Presidential Authority to Protect (or Expel) Vulnerable Migrants
By Robert McKee Irwin
Problem
The last major overhaul to US immigration law was 1996’s Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), and the country’s most recent major legislation regarding asylum was the 1980 Refugee Act. Meanwhile, in the new millennium the US has been faced with large numbers of undocumented immigrants, many who have resided decades in the country, and the arrival or unprecedented numbers of asylum seekers from nations across the Americas, who may be highly vulnerable even as their reasons for flight may not align clearly with US asylum criteria. With the US congress deadlocked for years in passing legislation to reform immigration laws to better reflect current realities, presidents have sought to bypass congress, making independent interventions via executive orders or other policy tools in order to address what some see as a crisis, whether of human rights or national security. However, presidential actions taken without the support of congress do not become law, and may be subject to court challenges, or to recission by the next presidential administration.
Observation
While as of 2025, the Deferred Action for Childhood Arrivals (DACA) protections, initially granted through and executive order by President Barack Obama (2009-2016) in 2012, remains in effect for those already enrolled (but not for new applicants), it continues to be litigated in the courts, where it has been argued that presidents lack authority to issue such protections on their own, without supporting legislation from congress. Nonetheless, President Joe Biden (2021-2024) implemented a range of controversial immigration policies, several of which have been revoked by his successor, President Donald Trump (2017-2020, and 2025-28). The effects on immigrants of shifting policies have been jarring.
For example, the Biden administration launched a program allowing migrants to make appointments to cross the border legally using the smartphone app CBPOne. Many of these migrants were then granted humanitarian parole, which allowed them to stay in the United States for a year or more and apply for employment authorization to help them to support themselves while initiating asylum applications. Never before had humanitarian parole, usually reserved for extraordinary cases such as medical emergencies, been offered to so many people (estimated 1.5 million).
Migrants like María Cruz and her husband Humberto Sotelo, who fled their hometown in Colima, Mexico, when, as Humberto explains in the first part of his two part story titled “I Am Looking for Safety for My Family”, organized crime “disappeared one of our sons, threatened another son […], and then tried to take the third”. Nonetheless, they experienced heightened insecurity while waiting at the border in Tijuana where despite being admitted to a shelter, as María explains in her story “Three Months in Tijuana,” due to overcrowding they had to sleep in a tent on the street, where they witnessed “shootouts, car torchings and everything else”, and felt constantly unsafe. Once they finally got a CBP One appointment and were admitted to the US, they got a good night’s sleep for the first time in months. As Humberto states in the second part of his story, this one titled “A Moment of Security”: “I hadn’t slept for many days because I wanted to protect my wife and kids.”
McKee Irwin with the Sotelo-Cruz family in California, February 2024
Like many they were given temporary humanitarian relief and are applying for asylum. However, the Trump administration has cancelled humanitarian visas and has even been detaining asylum seekers when they appear to present their cases in immigration court. Despite the Biden administration’s efforts to offer relief, whether temporary or permanent, for migrants like this family, they now may find themselves subject to detention or even deportation, which would likely to expose them again to the dangers they had hoped to escape. Another legal means to protect migrants facing dire conditions in their homeland is Temporary Protected Status (TPS). A 1990 law gave the US president power to designate countries experiencing armed conflict, natural disasters or other extraordinary conditions that would make it dangerous for residents visiting the US to return home. At the time of such a designation, residents of the country currently in the US (regardless of their immigration status) may apply for TPS, which offers them access to work authorization, but not a path to residency. These protections last for up to one and a half years, and may be renewed by the president. During the Biden presidency, hundreds of thousands of Haitians and Venezuelans were permitted to obtain temporary legal status in this way. TPS had never before been made available to so many foreign visitors.
Haitian migrants Alex Marcelin (“Assaulted Migrant”) and Davidson Alcime (“The Hard Journey of a Haitian Migrant”), who recorded their stories in Tijuana in the fall of 2023, recount harrowing experiences on their way to the US border, crossing the Darien Gap jungle between Colombia and Panama, where they were bitten by wild animals, witnessed people drowning, and ran across multiple decaying corpses of fellow migrants. Later, while waiting in line in the hot sun to obtain travel documents in Tapachula, Mexico, Alex was witness to a child’s death by hyperthermia, and farther north, near the US border, Davidson was a victim of an armed assault, which left him with a broken arm. While both likely made it to the US in time to apply for TPS in 2024, that designation has already been revoked, with an expiration date set for September, 2025. Although some Haitians may have initiated asylum claims, those who do not, or whose cases are not viable, will be subject to deportation back to Haiti, where conditions remain perilous, according to the US Department of Homeland Security, which in 2023 ordered all nonemergency US government employees to leave the country and continues to warn of high levels of violent crime, including “robbery, carjackings, sexual assaults, and kidnapping for ransom.” As another Haitian asylum seeker put it: “Life is getting more and more dangerous. Everyone knows what’s happening in Haiti” (“Tragedy”).
As long as the laws available to aid vulnerable migrants do not change, any attempts by sympathetic presidential administrations to protect them will remain fragile, and conditions will continue to be precarious for those residing in the US.