During Donald Trump’s presidential campaign, he made it clear that one of his first priorities upon assuming office would be to take executive action on immigration matters. Just one week into his presidency, he has turned this rhetoric into policy when he signed three executive orders relative to immigration.
Immediately after the EOs became effective, there were lots of questions and confusion as to the effect and extent of the EOs. The text of EOs contains a large amount of information about changes and actions to be taken. It can be difficult to read the EOs and to understand how it affects you. Here is what you need to know:
The main theme of the EOs is that all law enforcement departments and agencies should “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the U.S., and to repatriate illegal aliens swiftly, consistently, and humanely.” The documents go on to further describe how such objectives shall be achieved.
Many are familiar with President Trump’s call for a wall along its southern border. The number one item in his executive order, is the order to DHS to allocate funds and to prepare a study, plans, and logistics for construction of such physical barrier. The difficulty about the wall is not only the allocation of such a large amount of funds, but doing so while also keeping decent diplomatic relations with Mexico.
The same EO further directs more funds for building additional detention facilities along the southern border. These new facilities will be used for the detention of aliens apprehended for violation of immigration laws (not crossing the border at designated points and entering without inspection). With the increase in detention capacity, the order calls for assignment of additional asylum officers and immigration judges to each of the detention facilities in order to expedite removal proceedings and screenings.
Of note is another Section of this same EO referring to the current practice of “catch and release”. That practice has now been terminated. Under the “catch and release” practice, aliens detained at the border were detained for a certain period of time and then released in the United States. That is no longer the case, and aliens detained at the border will now likely stay detained until their deportation.
Additionally, the EO calls for removal of certain aliens to their country of origin while their removal proceedings are still pending, and for priority prosecution of offenses that are connected to the southern border, such as unlawful entry. With the priority set now on detention and stricter enforcement of immigration laws, the executive orders jointly call for the hire of additional 5,000 Customs and Border Protection agents and 10,000 ICE Enforcement and Removal Officers.
The next executive order, universalises enforcement priorities: those already codified in the Immigration and Nationality Act (hereafter INA): mostly removal charges based on criminal grounds, security related grounds such as terroristic charges, and immigration violators. The EO expands the list of removal grounds by several additional categories to include charges of an offense that has not yet been adjudicated, or where, under the discretionary judgment of an immigration official, the person poses a risk to public safety or national security. This is a very broad category and in its interpretation could include anyone from an alien who entered illegally, a visa holder who fell out of status, to an alien who had committed a very minor offense such as jaywalking. Criminal convictions and pleas already have a very significant impact on an alien’s ability to retain or gain status, and so it remains to be seen just how significant the impact of this Section will be.
The order calls for an increase in immigration prosecutions and to prioritize prosecution of immigration violators to include those who entered illegally but also those who may have overstayed their non-immigrant visas or found themselves otherwise out of status inside the United States. The removal grounds are not ranked in any particular order, and thus anyone subject to any of the removal grounds listed will be considered a priority for removal.
With the call for prioritizing removal of certain deportable aliens and pressure for increase in expedited removal proceedings, the EOs further direct the DHS and DOS to pressure recalcitrant countries through diplomatic efforts, negotiations and possibly sanctions to ensure that these countries will accept their nationals who are subject to removal from the United States. This is due to past experiences where the removal proceedings where prolonged and dragged out by the foreign nation who would delay the issuance of identity and travel documents. It remains to be seen how such agreements will play out as this has been the topic of long ongoing negotiations in the past without any significant result.
The enforcement priorities will not only affect the jurisdictions along the southern border but also communities throughout the interior United States. President Trump’s executive orders call for sanctions on Sanctuary Cities, such as withholding of federal grants, “except as deemed necessary for law enforcement purposes.” The EOs fail to further defy “sanctuary jurisdictions” or mention in any particularity as to what punishment and sanctions would be placed against such jurisdictions, or what federal grants shall be stripped. Under the current Federal law, local and state law enforcement has no duty to enforce federal immigration policies beyond sharing of information regarding person’s immigration and nationality status with the DHS. Additionally, the EO reinstates the Secure Communities Program that has previously been replaced with the Priority Enforcement Program that will now be terminated. The Secure Communities Program, in addition to the reporting requirement of sharing information between the local law enforcement and DHS as to the detainees immigration and nationality status, further authorizes the local detention and correctional facilities to hold an individual under a DHS detainer until ICE can take custody. This is in contrast to the current practice of releasing said individual on the scheduled release date.
The most controversial changes to the current immigration system were outlined in the third (not necessarily in the order they were signed) executive order that references changes to the U.S. Refugee Admissions Program (hereafter “USRAP”) as well as some significant changes and restrictions to the immigrant and non-immigrant visa programs.
The EO suspends the USRAP for 120 days since the date of the EO for all refugees trying to enter the United States. The suspension was implemented in order for the Secretary of State, Secretary of DHS, and the Director of National Intelligence to review the current USRAP application and adjudication process, and to determine what additional procedures should be implemented in order to better screen those applying for the refugee program. Those currently pending in the USRAP will be required to meet the additional procedures once initiated. Additionally, the USRAP will resume after 120 days only for nationals of countries that are whose additional procedures are deemed adequate to ensure the security and welfare of the United States.
Under the current USRAP procedures, foreign nationals applying for admission under USRAP undergo an extensive vetting that takes months and even years before their applications can be approved. USRAP screening already includes cooperation from all major federal law enforcement agencies, DOD, DHS, and DOS. While the EO temporarily suspends the USRAP for the initial 120 days, the text of the order leaves the possibility of not renewing the USRAP for nationals of some countries. However, the order provides for an exception to this suspension and leaves it to the discretionary judgment of the Secretaries of State and DHS and on case by case basis. However, a clear priority is given to refugees claiming persecution on the basis of their religion if their religion is a minority religion in the given country.
Furthermore, the order suspends the entry of Syrian refugees indefinitely. No exceptions were provided for this suspension.
The EO also affects the issuance of immigrant and non-immigrant visas to certain foreign nationals. The issuance of visas and other immigration benefits has been suspended for 90 days since the EO has been signed. The suspension is not as wide sweeping as that of the USRAP. The suspension is limited to nationals of certain countries of concern as defined in the INA § 217(a)(12) (I.e. Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). However, the ban does not apply to holders of certain visas that are further identified in the EO. The ban on visa issuance and entry is similar to that of the USRAP, in that the time is meant to allow for review of current programs and policies and whether they are adequate for determination of whether the applicant is who he or she claims to be and whether that person is a security or public-safety threat.
Because the EO became effective immediately upon its execution, there was an immediate state of chaos as not only the foreign nationals traveling to the US but also the DHS itself had no idea how to properly implement the new policies and procedures. Upon pressure from the American public, but also legal organizations, such as ACLU and other attorneys assisting their foreign clients, the DHS has later clarified that those in transit to United States at the time the order was signed will be admitted to the United States. All others were instructed to not board planes to United States or otherwise attempt an entry. And while initially, the DHS was turning away any and all foreign nationals, the officers have later clarified that Green Card holders have undergone extensive vetting as part of their Green Card application approval and thus will be allowed to enter the United States.
I have touched upon only some of the most significant and controversial parts of the executive orders. Federal litigation action has now been filled in several Federal Districts and decisions are starting to trickle down. The effect of the litigation will take time to be seen. Most likely the effects will not be fully understood until a major class action litigation can make its way through the judicial system. The situation is currently very fluid and can change at any time. If you think you may be affected by any section of the executive orders, please contact my office immediately. Additionally, it is now more important than ever before to have a knowledgeable attorney help you make sense of the immigration law and procedures before it’s too late. Please watch this space for more updates!
You can also read the executive orders here: