Care, and Custody of Alien Minors.”
655 Jenny L. Flores v. William P. Barr, Case No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, in
chambers - order re: plaintis’ motion to enforce settlement [516] and defendants’ notice of termination and motion in the
alternative to terminate the Flores settlement agreement [639], September 27, 2019).
656 Hamed Aleaziz, “A New ICE Policy as Trump Is about to Leave Oce Could Make It Harder for Immigrant Children to Get Asylum,”
BuzzFeed News, January 7, 2021.
657 Renuka Rayasam, “Trump’s Abortion Policy Sheds Light on Ad Hoc Decision-Making,” Politico, February 28, 2018.
658 Rayasam, “Trump’s Abortion Policy.”
659 ORR, “Policy Memorandum: Medical Services Requiring Heightened ORR Involvement” (policy memorandum, ORR, Washington,
DC, September 29, 2020).
660 Ema O’Connor and Zoe Tillman, “The Trump Administration Is Giving up Its Fight to Prevent Undocumented Teens from Getting
Abortions,” BuzzFeed News, September 29, 2020; J.D., on Behalf of Herself and Others Similarly Situated, et al. v. Alex M. Azar, et al.,
No. 17-cv-02122-TSC (U.S. District Court for the District of Columbia, joint stipulation of dismissal without prejudice, September
29, 2020).
661 Memorandum from HHS, Administration for Children and Families, ORR, to Domestic Policy Council, Community Safety Initiative
for the Unaccompanied Alien Children Program, August 16, 2017, 3.
662 Ilsa Saravia v. Jeerson B. Sessions, No. 3:17-cv-03615-VC (U.S. District Court Northern District of California, November 20, 2017).
o March 24, 2017—ORR Director Scott Lloyd reportedly directed shelter sta to take a girl
requesting an abortion rst to a crisis pregnancy center, then require parental consent to
proceed with an abortion, and prevent her from seeking legal assistance to get a judicial order
to bypass the parental consent requirement.
658
o September 29, 2020—ORR released a policy update explicitly stating that department sta
cannot prevent unaccompanied children in their custody from accessing abortion care.
659
The
issuance of the new policy was a condition of the American Civil Liberties Union’s agreement
to dismiss a lawsuit it led challenging the abortion restrictions in October 2017.
660
► Increased Number of Unaccompanied Children in Sta Secure Facilities—August 16, 2017—
ORR announced that it had begun placing all children with any gang-related history in sta secure
detention, whether or not they had ever been arrested or charged with a crime.
661
The policy also
made all such children ineligible for release to sponsors, though this was enjoined by a federal district
court on November 20, 2017, and the injunction remained in place at the end of the administration.
662
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J June 12, 2017—ORR changed its policy to require that the oce’s director personally sign o
on the release of any unaccompanied child from a secure or sta secure facility.
663
This policy
was preliminarily enjoined in June 2018, and the injunction remained in place at the end of
the administration.
664
► Denial of Special Immigrant Juvenile (SIJ) Status Applications Based on Age—February 2018—In
the rst half of 2018, USCIS began systematically denying applications for SIJ status to applicants who
were age 18 or older when the applicants received state court orders, despite being eligible until they
are 21, due to discrepancies between state and federal laws.
665
The status is available to children who
were abused, neglected, or abandoned by one or both parents. In April 2018, a USCIS spokesperson
said that roughly 260 cases had been denied based on February USCIS guidance, which was not made
public.
666
J October 24, 2018—A federal district court judge in California issued a preliminary injunction,
prohibiting USCIS from using the policy to deny SIJ status to 18-to-20-year-olds in California.
667
In December 2019, the lawsuit concluded with a settlement, wherein USCIS agreed to no
longer apply this policy in California.
668
J April 8, 2019—Following a summary judgement ruling that the administration’s new policy
was violating federal law, a federal district court judge in New York ordered the administration
to refrain from using the policy to deny SIJ status to 18-to-20-year-olds in New York State.
669
J October 15, 2019—USCIS stopped applying this policy nationwide.
670
By this time, the SIJ status
denial rate had already started to decrease.
671
J October 5, 2020—A district court in Washington State issued a permanent injunction and said
USCIS could not deny SIJ status to 18-to-20-year-olds in Washington simply based on age. It
also ordered the agency to adjudicate SIJ petitions within 180 days of ling, including issuance
of requests for further evidence, a move to prevent USCIS from delaying adjudication or
arguing applications were incomplete.
672
► Increased Vetting and Immigration Enforcement against Potential Sponsors—April 13, 2018—
ORR nalized a memorandum of agreement with ICE and CBP outlining policies and procedures for
sharing information and conducting background checks on potential sponsors for unaccompanied
663 Senate Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Aairs, Oversight of
the Care of Unaccompanied Alien Children (Washington, DC: U.S. Senate, 2018), 50.
664 L.V.M. v. Scott Lloyd, No. 18-cv-01453 (U.S. District Court for the Southern District of New York, June 27, 2018).
665 Austin Rose, “For Vulnerable Immigrant Children, a Longstanding Path to Protection Narrows,” Migration Information Source, July
25, 2018.
666 Ted Hesson, “Travel Ban at SCOTUS,” Politico, April 25, 2018.
667 J.L. v. Cissna, No. 5:18-cv-04914 (U.S. District Court for the Northern District of California, October 24, 2018).
668 J.L. v. Cuccinelli, Case No. 18-cv-04914-NC (U.S. District Court for the Northern District of California, order granting nal approval
of the settlement agreement, December 18, 2019).
669 R.F.M. v. Nielsen, No. 1:18-cv-05068 (U.S. District Court for the Southern District of New York, April 8, 2019).
670 USCIS, “USCIS Claries Special Immigrant Juvenile Classication to Better Ensure Victims of Abuse, Neglect and Abandonment
Receive Protection” (press release, October 15, 2019).
671 USCIS, “Number of I-360 Petitions for Special Immigrant with a Classication of Special Immigrant Juvenile (SIJ) by Fiscal Year,
Quarter and Case Status, Fiscal Year 2010-2019,” updated October 2019.
672 Galvez v. Cuccinelli, No. C19-0321RSL (U.S. District Court for the Western District of Washington, order granting plaintis’ motion
for summary judgement and permanent injunction, October 5, 2020).
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minors, including ICE running potential sponsors’ information through its database to check their
immigration status.
673
A subsequent Federal Register notice claried that the new vetting and
information-sharing procedures would apply to potential sponsors as well as other adult members of a
potential sponsor’s household.
674
J December 2018—ICE stated that 170 potential sponsors had been arrested from July through
November 2018, 109 of whom had no criminal record.
675
J December 2018—After the population of unaccompanied children in ORR custody grew
alarmingly, hitting a high of almost 15,000 children in December, ORR announced that it
would no longer ngerprint all adults in the household of potential sponsors. Instead, only
potential sponsors would be ngerprinted.
676
J February 15, 2019—The law providing DHS with appropriations for FY 2019 prevents
congressionally appropriated funds from being used to detain, remove, or begin removal
proceedings against any unaccompanied minor’s sponsor, potential sponsor, or member of
the sponsor’s household based on information DHS received from ORR.
677
J April 9, 2019—Testifying before Congress, Commander Jonathan White, a career public-health
ocial at HHS, explained that ORR conducts ngerprint background checks on parents only if
there is a specic concern with their case.
678
J June 14, 2019—HHS further reduced barriers to releasing unaccompanied children to
sponsors, suspending a May 2018 policy of doing immigration records checks on potential
sponsors, in addition to FBI background checks.
679
Before this change, HHS sta had to spend
time reconciling the two screenings.
J July 2019—Lynn Johnson, the assistant secretary of the Administration for Children and
Families, which oversees ORR, said during congressional testimony that ORR no longer
required ngerprints for grandparents or adult siblings acting as potential sponsors of
unaccompanied children.
680
► Changes to Detention Standards—August 23, 2019—The administration issued a nal regulation,
eective October 22, 2019, expanding family detention (see Section 5.B.). The regulation also aected
673 ORR, ICE, and CBP, “Memorandum of Agreement Regarding Consultation and Information Sharing in Unaccompanied Alien
Children Matters,” April 13, 2018.
674 DHS, “Privacy Act of 1974; System of Records,” Federal Register 83, no. 89 (May 8, 2018): 20844–50.
675 Tal Kopan, “ICE Arrested Undocumented Adults Who Sought to Take in Immigrant Children,” San Francisco Chronicle, December
10, 2018.
676 Robert Moore, “Thousands of Migrant Children Could Be Released with Trump’s Major Policy Reversal,” Texas Monthly, December
18, 2018.
677 Consolidated Appropriations Act, 2019.
678 Testimony of Commander Jonathan White, Deputy Director for Children’s Programs, HHS Oce of Assistant Secretary for
Preparedness and Response, before the Senate Committee on the Homeland Security and Governmental Aairs, Unprecedented
Migration at the U.S. Southern Border: Perspectives from the Frontline, 116th Cong., 1st sess., April 9, 2019.
679 Kristina Cooke, “Trump Administration Moves to Release Migrant Children Faster from U.S. Custody,” Reuters, June 10, 2019.
680 Testimony of Lynn Johnson, Assistant Secretary, Administration for Children and Families, before the House Committee
on Appropriations, Labor, Health and Human Services, Education, and Related Agencies Subcommittee, Oversight of the
Unaccompanied Children Program: Ensuring the Safety of Children in HHS Care, 116th Cong., 1st sess., July 24, 2019.
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conditions for unaccompanied minors in government custody.
681
For example, with a general
focus on expediency and operational welfare, the regulation expanded the custody standards for
unaccompanied children that the government can ignore in an emergency situation; previously, an
emergency only waived the requirement that children be transferred to HHS custody within three to
ve days.
J September 27, 2019—A federal district judge in the Central District of California permanently
blocked the administration from implementing the regulation.
682
J December 29, 2020—The Ninth Circuit ruled that the parts of the regulation regarding
conditions for unaccompanied minors could take eect, with the exception of two provisions:
one that broadened the circumstances in which a minor could be placed in a secure facility,
and another that stated that minors in secure facilities would only be provided with a hearing
if they requested one.
683
► Increased Evidence Requirements for SIJ Status—October 15, 2019—When determining SIJ status
eligibility, USCIS began considering whether state court proceedings showed that applicants had
received relief due to parental abuse or neglect, or whether they had received only the factual ndings
from the court that are required to apply for SIJ status—and began requiring the former, with the idea
that the latter showed that an applicant had pursued state court proceedings for the primary purpose
of receiving an immigration benet.
684
► Limits on the Role of Advocates in Immigration Court Proceedings—November 2019—In two
policy memos, EOIR Director James McHenry claried the role that individuals other than legal
representatives play in the legal proceedings of unaccompanied child migrants.
685
While previously,
certain non-legal representatives were permitted to make appearances in a child’s court proceedings,
these memos clarify that anyone aside from the child’s legal counsel or authorized representative may
not actively participate in proceedings.
► Adjudicating Cases Faster—January 2020—EOIR reportedly told assistant chief immigration judges
in an email that court cases of unaccompanied children in ORR custody should be completed within
60 days (see Section 4.A.).
686
J Unknown date—ICE prosecutors in Houston and Phoenix began ling notices to appear
for unaccompanied children within days of their arrival in the United States, whereas they
previously waited a month or more to begin court proceedings.
687
According to the Vera
681 ICE, CBP, and ORR, “Apprehension, Processing, Care, and Custody of Alien Minors.”
682 Jenny L. Flores v. William P. Barr, Case No. CV 85-4544-DMG (AGRx) (U.S. District Court for the Central District of California, in
chambers - order re: plaintis’ motion to enforce settlement [516] and defendants’ notice of termination and motion in the
alternative to terminate the Flores settlement agreement [639], September 27, 2019).
683 Flores v. Rosen, Case No. 19-56326 (U.S Court of Appeals for the Ninth Circuit, December 29, 2020).
684 USCIS, “USCIS Claries Special Immigrant Juvenile Classication.”
685 Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, Child Advocates in Immigration Proceedings,
November 15, 2019; Memorandum from James McHenry, Director of EOIR, Justice Department, to all EOIR, Legal Advocacy by
Non-Representatives in Immigration Court, November 21, 2019.
686 Alvarez, “Trump Administration Puts Pressure on Completing Deportation Cases of Migrant Children.”
687 Kriel, “New Trump Administration Policies”; Vera Institute of Justice, “Express Injustice: Expedited Immigration Hearings Pose
Danger to Detained Children’s Right to a Fair Process,” updated July 2020.
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Institute of Justice, as of May 24, 2020, 15 courts had expedited dockets for unaccompanied
children.
688
► Fingerprinting Minors in ORR Custody—January 2020—ICE issued eld guidance instructing its
juvenile coordinators to begin ngerprinting minors older than 13 in ORR custody, maintaining that
doing so is necessary to combat tracking and smuggling.
689
► Court Hearings Conducted through Video Teleconference (VTC)—March 9, 2020—The
administration launched a pilot program in Houston to hear all immigration court cases of
unaccompanied minors in ORR custody via VTC (see Section 4).
690
► Decreased Access to Counsel—unknown date—ORR stopped transporting children in custody to
meetings with their lawyers.
691
► Pending at end of administration
J Codication of Heightened Evidentiary Requirement for SIJ Status—On October 16, 2019,
USCIS reopened the comment period on a proposed rule originally published in 2011 that,
among other things, would write into regulations the policy of considering whether applicants
pursued state court proceedings primarily to gain relief from parental abuse or neglect, or
whether they were primarily seeking an immigration benet.
692
The comment period ended
November 15, 2019; a nal rule was not published during the Trump administration.
J Sponsor Application Changes—On January 5, 2021, the administration published a request
for comments on proposed changes to the Sponsor Verication Application and Sponsor Care
Agreement, which potential sponsors ll out in order to have unaccompanied minors released
to their care.
693
The changes would impose a 45-day deadline for potential sponsors to
complete the paperwork, allow them to voluntarily submit DNA in support of their application
to prove a biological relationship to the child, and require sponsors to enroll in post-release
services including regular in-home visits and phone calls.
J Mental Health Care Management Services—On January 7, 2021, ORR published a request
for comments on several new forms that would facilitate the provision of mental health care
services to unaccompanied children.
694
The forms include a mental health evaluation form,
a suicide risk assessment, and forms to refer children to community-based mental health
providers, among others.
688 Vera Institute of Justice, “Express Injustice.”
689 Hamed Aleaziz, “ICE Is Now Fingerprinting Immigrants as Young as 14 Years Old,” BuzzFeed News, February 6, 2020.
690 Kriel, “New Trump Administration Policies.”
691 Kriel, “New Trump Administration Policies.”
692 USCIS, “Special Immigrant Juvenile Petitions,” Federal Register 84, no. 200 (October 16, 2019): 55250–51.
693 ORR, “Proposed Information Collection Activity; Sponsor Review Procedures for Unaccompanied Alien Children (OMB #0970-
0278),” Federal Register 86, no. 3 (January 5, 2021): 308–10.
694 ORR, “Proposed Information Collection Activity; Mental Health Care Services for Unaccompanied Alien Children (New Collection),”
Federal Register 86, no. 4 (January 7, 2021): 1114–15.
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D. Temporary Protected Status Recipients
Temporary Protected Status (TPS) is a temporary form of humanitarian protection oered to nationals of
certain countries who are present in the United States and unable to return to their countries due to violent
conict or natural disaster. The Trump administration took issue with repeated extensions of the time-
limited protection and, as such, tried to end TPS protections for nationals of six countries, which covered
a total of more than 300,000 people.
695
The administration also took steps to make it more dicult for TPS
recipients to apply for green cards.
695 Jill H. Wilson, Temporary Protected Status: Overview and Current Issues (Washington, DC: Congressional Research Service, 2020), 5.
696 Wilson, Temporary Protected Status (2020), 5.
697 Crista Ramos v. Kirstjen Nielsen, No. 3:18-cv-01554-EMC (U.S. District Court for the Northern District of California, October 3, 2018).
698 Keshav Bhattarai v. Kirstjen Nielsen, No. 3:19-cv-00731-EMC (U.S. District Court for the Northern District of California, March 12,
2019).
699 Patrick Saget v. Donald Trump, No. 18-CV-1599 (WFK) (ST) (U.S. District Court for the Eastern District of New York, April 11, 2019).
700 USCIS, “Continuation of Documentation for Beneciaries of Temporary Protected Status Designations for El Salvador, Haiti,
Honduras, Nepal, Nicaragua, and Sudan,” Federal Register 84, no. 213 (November 4, 2019): 59403–10.
► End of TPS Designations for Nationals of Six Countries—September 2017 to June 2018—The
administration moved to end TPS designations for nationals of Sudan (expired November 2, 2018),
Nicaragua (was set to expire January 5, 2019, later enjoined), Nepal (was set to expire June 24, 2019,
later enjoined), Haiti (was set to expire July 22, 2019, later enjoined), El Salvador (was set to expire
September 9, 2019, later enjoined), and Honduras (was set to expire January 5, 2020, later enjoined).
696
J October 3, 2018—A federal district court judge in California issued a preliminary injunction
temporarily stopping DHS from terminating TPS for nationals of El Salvador, Haiti,
Nicaragua, and Sudan.
697
That preliminary injunction remained in place through the Trump
administration.
J March 12, 2019—In a dierent case before the U.S. District Court in the Northern District of
California, the administration agreed to put on hold plans to end TPS for nationals of Honduras
and Nepal and instead link their fate to the outcome of the separate case on TPS for nationals
of El Salvador, Haiti, Nicaragua, and Sudan described above.
698
J April 11, 2019—A third federal district court, in New York, issued a second injunction against
the termination of TPS for nationals of Haiti. The injunction remained in place through the
Trump administration.
699
J November 4, 2019—DHS announced that, if the preliminary injunction on the termination of
TPS for nationals of El Salvador is lifted, the termination will not take eect until a year later.
700
This would give Salvadorans with TPS an extra 245 days to plan to leave the country or adjust
their status, whereas the termination for nationals of the other countries would take eect 120
days after the injunction is lifted.
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J December 9, 2020—DHS announced that, in order to comply with injunctions from several
courts, TPS beneciaries from each of the six countries would have their status automatically
extended for nine months, through October 4, 2021.
701
► Extension of TPS Designations for Nationals of Four Countries—March 2018 to November 2020—
The administration extended TPS designations for nationals of Syria twice (most recently extended
through March 31, 2021),
702
Yemen twice (through September 3, 2021),
703
Somalia twice (through
September 17, 2021),
704
and South Sudan three times (through May 2, 2022).
705
► End of Deferred Enforced Departure for Liberians—March 27, 2018—The administration
announced that it would end Deferred Enforced Departure (DED), a TPS-like benet, for Liberians on
March 31, 2019.
706
Liberians had had DED since 2007.
J March 28, 2019—In a memo, Trump announced that he would extend DED for Liberians until
March 30, 2020, explaining the extension was based on the fact that the “overall situation in
West Africa remains concerning.”
707
J December 20, 2019—A provision of the FY 2020 military funding bill made Liberians with DED
eligible to apply for permanent resident status in the United States, as long as they had not
been convicted of certain crimes.
708
The program is known as Liberian Refugee Immigration
Fairness (LRIF).
J March 30, 2020—Trump extended the DED wind-down period for Liberians through January
10, 2021, to allow those eligible to apply for permanent residence an uninterrupted period of
work authorization.
709
J December 27, 2020—The deadline for Liberians with DED to apply for permanent residence
was extended to December 20, 2021.
710
By the end of 2020, USCIS had received 3,211
LRIF applications, 666 of which had been approved, 111 of which had been denied.
711
The
remainder were still pending.
701 USCIS, “Continuation of Documentation for Beneciaries of Temporary Protected Status Designations for El Salvador, Haiti,
Nicaragua, Sudan, Honduras, and Nepal,” Federal Register 85, no. 237 (December 9, 2020): 79208–15.
702 USCIS, “Extension of the Designation of Syria for Temporary Protected Status,” Federal Register 84, no. 184 (September 23, 2019):
49751–57.
703 USCIS, “Extension of the Designation of Yemen for Temporary Protected Status,” Federal Register 85, no. 41 (March 2, 2020): 12313–
19.
704 USCIS, “Extension of the Designation of Somalia for Temporary Protected Status,” Federal Register 85, no. 48 (March 11, 2020):
14229–235.
705 USCIS, “Extension of the Designation of South Sudan for Temporary Protected Status,” Federal Register 85, no. 212 (November 2,
2020): 69344–51.
706 USCIS, “DED Granted Country – Liberia,” updated April 7, 2020.
707 Memorandum from the President, Memorandum on Extension of Deferred Enforced Departure for Liberians, March 28, 2019.
708 USCIS, “Liberian Refugee Immigration Fairness,” updated April 7, 2020.
709 White House, “Extending the Wind-Down Period for Deferred Enforced Departure for Liberians,” Federal Register 85, no. 64 (April
2, 2020): 18849–51; USCIS, “Continuation of Employment Authorization and Automatic Extension of Existing Employment
Authorization Documents for Eligible Liberians During the Period of Extended Wind-Down of Deferred Enforced Departure,”
Federal Register 85, no. 67 (April 7, 2020): 19496–500.
710 USCIS, “Liberian Refugee Immigration Fairness (LRIF) Extended” (stakeholder message, 2020).
711 Jill H. Wilson, Applications for Liberian Refugee Immigration Fairness (LRIF): Fact Sheet (Washington, DC: Congressional Research
Service, 2021).
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► TPS Grant Does Not Qualify Beneciaries to Apply for Green Cards—July 31, 2019—USCIS adopted
a decision of the agency’s Administrative Appeals Oce (AAO) nding that a grant of TPS does not
constitute a grant of admission or cure a failure to maintain lawful status prior to the grant of TPS.
712
That means that a migrant who entered the United States without inspection cannot rely on a grant of
TPS to meet the eligibility requirements for a green card (i.e., lawful permanent resident, or LPR, status)
before USCIS. In November 2020, the BIA ruled similarly for cases before the immigration courts (see
Section 4).
J October 6, 2020—USCIS updated its policy manual to reect that TPS holders in the Sixth and
Ninth Circuits are eligible to adjust to LPR status due to federal court decisions in those circuits
holding that a grant of TPS counts as admission.
713
The Third, Fifth, and Eleventh Circuits have
ruled that a grant of TPS does not constitute an admission.
714
Later that month, on October
27, 2020, the Eighth Circuit Court of Appeals also ruled that a grant of TPS is a grant of
admission.
715
► Limits on Opportunities for TPS Recipients with Advance Parole to Apply for Green Cards—
December 20, 2019—DHS updated its policy manual to reect that TPS holders who receive permission
to travel outside the United States and re-enter (known as advance parole) remain in the same
immigration status upon return as when they left the country, including unauthorized status for
individuals who originally entered without inspection.
716
Prior to this change, re-entering on advance
parole would count as a lawful entry and allow the applicant an opportunity to apply for a green
card based on, for example, marriage to a U.S. citizen. As a result of this change, USCIS oces began
denying green-card applications to TPS holders who traveled after receiving removal orders from
immigration courts and some oces began denying green-card applications regardless of whether
the TPS holder had a removal order.
717
J August 20, 2020—USCIS adopted an AAO decision that found that a TPS holder’s entry into the
United States following a period of TPS-authorized travel does not satisfy the requirement that
green-card applicants from within the United States be “inspected and admitted or paroled”
into the country.
718
Adopting this decision reinforced the policy already in eect, though the
decision applies only to TPS holders who left and returned to the country after it was issued.
712 USCIS, “Matter of H-G-G-, Adopted Decision 2019-01 (AAO July 31, 2019)” (policy memorandum, July 31, 2019).
713 USCIS, “Temporary Protected Status and Eligibility for Adjustment of Status under Section 245(a) of the Immigration and
Nationality Act” (policy alert, October 6, 2020).
714 Serrano v. U.S. Attorney General, No. 10-12990 (U.S. Court of Appeals for the Eleventh Circuit, September 16, 2011); Melendez v.
McAleenan, No. 18-20341 (U.S. Court of Appeals for the Fifth Circuit, June 27, 2019); Sanchez v. Secretary United States Department
of Homeland Security, No. 19-1311 (U.S. Court of Appeals for the Third Circuit, July 22, 2020).
715 Leymis Carolina Vasquez v. William Barr, No. 19-1148 (U.S. Court of Appeals for the Eighth Circuit, October 27, 2020).
716 USCIS, “Eect of Travel Abroad by Temporary Protected Status Beneciaries with Final Orders of Removal” (policy alert, December
20, 2019). A week prior, AILA had issued a practice advisory noting that some USCIS oces had started denying the green-card
applications of Temporary Protected Status (TPS) holders who had reentered on advance parole on the basis that reentering
on advance parole did not override their prior status as having entered the country without inspection. See AILA and American
Immigration Council, “Adjustment Eligibility of TPS Holders after Return with Advance Parole, Even When Initial Entry without
Inspection” (practice advisory, AILA and American Immigration Council, Washington, DC, December 13, 2019).
717 Bennett Savitz, USCIS Committee Update, 2020 AILA Spring CLE Conference, March 6, 2020.
718 USCIS, “Matter of Z-R-Z-C-, Adopted Decision 2020-02 (AAO Aug. 20, 2020)” (policy memorandum, August 20, 2020).
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J October 6, 2020—USCIS updated its policy manual to state that TPS holders returning to the
United States with advance parole documents are not considered inspected and paroled into
the country, pursuant to the AAO decision.
719
► Deferred Enforced Departure for Venezuelans—January 19, 2021—Trump granted DED to
Venezuelans who were present in the United States as of January 20, 2021.
720
The grant would protect
an estimated 200,000 eligible Venezuelans from deportation for 18 months and make it possible for
them to obtain work permits during that time.
721
► Individual Work Permit Extension Letters—multiyear—When USCIS is unable to process
TPS renewals before the status’ expiration date, the agency issues automatic extensions of the
beneciaries’ work permits to allow extra time for processing. Historically, USCIS announced
automatic work permit extensions through notices in the Federal Register. The Trump administration
began issuing individual notices, mailed to TPS holders aected by the processing delays.
722
In some
cases, the individual notices did not have an accompanying Federal Register notice announcing the
extension. The USCIS handbook does not list the individual notices as ocial means of communicating
an automatic extension of work eligibility, and there were reports that the letters led to disruptions in
employment and confusion among TPS beneciaries.
723
719 USCIS, “Temporary Protected Status and Eligibility for Adjustment of Status.”
720 White House, “Memorandum of January 19, 2021: Deferred Enforced Departure for Certain Venezuelans,” Federal Register 86, no.
14 (January 25, 2021): 6845–46.
721 Sabrina Rodriguez, “Trump Grants Venezuelans Temporary Legal Status on His Way Out,” Politico, January 19, 2021.
722 GAO, Temporary Protected Status: Steps Taken to Inform and Communicate Secretary of Homeland Security’s Decisions (Washington,
DC: GAO, 2020), 36–39.
723 GAO, Temporary Protected Status; CLINIC, “USCIS Processing Delays and the Resulting Consequences to TPS Holder and their
Families” (policy brief, Washington, DC, June 28, 2019).
724 Memorandum from Cheryl Stanton, Administrator, Wage and Hour Division, U.S. Department of Labor, to Regional Administrators
and District Directors, Wage and Hour Division, Certication of Supplement B Forms of U Nonimmigrant and T Nonimmigrant Visa
Applications, July 1, 2019; Ben Penn, “Trump Wage Chief Adds Visa Hurdles for Tracking Victims (2),” Bloomberg Law, July 1, 2019.
E. Victims of Tracking and Other Crimes
Victims of certain crimes and victims of tracking who assist with law enforcement investigations into
those crimes can be eligible for U and T nonimmigrant statuses, respectively. The Trump administration took
steps to make it more dicult to obtain certications from law enforcement agencies that allow a victim to
pursue lawful status. It also opened the possibility of removing unauthorized immigrants who have pending
U visa applications.
► Restricting Department of Labor Certications for U and T Visas—July 1, 2019—New policy
guidance for the Labor Department’s Wage and Hour Division (WHD) limited the circumstances in
which WHD could certify U and T visa applicants’ cooperation with a law enforcement investigation
into a crime committed against them or a tracking situation, respectively.
724
(For more, see
Section 7.)
► Encouraging Law Enforcement Agencies to Use Discretion When Certifying Visas—July 31, 2019—
USCIS revised its guidance for law enforcement agencies on certifying U visa applications for victims
of crime. Many of the changes emphasized local agencies’ ability to set their own certication policies,
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such as setting time limits, conducting their own background checks on applicants, and withdrawing
submitted certications if new information comes to light. Other changes reminded agencies that
they were under no obligation to issue certications.
725
► Enforcement Actions against U Visa Applicants—multiyear—Over the course of the administration,
ICE broadened its ability to remove unauthorized immigrants with pending U visa applications.
J October 26, 2017—ICE informed the American Immigration Lawyers Association that it will
take enforcement action against noncitizens with nal orders of removal, even if they have
pending U visa applications.
726
After encountering such an immigrant, ICE will contact USCIS to
get a recommendation on whether the U visa application will likely be approved. If USCIS does
not respond within ve days, ICE will initiate removal proceedings.
J August 2, 2019—ICE removed a requirement that, for U visa applicants in removal proceedings,
USCIS make an initial determination of whether they appeared to be eligible for the status
before ICE approves or denies a stay of removal.
727
The revised policy leaves that decision
entirely to ICE’s discretion.
► Pending at end of administration
J Work Authorization for U Visa Applicants—USCIS announced that it planned to propose a rule
that would dene “bona de” U visa applications.
728
In order to qualify for work authorization, a
U visa applicant must have a bona de application pending.
725 DHS, “U Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors,
Judges, and Other Government Agencies” (resource guide, DHS, Washington, DC, 2019); CLINIC, “U Visa Updates: New U Visa Law
Enforcement Resource Guide and ICE Stay of Removal Policy for U Visa Petitioners,” updated August 9, 2019.
726 AILA, “AILA/ICE Liaison Meeting Minutes” (unpublished meeting notes, October 26, 2017).
727 ICE, “Revision of Stay of Removal Request Reviews for U Visa Petitioners” (fact sheet, ICE, August 2, 2019).
728 USCIS, “Discretionary Employment Authorization for U Nonimmigrants” (proposed rule 1615-AC53, Spring 2020).
6 U.S. Department of State
The U.S. Department of State plays a critical role in determining who is permitted to enter the country by
adjudicating visa applications and disseminating visa stamps to foreign nationals seeking to enter the
United States. As such, the State Department was central to the Trump administration’s eorts to increase
vetting or all-out ban the arrival of certain groups of foreign nationals.
The most prominent changes carried out by the State Department
were implementation of the president’s travel bans, including those
due to the COVID-19 pandemic (see Section 2), eorts to deny visa
issuance to low-income immigrants likely to rely on public benets,
and to add steps to the visa application process and require
additional information from applicants—moves that purported to
increase security vetting, but that also made it more dicult for
some foreign nationals to get visas. A presidential proclamation
The State Department
was central to the Trump
administration’s eorts to
increase vetting or all-out
ban the arrival of certain
groups of foreign nationals.
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decreeing that foreign nationals could be denied entry unless they prove they can obtain eligible health
insurance or will have sucient resources to pay for medical costs had the potential to block two-thirds of
those applying for legal permanent residence from abroad, though in the end legal challenges prevented it
from going into eect before the end of the administration.
The various changes to State Department policies may have contributed to a decline in visa issuance. The
number of applicants who received “inadmissible” determinations on public-charge grounds spiked, from
1,076 in FY 2016 to 20,941 in FY 2019.
729
Immigrant visa issuance fell from 560,000 in FY 2017 to 460,000 in
FY 2019.
730
In FY 2020, when COVID-19 led to travel bans and embassy closures around the world, the trend
accelerated; just 240,000 immigrant visas were issued that year.
729 Because of a 2019 change in the State Department’s reporting methodology for inadmissibility determinations, which fails to
report inadmissibility determinations that are overruled in the same scal year, the number of public-charge inadmissibility
determinations in FY 2019 is likely much higher. See State Department, “Table XX Immigrant and Nonimmigrant Visa
Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality Act) Fiscal Year 2019,” accessed March 10, 2020;
State Department, “Table XX Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and
Nationality Act) Fiscal Year 2016,” accessed March 10, 2020.
730 State Department, “Table I: Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts, Fiscal Years 2016-2020,” accessed
September 10, 2020.
731 President of the United States, “Proclamation 9645 of September 24, 2017: Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” Federal Register 82, no. 186
(September 27, 2017): 45161–72; Muzaar Chishti, Sarah Pierce, and Laura Plata, “In Upholding Travel Ban, Supreme Court
Endorses Presidential Authority while Leaving Door Open for Future Challenges,” Migration Information Source, June 29, 2018.
732 President of the United States, “Proclamation 9645”; Muzaar Chishti and Jessica Bolter, “The Travel Ban at Two: Rocky
Implementation Settles into Deeper Impacts,” Migration Information Source, January 31, 2019.
733 White House, “Proclamation 9723 of April 10, 2018: Maintaining Enhanced Vetting Capabilities and Processes for Detecting
Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” Federal Register 83, no. 72 (April 13, 2018):
15937–40.
734 President of the United States, “Proclamation 9983 of January 31, 2020: Improving Enhanced Vetting Capabilities and Processes
for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” Federal Register 85, no. 24
(February 5, 2020): 6699–707.
► Travel Ban—January 27, 2017—After the administration issued three versions of the travel ban (the
rst in January 2017) and faced multiple court injunctions along the way, the Supreme Court on June
26, 2018, upheld the third iteration of the ban, which was issued on September 24, 2017.
731
Under this
ban, nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen) were
prevented from entering the United States, to varying degrees.
732
Chad was included in the upheld
ban, but after announcing that the country had raised its security standards, the president terminated
its entry restrictions in April 2018.
733
J February 21, 2020—The president signed a proclamation adding travel restrictions for six new
countries on January 31, 2020.
734
The ban went into eect on February 21, 2020, restricting
new permanent immigration from Eritrea, Kyrgyzstan, Myanmar (also known as Burma), and
Nigeria and restricting nationals from Sudan and Tanzania from participating in the Diversity
Visa Lottery. Nationals of all of the newly designated countries were still permitted to enter
the United States on nonimmigrant visas, for example as tourists or temporary workers. The
president also announced his decision to maintain the entry restrictions established in the
September 2017 travel ban.
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► Suspension of the Visa Interview Waiver Program—January 27, 2017—In the president’s initial
January 2017 executive order issuing the travel ban, and the subsequent March 6 executive order that
revoked and replaced the prior order, the administration included near identical provisions directing
the State Department to immediately suspend the Visa Interview Waiver Program.
735
The change was
implemented in the department’s Foreign Aairs Manual in July 2017.
736
This Obama-era program
allowed certain low-risk travelers to renew their travel authorization without an in-person interview.
The order allowed interview waivers to continue for specic statutory exceptions, including certain
diplomats and anyone applying to renew a nonimmigrant visa less than 12 months after the prior visa
expired.
737
J May 14, 2019—The U.S. embassy in Nigeria announced an immediate indenite suspension of
all interview waivers for those renewing visas.
738
The announcement came less than a month
after the president issued a memorandum aimed at curbing visa overstays from countries
with overstay rates higher than 10 percent, according to DHS’s Entry/Exit Overstay Report for FY
2018 (see more under “Pending at end of administration,” later in this section).
739
In that report,
DHS described an overstay rate of 14.8 percent for Nigerian nonimmigrants and 18.6 percent
for Nigerian nonimmigrant students.
J August 25, 2020—The Departments of State and Homeland Security announced the temporary
expansion of the Visa Interview Waiver Program through December 31, 2020, in response to
COVID-19.
740
On December 29, 2020, the departments extended this expansion through March
31, 2021.
741
(For more on the pandemic’s impact on this program, see Section 2.A.)
► Slowed Pace of Nonimmigrant Visa Interviews—June 21, 2017—Trump issued an executive order
eliminating a goal put in place under the Obama administration that the State Department interview
80 percent of nonimmigrant visa applicants within three weeks of receiving their applications.
742
► Increased Information Requirements for Some Applicants—August 3, 2017—In a new form (DS-
5535), the State Department mandates that any visa applicant that ocers decide “warrants additional
scrutiny” provide 15 years of travel, housing, and employment history, among other things.
743
► Changes to the 30-/60-Day Rule—September 16, 2017—For a certain period after nonimmigrants
enter the country, the State Department can declare their application to have included a material
misrepresentation if the individuals engage in activities inconsistent with the terms of their
735 White House, “Executive Order 13769 of January 27, 2017: Protecting the Nation from Foreign Terrorist Entry into the United
States,” Federal Register 82, no. 20 (February 1, 2017): 8977–82; White House, “Executive Order 13780.”
736 State Department, “9 Foreign Aairs Manual 403.5: (U) NIV Interview by Consular Ocer,” updated July 27, 2017.
737 State Department, “9 Foreign Aairs Manual 403.5.”
738 U.S. Embassy and Consulate in Nigeria, “Indenite Suspension of ‘Dropbox’ Process for Renewals” (news release, May 14, 2019).
739 Memorandum from the president, Presidential Memorandum on Combating High Nonimmigrant Overstay Rates, April 22, 2019;
DHS, Fiscal Year 2018 Entry/Exit Overstay Report (Washington, DC: DHS, 2019).
740 U.S. Department of State, Bureau of Consular Aairs, “Expansion of Interview Waiver Eligibility” (news release, August 25, 2020).
741 U.S. Department of State, Bureau of Consular Aairs, “Expansion of Interview Waiver Eligibility” (news release, December 29,
2020).
742 White House, “Executive Order 13802 of June 21, 2017: Amending Executive Order 13597,” Federal Register 82, no. 121 (June 26,
2017): 28747–48; White House, “Executive Order 13597 of January 19, 2012: Establishing Visa and Foreign Visitor Processing Goals
and the Task Force on Travel and Competitiveness,” Federal Register 77, no. 15 (January 24, 2012): 3373–75.
743 State Department, “60-Day Notice of Proposed Information Collection: Supplemental Questions for Visa Applicants,” Federal
Register 82, no. 148 (August 3, 2017): 36180–82.
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nonimmigrant status.
744
While previously the period in which this could be done was 30 or 60 days
after admission, the State Department extended it to 90 days.
► Public-Charge Vetting—January 3, 2018—The State Department changed its Foreign Aairs Manual
to instruct employees to consider an adavit of support as just one potential factor when deciding
if an applicant for a green card or a temporary visa is likely to become a public charge; in the past, an
adavit of support was on its own sucient evidence to pass the test.
745
Ocers are now instructed
to consider the applicant’s “age, health, family status, assets, resources, nancial status, education, and
skills,” regardless of whether an adavit of support was led.
J February 24, 2020—The State Department on October 11, 2019, published an interim nal
rule to implement public-charge standards consistent with those implemented by USCIS (see
Section 7).
746
However, the department delayed the rule’s implementation while it sought
approval for a new public-charge questionnaire and waited for the resolution of the litigation
against DHS’s public-charge rule.
747
After the Supreme Court allowed USCIS to proceed with its
regulation, the State Department sought and received emergency approval to begin using its
public-charge questionnaire on February 24, 2020, for six months through August 31, 2020.
748
On July 29, 2020, a nationwide injunction halted the agency’s enforcement of the rule.
749
► Limit Nonimmigrant Visa Validity—January 26, 2018—The State Department revised its consular
manual to empower ocers to limit the validity period of nonimmigrant visas.
750
Previously, ocers
were encouraged to issue visas for the full available validity period, typically ten years.
751
After the
revision, ocers were instructed to limit the validity period, or to provide foreign nationals with a
limited number of entries, if they felt it was warranted, for example, if they had concerns about the
foreign national potentially overstaying the visa.
752
► Establishment of a National Vetting Enterprise—February 6, 2018—Trump issued a presidential
memo that gave DHS and other agencies six months to establish a National Vetting Enterprise,
which administration ocials said was intended to streamline vetting of would-be immigrants and
nonimmigrants and to improve the ow of information between various federal agencies.
753
In August
744 State Department, “Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule” (policy update, State Department, Washington,
DC, September 16, 2017).
745 State Department, “9 Foreign Aairs Manual 302.8–2: (U) Public Charge,” updated January 3, 2018.
746 State Department, “Visas: Ineligibility Based on Public Charge Grounds,” Federal Register 84, no. 198 (October 11, 2019): 54996–
5015.
747 State Department, Bureau of Consular Aairs, “Information on Public Charge,” accessed February 21, 2020; State Department,
“60-Day Notice of Proposed Information Collection: Public Charge Questionnaire,” Federal Register 84, no. 206 (October 24, 2019):
57142–43.
748 Oce of Information and Regulatory Aairs, “View ICR - OIRA Conclusion; OMB Control No: 1405-0234,” accessed February 21,
2020.
749 Make the Road New York, et al., v Pompeo, et al., No. 1:19-cv-11633-GBD (U.S. District Court for the Southern District of New York,
July 29, 2020).
750 Memorandum from Secretary of State, Update to 9 FAM 403.9-4 Validity of Nonimmigrant Visas, January 26, 2018.
751 State Department, “9 Foreign Aairs Manual 403.9-4(B) (U) Validity of Nonimmigrant Visas,” accessed June 22, 2017. (“Posts are
encouraged to issue full-validity visas. The routine issuance of limited validity visas runs contrary to that policy.”)
752 State Department, “9 Foreign Aairs Manual 403.9-4(B) (U) Validity of Nonimmigrant Visas,” accessed February 24, 2020.
(“Department regulations at 22 CFR 41.112(c) authorize you to issue a nonimmigrant visa valid for a period, or provide a number
of applications for admission (‘entries’), less than that prescribed on the basis of reciprocity, if warranted in an individual case.”)
753 Memorandum from the president to the vice president et al., Optimizing the Use of Federal Government Information in Support of
the National Vetting Enterprise, February 6, 2018.
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2018, DHS nalized a plan that, among other things, described the intention to begin operations in
December 2018 and consolidated existing processes that support vetting of foreign nationals as part
of the Visa Waiver Program.
754
► Heightened Nonimmigrant Intent Requirements for E Visa Holders—April 6, 2018—The State
Department raised the level of scrutiny of E visa applicants’ intent to depart; while previously the
department instructed immigration ocers to consider asking applicants for this visa (treaty traders
and investors) about their plans to leave the country after it expires, starting in April 2018 they were
required to do so.
755
► Additional Screenings for Chinese Nationals in Sensitive Fields—June 11, 2018—The State
Department began conducting additional screenings of Chinese nationals applying for visas to study
or work in certain “sensitive” elds.
756
There is no public guidance on what constitutes a “sensitive” eld.
In some cases, if these applicants do receive a visa, it may be limited to one year.
► Denials of Visas to Same-Sex Domestic Partners of Foreign Diplomats—July 2018—The
administration began denying visas to same-sex domestic partners of foreign government ocials
and international organization personnel traveling to the United States.
757
On October 1, 2018, same-
sex foreign domestic partners of diplomats based in the United States were given until December 31,
2018, to provide the State Department proof of marriage or leave the country.
► Visa Restrictions on International Criminal Court (ICC) Sta—March 15, 2019—In response to plans
in the ICC to investigate possible war crimes by U.S. forces or allies in Afghanistan, the U.S. secretary of
state announced “visa restrictions on those individuals directly responsible for any ICC investigation
of U.S. personnel.”
758
Less than a month later, in April 2019, the State Department revoked the visa of
the ICC’s chief prosecutor, Fatou Bensouda.
759
On June 12, 2020, the secretary of state announced an
expansion of the visa restrictions to include the family members of sanctioned ocials.
760
► Terrorist Organization Designation for the Islamic Revolutionary Guard—April 15, 2019—The
State Department designated the Islamic Revolutionary Guard Corps (IRGC) a foreign terrorist
organization.
761
The IRGC is a branch of the Iranian military, which has compulsory service
requirements, and the ban would prevent anyone who served in the IRGC from being granted a U.S.
754 DHS, Plan to Implement the Presidential Memorandum on Optimizing the Use of Federal Government Information in Support of the
National Vetting Enterprise (Washington, DC: DHS, 2018).
755 State Department, “9 Foreign Aairs Manual 402.9–4(c): Treaty Traders, Investors, and Specialty Occupations–E Visas—Intent to
Depart upon Termination of Status,” updated April 6, 2018.
756 Testimony of Edward J. Ramotowski, Deputy Assistant Secretary for Visa Services, Bureau of Consular Aairs, State Department,
before the Senate Committee on the Judiciary, Subcommittee on Border Security and Immigration, Student Visa Integrity:
Protecting Educational Opportunity and National Security, 115th Cong., 2d sess., June 6, 2018.
757 State Department, “Senior Administration Ocials on Visas for Same-Sex Domestic Partners of G-4 and Diplomatic Visa Holders”
(news release, October 2, 2018).
758 State Department, “Remarks to the Press” (news release, March 15, 2019).
759 Marlise Simons and Megan Specia, “U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes,” New York Times, April 5,
2020.
760 State Department, “This Week at State: June 12, 2020” (news release, June 12, 2020).
761 State Department, “In the Matter of the Designation of the Islamic Revolutionary Guard Corps (and Other Aliases) as a Foreign
Terrorist Organization,” Federal Register 84, no. 72 (April 15, 2019): 15278.
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visa.
762
It is the rst time the United States has issued this type of designation to a part of another
nation’s government.
763
► More Detailed Applicant Disclosures—May 2019—The State Department increased the required
disclosures for all visa applicants to include social media usernames, previous email addresses, and
phone numbers for the prior ve years.
764
► Tightened Restrictions for the Diversity Visa Program—June 5, 2019—The State Department issued
an interim nal rule mandating that applicants for the Diversity Visa Program provide the number,
country of issuance, and expiration date of their valid, unexpired passport on their petition form or be
disqualied from the lottery for that year.
765
► Iranian Students Deemed Inadmissible—August 2019 to about January 2020—At least 17 Iranian
nationals with student visas were turned away upon arrival to airports in the United States.
766
CBP
ocials appeared to question if their work history or future careers were subject to U.S. sanctions
against Iran, as well as the political and religious leanings of the students. At least 11 of the students
were turned away at Boston Logan Airport, where some reported aggressive screening and
questioning processes.
767
About 20 additional students from Iran were barred from boarding ights to
the United States, despite holding valid student visas.
768
► Restrictions on the Travel of Iranian Government Ocials—September 30, 2019—The president
issued a proclamation indenitely restricting the entry into the United States of Iranian senior
government ocials and their immediate family members.
769
► Required Proof of Health-Care Coverage—October 4, 2019—In October 2019, the president issued a
proclamation stating that all new immigrants could be denied entry into the country unless they prove
they can obtain eligible health insurance within 30 days of arrival or will have sucient resources to
pay for foreseeable medical costs.
770
On November 2, one day before the proclamation was to take
eect, a district court judge issued a temporary restraining order, preventing its implementation.
771
While that judge’s decision was later reversed with the Ninth Circuit Court of Appeals ruling that
762 Ortega, “Huge Trump-Era and Pandemic Immigrant Visa Backlog.”
763 Edward Wong and Eric Schmitt, “Trump Designates Iran’s Revolutionary Guards as a Foreign Terrorist Group,” New York Times, April
8, 2019.
764 Associated Press, “US Now Seeking Social Media Details from All Visa Applicants,” Associated Press, June 1, 2019; Oce of
Management and Budget (OMB) Oce of Information and Regulatory Aairs, “OMB Control Number History: 1405-0182,”
accessed February 19, 2020; OMB Oce of Information and Regulatory Aairs, “OMB Control Number History: 1405-0185,”
accessed February 19, 2020.
765 State Department, “Visas: Diversity Immigrants,” Federal Register 84, no. 108 (June 5, 2019): 25989–91.
766 Caleb Hampton and Caitlin Dickerson, “‘Demeaned and Humiliated’: What Happened to These Iranians at US Airports,” New
York Times, January 25, 2020; Catherine Shoichet, “The Number of Iranian Students Turned Back at US Airports Is Growing. And
Universities Are Worried,” CNN, January 31, 2020.
767 Shoichet, “The Number of Iranian Students Turned Back.”
768 Caleb Hampton and Simon Campbell, “Iranian Students Barred from US: Lost Money, Broken Dreams, No Answers,” The Guardian,
October 14, 2019.
769 White House, “Proclamation 9932 of September 25, 2019: Suspension of Entry as Immigrants and Nonimmigrants of Senior
Ocials of the Government of Iran,” Federal Register 84, no. 189 (September 30, 2019): 51935–36.
770 White House, “Proclamation 9945 of October 4, 2019: Suspension of Entry of Immigrants Who Will Financially Burden the United
States Healthcare System, in Order to Protect Availability of Healthcare Benets for Americans,” Federal Register 84, no. 196
(October 9, 2019): 53991–94.
771 John Doe #1 v. Donald Trump, Case No. 3:19-cv-01743 (U.S. District Court for the District of Oregon, November 2, 2019).
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the president did have the authority to bar the entry of immigrants without health-care coverage,
a preliminary injunction issued in a separate case remained in place, barring the government from
implementing the rule.
772
► Poland Added to Visa Waiver Program—November 11, 2019—In coordination with the State
Department, DHS announced Poland’s addition to the Visa Waiver Program.
773
The program permits
citizens of 39 countries to travel to the United States for business or tourism for up to 90 days without
a visa, in exchange for certain travel and security commitments from those countries.
► Visa Restrictions on Individuals Undermining Peace in South Sudan—December 12, 2019—
Secretary of State Pompeo announced visa restrictions against anyone who undermines or impedes
the peace process in South Sudan.
774
In doing so, Pompeo invoked a section of U.S. immigration law
that allows the executive to block the entry of foreign nationals if the secretary of state has reasonable
grounds to believe their entry would have serious adverse foreign policy consequences.
► Ban on Entry of Certain Iranians—January 10, 2020—Trump issued an executive order imposing
sanctions on Iran and suspending the entry of Iranians who work in, sell to, or otherwise support the
construction, mining, manufacturing, or textile sectors in the country.
775
► Eorts to Prevent “Birth Tourism”—January 24, 2020—The State Department issued a nal
regulation that attempts to prevent foreign nationals from coming to the United States to give birth.
776
The regulation explicitly states that coming into the United States strictly for the purpose of obtaining
U.S. citizenship for a child by giving birth in the country, a practice dubbed “birth tourism,” is not a
permissible purpose for a B-2 visa (for tourism, to visit family, and other non-business purposes).
► Retaliatory Visa Restrictions against Chinese Nationals—May to December 2020—As tensions
ared between China and the United States over the pandemic and China’s policies in Hong Kong
and Tibet, the administration banned foreign nationals traveling from China and imposed a series of
retaliatory visa restrictions. (For pandemic-related restrictions, see Section 2.A.)
J Chinese Journalists—May 8, 2020—DHS published a nal regulation tightening admission
guidelines for Chinese journalists, limiting their stays in the United States to 90 days at a
time.
777
J Certain Chinese Students and Researchers—May 29, 2020—The president issued a
proclamation banning the entry of Chinese nationals on F visas (for students) and J visas (for
exchange visitors) to pursue graduate study or research if the nationals are associated with
772 John Doe #1, et al., v. Donald Trump, et al., Case No. 19-36020 (United States Court of Appeals for the Ninth Circuit, December 31,
2020); Make the Road New York, et al., v Pompeo, et al., No. 1:19-cv-11633-GBD (U.S. District Court for the Southern District of New
York, July 29, 2020).
773 DHS, “Acting Secretary McAleenan Announces Designation of Poland into the Visa Waiver Program” (news release, November 6,
2019).
774 State Department, “Visa Restrictions on South Sudan Peace Process Spoilers” (news release, December 12, 2019).
775 White House, “Executive Order 13902 of January 10, 2020: Imposing Sanctions with Respect to Additional Sectors of Iran,” Federal
Register 85, no. 9 (January 14, 2020): 2003–06.
776 State Department, “Visas: Temporary Visitors for Business or Pleasure,” Federal Register 85, no. 16 (January 24, 2020): 4219–25.
777 DHS, “Period of Admission and Extensions of Stay for Representatives of Foreign Information Media Seeking to Enter the United
States,” Federal Register 85, no. 91 (May 11, 2020): 27645–49.
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the Chinese military.
778
The same proclamation encouraged the secretary of state to consider
revoking visas of such nationals already in the United States. As of September 8, 2020, the
proclamation resulted in the revocation of more than 1,000 visas.
779
J Chinese Ocials Involved in Undermining Hong Kong’s Autonomy—June 26, 2020—The
secretary of state announced indenite visa restrictions on current and former Chinese
ocials believed to be responsible for, or complicit in, undermining Hong Kong’s autonomy.
780
ο July 14, 2020—The president issued an executive order similarly blocking the entry
of any foreign nationals who undermine democratic processes or institutions or the
peace and stability of Hong Kong, as well as their family members and employees.
781
J Chinese Ocials Involved in Restricting Foreigners’ Access to Tibet—July 7, 2020—The
secretary of state announced indenite visa restrictions against Chinese ocials determined
to be “substantially involved in the formulation or execution of policies related to access for
foreigners to Tibetan areas.”
782
J Certain Chinese Technology Company Employees—July 15, 2020—The secretary of state
announced indenite visa restrictions on “certain employees of Chinese technology
companies that provide material support to regimes engaging in human rights abuses
globally.”
783
It includes employees of Huawei Technologies Co., Ltd., a Chinese multinational
technology company that had become entangled in several U.S. foreign policy issues.
J Chinese Communist Party Members—December 3, 2020—The State Department issued
restrictions on B-1 business and B-2 tourist visas for members of the Chinese Communist
Party—about 92 million people—and their families. The restrictions limit the validity period to
30 days, allow only one entry on the visa, and require visa holders to enter the United States
within one month of issuance.
784
J Chinese Ocials Involved in Human Rights Abuses—December 21, 2020—Secretary of State
Pompeo imposed sanctions on Chinese ocials believed to be involved in human rights
abuses, including the oppression of members of ethnic minority groups, dissidents, human
rights defenders, journalists, peaceful protestors, and others.
785
Their family members are also
subject to the restrictions.
778 White House, “Proclamation 10043 of May 29, 2020: Suspension of Entry as Nonimmigrants of Certain Students and Researchers
From the People’s Republic of China,” Federal Register 85, no. 108 (June 4, 2020): 34353–55.
779 Humeyra Pamuk, David Brunnstrom, and Ryan Woo, “U.S. Cancels Visas of More Than 1,000 Chinese Nationals Deemed Security
Risks,” Reuters, September 15, 2020.
780 State Department, “U.S. Department of State Imposes Visa Restrictions on Chinese Communist Party Ocials for Undermining
Hong Kong’s High Degree of Autonomy and Restricting Human Rights” (news release, June 26, 2020).
781 White House, “Executive Order 13936.”
782 State Department, “Implementing Visa Restrictions under the Reciprocal Access to Tibet Act” (news release, July 7, 2020).
783 State Department, “U.S. Imposes Visa Restrictions on Certain Employees of Chinese Technology Companies that Abuse Human
Rights” (news release, July 15, 2020).
784 Paul Mozur and Raymond Zhong, “U.S. Tightens Visa Rules for Chinese Communist Party Members,” New York Times, December 3,
2020; Michele Kelemen and John Ruwitch, “U.S. Imposes Severe Travel Restrictions on Chinese Communist Party Members,” NPR,
December 3, 2020.
785 State Department, “Additional Restrictions on the Issuance of Visas for People’s Republic of China Ocials Engaged in Human
Rights Abuses” (news release, December 21, 2020).
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► Visa Restrictions on Individuals Undermining Democracy in Guyana—July 15, 2020—After a
contested national election in Guyana, Secretary of State Pompeo announced visa restrictions against
“individuals who have been responsible for, or complicit in, undermining democracy in Guyana,” as
well as their immediate family members.
786
► Visa Restrictions on Individuals Undermining Democratic Transition in Sudan—August 13, 2020—
After the Sudanese president was removed from power by the military, Secretary of State Pompeo
implemented visa restrictions on certain individuals working to undermine Sudan’s civilian-led
transitional government, as well as their family members.
787
► Visa Restrictions on Ugandans Involved in Adoption Scheme—August 17, 2020—The State
Department imposed visa restrictions on four Ugandan individuals who participated in a scheme to
arrange fraudulent adoptions of Ugandan children to families in the United States.
788
► Visa Restrictions on Individuals Undermining Democracy in Belarus—October 2, 2020—The State
Department imposed visa restrictions on 24 individuals involved in the 2020 Belarusian presidential
election and related human rights violations.
789
J December 23, 2020—Visa restrictions were imposed on an additional 39 individuals related
to their involvement in the Belarusian presidential election and subsequent violence in the
country.
790
► Moratorium on Growth in the Au Pair Program—October 9, 2020—The State Department paused
new growth of the Au Pair Program, which allows foreign nationals on J-1 visas to live, work,
and engage in cultural exchange in the United States through a sponsor organization, until the
department completes a comprehensive review of the program.
791
The moratorium stipulates that the
State Department will not accept or review any new applications to become a sponsor organization
led after December 31, 2019, or allow program expansions for existing sponsors.
► Visa Reciprocity Fees Removed for Nigeria—December 2, 2020—The State Department announced
the removal of reciprocity fees for Nigerians more than a year after the West African country
implemented a similar move.
792
Reciprocity fees are imposed on approved visa applications of
nationals from particular countries that require fees of U.S. visa applicants. The U.S. government had
imposed the reciprocity fees in August 2019 after Nigeria failed to change its fee structure for U.S.-
citizen visa applicants despite engagement on the question since early 2018.
793
786 State Department, “U.S. Department of State Imposes Visa Restrictions on Guyanese Individuals Undermining Democracy” (news
release, July 15, 2020).
787 State Department, “The United States Imposes Visa Restrictions on Multiple Individuals Undermining Sudan’s Civilian-Led
Transitional Government” (news release, August 13, 2020).
788 State Department, “Financial Sanctions and Visa Restrictions against Ugandan Individuals Involved in Corrupt Adoption Scheme”
(news release, August 17, 2020).
789 State Department, “The U.S.’ Action Against Belarusian Individuals Involved in Eorts To Undermine Belarusian Democracy” (news
release, October 2, 2020).
790 State Department, “Imposing Sanctions and Visa Restrictions on Additional Individuals and Entities Undermining Belarusian
Democracy” (news release, December 23, 2020).
791 State Department, “Exchange Visitor Program - Moratorium on Growth in the Au Pair Program,” Federal Register 85 no. 197
(October 9, 2020): 64213–14.
792 U.S. Embassy and Consulate in Nigeria, “Visa Reciprocity Fees Removed for Nigeria” (news release, December 5, 2020).
793 U.S. Embassy and Consulate in Nigeria, “Revised Visa Reciprocity for Nigeria” (news release, August 27, 2019).
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► Codifying and Narrowing Criteria for Certain Special Immigrant Visas—December 16, 2020—
The State Department published a nal regulation in June 2020 codifying criteria already in the
department’s practice manual for granting special immigrant status for certain foreign nationals who
have been employed by the U.S. government abroad for at least 15 years.
794
The regulation excluded
some foreign nationals who previously qualied, including those with high visibility in a sensitive
position and service that resulted in the employees losing economic and social ties to their home
countries.
► Visa Bond Pilot Program—December 24, 2020—A six-month pilot program went into eect requiring
certain travelers on business and tourist visas to pay a bond as a condition of visa issuance.
795
Visa
applicants from countries with historically high visa overstay rates could be required to pay bonds
of $5,000, $10,000, or $15,000, which would then be cancelled upon their timely departure from the
United States.
► Limits on Visas for Individuals Involved in Iranian Petroleum Businesses—January 6, 2021—The
State Department imposed sanctions and visa restrictions on ve individuals for their involvement
with Iranian petroleum companies. The restrictions were backdated, eective October 29, 2020.
► Limits on Visas for Nationals of Recalcitrant Countries—multiyear—Pursuant to the president’s
January 25, 2017, executive order on interior enforcement, the State Department and DHS cooperated
in refusing to grant visas to nationals of recalcitrant countries (those that systematically refuse or delay
cooperation on the return of their nationals). The eorts aimed to pressure these countries to accept
the return of their nationals when they were subject to removal from the United States. (For more, see
Section 3.B.)
► Pending at end of administration
J Making it More Dicult for J Visa Holders to Stay in the United States—The administration
indicated it intended to publish a regulation that would make it harder for J visa holders
(temporary exchange visitors) to stay in the United States.
796
Certain J visa recipients, including
those who receive government funding for research or study, must return to their home
countries for two years before returning to the United States with a dierent nonimmigrant
status or as a green-card holder. While most of these nonimmigrants could under existing
policies apply to the State Department to request that this two-year home residency
requirement be waived, the regulation under consideration would decrease the likelihood
that such waivers are granted.
J Eorts to Decrease Visa Overstays—On April 22, 2019, the president issued a memo ordering
the Departments of State, Homeland Security, and Justice to initiate steps to reduce the
number of nonimmigrants who overstay their permitted time in the United States.
797
The
memo drew particular attention to countries that have visitor visa (B-1, B-2) overstay rates
794 State Department, “Visas: Special Immigrant Visas-U.S. Government Employee Special Immigrant Visas for Service Abroad,” Federal
Register 85, no. 116 (June 16, 2020): 36323–27.
795 State Department, “Visas: Visa Bond Pilot Program,” Federal Register 85, no. 227 (November 27, 2020): 74875–83.
796 State Department, “Visas: Two-Year Home-Country Physical Presence Requirement” (proposed rule 1400-AE48, Fall 2017).
797 Memorandum from the president, Presidential Memorandum on Combating High Nonimmigrant Overstay Rates.
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of 10 percent or more, encouraging the agencies to consider consequences as serious as
suspending or limiting the entry of nationals of those countries on visitor visas.
J Collecting Social Media Information—DHS published a 30-day notice on February 10, 2020,
inviting comment on its intention to collect applicants’ social media information.
798
CBP
planned to request ve years of social media information from Visa Waiver Program applicants,
among others.
J Increased Biographical Information Collection—On October 21, 2020, the State Department
issued a request for comments on changes to the supplemental questions for visa applicants,
which are required of certain immigrant and nonimmigrant visa applicants who are
determined to warrant additional questions on terrorism or national security grounds.
799
The
revised form would collect more information about the applicants’ travel history, including
funding sources, along with employment and address history, and family members’ names
and birthdays. The form would remove questions related to social media handles, which had
been incorporated into the visa application.
J Regulations on Intercountry Adoptions—The State Department introduced a proposed rule
that would require adoption service providers to be transparent with accrediting agencies and
prospective adoptive parents about adoption fees so as to prevent child buying.
800
The rule
would also add a denition of “relative” for cases of familial adoption.
J Federal Preemption Governing Au Pairs—The State Department indicated that it would
publish a proposed rule clarifying that federal regulations governing the Au Pair Program
preempt state and local laws, including those governing labor rights.
801
798 DHS, “Agency Information Collection Activities: Generic Clearance for the Collection of Social Media Information on Immigration
and Foreign Travel Forms,” Federal Register 85, no. 27 (February 10, 2020): 7573–77.
799 State Department, “60-Day Notice of Proposed Information Collection: Supplemental Questions for Visa Applicants,” Federal
Register 85, no. 204 (October 21, 2020): 67088–89.
800 State Department, “Intercountry Adoptions: Regulatory Changes to Accreditation and Approval Regulations in Intercountry
Adoption,” Federal Register 85 no. 225 (November 20, 2020): 74492–557.
801 State Department, “Exchange Visitor Program – Au Pair Federal Regulation Preemption of State and Local Law” (proposed rule
1400-AF12, Spring 2020).
802 USCIS, “USCIS Director L. Francis Cissna on New Agency Mission Statement” (news release, February 22, 2018).
7 U.S. Citizenship and Immigration Services and
U.S. Department of Labor
USCIS is the agency within DHS tasked with immigration benets adjudication, but under the Trump
administration, USCIS played an increasingly large role in enforcement. This shift was perhaps most clearly
reected in changes to the agency’s mission statement, from a focus on “customers” and “America’s promise
as a nation of immigrants” to “protecting Americans” and “securing the homeland.”
802
USCIS and the Labor Department, which participates in the administration of the employment visa program,
took steps to increase scrutiny of immigrant and nonimmigrant visa petitioners and applicants, including
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increased interviews and application denials. At the same time, however, the Labor Department released
several regulations that modernized and streamlined application processes for certain types of temporary
workers. USCIS was central in the implementation of the administration’s public-charge initiatives, under
which adjudicators were instructed to consider an
applicant’s likelihood of relying on public benets
in their decision to approve visas. The agency also
implemented an array of policies that increased
vetting and required more information of
applicants, sought to initiate removal proceedings
against foreign nationals, and slowed adjudication
of applications.
USCIS policies appear to have had a chilling eect on immigration applications. Between FY 2016 and FY
2020, applications for green cards before USCIS dropped by 22 percent to the lowest level in at least seven
years.
803
The drop was signicant even prior to the pandemic: between FY 2016 and FY 2019, applications
dropped by 17 percent.
804
803 MPI analysis of data from USCIS, “Number of I-485 Applications to Register Permanent Residence or Adjust Status,” multiple
quarters, accessed October 5, 2021.
804 MPI analysis of data from USCIS, “Number of I-485 Applications,” multiple quarters.
805 DHS, Privacy Impact Assessment for the Continuous Immigration Vetting (Washington, DC: DHS, 2019).
806 Betsy Swan, “Trump Administration Is Set to Add Another Burden on Immigrants,” The Daily Beast, December 27, 2017.
807 USCIS, “USCIS Director L. Francis Cissna on New Agency Mission Statement.”
► Continuous Immigration Vetting—June 2017—Through an initiative entitled Continuous
Immigration Vetting (CIV), USCIS began vetting information for certain immigration benet
applications throughout the entire application adjudication period as new information is received,
rather than only performing point-in-time checks. The initiative is designed to increase national
security checks.
805
Using a data platform that has the ability to compare application information
against customs, immigration, terrorism, and counterterrorism information held in government
databases, USCIS will expand CIV to continue screening and vetting beyond the application period
and throughout the duration of the benet status, until applicants abandon their immigration status
or become naturalized U.S. citizens.
► Increased Requirements for Congressional Involvement in Immigration Cases—December 18,
2017—USCIS added new requirements for any congressional oce inquiring about a constituent’s
immigration case.
806
The new requirements include mandating that the request come with a
handwritten and notarized signature from the foreign national, even if that individual is outside of the
United States.
► New USCIS Mission Statement—February 22, 2018—USCIS changed its mission statement to, among
other things, remove the phrase “nation of immigrants” and add a focus on protecting Americans.
807
► Destruction of Returned Cards—April 2, 2018—When a USCIS document, such as a green card or
employment authorization card, bounces back to USCIS because of a mailing issue, USCIS now only
USCIS and the Labor Department ... took
steps to increase scrutiny of immigrant
and nonimmigrant visa petitioners
and applicants, including increased
interviews and application denials.
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holds on to the document for 60 days before destroying it; previously, the agency held on to such
documents for one year.
808
► Denial of Work Authorization Based on Arrest and Conviction Records—May 31, 2018—USCIS
revised the form used by certain foreign nationals to apply for work authorization to require them to
submit documentation of all of their arrests and/or convictions.
809
The instructions remind applicants
that USCIS may deny applications if they have been arrested and/or convicted of any crime.
► Creation of a Denaturalization Oce—June 2018—USCIS Director L. Francis Cissna announced
that he planned to hire several dozen lawyers and immigration ocers to work on a team focused
on denaturalization in a new Los Angeles oce, to launch in 2019.
810
The move was an extension of
an eort started under Obama to nd hundreds of people who received green cards and citizenship
through fraudulent means after their ngerprints were not digitized.
811
► Decrease in Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), Increase in
Denials—September 11, 2018—At their discretion, USCIS ocers can now deny applications for
any immigration benets if they lack required information or are obviously ineligible.
812
Previously,
ocers were obligated to rst issue an RFE or NOID, giving the applicant the opportunity to correct or
supplement the record.
► Increase in Issuance of Notices to Appear (NTAs)—October 1, 2018—USCIS enacted new guidance,
issued June 28, 2018, instructing its ocers to issue NTAs (the charging documents that initiate
removal hearings) to more foreign nationals, including applicants who, upon denial of an application
for immigration benets, would become unauthorized.
813
The policy was not implemented for
humanitarian applicants—including applicants for T visas (for victims of human tracking), U visas (for
victims of crime), and SIJ status (for abused or neglected children)—until November 2018, and it was
not implemented for employment-based visa applicants by the end of the administration.
814
► Limits on Fast-Tracked Naturalizations for Spouses of U.S. Citizens—October 12, 2018—USCIS
updated the policy manual that governs the adjudication of citizenship applications to clarify that
permanent residents who are married to U.S. citizens may only naturalize on an accelerated basis if
they have lived with their U.S.-citizen spouse for three years prior to ling and the marriage is not
808 USCIS, “Undeliverable Permanent Resident and Employment Authorization Cards and Travel Documents to Be Destroyed after 60
Days” (news release, April 3, 2018).
809 USCIS, “Instructions for Application for Employment Authorization” (guidance document, May 31, 2018). Among the classes of
foreign nationals this change aects are applicants for asylum, TPS, DACA, and adjustment of status.
810 Amy Taxin, “APNewsBreak: US Launches Bid to Find Citizenship Cheaters,” Associated Press, June 11, 2018. The agency did not
conrm whether the launch was carried out.
811 DHS OIG, Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records (Washington,
DC: DHS, 2016).
812 USCIS, “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” (policy
memorandum, July 13, 2018).
813 USCIS, “Updated Guidance for the Referral of Cases and Issuance of NTAs,” June 28, 2018. Even leading up to the policy’s
implementation, NTAs issued by USCIS rose by 53 percent. See Mike Guo and Ryan Baugh, Immigration Enforcement Actions: 2018
(Washington, DC: DHS, 2019).
814 USCIS, “USCIS to Continue Implementing New Policy Memorandum on Notices to Appear” (news release, November 8, 2018);
USCIS, “Notice to Appear Policy Memorandum,” accessed July 28, 2021.
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terminated prior to taking the oath of allegiance for naturalization.
815
Failing these criteria, they must
wait ve years after receiving permanent residence to le for naturalization.
► Claried Policy on Violations of Federal Controlled Substance Law and Marijuana-Related
Activities—April 19, 2019—USCIS issued a memo clarifying that violations of federal controlled
substance law, including violations involving marijuana, are generally a bar for receiving citizenship,
even if the conduct is not an oence under state law.
816
The guidance also claries that applicants
involved in certain marijuana-related activities, including work, may be barred from receiving
citizenship if they are found to have violated federal law.
► Narrowed Criteria for Expediting Requests—May 10, 2019—USCIS issued a policy manual update
that narrowed the list of criteria for which ocers should consider expediting an immigration benet
application from seven situations down to four and increased the bar for the remaining criteria.
817
For example, rather than simply showing “severe nancial loss,” applicants must now prove such loss
would be to a company or person and that the need for urgent action is not a result of the applicant’s
own failure to le the application in a timely manner. The same update also eliminated the term
“customer” from the policy manual, in line with the February 2018 updates to the USCIS mission
statement.
► Restrictions on Labor Department Certications for U and T Visas—July 1, 2019—New policy
guidance for the Labor Department’s Wage and Hour Division (WHD) limited the circumstances in
which WHD could certify U and T visa applicants’ cooperation with a law enforcement investigation
into a crime committed against them or a tracking situation, respectively.
818
Such a certication is
a requirement to get a U visa and a positively weighted factor to get a T visa. This policy is a reversal
of 2011 changes that allowed WHD to begin certifying U visa applications and 2015 changes that
expanded the list of U visa qualifying crimes that WHD could certify and allowed the division to begin
certifying T visa applications.
819
► Suspension of Medical Deferred Action—August 7, 2019—After applicants for medical deferred
action received denial notices with language suggesting the end of the program, USCIS conrmed
that it was no longer administering the program.
820
Medical deferred action is a humanitarian program
that allows seriously ill immigrants to remain in the United States for medical treatment. In response,
advocacy organizations led a lawsuit against the suspension of the program, and USCIS ocials were
815 USCIS, “Marriage and Living in Marital Union Requirements for Naturalization” (policy alert, October 12, 2018).
816 USCIS, “Controlled Substance-Related Activity and Good Moral Character Determinations” (policy alert, April 19, 2019).
817 USCIS, “USCIS Public Services” (policy alert, May 10, 2019); letter from AILA to the Oce of the Director, USCIS, USCIS Policy
Manual, Volume 1: General Policies and Procedures, Part A, Public Services, May 24, 2019.
818 Memorandum from Cheryl Stanton, Certication of Supplement B Forms of U Nonimmigrant and T Nonimmigrant Visa Applications;
Penn, “Trump Wage Chief Adds Visa Hurdles.”
819 U.S. Department of Labor, “The Department of Labor Expands Its Support of Victims of Human Tracking and Other Crimes” (fact
sheet, n.d.).
820 In initial announcements of the change, USCIS said ICE was taking over administration of the program. ICE contradicted that,
saying it had no program in place to review medical deferral requests. Acting Director of USCIS Ken Cuccinelli later testied to
Congress that it had never been the case that ICE would take over the program’s administration. See Shannon Dooling, “‘I Made
the Decision, Alone’: Months Later, Clarity around the End of Medical Deferred Action,” WBUR, October 30, 2019.
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called to testify in Congress.
821
On September 2, 2019, USCIS released a statement saying it would
reopen all 791 medical deferred action requests that were pending as of August 7.
822
The agency
then announced it would fully reverse the policy change, returning to its adjudication guidelines in
place before August 6.
823
Even so, there was a decline in the share of medical deferred action requests
approved between 2018 and mid-2020: about 44 percent of requests were approved in 2018, 28
percent were approved in 2019, and just 11 percent of requests were approved in the rst half of
2020.
824
► Limits on Appeals of Cuban Adjustment Act Denials—August 13, 2019—USCIS issued updated
instructions to adjudicators that will limit the number of Cuban nationals who can appeal denials for
permanent residence under the Cuban Adjustment Act.
825
Where previously denials were automatically
certied to the Oce of Administrative Appeals, under the updated instructions they would only be
certied for cases involving complex legal issues or unique facts.
826
► Closure of International Oces—August 2019 to August 2020—USCIS closed 16 international
oces.
827
While USCIS rst announced in March 2019 that it was in preliminary discussions to
close all international oces, the agency said in August 2019 that it would maintain operations in
seven locations: Beijing and Guangzhou, China; Guatemala City, Guatemala; Mexico City, Mexico;
Nairobi, Kenya; New Delhi, India; and San Salvador, El Salvador.
828
Prior to these closures, USCIS had
23 international oces in 20 countries that, among other responsibilities, assisted with refugee
applications, family-based immigration, and foreign adoptions, as well as urgent requests for
parole and naturalization applications for military members and their family abroad. As part of the
reorganization, military naturalization services were to be consolidated to four military bases and the
State Department was to take responsibility for processing certain applications.
829
► Increased Vetting of Naturalization Applicants—September 17, 2019—USCIS updated the
application for U.S. citizenship and increased the evidentiary requirements for applying, including
821 Shannon Dooling, “House Hearing on Medical Deferred Action Oers Little Clarity on Why Process Ended,” WBUR, September 11,
2019; Shannon Dooling, “Civil Rights Advocates Sue Trump Administration over Medical Deferred Action,” WBUR, September 5,
2019.
822 Shannon Dooling, “After a Month of Public Outcry, Immigration Ocials Resume Medical Deferrals for Deportation,” WBUR,
September 19, 2019; Shannon Dooling, “House Hearing on Medical Deferred Action.”
823 Camilo Montoya-Galvez, “Administration Reinstates Protections from Deportation for Sick Immigrants after Massive Uproar,” CBS
News, September 19, 2019.
824 Shannon Dooling, “‘It’s Scarier Than Having a Surgery’: A Year Later, Uncertainty around Medical Deferrals Remains,” WBUR,
September 24, 2020.
825 USCIS, “Updated Guidance for Adjudication of Cuban Adjustment Act Cases” (policy alert, August 13, 2019).
826 Under both the prior and current instructions, applicants without lawful status are not eligible for appeal if denied. See USCIS,
“23.11 Cuban Adjustment Act Cases,” accessed January 9, 2020.
827 USCIS, “USCIS Will Adjust International Footprint to Seven Locations” (news release, August 9, 2019).
828 USCIS, “USCIS Will Adjust International Footprint”; Vanessa Romo, “Trump Administration Seeks to Close International
Immigration Oces,” NPR, March 12, 2019.
829 USCIS, “USCIS Announces New Locations for Onsite Overseas Military Naturalization Services” (news release, September 30, 2019);
USCIS, “USCIS Updates Process for Accepting Petitions for Relatives Abroad” (news release, January 31, 2020); letter from AILA to
Samantha Deshommes, Chief of Regulatory Coordination Division, USCIS, RE: OMB Control Number: 1615–0135—USCIS 60-Day
Notice and Request for Comments on Proposed Revisions to Form I-131A, Application for Travel Document (Carrier Documentation),
February 18, 2020 (recognizing that Form I-131A Application for Travel Document instructions now indicate applications should
be led with the State Department, where previously they were led with USCIS international oces).
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requiring applicants to provide details on arrests abroad, up to a decade of international travel history
(instead of ve years), and other documents (e.g., tax returns and children’s birth certicates).
830
► Replacement of the Term “Foreign National” with “Alien”—October 8, 2019—USCIS updated its
policy manual to replace all instances of the term “foreign national” with “alien.”
831
► Increased Standards for Fee Waivers—October 24, 2019—Since 2011, USCIS has oered a
streamlined process in which, if an applicant provided proof of receiving a means-tested benet, a
waiver was normally approved for the fee for ling immigration applications or accessing biometric
services.
832
In October 2019, USCIS eliminated receipt of a means-tested benet as criteria to prove
eligibility for such a waiver.
833
Applicants could still request a fee waiver if their annual household
income was at or below 150 percent of federal poverty guidelines or if they could prove extreme
nancial hardship. The change was enjoined by a federal district court on December 11, 2019, and the
injunction remained in place at the end of the administration.
834
► Redenition of “Residence” for the Purpose of Citizenship—October 29, 2019—USCIS issued policy
guidance redening “residence” for the purpose of U.S. citizenship and, in doing so, made it more
dicult for children of some U.S. government employees or military service members outside the
country to claim U.S. citizenship.
835
Since 2004, USCIS policy provided that such children were in fact
“residing in the United States” and thus automatically received citizenship.
836
However, under the new
policy these children would have to proactively apply for citizenship. In March 2020, the president
signed a bill into law that reversed this policy change and ensures automatic citizenship for these
children.
837
In September 2020, USCIS released guidance on implementation of the new law.
838
► Rejection of Forms with Blank Responses—October 2019 to December 28, 2020—For at least four
forms, Form I-918 (for U visas for crime victims), Form I-914 (for T visas for tracking victims), Form
I-589 (for asylum or withholding of removal), and Form I-360 (for widows of U.S. citizens and those
seeking protection from an abusive parent, spouse, or child), USCIS added an extra layer of review
to its initial intake process.
839
Rather than just ensuring the proper signature, fee, and supporting
documents are included, USICS adjudicators reject the form unless every applicable eld is completed.
On November 19, 2020, a class action complaint was led to stop the practice, which USCIS agreed to
830 USCIS, “Agency Information Collection Activities; Revision of a Currently Approved Collection; Application for Naturalization,”
Federal Register 83, no. 225 (November 21, 2018): 58781–82; USCIS, “N-400, Application for Naturalization,“ accessed July 10, 2020.
831 USCIS, “Policy Manual Updates,” accessed January 28, 2019.
832 USCIS, “Agency Information Collection Activities; Revision of a Currently Approved Collection: Request for Fee Waiver;
Exemptions,” Federal Register 84, no. 108 (June 5, 2019): 26137–40.
833 USCIS, “USCIS Updates Fee Waiver Requirements” (news release, October 25, 2019).
834 The City of Seattle v. Department of Homeland Security, No. 3:19-cv-07151 (U.S. District Court for the Northern District of California,
Oorder granting plaintis’ motion for nationwide preliminary injunction, December 11, 2019).
835 USCIS, “Dening ‘Residence’ in Statutory Provisions Related to Citizenship” (policy alert, August 28, 2019).
836 Letter from Members of Congress to Kenneth T. Cuccinelli, Acting Director, USCIS, September 4, 2019.
837 Citizenship for Children of Military Members and Civil Servants Act, HR 4803, 116th Cong., 2nd sess., Congressional Record 166, no.
44, daily ed. (March 5, 2020): S1612.
838 USCIS, “USCIS Implements New Law Related to Citizenship for Children of Military Members and U.S. Government Employees
Stationed Overseas” (news release, September 18, 2020).
839 Oce of Citizenship and Immigration Services Ombudsman, “Ombudsman Alert: Recent Updates to USCIS Form Instructions,”
updated January 23, 2020; AILA, “USCIS’s ‘No Blank Space’ Policy Leads to Capricious Rejections of Benets Requests” (policy
brief, October 22, 2020); Akhilesh R. Vangala, et al., v USCIS, et al., No. 3:20-cv-08143 (U.S. District Court for the Northern District of
California, November 19, 2020).
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do while a settlement was negotiated.
840
USCIS stopped enforcing the policy eective December 28,
2020.
► Limits on Citizenship Eligibility for Foreign Nationals with Criminal Records—December 10,
2019—USCIS amended its policy manual to implement two self-referred decisions from the attorney
general.
841
Under Matter of Thomas and Thompson, certain post-sentencing alterations, including
orders that vacate the conviction or alter the sentence, are irrelevant when determining citizenship
eligibility. Under Mater of Castillo-Perez, two or more driving under the inuence convictions
during the three-to-ve-year period prior to ling a citizenship application create a presumption of
ineligibility.
► Expanded List of Unlawful Acts That Disqualify Applicants from Citizenship—December 13,
2019—USCIS amended its policy manual to further clarify when an unlawful act disqualies an
applicant from a grant of citizenship and to expand the list of examples of unlawful acts.
842
The
amendment species that one unlawful act during the three-to-ve-year period prior to applying for
citizenship can disqualify an applicant if the act “adversely reects on his or her good moral character.”
► Limited Entry for Foreign Nationals Using or Likely to Use Public Benets—February 24, 2020—On
August 14, 2019, USCIS published a nal regulation that, as of its eective date on October 15, 2019,
would require USCIS ocers to consider whether an applicant for a green card is likely to become
a public charge.
843
After several nationwide injunctions were stayed by courts of appeals and the
Supreme Court, USCIS designated February 24, 2020, as the new implementation date.
844
To determine
whether someone is likely to become a public charge (dened by the rule as someone who receives
one or more specied public benets), the regulation directs USCIS ocers to weigh a number of
factors, including the applicant’s income, level of education, health, family size, and past benets
use.The rule also allows USCIS ocers to consider whether nonimmigrants have used public benets
when they are applying for extension or changes of status.
J July 29, 2020—The U.S. District Court for the Southern District of New York enjoined the
administration from enforcing the rule nationwide during a declared national health
emergency, including the COVID-19 pandemic.
845
The following day, USCIS announced it
would stop applying the public-charge rule to any adjustment of status application led
840 AILA, “Featured Issue: USCIS’s Blank Space Policy,” accessed June 18, 2021.
841 USCIS, “Implementing the Decisions on Driving under the Inuence Convictions on Good Moral Character Determinations and
Post-Sentencing Changes” (policy alert, December 10, 2019).
842 USCIS, “Conditional Bar to Good Moral Character for Unlawful Acts” (policy alert, December 13, 2019).
843 USCIS, “Inadmissibility on Public Charge Grounds,” Federal Register 84, no. 157 (August 14, 2019): 41292–508.
844 State of Washington v. DHS, No. 4:19-cv-05210-RMP (U.S. District Court Eastern District of Washington, October 11, 2019); City and
County of San Francisco v. USCIS, No. 4:19-cv-04980-PJH (U.S. District Court Northern District of California, October 11, 2019); State
of New York v. DHS, No. 1:19-cv-07777-GBD (U.S. District Court Southern District of New York, October 11, 2019); Cook County,
Illinois v. Kevin K. McAleenan, No. 1:19-cv-06334 (U.S. District Court for the Northern District of Illinois Eastern Division, October
14, 2019); Casa De Maryland, Inc. v. Donald J. Trump, No. 8:19-cv-02715-PWG (U.S. District Court for the District of Maryland,
October 14, 2019); City and County of San Francisco v. USCIS, No. 19-35914 (U.S. Court of Appeals for the Ninth Circuit, December
5, 2019); Casa de Maryland, Inc. v. Donald J. Trump, No. 19-2222 (U.S. Court of Appeals for the Fourth Circuit, December 9, 2019);
Department of Homeland Security v. New York, No. 19A785 (Supreme Court of the United States, January 27, 2020); Chad Wolf v.
Cook County, Illinois, No. 19A905 (Supreme Court of the United States, February 21, 2020); USCIS, “Public Charge Inadmissibility
Final Rule: Revised Forms and Updated Policy Manual” (news release, February 5, 2020).
845 State of New York, et. al., v. Department of Homeland Security and Make the Road New York, et. al., v. Cuccinelli, No. 1:19-cv-07777-
GBD (U.S. District Court for the Southern District of New York, July 29, 2020).
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on or after July 29, 2020.
846
The Appeals Court for the Second Circuit limited the scope
of the injunction to just the Second Circuit (Connecticut, New York, and Vermont) and
then on September 11, 2020, stayed the injunction altogether, allowing USCIS to resume
implementing the rule nationwide.
847
J November 2, 2020—The U.S. District Court for the Northern District of Illinois ruled that the
public-charge rule was invalid and prohibited its implementation nationwide.
848
On November
19, 2020, the U.S. Court of Appeals for the Seventh Circuit reversed that decision and allowed
USCIS to resume implementing the rule.
► Claried Naturalization Requirements—February 26, 2020—USCIS issued updated policy guidance
on one of the requirements for naturalization: continuous U.S. residence.
849
The guidance claries the
eects of extended stays outside of the United States for six months or more.
► Creation of a USCIS Tip Form—March 3, 2020—USCIS launched a tip form to allow members of
the public to submit information if they believe someone is committing immigration benet fraud,
including whether they are misrepresenting themselves when applying for an immigration benet or
are violating the terms of their immigration status.
850
► Increasing the Power of the Secretary of Labor—April 20, 2020—The Department of Labor
published a nal rule giving the secretary of labor the power to review and issue precedential
decisions over the Board of Alien Labor Certication Appeals (BALCA).
851
BALCA is an administrative
body within the Labor Department that reviews appeals of certain immigration cases within the
department’s jurisdiction, including the initial certications for most employment-based green cards.
J January 4, 2021—The secretary of labor’s discretionary review power was expanded to also
include H-2B labor certication cases.
852
► Increasing the Number of Foreign Nationals Barred for Falsely Claiming U.S. Citizenship—April
24, 2020—USCIS issued updated policy guidance clarifying that it is not necessary to show intent in
order to nd a foreign national ineligible for immigration benets after having falsely claimed to be
a U.S. citizen.
853
This will increase the number of foreign nationals subject to this bar to include, for
example, those who unknowingly register to vote while applying for a U.S. driver’s license.
► Reduction in Printing Green Cardsand Employment Authorization Documents—June 2020—
USCIS ended its contract witha company that had printedgreen cards and employment authorization
documents (EADs),and did not follow through with its plan to hire federal employeesto take on
846 USCIS, “Inadmissibility on Public Charge Grounds Final Rule: Litigation,” accessed June 17, 2021.
847 USCIS, “Inadmissibility on Public Charge Grounds Final Rule: Litigation.”
848 USCIS, “Inadmissibility on Public Charge Grounds Final Rule: Litigation.”
849 USCIS, “Eect of Breaks in Continuity of Residence on Eligibility for Naturalization” (policy alert, February 26, 2020).
850 USCIS, “USCIS Launches New Online Form for Reporting Fraud” (news release, March 3, 2020); USCIS, “Agency Information
Collection Activities; New Collection: USCIS Tip Form,” Federal Register 84, no. 32 (February 15, 2019): 4518–19.
851 Department of Labor, “Discretionary Review by the Secretary, NPRM,” Federal Register 85, no. 45 (March 6, 2020): 13086–104;
Department of Labor, “Discretionary Review by the Secretary, DFR,” Federal Register 85, no. 45 (March 6, 2020): 13024–41.
852 Department of Labor, “Discretionary Review by the Secretary of Labor—Notice of Proposed Rulemaking,” Federal Register 86,
no. 1 (January 4, 2021): 29–32; Department of Labor, “Discretionary Review by the Secretary of Labor—Direct Final Rule,” Federal
Register 86, no. 1 (January 4, 2021): 1–4.
853 USCIS, “False Claim to U.S. Citizenship Ground of Inadmissibility and Matter of Zhang” (policy alert, April 24, 2020).
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this work due tobudget issues, according to the agency.
854
As of July 22, 2020, there was a backlog
of 115,000 documents.
855
A class action lawsuit was led on behalf of immigrants who had been
approved for employment authorizations but had not yet received the corresponding documents.
856
On August 19, USCIS announced that individuals who had been approved for a work permit but
had not yet received it could temporarily use their EAD approval notice as employment eligibility
verication.
857
In late August, a settlement was reached in the lawsuit, and USCIS agreed to print work
permits by September 22, 2020, for all class members.
858
► Increasing the Discretion of Immigration Ocers—July 15, 2020—USCIS updated policy guidance
to encourage ocers to deny immigration benets to applicants who would otherwise qualify if
the ocer determines the applicant does not merit a favorable exercise of discretion.
859
For many
immigration benets, including applications for lawful permanent residence and employment
authorization documents, applicants must not only demonstrate eligibility, but also that they possess
positive discretionary factors. The updated guidance encourages ocers to consider community
service, compliance with immigration laws, employment history, and tax compliance, among other
things.
► Review of Foreign Employment in Federal Contracts—August 3, 2020—Trump signed an executive
order directing the secretaries of labor and homeland security to review federal contracts awarded in
FY 2018 and FY 2019 to assess if the contractors used foreign workers and, if so, whether U.S. workers
or national security were adversely aected by that hiring.
860
The order also directed the agencies to
take steps to protect U.S. workers from negative eects on wages and working conditions caused by
the employment of H-1B visa holders (high-skilled temporary workers) at job sites.
► Increased Fees for Immigration Benets—August 3, 2020—USCIS issued a nal rule increasing
fees for 47 immigration benet applications, including an 83 percent fee increase for naturalization
applications and a new $50 fee plus $30 biometric service fee for asylum applications.
861
The rule
also dramatically narrowed eligibility for fee waivers. On September 29, 2020, three days before
the rule was set to go into eect, it was enjoined by a federal district court in California.
862
A second
federal court enjoined the rule on October 9.
863
Both injunctions remained in place at the end of the
administration.
► Ban on Members of Totalitarian Parties—October 2, 2020—USCIS updated the policy manual to
provide stricter instructions for ocers determining inadmissibility based on membership or aliation
854 Email fromDHS to stakeholders,Ombudsman’s Alert: Card Production Delays at USCIS, July 22, 2020.
855 Geneva Sands, “Green Card Backlog due to Budget Issues at Immigration Agency,” CNN, July 22, 2020.
856 Suzanne Monyak, “USCIS Faces Suit over Work Permit Printing Delays,” Law360, July 23, 2020.
857 Email from DHS to stakeholders, Ombudsman Alert: USCIS Acts to Mitigate Delays in Production of Employment Authorization
Documents, September 3, 2020.
858 Dave Simpson, “USCIS Must Print Foreign Citizen’s Delayed Work Permits,” Law360, August 3, 2020; AILA, “District Court Issues
Consent Order and Final Statement in Class Action Challenging Delay in Issuance of EADs,” August 21, 2020.
859 USCIS, “Applying Discretion in USCIS Adjudications” (policy alert, July 15, 2020); USCIS, “Chapter 8 - Discretionary Analysis,”
updated July 15, 2020.
860 White House, “Executive Order 13940 of August 3, 2020: Aligning Federal Contracting and Hiring Practices with the Interests of
American Workers,” Federal Register 85, no. 152 (August 6, 2020): 47879–80.
861 USCIS, “U.S. Citizenship and Immigration Services Fee Schedule.”
862 Immigrant Legal Resource Center v. Chad F. Wolf, no. 20-cv-05883-JSW (U.S. District Court for the Northern District of California,
September 29, 2020).
863 Northwest Immigrant Rights Project v. USCIS, no. 19-3283 (RDM) (U.S. District Court for the District of Columbia, October 9, 2020).
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with the Communist Party or another totalitarian party.
864
Existing law does not allow members of
totalitarian parties to be admitted to the United States; the updated guidance provides specicity
about making inadmissibility decisions on that basis.
► Premium Processing Fee Increase—October 19, 2020—USCIS raised the fee for the request
for premium processing (Form I-907) for all petitioners, as required by a section of a FY 2021
appropriations law that was enacted with the goal of increasing revenue and preventing USCIS from
having to furlough a majority of its sta.
865
The fee rose from $1,440 to $2,500 for all application types
except H-2B visas and R-1 visas, for which the fee rose from $1,440 to $1,500. Premium processing
allows applicants to pay an additional ling fee to expedite the adjudication of their application,
usually to be completed within 15 days.
► Reinforcing Discretion for Adjudications of Adjustment of Status—November 17, 2020—
USCIS updated its policy manual to detail and expand ocer discretion in adjustment of status
adjudications.
866
The granting of immigration benets was already discretionary, but the update details
factors and circumstances that an ocer should review when determining whether to approve an
application. The update reinforces that an exercise of discretion requires more than meeting statutory
eligibility requirements for lawful permanent residence.
► Lawful Admission Requirement for Naturalization—November 18, 2020—USCIS updated its policy
manual to clarify that a lawful permanent resident (LPR, aka green-card holder) who is found to have
obtained permanent residence erroneously, regardless of whether there was willful misrepresentation,
is ineligible for naturalization.
867
USCIS ocers may determine that the applicant’s LPR status is invalid
at the time of the naturalization application and deny the application on that basis.
► New Naturalization Exam—December 1, 2020—USCIS announced changes to the naturalization civics
exam that would apply to immigrants ling their application on or after December 1, 2020.
868
While
applicants taking the previous version of the test, implemented in 2008, were asked up to ten civics
questions and had to answer six correctly to pass, applicants taking the new exam must answer 12
out of 20 questions correctly, making the test longer and more dicult. The total number of possible
questions an applicant could be asked also increased.
► Discretionary Work Authorization—January 14, 2021—USCIS issued an update on the issuance
of work permits to people with pending green-card applications and deferred action recipients.
869
The issuance of a work permit to such individuals is discretionary. The update provided guidance on
the factors an ocer should consider when adjudicating applications for work permits, including
economic necessity, medical conditions that would cause nancial hardship, and whether the
applicant is the primary source of support for a U.S. citizen or LPR, among other things. For applicants
864 USCIS, “Inadmissibility Based on Membership in a Totalitarian Party” (policy alert, October 2, 2020).
865 USCIS, “Premium Processing Fee Increase Eective Oct. 19, 2020” (news release, October 16, 2020).
866 USCIS, “Use of Discretion for Adjustment of Status” (policy alert, November 17, 2020).
867 USCIS, “Prerequisite of Lawful Admission for Permanent Residence under All Applicable Provisions for Purposes of Naturalization”
(policy alert, November 18, 2020).
868 USCIS, “USCIS Announces a Revised Naturalization Civics Test” (news release, November 13, 2020).
869 USCIS, “Applications for Discretionary Employment Authorization Involving Certain Adjustment Applications or Deferred Action”
(policy alert, January 14, 2021).
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with a pending green-card application, the guidance also increased the recommended validity period
of work authorization from one to two years.
► Slowed Adjudications of Immigration Benets Applications—multiyear—A mix of changed
policies (such as interviewing all employment-based applicants; see Section 7.B.) and new vetting
procedures caused adjudications of immigration benets applications to slow down signicantly.
870
► Streamlining Requests for Case Assistance—multiyear—USCIS changed how it interacts with the
public in ways that both limit immigrants’ ability to communicate with the agency and decrease the
agency’s workload.
J Information Services Modernization Program—March 2018—Under USCIS’s InfoPass
appointment system, foreign nationals could go online to self-schedule appointments with
a USCIS ocer, at which they could inquire about a delayed case, provide key updates after
ling, request emergency document services, and submit other urgent requests. In March
2018, USCIS began moving away from the self-scheduling system and to the Information
Services Modernization Program (InfoMod), which gave USCIS the discretion to decide
whether such an appointment is warranted.
871
USCIS had transferred all eld oces to the new
system by the end of August 2019.
872
J Discontinuation of Service Center Email for Case-Specic Questions—January 21, 2019—USCIS
Service Centers no longer manage email inboxes to address case-specic questions.
873
Instead,
foreign nationals have the option of submitting an online request or calling a central USCIS
call center.
J Withdrawal of “First Contact Resolution” Goal—May 10, 2019—USCIS removed from its policy
manual the goal of “giving an accurate and complete answer the rst time to eliminate the
need for subsequent inquiry about the same issue.”
874
► Moving Forms Online—multiyear—USCIS accelerated the process of transitioning from paper
applications to digital forms. During FY 2018 and FY 2019, the administration introduced eight online
forms, bringing the total number of online forms to ten.
875
870 Muzaar Chishti, Sarah Pierce, and Jessica Bolter, “Even as Congress Remains on Sidelines, the Trump Administration Slows Legal
Immigration,” Migration Information Source, March 22, 2018; AILA, “USCIS Processing Delays Have Reached Crisis Levels under the
Trump Administration” (policy brief, AILA, Washington, DC, January 30, 2019); testimony of Marketa Lindt, President, AILA, before
the House Judiciary Committee, Subcommittee on Immigration and Citizenship, Policy Changes and Processing Delays at USCIS,
116th Cong., 1st sess., July 16, 2019. As of the end of March 2020, the backlog of pending cases at USCIS had grown by more
than 1.18 million since the start of the Trump administration. MPI analysis of data from USCIS, “Number of Service-Wide Forms by
Fiscal Year to-Date,” multiple years, accessed July 25, 2020.
871 USCIS, “USCIS to Expand Information Services Modernization Program to Key Locations” (news release, October 30, 2018).
872 USCIS, USCIS Response to the Citizenship and Immigration Services Ombudsman’s (CISOMB) 2019 Annual Report to Congress
(Washington, DC: DHS, 2020), 5.
873 USCIS, “Update on Case Assistance by Service Centers” (news release, December 21, 2018).
874 USCIS, “USCIS Public Services”; letter from AILA to the Oce of the Director, USCIS, USCIS Policy Manual, Volume 1: General Policies
and Procedures, Part A: Public Services.
875 USCIS, “USCIS Expands Online Filing” (news release, May 25, 2018); USCIS, “USCIS Makes Another Form Available for Online Filing”
(news release, October 30, 2019); USCIS, “USCIS Makes Two More Applications Available for Online Filing” (news release, January
29, 2019); USCIS, “Forms,” accessed January 30, 2019.
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► Pending at end of administration
J Collection of Social Media Information—On September 4, 2019, DHS published a notice of its
intention to collect applicants’ social media information.
876
DHS planned to add the request
for ve years of social media information to 12 forms—three CBP and nine USCIS forms—
including applications for naturalization, legal permanent residence, asylum, and refugee
status.
J Reforms to the Appeals Process—USCIS published a proposed revision to the form for ling
an appeal or motion on December 6, 2019, and an update on March 17, 2020.
877
The form
revision, among other things, limits the issues considered on appeal.
878
J Reforms to Provisional Unlawful Presence Waivers—USCIS planned to propose a rule that
would change the process for unauthorized immigrants who are spouses or children of U.S.
citizens or permanent residents and who need to leave the country to nalize their green-card
applications.
879
J Expanded Biometrics Collection—On September 11, 2020, USCIS proposed a rule that
would signicantly change how DHS agencies collect biometrics from immigrants.
880
Under
existing policy, DHS agencies collect photographs, ngerprints, and signatures for individuals
requesting immigration benets or for enforcement purposes, but this rule would expand
biometric collection to include iris images, palm prints, and voice prints, as well as DNA results
in some cases. The rule would require any applicant or individual associated with a certain
benet, including U.S. citizens, regardless of age, to submit biometrics and would require any
immigrant who has been approved for a benet to continue submitting biometrics until they
become a U.S. citizen.
J Benet-Granting Agency Reporting Requirements—On November 12, 2020, DHS and USCIS
issued a request for comments on a proposal to create a new form (Form G-1558) to be used
by benet-granting agencies to report noncitizens who request or receive certain benets to
the federal government.
881
J Eliminating Work Authorization for Immigrants Temporarily Released from DHS Custody—On
November 19, 2020, DHS proposed a rule that would bar immigrants who have nal orders of
876 DHS, “Agency Information Collection Activities: Generic Clearance for the Collection of Social Media Information,” Federal Register
84, no. 171 (September 4, 2019): 46557–61.
877 USCIS, “Agency Information Collection Activities; Revision of a Currently Approved Collection: Notice of Appeal or Motion,” Federal
Register 84, no. 235 (December 6, 2019): 66924–27; USCIS, “Agency Information Collection Activities; Revision of a Currently
Approved Collection: Notice of Appeal or Motion,” Federal Register 85, no. 52 (March 17, 2020): 15222–23.
878 Letter from American Immigration Council, et al., to Samantha Deshommes, Chief, Regulatory Coordination Division, USCIS,
USCIS-2008-0027; OMB Control Number 1615-0095; Agency Information Collection Activities; Revision of a Currently Approved
Collection: Notice of Appeal or Motion, February 4, 2020; letter from ASISTA and CLINIC, to OMB USCIS Desk Ocer, OMB, OMB
Control Number 1615-0095: USCIS Agency Information Collection Activities; Revision of a Currently Approved Collection: Notice of
Appeal or Motion (Form I-290B), April 16, 2020.
879 USCIS, “Revision of Provisional Unlawful Presence Waiver of Inadmissibility” (proposed rule 1615-AC50, Spring 2020).
880 USCIS, “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services,” Federal Register 85, no. 177 (September 11,
2020): 56338–422.
881 USCIS, “Agency Information Collection Activities; New Collection: Report of Request/Receipt of Benets by Aliens,” Federal Register
85, no. 219 (November 12, 2020): 71936.
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removal but are temporarily released from DHS custody on an order of supervision from being
granted work authorization.
882
The rule would exempt those for whom DHS is unable to obtain
travel documents and who demonstrate an economic need for employment, but it would limit
the employment authorization validity period to one year.
J Revisions to the Citizenship Application—On January 15, 2021, USCIS proposed changes to
the application form for citizenship (known as the N-400).
883
The proposed changes expanded
on information requested related to names, birth dates, or Social Security numbers previously
used by the applicant; required more extensive address and travel history information; and
expanded the questions related to criminal history, among other changes.
882 DHS, “Employment Authorization for Certain Classes of Aliens with Final Orders of Removal,” Federal Register 85 no. 224
(November 19, 2020): 74196–53.
883 USCIS, “Agency Information Collection Activities; Revision of Currently Approved Collection: Application for Naturalization,”
Federal Register 86, no. 10 (January 15, 2021): 4110.
884 Batalla Vidal, et al., v. Chad Wolf, et al., and State of New York, et al., v. Trump, et al., No. 1:16-CV-04756-NGG-VMS (U.S. District Court
for the Eastern District of New York, December 4, 2020).
885 USCIS, “Active DACA Recipients – December 31, 2020,” accessed September 10, 2021; MPI Data Hub, “Deferred Action for
Childhood Arrivals (DACA) Data Tools,” accessed September 10, 2021.
886 Memorandum from John F. Kelly, Secretary of Homeland Security, to Kevin K. McAleenan, Acting Commissioner of CBP, et
al., Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent
Residents (“DAPA”), June 15, 2017.
887 Memorandum from Elaine C. Duke, Acting Secretary of Homeland Security, to James W. McCament, Acting Director of USCIS, et
al., Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to
the United States as Children”, September 5, 2017.
A. Deferred Action for Childhood Arrivals
The Trump administration announced the rescission of Deferred Action for Childhood Arrivals (DACA)
within its rst year in oce. The attempt to end the program, which provides protection from deportation
and work authorization to unauthorized immigrants who arrived in the country as children, was quickly
challenged in the courts. Litigation lasted through all four years of the administration, with courts at
dierent points blocking the order, requiring the program to remain active for current recipients, and
reopening it to new applicants. Ultimately, in the nal months of the administration, a federal court ordered
DACA be restored to its status before the initial rescission in 2017.
884
At the end of the administration,
636,390 individuals held active DACA status and an estimated 1,331,000 were eligible to apply.
885
► Rescission of Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA)—June 15, 2017—The administration ocially rescinded Obama’s 2014 memorandum creating
a deferred action program for parents of U.S. citizens and permanent residents and expanding the
DACA program.
886
► Attempt to Rescind DACA—September 5, 2017—The administration announced a staggered end
to the DACA program.
887
Starting immediately on the date of the announcement, USCIS stopped
accepting all applications, except for those to renew DACA benets that would expire on or before
March 5, 2018. On October 5, 2017, USCIS stopped accepting all DACA renewal applications.
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J September 6, 2017—U.S. Border Patrol issued guidance that if an agent encounters an
individual who claims to have DACA, they should be temporarily held to conrm that status.
888
If the individual has active DACA or a pending DACA application and no negative information
against them, they should be allowed to leave CBP custody. If ocers are unable to determine
the status of the individual, they are instructed to process that individual for removal.
J January 9, 2018—Three federal district courts blocked the DACA program’s termination.
889
A federal appeals court upheld one of these injunctions.
890
Another federal appeals court
overturned a lower court ruling that the rescission was valid, nding the decision illegal.
891
J June 18, 2020—The Trump administration appealed the appeals court cases to the Supreme
Court, which held in June 2020 that the decision to end DACA was made in violation of federal
law on administrative decision-making, thus obligating DHS to continue the program at least
until it could terminate the program lawfully.
892
J July 17, 2020—A district court ordered the administration to restore the DACA program to
its status before the September 5, 2017, rescission, thus requiring USCIS to process new
applications, not just renewals.
893
J July 24, 2020—In a hearing, the same district court judge that ordered the administration
to restore DACA criticized the administration for failing to update the website to reect
the program’s status and for rejecting some new applicants for DACA.
894
Lawyers for the
administration argued that a decision on the future of the program had not yet been made
and that new applications were being held but not adjudicated. The judge gave them until
July 31, 2020, to propose next steps.
J July 28, 2020—DHS issued a memo that once again limited DACA benets while Acting
Secretary Chad Wolf considered whether to fully rescind the program.
895
Under the new policy,
all initial applicants were to be denied, as were all applications for advance parole (allowing
for international travel) absent extraordinary circumstances. While renewal applications could
be approved, grants would allow for only one year of work authorization and protection from
888 Memorandum from Carla Provost, Acting Chief of U.S. Border Patrol, to All Chief Border Patrol Agents and All Directorate
Chiefs, Guidance on the Acting Secretary’s Rescission of the Memorandum of June 15, 2012, Establishing DACA, September 6, 2017;
memorandum from Manuel Padilla Jr., Chief Border Patrol Agent, Rio Grande Valley Sector, to Patrol Agents in Charge, Rio Grande
Valley Sector, DACA Re-Encounters, December 26, 2017.
889 Regents of the University of California v. U.S. Department of Homeland Security, No. 3:17-cv-05211-WHA (U.S. District Court for the
Northern District of California, January 9, 2018); Batalla Vidal v. Nielsen, and State of New York v. Donald Trump, No. 1:16-cv-04756-
NGG-JO (U.S. District Court for the Eastern District of New York, February 13, 2018); National Association for the Advancement of
Colored People v. Trump and Trustees of Princeton University v. United States of America, No. 1:17-cv-02325-JDB (U.S. District Court
for the District of Columbia, April 24, 2018).
890 Regents of the University of California v. U.S. Department of Homeland Security, No. 18-15068 (U.S. Court of Appeals for the Ninth
Circuit, November 8, 2018).
891 Casa de Maryland v. Department of Homeland Security, No. 18-1521 (U.S. Court of Appeals for the Fourth Circuit, May 17, 2019).
892 Department of Homeland Security v. Regents of the University of California, No. 18-587 (Supreme Court of the United States, June
18, 2020).
893 Casa de Maryland, et al., v. U.S. Department of Homeland Security, et al., No. PWG-17-2942 (U.S. District Court for the District of
Maryland, July 17, 2020).
894 Josh Gerstein, “Judge Faults Trump Administration’s Response to DACA Ruling,” Politico, July 24, 2020.
895 Memorandum from Wolf to Morgan, Albence, and Edlow.
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deportation, rather than two. USCIS subsequently issued a memo providing guidance on
implementing the new policy.
896
J November 11, 2020—A federal judge ruled that the July 28 memo was invalid because Wolf
was not serving lawfully in his position when he issued it.
897
On December 4, the same judge
ordered DHS to restore DACA to its status before the September 2017 rescission, and to post
notice within three days of its restoration.
898
► Denying Housing Loans for DACA Recipients—August 30, 2018—According to reports, in August
2018, the U.S. Department of Housing and Urban Development (HUD) decided to exclude DACA
recipients from Federal Housing Administration (FHA) loans.
899
HUD later conrmed the policy existed
but maintained that there was no new decision to exclude DACA recipients, and that since at least
October 2003 FHA has maintained a policy that noncitizens without lawful residency in the United
States are not eligible for FHA-insured mortgages.
900
J January 19, 2021—The FHA announced that DACA recipients would be eligible to apply for
federally insured mortgages.
901
The agency removed language from its handbook that barred
people without lawful residency from applying for FHA-insured mortgages.
► Reopening DACA Recipients’ Removal Cases—October 2019—ICE began to request that
immigration courts reopen the removal cases of immigrants protected by the DACA program.
902
(For
more, see Section 3.B.)
896 Memorandum from Joseph Edlow to Associate Directors and Program Oce Chiefs, Implementing Acting Secretary Chad Wolf’s
July 28, 2020 Memorandum, “Reconsideration of the Jun 15, 2012 Memorandum ‘Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children, August 21, 2020.
897 Batalla Vidal, et al., v. Chad Wolf, et al. and State of New York, et al., v. Donald Trump, et al., No. 1:16-CV-04756-NGG-VMS (U.S. District
Court for the Eastern District of New York, November 14, 2020).
898 Batalla Vidal, et al., v. Chad Wolf, et al., and State of New York, et al., v. Trump, et al., No. 1:16-CV-04756-NGG-VMS (U.S. District Court
for the Eastern District of New York, December 4, 2020).
899 Nidhi Prakash and Hamed Aleaziz, “The Trump Administration Said It Didn’t Change Policy To Deny Housing Loans To DACA
Recipients. Emails Show Otherwise,” Buzzfeed News, June 4, 2020.
900 Letter from U.S. Department of Housing and Urban Development to Representative Pete Aguilar, June 11, 2019.
901 U.S Department of Housing and Urban Development, “FHA to Permit DACA Status Recipients to Apply for FHS Insured
Mortgages” (news release, January 20, 2021).
902 Ortega, “ICE Reopening Long-Closed Deportation Cases against Dreamers.”
B. Immigrant Visas
Immigrants, as opposed to nonimmigrants (see next subsection), are foreign nationals who come to the
United States to reside permanently. Though it would require an act of Congress to change the number
of permanent residence grants (i.e., green cards) each year, through increasing vetting of immigration
applications, stretching processing times, and various measures to discourage foreign nationals from
applying for green cards, the Trump administration made it more dicult to access immigrant visas. For
example, USCIS made interviews mandatory for all green-card applicants within the United States and
employment-based visa applicants, and recommended ocers interview more refugees and asylees
applying for green cards.
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► Mandatory Interviews for Certain Visa Applicants—October 1, 2017—USCIS mandated that
all applicants for employment-based permanent residency attend an in-person interview.
903
The
interview requirement was also extended to relatives of refugees and asylees who are petitioning to
join the principal asylee/refugee in the United States. Previously, face-to-face interviews were only
required if there was a specic concern related to the foreign national’s application.
► Mandatory Interviews for All Adjustment of Status Applicants—May 15, 2018—USCIS updated
its policy manual to clarify that all applicants for adjustment of status must go through face-to-face
interviews, unless waived by USCIS.
904
The update also removed employment-based and ancé(e)-
based adjustment cases from the list of types of applications for which USCIS might waive the
interview. Now, USCIS ocers may, on a case-by-case basis, only waive interviews for applicants who
are clearly ineligible, certain minor children of U.S. citizens or legal permanent residents, parents of
U.S. citizens, and asylees and refugees who were previously interviewed.
905
► Fewer Interview Waivers for Certain Green-Card Applicants—November 30, 2018—USCIS issued
a memo limiting instances in which applicants to remove conditions on permanent residence may
request that their interview be waived.
906
Foreign nationals applying for permanent residence through
a qualifying marriage that is less than two years old at the time of the application are granted lawful
permanent resident status on a conditional basis. To avoid having their status terminated after two
years, conditional permanent residents must request that USCIS remove the conditions on their
status. As part of that request, the applicant must appear for an interview. While USCIS may waive the
interview requirement, this 2018 memo narrows the instances in which USCIS ocers may consider
such a waiver.
► Increased Scrutiny for Marriage Petitions Involving Minors—February 15, 2019—USCIS published
new guidance instructing adjudicators to pay special attention to marriage petitions involving
minors.
907
Adjudicators must ensure that the marriage was lawful where it was celebrated and is legal
in the U.S. state where the applicants will live.
J April 12, 2019—USCIS supplemented the guidance, instructing ocers to conduct an
additional interview for certain spousal petitions involving a minor.
908
Such applicants will
generally have to interview in person twice before being approved.
► Enforcement of Financial Commitments of Immigrant Sponsors—May 23, 2019—When applying
for permanent residency in the United States, since 1997, certain immigrants must submit an adavit
of support, in which their sponsor pledges nancial support in the event that the foreign national
applies for or receives means-tested public benets. These contracts have rarely been enforced, if at
all. On May 23, 2019, the president issued a memorandum that directs the Department of Agriculture,
HHS, and the Social Security Administration to create infrastructure that allows the agencies to notify
903 USCIS, “USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants” (news release, August
28, 2017).
904 USCIS, “Adjustment of Status Interview Guidelines and Waiver Criteria” (policy alert, May 15, 2018).
905 USCIS, “Policy Manual: Chapter 5 – Interview Guidelines,” updated January 31, 2020.
906 USCIS, “Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence” (policy memorandum,
November 30, 2018).
907 USCIS, “Marriage Involving Minor(s)” (policy alert, February 15, 2019).
908 USCIS, “Marriage Involving Minor(s)” (policy alert, April 12, 2019).
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sponsors of and enforce reimbursement obligations, and to issue guidance on other consequences for
sponsors, including limiting their ability to sponsor additional immigrants.
909
J August 23, 2019—The Centers for Medicare and Medicaid Services, which is part of HHS,
issued guidance to state health ocials, advising them how to consider the resources of an
immigrant’s sponsor when weighing the immigrant’s eligibility for public benets and how to
collect repayment from sponsors.
910
J August 23, 2019—The Department of Agriculture issued a memo strongly encouraging
Supplemental Nutrition Assistance Program (SNAP) state agencies to request reimbursement
from the sponsors of foreign nationals who receive SNAP benets.
911
J September 10, 2020—USCIS launched a new form for the Systematic Alien Verication for
Entitlements (SAVE) program, which allows federal, state, and local benet-granting agencies
to verify a benet applicant’s immigration status.
912
The new form allows USCIS to collect
information on whether agencies are contacting sponsors to request reimbursement and, if
they are, whether sponsors have complied and if the agencies have initiated any collection
actions.
913
909 Memorandum from the president, Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens, May 23,
2019.
910 Letter from Calder Lynch, Acting Deputy Administrator and Director, Centers for Medicare and Medicaid Services, HHS, to state
health ocials, Sponsor Deeming and Repayment for Certain Immigrants, August 23, 2019.
911 Letter from Lizbeth Silbermann, Director, Program Development Division, Supplemental Nutrition Assistance Program to all state
agencies, State Enforcement of the Legal Responsibilities of Sponsors of Non-Citizens: SNAP Non-Citizen Guidance Addendum, August
23, 2019.
912 USCIS, “Agency Information Collection Activities; New Collection: Sponsor Deeming and Agency Reimbursement,” Federal Register
84, no. 243 (December 18, 2019): 69386–87; In May 2020, USCIS submitted the updated form for clearance with OMB. USCIS,
“Agency Information Collection Activities; New Collection: Sponsor Deeming and Agency Reimbursement,” Federal Register 85,
no. 88 (May 6, 2020): 26984–85; USCIS, “SAVE Launches Sponsor Deeming and Agency Reimbursement Initiative” (news release,
September 10, 2020).
913 USCIS, “Sponsor Deeming and Agency Reimbursement - Proposed Screens” (form preview, May 6, 2020).
914 USCIS, “Agency Information Collection Activities; Revision of a Currently Approved Collection: Adavit of Support Under Section
213A of the Act,” Federal Register 85, no. 70 (April 10, 2020): 20292-94; letter from AILA to Samantha Deshommes, Chief Regulatory
Coordination Division, Oce of Policy and Strategy USCIS, “Re: OMB Control Number: 1615-0075, USCIS 60-Day Notice and
Request for Comments: Adavit of Support under Section 213A of the Act, Revision of a Currently Approved Collection,”
December 16, 2019.
915 USCIS, “EB-5 Immigrant Investor Program Modernization,” Federal Register 84, no. 142 (July 24, 2019): 35750–810.
o Pending at end of administration—In October 2019, USCIS published for comment an updated
version of the form nancial sponsors must ll out that, among other things, would require
bank account information and details about any previously submitted pledges of support for
immigrants they have sponsored.
914
► Increased Minimum Investment Amount for EB-5 Applications—November 21, 2019—USCIS issued
a nal rule that, among other things, updated the minimum amount an EB-5 visa applicant would
have to invest from $1 million to $1.8 million (for investments in most parts of the United States) and
from $500,000 to $900,000 (for investments in targeted employment areas, or TEAs).
915
The rule, which
was released as a draft regulation under the Obama administration, also creates a new process for
determining which areas qualify as TEAs.The EB-5 Immigrant Investor Program provides permanent
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residence to a foreign national who invests in a commercial project in the United States that creates at
least ten U.S. jobs.
► Slower Processing for EB-5 Applications—January 29, 2020—Due to annual per country limits
on employment visas, there are signicant backlogs of EB-5 investor visas for applicants from India,
Vietnam, and especially China.
916
For example, in January 2020, the United States was granting EB-5
green cards to Chinese nationals who applied in November 2014. USCIS announced in January 2020
that due to these backlogs, it will prioritize the processing of petitions by applicants from countries for
which visas are immediately or imminently available.
917
Applications from backlogged countries, such
as China, will not be adjudicated until visas are imminently available or USCIS has available resources.
► Clarifying Ruleson Investment Deployment forImmigrant Investors—July 24,2020—USCIS
published a policy update clarifying guidance on how foreign nationals can keep their investments of
capital active and “at risk” during the two-year probationary period to continue to qualify for the EB-5
Immigrant Investor Program.
918
► Asylum Termination at Adjustment of Status—August 21, 2020—USCIS expanded and updated
guidance regarding the termination of asylum status in cases where an asylee is applying for
adjustment of status and the ocer adjudicating the case nds that the individual should not have
been granted asylum in the rst place or is no longer eligible for asylum.
919
USCIS can only terminate
asylum cases where the initial grant was made by USCIS, not the immigration court.
920
The updated
policy claries that the Asylum Oce can issue a notice of intent to terminate (NOIT) and a notice
to appear to ICE simultaneously, beginning proceedings in the immigration court, or can issue the
NOIT and provide the applicant time to respond before USCIS. The policy also claries that USCIS can
terminate asylee status for derivative applicants when USCIS made the initial grant, even when the
principal applicant was granted asylum by an immigration judge.
► Child Status Determinations—November 13, 2020—USCIS issued a policy alert clarifying its
guidance on child status determinations, which are used to calculate a child’s age for immigration visa
purposes and to prevent a child from losing eligibility for a visa due to aging during the immigration
adjudication process, known as the Child Status Protection Act (CSPA) age.
921
It provides guidance
on CSPA age determinations when a petitioning parent passes away and on the requirement that a
family- or employment-based visa applicant apply for permanent residence within one year of visa
availability in order to qualify for CSPA coverage.
► Job Transfers for Employment-Based Visa Holders—November 17, 2020—Since 2000, certain
applicants for employment-based adjustment of status have had exibility to transfer to similar jobs or
916 State Department, “Visa Bulletin for January 2020,” Visa Bulletin X, no. 37 (December 9, 2019).
917 USCIS, “USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory” (news release, January 29, 2020).
918 USCIS, “Clarifying Guidance for Deployment of Capital in Employment-based Fifth Preference (EB-5) Category” (policy alert, July
24, 2020).
919 USCIS, “Clarifying Procedures for Terminating Asylum Status in Relation to Consideration of an Application for Adjustment of
Status” (policy alert, August 21, 2020).
920 Except in the Ninth Circuit, where asylum termination cases must be referred to the immigration court. See Nijjar v. Holder, 689
F.3rd 1077 (U.S. Court of Appeals, Ninth Circuit, August 1, 2012).
921 USCIS, “Age and ‘Sought to Acquire’ Requirement under Child Status Protection Act” (policy alert, November 13, 2020).
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employers while their adjustment applications are pending. On November 17, 2020, USCIS updated its
policy guidance on determining eligibility for and adjudication of those transfers.
922
► Mandatory Interviews for Follow-to-Join Petitioners—November 18, 2020—USCIS started a phased
process of requiring in-person interviews for refugees and asylees petitioning to have their spouse or
child receive refugee or asylee status in the United States.
923
In the past, petitioners were only required
to appear for an interview when their spouse or child resided in the United States, rather than abroad,
and there were eligibility concerns that needed to be addressed with the petitioner.
► Interview Criteria for Refugees and Asylees—December 15, 2020—USCIS updated its policy manual
to remove asylees, refugees, and their derivative family members from the categories of adjustment
of status applicants for whom an interview may generally be waived, and expanded the scenarios in
which these applicants should be interviewed, adding eight new criteria to the list.
924
The new criteria
recommend ocers conduct interviews when the applicant’s identity or admissibility is in question,
and where there are concerns about terrorism or fraud.
► Increased Scrutiny for EB-5 Regional Centers—multiyear—The administration began a compliance
review program for regional centers and began terminating regional centers on an accelerated basis.
Regional centers allow EB-5 investors (foreign nationals who invest in commercial projects in the
United States in order to receive permanent residence) to pool their resources into a larger project
coordinated by the center. The vast majority of EB-5 immigrant visa applicants apply using regional
centers. The Trump administration terminated 486 regional centers.
925
To compare, during the entirety
of the two-term Obama administration, 73 regional centers were terminated.
► Pending at end of administration
J Slowing the Green-Card Application Process—USCIS indicated that it would eliminate
the option to concurrently le an immigrant visa petition and an application to adjust to
permanent residence status.
926
This would change the practice of allowing green-card
applicants who have an immigrant visa immediately available (such as immediate relatives of
U.S. citizens) to le both their petition for the immigrant visa and the green-card application
(i.e., an adjustment of status) at the same time, allowing USCIS to eciently process one after
the other. Ending concurrent ling would make the green-card application process slower and
more burdensome for applicants. After ling to adjust status, applicants qualify to apply for
work and travel authorization; thus, eliminating concurrent ling would also delay the receipt
of these benets.
J Adavit of Support Changes—On October 2, 2020, USCIS published a proposed rule that
increases the burden on U.S. citizens and lawful permanent residents who wish to sponsor a
family member for a green card.
927
Individuals wishing to sponsor a family member for a green
922 USCIS, “Job Portability after Filing Application to Adjust Status” (policy alert, November 17, 2020).
923 USCIS, “Expanding Interviews to Refugee/Asylee Relative Petitions” (policy memorandum, November 18, 2020).
924 USCIS, “Refugee and Asylee Adjustment of Status Interview Criteria and Guidelines” (policy alert, USCIS, December 15, 2020).
925 USCIS, “Regional Center Terminations,” updated June 16, 2020.
926 DHS, “Updating Adjustment of Status Procedures for More Ecient Processing of Immigrant Visa Usage” (proposed rule 1615–
AC22, Fall 2018).
927 DHS, “Adavit of Support on Behalf of Immigrants,” Federal Register 85, no. 192 (October 2, 2020): 62432–81.
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card must complete an adavit of support demonstrating their ability to nancially support
the immigrant without relying on government benets. Under the proposed rule, potential
sponsors would have to submit more nancial documentation, including three years of tax
returns, credit reports, credit scores, and bank account information. The new rule would also
require a co-sponsor if the intending sponsor has used any means-tested benet in the prior
three years, regardless of their income level at the time of application.
928 White House, “Executive Order 13788 of April 18, 2017: Buy American and Hire American,” Federal Register 82, no. 76 (April 21,
2017): 18837–39.
929 MPI analysis of data from USCIS, “H-1B Employer Data Hub,” accessed March 10, 2020.
930 MPI analysis of data from USCIS, “H-1B Employer Data Hub,” accessed October 7, 2021.
931 Emma Israel and Jeanne Batalova, “International Students in the United States,” Migration Information Source, January 14, 2021.
932 USCIS, “Rescission of the December 22, 2000 ‘Guidance Memo on H1B Computer Related Positions’” (policy memorandum, March
31, 2017).
933 USCIS, “Rescission of the December 22, 2000 ‘Guidance Memo on H1B Computer Related Positions’.”
C. Nonimmigrant Visas
Nonimmigrant visas allow foreign nationals to enter the United States temporarily for specic purposes,
such as education or work. Under the Trump administration, USCIS and the Labor Department increased
the scrutiny with which new employment visa applications were processed and intensied eorts to ensure
that nonimmigrants already inside the United States were adhering to the terms of their visas, measures
instigated by the president’s April 2017 “Buy American and Hire American” executive order, which aimed to
protect American workers.
928
Much of the increased scrutiny focused on the H-1B visa, the most popular visa for employers bringing in
high-skilled foreign workers. H-1B applications overall faced rising denials. The denial rate for initial H-1B
applications more than doubled between FY 2016 and FY 2019, from 10 percent to 21 percent.
929
The denial
rate for initial H-1B applications fell to 13 percent in FY 2020, possibly due to applicants and petitioners
adjusting to the stricter scrutiny and changes to the H-1B lottery that prioritized applicants who had
advanced degrees and thus stronger applications.
930
Student visas also became the target of increased
scrutiny. The administration increased enforcement of students’ lawful status and slowed visa issuance,
leading to the rst decline in the number of international students in a decade during the 2019–20 school
year.
931
Pandemic-related travel restrictions led to a further decrease in the number of international students
studying at U.S. institutions starting in 2020.
► Disqualication of Some Computer Programmers from H-1B Visas—March 31, 2017—USCIS issued
a memo rescinding prior guidance that recognized “computer programmer” as a position eligible
for the H-1B visa program for professionals in certain high-skilled occupations.
932
USCIS advised
adjudicators that an entry-level computer programmer position would generally not qualify for an
H-1B visa.
► Ensuring Wages Are Consistent with H-1B Positions—March 31, 2017—USCIS reminded
adjudicators to ensure that the wage level oered corresponds to the proposed position.
933
On March
9, 2018, USCIS leadership sent out internal guidance titled “Additional Guidance Regarding Wage Level
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Analysis” outlining the approach adjudicators should follow when determining whether the listed
wage level is “clearly inconsistent” with the proposed position.
934
► Suspension of Premium Processing—April 3 to September 18, 2017; April 2, 2018 to February 15, 2019;
April 1 to June 10, 2019; March 20 to June 22, 2020—USCIS receives an inux of applications during the
H-1B cap application period each April. Under the Trump administration, USCIS suspended premium
processing multiple times, focusing on this peak period.
935
During 2020, due to the pandemic,
this suspension was temporarily extended to other types of applications that qualify for premium
processing, such as employment-based immigrant petitions.
936
(For more on pandemic-related
policies, see Section 2.) Premium processing allows employers or foreign nationals to pay an extra fee
to have their applications adjudicated within 15 days. Without premium processing, H-1B applications
may pend for a year or more.
► Elimination of Deference to Prior Approvals—October 23, 2017—USCIS rescinded its policy of
deferring to prior approvals of nonimmigrant visas, meaning the process of renewing a visa was often
easier than applying for a new one. Under the new policy, renewals are subject to as much scrutiny as
new applications.
937
► Restrictions on the TN Visa Category for Economists—November 20, 2017—USCIS restricted the
TN (Treaty National) temporary work visa category for economists, clarifying that individuals in
occupations related to the eld of economics, such as nancial analysts, marketing analysts, and
market research analysts, no longer qualify.
938
The TN visa allows some qualied citizens of Canada and
Mexico to work in the United States pursuant to the North American Free Trade Agreement (NAFTA).
► Changed Processing Order of H-2B Applications—January 18, 2018 and February 26, 2019—
Following a series of problems related to H-2B lings, including having the application website crash,
the Labor Department changed how it processes temporary labor certications for H-2B visas.
939
In the past, the department would process the applications in batches based on the date led but
irrespective of the time of day led. In January 2018, the Trump administration said it would release
the certications in sequential order based on both the day and time applications were led.
940
And
934 Email from Stephanie Doumani, Branch Chief, Service Center Operations, USCIS, Clearly Inconsistent’ Clarifying Guidance, March 9,
2018.
935 USCIS, “USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions” (news release, March 3, 2017); USCIS, “USCIS
Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas” (news release, September 18, 2017); USCIS,
“USCIS Will Temporarily Suspend Premium Processing for Fiscal Year 2019 H-1B Cap Petitions” (news release, March 20, 2018);
USCIS, “USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions” (news release, January 25, 2019); USCIS,
“USCIS Resumes Premium Processing for H-1B Petitions Filed on or before Dec. 21, 2018” (news release, February 15, 2019); USCIS,
“USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes” (news release, March 19, 2019); USCIS, “Premium
Processing Begins for Remaining H-1B Cap-Subject Petitions on June 10” (news release, June 7, 2019).
936 USCIS, “USCIS Announces Temporary Suspension of Premium Processing for All I-129 and I-140 Petitions due to the Coronavirus
Pandemic” (news release, updated March 27, 2020); USCIS, “USCIS Resumes Premium Processing for Certain Petitions” (news
release, May 29, 2020).
937 USCIS, “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for
Extension of Nonimmigrant Status” (policy memorandum, October 23, 2017).
938 USCIS, “TN Nonimmigrant Economists Are Dened by Qualifying Business Activity” (policy memorandum, November 20, 2017).
939 Department of Labor, “U.S. Department of Labor Announces Updates to the H-2B Temporary Labor Certication Program”
(guidance document, February 26, 2019).
940 Department of Labor, “Labor Certication Process for the Temporary Employment of Aliens in Non-Agricultural Employment in
the United States,” Federal Register 83, no. 15 (January 23, 2018): 3189–90.
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in February 2019, the administration announced that the Labor Department would process the
applications in batches based on whether the application was led within the rst three days of the
application period and on the work start date designated for the H-2B beneciaries.
► Increased Scrutiny of H-1B Visa Holders Working at Third-Party Worksites—February 22, 2018—
USCIS issued a policy change requiring employers applying for H-1B visas to submit contracts
covering the entirety of the time requested on an application if the foreign national will be working
at third-party worksites.
941
In June 2020, USCIS rescinded this and an Obama-era policy on third-
party worksites in order to comply with a legal settlement and lawsuit.
942
As a result of the rescission,
employers are no longer required to submit contracts with any third parties.
► Limits on Double-Filings of H-1B Cap Petitions—March 23, 2018—USCIS adopted a policy making
it more dicult for related companies to le multiple H-1B cap petitions for the same individual, a
strategy sometimes used to increase the odds of receiving H-1B visas in the annual lottery.
943
► Accrual of Unlawful Presence for Students—August 9, 2018—USCIS changed how the agency
calculates unlawful presence for international students and exchange visitors.
944
Previously, such
foreign nationals would start to accrue unlawful presence when USCIS found a status violation or
an immigration judge ordered them removed. Under the new policy, they begin accruing unlawful
presence on the day they are no longer pursuing their authorized course of study or are otherwise
violating the terms of their status. Accruing a certain number of days of unlawful presence can have
severe consequences for a foreign national’s ability to re-enter the United States in the future. In May
2019, a federal district court judge issued a preliminary nationwide injunction blocking the policy, and
in February 2020, the same judge issued a permanent nationwide injunction, nding the development
of the policy violated federal law.
945
► Labor Union Participation Allowed in O Visa and P Visa Adjudications—September 14, 2018 and
February 8, 2019—In order to receive a temporary O visa (for individuals with extraordinary ability or
achievement in sciences, arts, education, business, athletics, or entertainment) or a P visa (for athletes,
artists, entertainers, and their essential support personnel), applicants must submit a written advisory
opinion from the relevant labor union. Previously, if the applicant never submitted a negative advisory
opinion, USCIS would never know it existed. Under this changed policy, labor unions can now submit
negative O visa or P visa opinions directly to USCIS.
946
941 USCIS, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” (policy memorandum, February
22, 2018).
942 USCIS, “Rescission of Policy Memoranda” (policy alert, June 17, 2020); Stuart Anderson, “USCIS Rescinds Policy Memos That
Increased H-1B Visa Denials,” Forbes, June 22, 2020.
943 USCIS, “Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018)” (policy memorandum, March 23, 2018).
944 USCIS, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (policy memorandum, August 9, 2018).
945 Guilford College v. Kevin McAleenan, Case No. 1:18-cv-00891-LCB-JEP (U.S. District Court for the Middle District of North Carolina,
May 3, 2019); Guilford College v. Chad Wolf, Case No. 1:18-cv-00891-LCB-JEP (U.S. District Court for the Middle District of North
Carolina, February 6, 2020).
946 USCIS, “USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions” (news release, September 14,
2018); USCIS, “USCIS Now Accepting Copies of Negative P Visa Consultations Directly from Labor Unions” (news release, February
8, 2019). In the rst six months of implementation, less than 1 percent of O petitions led contained a negative advisory opinion,
resulting in seven denials and three grants being revoked for ineligibility. See letter from Ken Cuccinelli II, Acting Director, USCIS,
to Jennifer Dorning, President, Department for Professional Employees, AFL-CIO, October 16, 2019.
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► End of Iranian Eligibility for E-1 and E-2 Visas—October 3, 2018—The E-1 and E-2 nonimmigrant
visas allow foreign nationals whose countries of nationality have trade and investment treaties with
the United States to come to the United States for the purposes of engaging in international trade or
investment in a U.S. business. On October 3, 2018, the United States withdrew from the 1955 Treaty of
Amity, Economic Relations, and Consular Rights with Iran.
947
Because the United States has no other
qualifying treaties with Iran, Iranian nationals are no longer eligible for E-1 and E-2 visas, and Iranians
already in the United States on such visas are permitted to remain in the country only until their status
expires.
► Limits on L-1 Visa Applications—November 15, 2018—This policy change limits the ability of foreign
nationals to qualify for L-1 intracompany transferee visas if they have worked in the United States
under a dierent visa status prior to their application for an L-1 visa.
948
► Collection of Information on Third-Party Users of H-1B Visa Holders—November 19, 2018—As
part of the H-1B application process, the Labor Department now requires employers to name any
companies where an H-1B visa holder will perform work on a contract.
949
► Increased Hurdles for Canadian Intracompany Transferees—March 2019—Unlike nationals of other
countries, Canadians enjoy some increased privileges when it comes to U.S. immigration, including
on-the-spot adjudications with CBP for some visa applications. However, in response to a March
2019 nonpublic directive from its headquarters, CBP ceased adjudicating extensions or renewals for
Canadians trying to return to the United States on L-1 visas for intracompany transferees.
950
Such
applicants must now rst have their applications adjudicated by USCIS before returning to the United
States.
► Increased Vetting for Nonimmigrants Already in the United States—March 22, 2019—USCIS
will require certain nonimmigrants seeking to extend or change their status, as well as that of their
dependent spouses and minor children, to each le separate forms and each be ngerprinted,
regardless of age.
951
► Changes to the H-1B Visa Lottery—April 1, 2019—In an eort to increase the number of H-1B visa
recipients with advanced degrees, USCIS changed how the annual lottery that selects initial H-1B visas
works.
952
Starting in April 2019, when the lottery selected applications for processing under the FY
2020 H-1B cap, USCIS rst conducted a lottery for the 65,000 general slots, drawing from all H-1B visa
applicants, including those with advanced degrees. Afterwards, it conducted a lottery for the 25,000
additional “master’s cap” slots, drawing only from the remaining applicants with advanced degrees.
947 USCIS, “Notice Concerning Termination of Eligibility for E-1 and E-2 Nonimmigrant Classication Based on Treaty of Amity with
Iran,” Federal Register 85, no. 15 (January 23, 2020): 3938.
948 USCIS, “Satisfying the L-1 1-Year Foreign Employment Requirement; Revisions to Chapter 32.3 of the Adjudicator’s Field Manual
(AFM)” (policy memorandum, November 15, 2018).
949 Department of Labor, “Side-by-Side: Major Changes to Labor Condition Application (LCA) ETA Form 9035/9035E” (fact sheet,
November 2018).
950 AILA, “Practice Alert: Filing Subsequent L-1 Petitions for Canadian Applicants at Ports of Entry” (unpublished practice alert, April
25, 2019).
951 USCIS, “USCIS to Public Revised Form I-539 and New Form I-539A” (news release, February 11, 2019).
952 USCIS, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” Federal Register
84, no. 21 (January 31, 2019): 888–957.
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Previously, the “master’s cap” lottery went rst. The change resulted in an 11 percent increase in the
number of selected applicants with a master’s or higher degree in FY 2020 over FY 2019.
953
► Improving Recruitment for Guatemalan and Honduran Workers—July 30 and September 27,
2019—The Labor Department signed bilateral cooperative agreements with Guatemala and
Honduras to provide additional safeguards for temporary workers traveling to the United States.
954
In both agreements, the foreign governments promised to provide additional safeguards around the
recruitment of H-2A farmworkers, in the case of Guatemala, and both H-2A farmworkers and H-2B
nonagricultural workers, in the case of Honduras. The agreements were part of larger negotiations
with these two countries over Asylum Cooperative Agreements (see Section 5.B.).
955
► More Vigilant Enforcement of Optional Practical Training—September 27, 2019—ICE issued
a memo instructing school ocials to review and retain information about how nonimmigrant
students’ Optional Practical Training (OPT) employment relates to their major area of study.
956
OPT
is a temporary employment authorization program oered to foreign students, and by regulation
any employment pursued under OPT must be related to the foreign student’s major area of study.
However, students are not required to have a job oer prior to applying for OPT and can change
employment at any time during the OPT period, making this regulation dicult for the government to
enforce.
► Modernization of H-2B and H-2A Recruiting—October 21 and December 16, 2019—USCIS and the
Labor Department published nal regulations updating the recruitment requirements for employers
applying for H-2A and H-2B visas.
957
Among other things, the regulations rescind the requirement
that employers advertise the job opportunity in print newspapers; instead, the Labor Department will
advertise the job opportunities on its own website.
► H-1B Registration—March 1, 2020—USCIS implemented a new registration process for H-1B petitions,
which are subject to an annual cap of 85,000 visas.
958
Rather than have employers le full applications,
since March 1, 2020, they only need to le an online registration. Because USCIS received more
registrations than the 85,000 visas available—nearly 275,000 registrations—USCIS held a lottery and
invited only those chosen to submit full applications, starting April 1, 2020.
959
This prevents thousands
of employers from having to le full applications that will never be selected and thus never read. The
953 Rani Molla, “New Immigration Rules Could Prevent Our Next Elon Musk,” Vox, April 15, 2019.
954 Department of Labor, “U.S. Department of Labor and Guatemala Sign Joint Memorandum of Agreement to Improve H-2A
Nonimmigrant Visa Program Operations” (news release, July 30, 2019); DHS, “U.S. and Honduras Sign More Arrangements to
Expand Collaboration to Confront Irregular Migration” (news release, September 27, 2019).
955 DHS, “DHS Agreements with Guatemala, Honduras, and El Salvador” (fact sheet, October 3, 2019).
956 Note, Optional Practical Training (OPT) is run by ICE, not USCIS, but because its participants are all nonimmigrants it was included
in this section. See ICE, “Practical Training—Determining a Direct Relationship Between Employment and a Student’s Major Area
of Study” (policy guidance, ICE, Washington, DC, September 27, 2019).
957 Department of Labor, Employment and Training Administration, “Modernizing Recruitment Requirements for the Temporary
Employment of H-2A Foreign Workers in the United States,” Federal Register 84, no. 183 (September 20, 2019): 49439–57; USCIS,
DHS, and Department of Labor, Employment and Training Administration, “Modernizing Recruitment Requirements for the
Temporary Employment of H-2B Foreign Workers in the United States,” Federal Register 84, no. 221 (November 15, 2019): 62431–
47.
958 USCIS, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” Federal Register
85, no. 6 (January 9, 2020): 1176–77.
959 USCIS, “FY 2021 H-1B Cap Petitions May Be Filed as of April 1” (news release, April 1, 2020).
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agency proposed minor changes to the registration form in October and requested comments by
December 31, 2020, a deadline that was then extended until February 16, 2021.
960
► Employment Visa Violation Investigations—July 31, 2020—USCIS and the Department of Labor
entered into an agreement to share information about suspected employer violations in the H-1B
program.
961
The agreement empowers USCIS to refer cases to the Labor Department’s Oce of Foreign
Labor Certication if, during the adjudication process or site visits, USCIS has reason to believe a
company is exploiting the program.
► Review of International Students’ Employment Status—August 28, 2020—ICE announced that it
would begin a review of employer information for all international students participating in OPT.
962
Students were reminded to report employer information and that failure to do so would result in their
visa status being terminated.
► Agreement with Guatemala on H-2 Visas—September 17, 2020—The Labor Department signed an
agreement with its Guatemalan counterpart to strengthen cooperation on H-2 temporary work visa
programs.
963
The Guatemalan Ministry of Labor committed to registering prospective Guatemalan
workers for possible employment in the United States and oering recruitment services for U.S.
employers seeking H-2A and H-2B employees.
► Expanded Guidance on Extraordinary Ability Visas—September 17, 2020—USCIS updated its policy
manual to include a new section detailing how ocers should determine if evidence provided in O-1
nonimmigrant visa applications is sucient to prove “extraordinary ability.”
964
► Major Reforms of the H-1B Visa—October 8, 2020—DHS issued an interim nal rule, scheduled
to go into eect on December 7, 2020, that made a number of changes to the H-1B visa, including
redening “specialty occupation,” redening “employer-employee relationship,” and instituting
consequences for refusing a worksite visit.
965
Simultaneously, the Labor Department issued an interim
rule to increase salary requirements for high-skilled visa holders, which went into eect the day it was
issued.
966
Three federal judges struck down the Labor Department rule, and one federal judge struck
down the DHS rule, preventing both rules from taking eect before the end of the administration.
967
960 USCIS, “Agency Information Collection Activities; Revision of a Currently Approved Collection: H-1B Registration Tool,” Federal
Register 85, no. 205 (October 22, 2020): 67366–67; USCIS, “Agency Information Collection Activities; Revision of a Currently
Approved Collection: H-1B Registration Tool,” Federal Register 86, no. 9 (January 14, 2021): 3168–69.
961 Department of Labor, “U.S. Department of Labor and U.S. Department of Homeland Security Enter into a Memorandum of
Agreement” (news release, July 31, 2020); Memorandum of Agreement between DHS USCIS and the Department of Labor,
Employment-Based Petition, Labor Certication, and Labor Condition Application Data, July 30, 2020.
962 ICE, “SEVP to Mail Notices to OPT Students without Employer Information” (broadcast message, August 28, 2020).
963 Department of Labor, “United States and Guatemala Sign Joint Agreement to Improve H-2 Visa Program Operations” (news
release, September 17, 2020).
964 USCIS, “USCIS Updates Policy Guidance on O Petitions” (news alert, September 17, 2020).
965 DHS, “Strengthening the H-1B Nonimmigrant Visa Classication Program”,” Federal Register 85, no. 196 (October 8, 2020): 63918–
65.
966 Department of Labor, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the
United States—Interim Final Rule,” Federal Register 86, no. 196 (October 8, 2020): 63872–915.
967 Itserve Alliance, Inc., et al., v. Scalia, No. 2:20-cv-14604-SRC-CLW (U.S. District Court for the District of New Jersey, opinion,
December 3, 2020); Chamber of Commerce et al. v. DHS et al., No. 20-cv-07331 (U.S. District Court for the Northern District of
California, complaint for declaratory and injunctive relief, October 19, 2020); Purdue University, et al., v. Scalia, No. 1:20-cv-03006-
EGS (U.S. District Court for the District of Columbia, memorandum opinion, December 14, 2020).
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J January 14, 2021—The Labor Department published a nal rule that increases the salary tiers
for high-skilled visa holders.
968
The nal rule is a revision of the interim nal rule on salary
requirements published on October 8, 2020, which had been enjoined by federal courts.
Under the revised four-tier structure, baseline salaries for foreign workers would rise slowly
over one year (or four years for visa holders who are pursing adjustment of status), scheduled
to begin in July 2021. Increasing salary requirements for foreign workers makes them less
desirable to U.S. employers and is intended to protect jobs for U.S. workers. The nal rule was
scheduled to go into eect on March 15, 2021.
► H-2A Wage Rate Determination Changes—November 5, 2020—The Department of Labor published
a nal rule changing the process of setting minimum wages for agricultural workers on H-2A visas.
969
In order to ensure foreign workers are not replacing U.S. workers, wages for H-2A visa holders are set
to be competitive with domestic wages. Historically, this has been done through an annual survey
of farmworkers and set state by state based on cost of living. Under the new rule, the 2020 wage
rates for the vast majority of workers would be frozen for two years, after which wages will be set
nationally, tied to an index of worker pay. The administration estimated that the change would result
in farmworkers earning $170 million less in wages each year.
970
J November 30, 2020—The United Farm Workers union sued the Department of Labor, alleging
that the rule purposely stagnates farmworkers’ wages.
971
On December 23, two days after the
rule took eect, the court issued a preliminary injunction preventing the Labor Department
from implementing the rule.
972
► Prioritizing H-1B Petitions with Higher Wages—January 8, 2021—DHS published a nal rule that
would change the selection process for H-1B petitions to prioritize those for jobs oering the highest
wages.
973
This system would replace the random lottery used to grant H-1B petitions if the number of
applications exceeds the numerical limitations for the visa.
► Creation of OPT Employment Compliance Unit—January 13, 2021—The Student and Exchange
Visitor Program (SEVP) announced the creation of a new unit that will investigate compliance within
the OPT, OPT extension, and Curricular Practical Training (CPT) programs.
974
The unit will focus on
ensuring that employers are complying with working condition and compensation requirements, as
well as the impact of OPT on U.S. workers, and will recommend ICE Homeland Security Investigations
investigates workplaces it identies as being out of compliance.
968 Department of Labor, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the
United States,” Federal Register 86, no. 9 (January 14, 2021): 3608–74.
969 Department of Labor, “Adverse Eect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-
Range Occupations in the United States,” Federal Register 85, no. 215 (November 5, 2020): 70445–77.
970 Dan Charles, “Farmworkers Say the Government is Trying to Cut Their Wages,” NPR, November 11, 2020.
971 United Farm Workers, et al., v. Department of Labor, et al., No. 1:20-cv-01690 (U.S. District Court for the Eastern District of California,
Fresno Division, complaint, November 30, 2020).
972 United Farmworkers, et al., v. Department of Labor, et al., No. 1:20-cv-01690 (U.S. District Court for the Eastern District of California,
order granting plaintis’ motion for a preliminary injunction, December 23, 2020).
973 USCIS, “Modication of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” Federal Register 86,
no. 5 (January 8, 2021): 1676–753.
974 ICE, “New SEVP Unit to Oversee Employment Compliance in the OPT Programs and Report on Impact on U.S. Workers” (broadcast
message, January 13, 2021).
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► Update to Countries Eligible for H-2A and H-2B Visas—January 19, 2021—Nationals of Samoa and
Tonga are no longer eligible to receive H-2A and H-2B visas, and nationals of Mongolia are no longer
eligible for H-2A visas.
975
The Philippines was added to the list of countries eligible to participate in the
H-2B visa program. Eligibility for H-2A and H-2B employment visas is determined by the secretaries
of homeland security and state based on factors including the overstay rate of foreign nationals from
each country and countries’ cooperation with U.S. agencies on immigration matters.
► Increased H-2B Cap—multiyear—For FYs 2017, 2018, 2019, and 2020, Congress allowed DHS to
decide whether to increase the annual 66,000 cap on H-2B visas for temporary nonagricultural workers
and, if so, by how much. For FY 2017 and FY 2018, DHS increased the cap by 15,000 visas.
976
In FY 2019,
following increased pressure from Congress, DHS increased the cap by 30,000 visas, but the additional
visas were only available to workers who had previously entered the country on H-2B visas.
977
To
receive the additional visas, DHS required businesses to show that without foreign workers, they
would likely suer irreparable harm, such as permanent and severe nancial loss.
J Designating H-2B Visas for Nationals of El Salvador, Guatemala, and Honduras—March 5,
2020—For FY 2020, DHS announced its intention to increase the H-2B cap by 35,000 visas.
While 25,000 of these would only be available to workers who had previously entered
the United States on an H-2B visa, DHS reserved the remaining 10,000 for workers from El
Salvador, Guatemala, and Honduras.
978
This was the result of broader negotiations with these
three countries over the Asylum Cooperative Agreements (see Section 5.B.). However, due to
the COVID-19 pandemic, this increase was not implemented (see Section 2).
► Detection and Elimination of Fraud and Abuse of Foreign Workers—multiyear—Trump’s April 18,
2017, executive order “Buy American and Hire American” sought to protect the economic interests of
U.S. workers by, among other things, preventing fraud and abuse within the immigration system.
979
As
a result, USCIS and the Labor Department increased their eorts to root out fraud and abuse of foreign
workers.
J Justice Department and USCIS Memorandum of Understanding (MOU) on Protecting U.S.
Workers—May 11, 2018—The Justice Department and USCIS signed an MOU expanding their
collaboration to better detect and eliminate fraud, abuse, and discrimination by employers
bringing foreign workers to the United States.
980
The MOU improves collaboration by
975 DHS, “Identication of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker
Programs,” Federal Register 86, no. 8 (January 13, 2021): 2689–92.
976 DHS and Department of Labor, “Exercise of Time-Limited Authority to Increase the Fiscal Year 2017 Numerical Limitation for the
H-2B Temporary Nonagricultural Worker Program,” Federal Register 82, no. 137 (July 19, 2017): 32987–33000; DHS and Department
of Labor, “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program,” Federal Register 83, no. 105 (May 31, 2018): 24905–19.
977 USCIS and Department of Labor, Employment and Training Administration, “Exercise of Time-Limited Authority to Increase the
Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,” Federal Register 84, no. 89 (May 8,
2019): 20005–21.
978 Michelle Hackman, “Trump Administration to Make 35,000 Additional Seasonal Worker H-2B Visas Available,” Wall Street Journal,
March 5, 2020.
979 White House, “Executive Order 13788.”
980 Justice Department, Civil Rights Division and USCIS, “Information Sharing and Case Referrals” (memorandum of understanding,
May 11, 2018).
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establishing a framework the agencies can use to manage and maintain information sharing
and interagency case referrals.
J Justice and Labor Departments MOU on Protecting U.S. Workers—July 31, 2018—The Justice
and Labor Departments signed an MOU expanding the range of situations in which the
agencies will refer to each other cases of discrimination on the basis of citizenship status
or noncompliance with laws and regulations on wages and working conditions, and the
procedures for such referrals.
981
J Targeted Site Visits—multiyear—USCIS implemented a targeted site visit program in 2017,
initially focusing on employers of H-1B visa holders, whereas previously, site visits had taken
place either randomly or when there were complaints about a specic employer.
982
USCIS has
since expanded the program to other visa categories and scaled up the number of targeted
visits it is conducting. In FY 2019, it conducted 8,512 targeted site visits, compared to 1,106 in
FY 2018.
983
In FY 2020, the agency conducted 4,345 targeted site visits.
984
ο H-1B Visas—April 3, 2017—USCIS began targeting site visits of specic employers in
the H-1B program.
985
Investigators use site visits to verify information in certain visa
petitions. Such investigations now focus more on employers whose basic business
information cannot be validated through commercially available data, employers
whose sta consist of more than 15 percent H-1B holders, and employers petitioning
for H-1B workers who would work osite.
ο L-1B, E-2, and H-2B Visas—2018—As part of a pilot program, USCIS began conducting
targeted site visits for companies employing workers with L-1B visas (for intracompany
transferees with specialty knowledge), E-2 visas (investors), and H-2B visas (temporary
nonagricultural workers).
986
ο L-1A and CW-1 Visas—2019—Also on a pilot basis, USCIS began conducting targeted
site visits for companies employing workers with L-1A visas (for intracompany
executive or manager transferees) and CW-1 visas (transitional workers in the
Commonwealth of the Northern Mariana Islands).
987
► Pending at end of administration
J Rescission of Employment Authorization for H-4 Visas—DHS indicated it would propose a rule
to end an Obama-era program that grants work authorization to certain spouses of H-1B visa
981 Justice Department, Civil Rights Division, Immigrant and Employee Rights Section and Department of Labor, Employment
and Training Administration, Oce of Foreign Labor Certication, “Information Sharing and Case Referral” (memorandum of
understanding, July 31, 2018).
982 Laura D. Francis, “Trump Immigration Fraud Focus Yields Limited Results (1),” Bloomberg Law, November 6, 2018.
983 DHS, FY 2020 Budget in Brief (Washington, DC: DHS, 2019), 59; DHS, FY 2021 Budget in Brief, 65.
984 DHS, FY 2022 Budget in Brief (Washington, DC: DHS, 2021), 74.
985 USCIS, “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse” (news release,
April 3, 2017).
986 DHS, FY 2020 Budget in Brief, 59.
987 DHS, FY 2021 Budget in Brief, 65.
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holders.
988
The program is only available to spouses of H-1B visa holders who have been in the
United States for at least six years and are on track to get a green card.
J Comprehensive Reforms to Practical Training Programs—DHS indicated it would propose a
comprehensive regulatory reform to practical training options, including OPT (a temporary
employment authorization program oered to foreign students).
989
J Setting Fixed Terms on Student Visas—On September 5, 2020, USCIS published a proposed
rule that would set xed terms for student visas, instead of regarding visas as valid as long as
the recipient remains enrolled in school.
990
Most students would receive four-year visas, but
students from certain Middle Eastern, Asian, and African countries would be limited to two-
year visas.
991
Students who require longer than the two- or four-year term of their visa would
be eligible to apply for an extension.
J Ending “B in lieu of H” Policy—On October 21, 2020, the State Department published a
proposed rule that would end the practice of issuing B-1 business visas to certain individuals
who are eligible for H-1B or H-3 temporary work visas, unless they independently qualify for
a B-1 visa.
992
The policy allowed nonimmigrants who were traveling to the United States to
perform short-term work that would qualify for the H-1B or H-3 categories, but who would
remain on foreign payroll, to obtain B-1 visas instead.
988 DHS, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” (proposed rule 1615-
AC15, Fall 2017).
989 See DHS, “Practical Training Reform” (proposed rule 1653-AA76, Spring 2018).
990 DHS, “Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students,
Exchange Visitors, and Representatives of Foreign Information Media,” Federal Register 85, no. 187 (September 25, 2020): 60526–
98.
991 Michelle Hackman and Melissa Korn, “Trump Administration Proposes Clampdown on Open-Ended Student Visas,” Wall Street
Journal, September 24, 2020.
992 State Department, “Visas: Temporary Visitors for Business or Pleasure,” Federal Register 85, no. 204 (October 21, 2020): 66878–88.
993 Among the programs in audit, USCIS conrmed it is reviewing military “parole in place,” which allows unauthorized immediate
family of U.S. service members to receive a lawful entry, making legalizing possible and more easily attainable. See Camilo
Montoya-Galvez, “Soldier’s Immigrant Mother Could Be among the Last to Benet from Program,” CBS NEWS, August 22, 2019.
D. Parole
The president took aim at programs that allow certain categories of foreign nationals to use a benet
called parole to enter and temporarily stay in the country. In a January 25, 2017, executive order on border
security, Trump mandated that parole only be used on a case-by-case basis, rather than as broad programs
to grant protection to certain categories of immigrants. The administration then began a review of all
categorical parole programs and announced the termination of multiple programs.
993
► End of the Central American Minors (CAM) Refugee and Parole Program—August 16 and
November 16, 2017—The administration ended rst the parole and later the refugee components of
this program for Central American minors (see Section 5.A.).
► Denial of Advance Parole If the Applicant Travels—November 2018—Early on in the Trump
administration, USCIS began denying applications for advance parole (essentially, advance permission
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to depart and return to the United States) if the applicant traveled while the application was
pending.
994
After pressure from stakeholders, USCIS eased the policy a little, allowing current advance
parole holders to travel on the document while their second advance parole is pending.
► End of Categorical Parole Programs for the Commonwealth of the Northern Mariana Islands—
December 27, 2018—The administration announced the immediate termination of parole programs
for individuals in the Commonwealth of the Northern Mariana Islands (CNMI).
995
These programs
provided parole for immediate relatives of U.S. citizens, certain stateless individuals, and caregivers of
individuals with critical medical or special needs. They were created by the Obama administration in
2011 in recognition of the fact that the U.S. commonwealth’s incorporation into federal immigration
law in 2009 left many in uncertain immigration statuses, without the possibility of legalizing. Following
USCIS’s termination of the programs, Congress passed a law to provide long-term legal residence
status for certain individuals in the CNMI.
996
While USCIS worked to implement the new law, it
automatically extended the CNMI parole programs.
997
After the application period, USCIS extended
parole and employment authorization to individuals who had applied for resident status in order to
avoid lapses in status while their applications were adjudicated.
998
► Limits on Employment Authorization for Parolees—August 19, 2019—USCIS released guidance
encouraging adjudicators to use discretion when determining whether to grant employment
authorization to foreign nationals who have been paroled into the United States.
999
The guidance
instructs them to weigh certain positive and negative factors; among the factors to be weighed are
violations of any immigration laws, the length of time the foreign national has been in the United
States, and any grounds for removal that apply to the foreign national, as well as whether the foreign
national is a primary caregiver or an immediate relative of a U.S. citizen.
1000
► End of Parole for Russians to Enter Guam and the Northern Mariana Islands—October 3,
2019—DHS ended a discretionary parole program for Russian nationals seeking to visit Guam or the
Commonwealth of the Northern Mariana Islands (CNMI).
1001
DHS will still review and grant applications
on a case-by-case basis when there is an urgent humanitarian or public benet reason for the
approval. The program had allowed Russians to enter Guam and the CNMI for up to 45 days.
994 DHS, “Tenacity and Partnership Leads to Change in Advance Parole Processing,” updated March 19, 2019.
995 USCIS, “Termination of the Categorical Parole Programs for Certain Individuals Present in the Commonwealth of the Northern
Mariana Islands (CNMI)” (news release, December 27, 2018).
996 USCIS, “‘Northern Mariana Islands Long-Term Legal Residents Relief Act’ Guidance for Certain Individuals Present in the
Commonwealth of the Northern Mariana Islands (CNMI)” (news alert, June 30, 2019).
997 USCIS, “‘Northern Mariana Islands Long-Term Legal Residents Relief Act’ Guidance”; USCIS, “USCIS Extends Transitional Parole for
Certain Aliens Present in the Commonwealth of the Northern Mariana Islands” (news alert, June 17, 2020).
998 USCIS, “USCIS Extends Transitional Parole for CNMI Longer-Term Resident Status Applicants” (news alert, August 11, 2020); USCIS,
“USCIS Extends Transitional Parole for CNMI Longer-Term Resident Status Applicants” (news alert, December 30, 2020).
999 USCIS, “Employment Authorization for Parolees” (policy alert, August 19, 2019).
1000 USCIS, “Policy Manual: Chapter 2 – Parolees,” accessed January 6, 2019.
1001 DHS, “Rescission of Discretionary Parole Policies Relating to Nationals of the Russian Federation Seeking Entry Into Guam and/
or the Commonwealth of the Northern Mariana Islands for a Temporary Visit for Business or Pleasure,” Federal Register 84, no. 170
(September 3, 2019): 46029–31.
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► Pending at end of administration
J End of the International Entrepreneur Parole Program—On May 29, 2018, the Trump
administration issued proposed regulations to eliminate the International Entrepreneur Parole
program, which grants parole to certain foreign entrepreneurs.
1002
The notice and comment
period for the proposed regulation ended on June 28, 2018; a nal version was never
published.
J End of the Haitian Family Reunication Parole Program and the Filipino World War II Veterans
Parole Program—On December 28, 2020, USCIS published notice seeking comment on its
plan to end these two categorical parole programs.
1003
Under both programs, foreign nationals
with approved family-based immigrant petitions are permitted to enter and work in the
United States while waiting for their green cards to become available.
1002 USCIS, “Removal of International Entrepreneur Parole Program,” Federal Register 83, no. 103 (May 29, 2018): 24415–27.
1003 USCIS, “Agency Information Collection Activities; Revision, of a Currently Approved Collection: Application for Travel Document.
Removal of Instructions Regarding the Haitian Family Reunication Program and Filipino World War II Veteran Parole Program,”
Federal Register 85, no. 248 (December 28, 2020): 84362–65.
1004 Memorandum from Tony Kurta, Acting Undersecretary of Defense for Personnel and Readiness, and Todd R. Lowery, Acting
Undersecretary of Defense for Intelligence, to the Secretary of Defense, Military Accessions Vital to the National Interest (MAVNI)
Pilot Program, May 19, 2017, included as Exhibit 23 to Plaintis’ Memorandum in Support of a Temporary Restraining Order and
Motion for a Preliminary Injunction, Kusuma Nio v. United States Department of Homeland Security et. al., No. 1:17-cv-00998-ESH-
RMM (U.S. District Court for the District of Columbia, March 16, 2018), 322–24.
8 Other Actions
The Trump administration’s eorts on immigration also involved parts of the federal government that are
usually less central to immigration policy discussions. While they do not exert direct inuence over the
immigration system, the Social Security Administration
(SSA), the Commerce Department, the Department of
Defense, and the Department of Housing and Urban
Development (HUD) all announced changes relevant to
foreign nationals inside the United States. Additionally,
debates over the structure of the DHS bureaucracy and
the legitimacy of certain appointees had eects on which
immigration policies were allowed to stand.
► Disruptions for Foreign Nationals in the U.S. Military—2017—Citing national security concerns,
the Department of Defense and USCIS made it more dicult for foreign nationals recruited to the U.S.
military to naturalize (a long-standing incentive for noncitizens to serve) or to even start their basic
training.
J May 19, 2017—A Department of Defense memo suggested canceling the enlistment contracts
of approximately 4,000 recruits through the Military Accessions Vital to the National Interest
(MAVNI) program for noncitizens with certain in-demand skills who had not yet been trained
or naturalized.
1004
Subsequently, 502 MAVNI recruits were discharged between July 2017 and
The Trump administration’s eorts
on immigration also involved
parts of the federal government
that are usually less central to
immigration policy discussions.
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July 2018.
1005
After a federal lawsuit challenged the discharges, the Army announced in August
2018 that it had reinstated more than 30 MAVNI soldiers and halted the discharges of an
additional 149.
1006
J July 7, 2017—USCIS issued guidance advising that MAVNI naturalization applicants not
proceed to interviews until all enhanced Department of Defense security checks are
complete.
1007
On May 22, 2019, a federal district court judge found the policy in violation of
federal law and vacated it.
J October 13, 2017—The Department of Defense issued a series of memos formalizing new
vetting standards rst put into place under the Obama administration.
1008
The memos also
ordered military branches to withhold the “certication of honorable service” form (N-426)
needed for citizenship applications from all noncitizen recruits until they complete basic
training and a certain number of days of service. Because of this change, as well as changes
made by Congress and the administration requiring vetting to be completed prior to basic
training, applications for citizenship based on military service have fallen signicantly.
1009
► Attempt to Collect Information about Citizenship Status in Connection with the 2020 Decennial
Census—March 26, 2018 and July 11, 2019—In March 2018, the Commerce Department announced
that a question on citizenship status would be added to the 2020 decennial census.
1010
In January
2019, a federal district court judge in New York issued a preliminary injunction, stopping the
Commerce Department from including the question.
1011
Six months later, in July 2019, the Supreme
Court ruled against the administration, holding that the case should be remanded back to the
Commerce Department to provide a reasoned explanation for adding the citizenship question.
1012
The president announced that they would not add a citizenship question to the census, but would
instead order every federal agency to give records to the Commerce Department that detail the
numbers of citizens and noncitizens, as well as their addresses.
1013
This is the rst time DHS has been
asked to share personally identiable information with the Census Bureau. In addition to addresses,
1005 Ellen Mitchell, “Army Discharged More than 500 Immigrant Recruits in One Year,” The Hill, October 12, 2018.
1006 Lucas Calixto v. United States Department of the Army, Civil Action No. 1:18-cv-01551 (U.S. District Court for the District of
Columbia, declaration of Lin H. St. Clair, August 20, 2018); Garance Burke and Martha Mendoza, “Army Reinstates at Least 36
Discharged Immigrant Recruits,” Associated Press, August 20, 2018.
1007 Kusuma Nio v. United States Department of Homeland Security, Civil Action No. 17-0998 (ESH) (U.S. District Court for the District of
Columbia, May 22, 2019).
1008 Memorandum from A. M. Kurta, Acting Under Secretary of Defense for Personnel and Readiness, to Secretaries of the Military
Departments, Commandant of the Coast Guard, Certication of Honorable Service for Members of the Selected Reserve of the Ready
Reserve and Members of the Active Components of the Military or Naval Forces for Purposes of Naturalization, October 13, 2017.
1009 Muzaar Chishti, Austin Rose, and Stephen Yale-Loehr, Noncitizens in the U.S. Military: Navigating National Security Concerns and
Recruitment Needs (Washington, DC: MPI, 2019).
1010 Memorandum from Wilbur Ross, Secretary of Commerce, to Karen Dunn Kelley, Undersecretary for Economic Aairs, Department
of Commerce, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, March 26, 2018.
1011 State of New York v. U.S. Department of Commerce, New York Immigration Coalition v. U.S. Department of Commerce, No. 1:18-cv-
02921-JMF (U.S. District Court Southern District of New York, January 15, 2019). Later, two other federal judges ruled against
the addition. See State of California v. Wilbur Ross, City of San Jose v. Wilbur Ross, Case No: 3:18-cv-01865-RS (U.S. District Court
Northern District of California, March 6, 2019); Kravitz v. U.S. Department of Commerce, Case No: 8:18-cv-01041-GJH (U.S. District
Court for the District of Maryland, April 5, 2019), described in Hansi Lo Wang, “Trump Administration’s Census Citizenship
Question Plans Halted by 3rd Judge,” NPR, April 5, 2019.
1012 Department of Commerce v. New York, Case No. 18-966 (Supreme Court of the United States, June 27, 2019).
1013 White House, “Executive Order 13880 of July 11, 2019: Collecting Information About Citizenship Status in Connection With the
Decennial Census,” Federal Register 84, no. 136 (July 16, 2019): 33821–25; Seung Min Kim, Tara Bahrampour, and John Wagner,
“Trump Retreats on Adding Citizenship Question to 2020 Census,” Washington Post, July 11, 2019.
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DHS will share information on the demographics and immigration status of people who have applied
for immigration benets. Several states, including Iowa, Nebraska, South Carolina, and South Dakota,
also agreed to share state-level data from driver’s licenses and other identication cards with DHS for
this purpose.
1014
The data sharing will assist in identifying residents who do not have Social Security
or tax identication numbers.
1015
U.S. law prohibits the Census Bureau from sharing its data with law
enforcement authorities.
J July 21, 2020—The president issued a memorandum ordering the exclusion of unauthorized
immigrants from the 2020 Census data used to reapportion the 435 seats in the U.S. House
of Representatives among the 50 states.
1016
Three courts ruled that the memo was unlawful,
unconstitutional, or both.
1017
J August 3, 2020—An internal memo ordered a Census Bureau task force to explore statistical
methods for estimating noncitizens in the country.
1018
The memo is widely seen as an eort to
carry out Trump’s eort to exclude unauthorized immigrants from population calculations for
determining congressional districts.
J January 13, 2021—The Census Bureau announced it was halting all work on eorts to produce
a count of unauthorized immigrants, saying it was impossible to produce the numbers by the
end of Trump’s term.
1019
► Social Security Number “No Match” Letters—March 2019—SSA began sending “informational
notications” to employers and third-party providers who submitted wage and tax statements that
contained name and Social Security number combinations that do not match SSA records, known
as “no match” letters.
1020
The Obama administration had suspended this practice in 2012, arguing
E-Verify, USCIS’s web-based employment verication system, provides employers with more timely
information.
1021
Unlike previous no-match letters, which were targeted only to employers with at least
ten employees with mismatched W-2 information, the new letters are sent to all employers with even
one mismatched employee record. In less than three months, the administration sent these letters to
more than 570,000 employers, and by the end of 2019, 803,000 notices were sent out.
1022
The number
of notices sent out fell slightly to 791,000 in 2020.
1023
1014 Hansi Lo Wang, “Four States Are Sharing Driver’s License Info to Help Find Out Who’s a Citizen,” NPR, July 14, 2020.
1015 DHS, Privacy Impact Assessment for the Department of Homeland Security (DHS) Immigration-Related Information Sharing with U.S.
Census Bureau (Washington, DC: DHS, December 20, 2019).
1016 Memorandum from the President to the Secretary of Commerce, Excluding Illegal Aliens from the Apportionment Base Following
the 2020 Census, July 21, 2020.
1017 Michel Wines, “Federal Court Rejects Trump’s Order to Exclude Undocumented From Census,” New York Times, September 10,
2020; Hansi Lo Wang, “Census Bureau Stops Work on Trump’s Request for Unauthorized Immigrant Count,” NPR, January 13, 2021.
1018 Michael Wines, “At the Census Bureau, a Technical Memo Raises Alarms Over Politics,” New York Times, August 6, 2020.
1019 Wang, “Census Bureau Stops Work on Trump’s Request.”
1020 Social Security Administration, “Employer Correction Request Notices,” accessed February 25, 2020.
1021 Social Security Administration, “Program Operations Manual System—RM 01105.027 Educational Correspondence (EDCOR)
and Decentralized Correspondence (DECOR) Letters Mailed When Names and SSNs Do Not Match Our Records—DECOR Letters
to Employees, Self-Employed Workers, and Employers,” updated March 22, 2019; Muzaar Chishti and Claire Bergeron, “DHS
Rescinds ‘No-Match’ Rule, Moves Forward with E-Verify as It Shifts Enforcement Focus to Employers,” Migration Information Source,
July 15, 2009.
1022 Miriam Jordan, “Letters from Washington: Your Employees Could Be Undocumented,” New York Times, May 16, 2019; Elvia
Malagón, “Immigration Advocates Say End of ‘No-Match Letters’ a Victory for Workers,” Chicago Sun-Times, April 22, 2021.
1023 Malagón, “Immigration Advocates Say End of ‘No-Match Letters’ a Victory for Workers.”
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► Changes to the DHS Order of Succession—2019—Secretary of Homeland Security Kirstjen Nielsen,
Acting Secretary of Homeland Security Kevin McAleenan, and Acting Secretary of Homeland Security
Chad Wolf all made changes to the DHS order of succession during their terms at the helm of DHS.
1024
The Homeland Security Act allows DHS secretaries to designate alternative orders of succession to the
one outlined in the Federal Vacancies Reform Act (FVRA). In April 2019, Nielsen amended the order of
succession in cases when the secretary is unable to act during a disaster or catastrophic emergency
to include the CBP commissioner and exclude the director of the Cybersecurity and Infrastructure
Security Agency (CISA). When she resigned the next day, CBP Commissioner Kevin McAleenan
assumed the position of acting secretary, even though the CBP commissioner was not included in
the order of succession in cases of the secretary’s resignation. On November 8, 2019, McAleenan
added the CBP commissioner and the under secretary for strategy, policy, and plans to the order of
succession in the case of a homeland security secretary’s resignation, before resigning on November
13. On November 13, 2019, Wolf, the former under secretary for strategy, policy, and plans who had
assumed the position of acting secretary, amended the order of succession for the deputy secretary to
include the principal deputy director of USCIS and exclude the CISA director, allowing Ken Cuccinelli,
who was the principal deputy director of USCIS, to assume this new role.
J August 14, 2020—The Government Accountability Oce (GAO) found that the appointments
of Kevin McAleenan and, subsequently, Chad Wolf, as acting secretaries of homeland security,
and of Ken Cuccinelli as the senior ocial performing the duties of deputy secretary of
homeland security did not follow the lawful order of succession.
1025
Although the GAO’s
nding was not legally binding, in anticipation of court challenges, DHS attempted to
retroactively delegate authority to these three ocials and approve actions they took. Indeed,
plaintis in various court cases challenging administration policies that these three ocials
signed o on successfully argued that the policies were invalid because the ocial who had
approved the policy was not lawfully serving in his position.
J September 10, 2020—Federal Emergency Management Agency (FEMA) Administrator Peter
Gaynor, whom DHS conceded may have been next in the order of succession upon Acting
Secretary Wolf’s nomination to be secretary (because the FVRA prevents acting ocials from
serving in the position they are nominated for), reissued the November 8, 2019, order of
succession that placed Wolf before him.
1026
DHS argued that, under the Homeland Security Act,
this reissuance superseded the FVRA.
J September 17, 2020—Following Gaynor’s reissuance of the order of succession, Wolf
retroactively ratied the policies he had approved as acting secretary in the period before
Gaynor’s order, stating that they were legally authorized and proper.
1027
J October 7, 2020—Wolf retroactively ratied policies approved by his predecessor, Kevin
McAleenan, and by USCIS Deputy Director for Policy Joseph Edlow.
1028
Both this order and the
1024 GAO, Matter of Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior
Ocial Performing the Duties of Deputy Secretary of Homeland Security (Washington, DC: GAO, 2020).
1025 GAO, Matter of Department of Homeland Security.
1026 DHS, “Ratication of Department Actions,” Federal Register 85, no. 185 (September 23, 2020): 59651–54.
1027 DHS, “Ratication of Department Actions” (September 23, 2020).
1028 DHS, “Ratication of Department Actions,” Federal Register 85, no. 201 (October 16, 2020): 65653–56.
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September 17 ratication were later republished with signature dates of November 16, 2020,
and Gaynor’s order of succession was published with a signature date of November 14.
1029
► Ending Social Security Benets for Deported Foreign Nationals—January 19, 2020—SSA published
a notice of a new information-sharing program, under which DHS will disclose information to SSA in
order to identify foreign nationals who leave the United States voluntarily or are removed so SSA may
determine if suspension, nonpayment, or recovery of retirement or disability benets is warranted.
1030
Removals on most grounds disqualify foreign nationals from continuing to receive such benets.
1031
► Removing “Lack of English Prociency” as a Factor in Disability Benets Considerations—April
27, 2020—SSA removed lack of English prociency as a factor that can help make someone eligible for
Social Security disability insurance.
1032
► NationalDay of Remembrance—November 1, 2020—Trump signed a proclamation declaring
November 1, 2020, a NationalDay of Remembrancefor Americans killed by “criminal illegal aliens.”
1033
► Pending at end of administration
J Screening Housing-Assistance Residents for Immigration Violations—On May 10, 2019,
HUD published a proposed rule that aims to prevent unauthorized immigrants from living
in subsidized housing.
1034
Under the proposal, all HUD-assisted residents under the age of
62 would be screened through DHS’s Systematic Alien Verication for Entitlements (SAVE)
program, which helps benet-granting agencies determine applicants’ eligibility for benets.
1029 Peter Gaynor, “Order Designating the Order of Succession for the Secretary of Homeland Security,” DHS, November 14, 2020; DHS,
“Ratication of Department Actions,” Federal Register 85, no. 228 (November 25, 2020): 75223–30.
1030 Social Security Administration, “Privacy Act of 1974; Matching Program,” Federal Register 84, no. 241 (December 16, 2019): 68537–
38.
1031 Social Security Administration, “Program Operations Manual System—RS 02635.001 Eects of Removal (Deportation) on
Retirement or Disability Beneciaries,” updated December 1, 2017.
1032 Social Security Administration, “Removing Inability to Communicate in English as an Education Category,” Federal Register 85, no.
37 (February 25, 2020): 10586–603.
1033 White House, “Proclamation 10115 of October 30, 2020: National Day of Remembrance for Americans Killed by Illegal Aliens,
2020,” Federal Register 85, no. 215 (November 5, 2020): 70429–30.
1034 Department of Housing and Urban Development, “Housing and Community Development Act of 1980: Verication of Eligible
Status,” Federal Register 84, no. 91 (May 10, 2019): 20589–95.
9 Conclusion
Over the course of four years, the administration of President Donald J. Trump enacted 472 administrative
changes that dismantled and reconstructed many elements of a U.S. immigration system that was last
reformed in 1996. Humanitarian protections were severely diminished. The U.S.-Mexico border became
more closed o than perhaps any time in U.S. history. Immigration enforcement appeared more random.
And legal immigration became out of reach for many, with benets adjudication increasingly tied to
enforcement. All of this was accomplished nearly exclusively by the executive branch, with sweeping
presidential proclamations and executive orders, departmental policy guidance, and hundreds of small,
technical adjustments. Congress, which has been deadlocked on immigration legislation for years, largely
sidelined itself during this period of incredibly dynamic policy change. And the federal judiciary, from
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individual district courts through the U.S. Supreme Court, at times blocked administration actions and at
other times oered a green light.
While it may be possible for subsequent administrations to rescind many of these changes, others cannot
simply be unwound. Rule-making requirements mean some regulations may take months or years to
reverse. Court challenges to policy changes may delay or thwart them, especially in a federal court system
to which Trump appointed more than 226 out of 816 judges.
1035
And others may simply slip by unnoticed in
administrations that prioritize immigration less than Trump’s did.
The Trump administration was arguably the rst to take full advantage of the executive branch’s vast
authority on immigration. Despite the relative fragility of executive actions when compared to legislation,
the pace and comprehensiveness of the moves taken by Trump and his administration likely ensure that
some will have lasting eects on the U.S. immigration system long after his time in oce. At the very least,
the Trump administration set a precedent for conducting far-reaching immigration changes through
executive activism.
Despite the relative fragility of executive actions when compared to legislation,
the pace and comprehensiveness of the moves taken by Trump and his
administration likely ensure that some will have lasting eects on the U.S.
immigration system long after his time in oce.
1035 John Gramlich, “How Trump Compares with Other Recent Presidents in Appointing Federal Judges,” Pew Research Center, January
13, 2021.
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About the Authors
JESSICA BOLTER @jessicabolter
Jessica Bolter is an Associate Policy Analyst with the U.S. Immigration Policy Program
at the Migration Policy Institute (MPI). Her research focuses on migration patterns
at the U.S.-Mexico border, extracontinental migration in the Americas, immigration
enforcement, and asylum and refugee issues.
She has interned with MPI, the Capital Area Immigrants’ Rights Coalition, the Ohio
Commission on Hispanic and Latino Aairs, and the Center for Democracy in the
Americas. Ms. Bolter holds a bachelor’s degree in American studies and Spanish area
studies from Kenyon College, where she focused on relations between the United
States and Latin America.
EMMA ISRAEL
@emmarisrael
Emma Israel was a consultant with the U.S. Immigration Policy Program at MPI. She
previously worked in immigration legal services as a paralegal at Kids in Need of
Defense (KIND) and served in AmeriCorps with Project Citizenship.
She holds a master’s degree from the Lyndon B. Johnson School of Public Aairs at
the University of Texas, where she focused on humanitarian migration and the U.S.-
Mexico border. She also holds a bachelor’s degree in politics from Bates College.
SARAH PIERCE
@SarahPierceEsq
Sarah Pierce was a Policy Analyst for the U.S. Immigration Policy Program at MPI.
Her research expertise includes U.S. legal immigration processes and actors, the
employment-based immigration system, and unaccompanied child migrants. Prior
to joining MPI, Ms. Pierce practiced immigration law with a Chicago-based law
rm, practicing before the immigration court, Board of Immigration Appeals, U.S.
Citizenship and Immigration Services (USCIS), and U.S. consulate oces abroad. Her
areas of practice included family- and employment-based immigration, waivers of
inadmissibility, and employment-based permanent residency petitions.
Ms. Pierce holds a master of arts in international aairs from the George Washington
University, with a focus on migration and development. She also holds a JD from the
University of Iowa College of Law and a BA from Grinnell College.
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Acknowledgments
The original impetus for the policy tracking exercise upon which this publication is based owes to suggestions
made by Demetrios G. Papademetriou, co-founder and president emeritus of the Migration Policy Institute
(MPI), who sadly passed away as this report was being nalized. His deep support for the importance of
technical knowledge of the immigration system for policymaking—the underlying rationale for the work
embodied here—was emblematic of his lifetime of wide-ranging intellectual and policy contributions on
migration issues in the United States and globally. In the spirit of inquiry and evidence-driven analysis that
animates MPI’s work, as shaped by Demetri, the authors dedicate this volume to his memory.
The authors thank MPI interns Erin Babich, Mary Hanna, and Gaby Sanchez for their research support, and
colleagues Michelle Mittelstadt and Lauren Shaw for their invaluable advice and edits.
For their support for this work, the authors also thank the Carnegie Corporation of New York, the Ford
Foundation, Open Society Foundations, Unbound Philanthropy, and the 21st Century International Ladies’
Garment Workers’ Union (ILGWU) Heritage Fund.
MPI is an independent, nonpartisan policy research organization that adheres to the highest standard of
rigor and integrity in its work. All analysis, recommendations, and policy ideas advanced by MPI are solely
determined by its researchers.
© 2022 Migration Policy Institute.
All Rights Reserved.
Design: Sara Staedicke, MPI
Layout: Liz Heimann
Cover Photo: Shealah Craighead/White House
No part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, or included in any
information storage and retrieval system without permission from the Migration Policy Institute. A full-text PDF of this document is
available for free download from
www.migrationpolicy.org.
Information for reproducing excerpts from this publication can be found at www.migrationpolicy.org/about/copyright-policy.
Inquiries can also be directed to communications@migrationpolicy.org.
Suggested citation: Bolter, Jessica, Emma Israel, and Sarah Pierce. 2022. Four Years of Profound Change: Immigration Policy during the
Trump Presidency. Washington, DC: Migration Policy Institute.
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