Biden Aide Plots Immigration Wins to Avoid Congress Gridlock (1)

The impasse over President Joe Biden’s immigration wish list on Capitol Hill has increased pressure on a Department of Homeland Security official working to overhaul the system through regulation.

The administration last year tapped Harvard Law professor Cass Sunstein to advise on DHS regulations. The legal scholar is best known for his role as the Obama White House’s rulemaking czar and his writings on behavioral economics and regulation — not the finer points of homeland security.

Biden and Homeland Security Secretary Alejandro Mayorkas wanted someone equipped for the regulatory challenges the agency faces on immigration, as well as disaster response, aviation security, and other DHS matters, Sunstein said in an interview.

“The first obligation is to do it right,” he said.

The immigration proposals in the works at DHS are critical to meeting at least part of Biden’s ambitious campaign pledge to create a path to citizenship for millions, end long-term detention, and revamp the legal immigration system. The congressional stalemate has made DHS-led efforts more urgent.

DHS first unwound several of former President Donald Trump’s policies, from restricting entry to the U.S. and expanding enforcement. Next, the agency is focused on reducing backlogs in the asylum system and reinforcing protections for immigrants brought to the U.S. as children without authorization.

Photo: Jamie McCarthy/Getty Images

Cass Sunstein speaks at an event at AOL Studios on May 31, 2016, in New York City.

Sunstein is shepherding those efforts. Officially, he is senior counselor to the secretary and co-chair of the agency’s climate change action group. Unofficially, he’s the wonk tasked with restoring order in a department battered by public criticism and leadership gaps during the Trump administration.

“I sensed that there was a real appetite for, let’s say, good order,” Sunstein said of the DHS regulatory team’s attitude when he joined the agency almost a year ago.

Harvard’s Sunstein Joins Biden’s DHS to Shape Immigration Rules

DACA, Asylum Cases

Sunstein is working on regulations and internal processes across the department’s portfolio, but immigration has taken center stage.

The agency is attempting to cement protections in the Deferred Action for Childhood Arrivals program, which launched via an Obama-era memorandum and has never been reinforced in an official rulemaking. The proposed rule already faces headwinds after a federal court questioned the department’s authority to offer such status.

Another proposal would revamp the asylum process for border crossers, letting U.S. Citizenship and Immigration Services officers adjudicate claims instead of funneling them to backlogged immigration courts.

The approach would streamline the process “so that people who don’t deserve asylum can get that answer in short order and they won’t live in Dante’s purgatory,” Sunstein said. “People who deserve asylum will get that answer in shorter order,” he added.

DHS is also working on a rule that would clarify who’s eligible for asylum. The department will likely release a draft this year, Sunstein said.

“Neither of these is on the backburner,” he said of the asylum measures. The Biden administration on Thursday finalized an increase in visas for temporary nonagricultural workers.

“With Congress not making any major changes in the immigration space right now, regulations are often the best way to make lasting change in the way the laws are interpreted within the department,” American Immigration Council policy counsel Aaron Reichlin-Melnick said.

Bolstering Rules

At the same time, Republicans have taken up border security as a cudgel against Democrats in the lead-up to the midterm elections, and GOP-led states are taking the fight to federal courts — with frequent success so far.

That gives Sunstein the critical job of anticipating possible critiques and making sure the agency’s actions can withstand them. His placement in DHS shows the Biden administration recognizes the legal hazards that lie ahead, former agency official Theresa Cardinal Brown said.

Sunstein “knows the process probably better than just about anybody else you could find right now,” said Brown, now managing director of immigration and cross-border policy at the Bipartisan Policy Center. “He literally has written books on this.”

Immigrants’ rights advocates are pushing the administration to go further. They’re demanding the elimination of lingering Trump-era border regulations, safeguards to prevent harsh restrictions from easily returning, and steps to protect undocumented communities, as Democrats’ efforts on Capitol Hill sputter.

“The conversation around what DHS can do as it relates to interior enforcement, border enforcement, and protecting asylum has been ongoing since day one of this administration, and not many things have really shifted,” said Haddy Gassama, policy director of the advocacy group UndocuBlack Network.

Some immigration lawyers are also frustrated by the slow pace of the process.

“There’s a whole world of things they can be doing,” Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. immigration lawyer Susan J. Cohen said. “I would have thought I would have seen more by now.”

Biden Embrace of Trump Border Policy Highlights Immigration Bind

Not ‘Warp Speed’

DHS is likely to pursue its most high-impact regulations in the coming years of the Biden administration, Reichlin-Melnick said, noting that the agency can lock in internal policies and definitions to make it harder for a future administration to weaken immigrant protections.

Sunstein and his team would be wise to also revisit boilerplate language in regulations—such as provisions that address federalism and compliance with technical statutes—to ward off increasingly creative legal challenges, BPC’s Brown said.

“If you are a regulatory expert, which Cass Sunstein obviously is,” she said, “you want to make sure that the regulations you promulgate and the time you take to get it to final stage, you are dotting all the i’s and crossing all the t’s.”

Sunstein noted that DHS has moved quickly on regulations that respond to statutory deadlines and legal mandates, including rules addressing opioid smuggling and the cybersecurity workforce. But most proposals call for a longer process to fully understand public feedback, he said, and he likes to read the public comments himself to ensure DHS’s final products take them into account.

That process, Sunstein said, “is inconsistent with warp speed.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Sarah Babbage at sbabbage@bgov.com; Robin Meszoly at rmeszoly@bgov.com