***** This is not meant as legal advice and you should consult with an immigration attorney if you believe you may be affected by these new Orders. ******
On January 25th and 27th, 2017, President Trump signed three Executive Orders that have far reaching impact upon the enforcement of immigration laws. We call them the Wall Order, the Secure Order and the Ban Order. All three affect the undocumented, legal permanent residents and persons who have approved visas to come in to the U.S. These are all very sweeping and broad Orders some of which are already being challenged in federal courts. But these Orders also regurgitate what is already in the Immigration and Nationality Act. However, the higher level of enforcement is what will affect all foreign nationals.
What Could These Orders Mean?
- Increased apprehension and detention of persons at the border and in the interior of the U.S.
- Increased apprehension and detention of unlawfully present persons within the U.S.
- Racial profiling and the return of “show me your papers” could become prevalent
- Quicker repatriation of non-citizens without claims of asylum as deemed by asylum or immigration officers, with final orders of removal, with criminal charges and/or convictions
- More involved state and local law enforcement, who may not have immigration training
- Higher scrutiny of foreign government documents submitted for visas
- Persons who have been in the U.S. should have records showing that they have been in the U.S. for at least two years as they may be expected to demonstrate them upon entry back into the U.S.
- Legal Permanent Residents should not be affected unless there are arrests or convictions
- Young adults who currently have Deferred Action for Childhood Arrivals appear not be a priority at this time
- Victims of crimes, who happen to be undocumented, will not report to police for fear of deportation
- Taxpayer funds being diverted towards enforcement only priorities
What do These Orders Do?
Executive Order No. 1: “Border Security and Immigration Enforcement Improvements”- Wall Order
Purpose & Policy: The Wall Order is to strengthen the security at the southern border of the U.S. to prevent the “clear and present danger” of illegal immigration and to repatriate illegal aliens, who present a threat to national security and public safety, swiftly, consistently, and humanely. Immigration officers are directed to apprehend and detain persons suspected of violating U.S. laws, remove promptly persons whose “claims have been legally rejected” and “cooperate fully with States and local law enforcement” in partnerships to enforce immigration laws.
Plan:
1. Add 5,000 border patrol agents, despite Trump’s hiring freeze
2. Renews commitment to INA Section 287(g) allowing a federal-state partnership to effectively deputize or authorize state and local law enforcement agencies (“LEA”). This is not new in the law as it has been in effect since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
3. Persons deemed a national security threat are to be returned to the “territory from which they came pending a formal removal proceeding.”
Funds:
1. Through the re-allocation of taxpayer funds, a wall between the U.S. and Mexico border and more detention centers will be opened. However, the Order also directs the heads of departments and agencies to identify and quantify all sources of direct and indirect federal funding that Mexico has received over the past five years. The implication appears to be that this taxpayer funding may be withdrawn at a later date in order to re-direct it to the construction of the wall.
2. Section 287(g) of the INA does not provide for additional federal funding nor does the Order compensate the states for these additional services.
Executive Order No. 2: “Enhancing Public Safety in the Interior of the Unites States”
Safety Order
Purpose & Policy: Secure Order shall apprehend all immigration law violators, regardless of sanctuary cities, and repatriate them so long as immigration laws are being enforced. Aside from immigration law enforcement, Secure Order also directs that funding to localities that offer sanctuary to undocumented persons will be cut off. Prompt removal of persons and support of victims and their families who suffered at the hands of criminal aliens are also part of the policy in this Order.
Plan:
1. Generally, ICE cannot remove persons who are in current and lawful immigration status (whether visa holders or legal permanent residents) as long as there is no conviction for a crime that is within the ambit of the Immigration and Nationality Act (“INA”). Secure Order sets out a laundry list of enforcement priorities, several which are already incorporated into the INA, but are more expansive for certain aliens who have:
• Convictions of any criminal offense (very broad and may include a traffic ticket)
• Committed a chargeable crime or charged with any offense that has not been resolved, (i.e., a mere arrest may be sufficient and could include persons who have entered the U.S. illegally – such an offense is not criminal but civil charge)
• Engaged in fraud or willful misrepresentation with any official matter or application before a government agency (this could mean something that we see often, such as a using a fake social security number to obtain a state driver’s license)
• Abused of public benefits program
• Not departed after a final order of removal
• Are deemed as a national security or public safety threat by an immigration officer (depending on the training of the officer, this could vary and lead to racial profiling)
• Crimes involving moral turpitude, controlled substance, multiple criminal convictions
• Misrepresentation of a material fact or claiming U.S. citizenship
• Aggravated felons, terrorists.
2. Add 10,000 immigration officers.
3. Create a “comprehensive list of criminal actions committed by aliens” or criminal alien registry in sanctuary cities or other jurisdictions that do not honor the detainers of ICE.
4. Threaten municipalities like Dallas, Austin, Los Angeles, Boston, Denver, Chicago and San Francisco with withdrawing funding for continued non-cooperation. Because many cities may rely on federal financial assistance, the Wall and Secure Orders Withdrawal of such funding would vary from city to city and depend on its fiscal health. A strong municipal budget would allow the city to remain a sanctuary city whereas a weaker city budget may coerce a city into cooperating with the federal government and turn over all aliens to ICE.
Executive Order No. 3: “Protecting the Nation From Terrorist Attacks by Foreign Nationals” – Ban Order
Purpose & Policy: This Order intends to “protect Americans…to ensure that those admitted to this country do not bear hostile attitudes towards… the U.S.” This Order mostly addresses the concerns of immigration from Middle Eastern countries such as Syria, Sudan, Libya, Iran, Iraq, and Yemen. Legal Permanent Residents may be held for questioning at the borders, including at airports, as has already happened and if they are arriving from these seven countries.
Plan:
1. Suspend visa issuance and other immigration benefits to nationals of certain countries of concern, including the verification by these certain countries, of identities of persons who are applying for such benefits from the particular countries for 90 days.
2. Countries that do not provide such information shall be placed on a list that would prohibit the entry of their foreign nationals (diplomatic and NATO visa holders are excluded)
3. Development of a uniform screening standard for all immigration programs, including a database of identity documents to ensure against fraud and assess the likelihood of the applicant’s ability to make positive contributions
4. 120 day moratorium on all refugee admissions except for those who have been victims of religious persecution
5. Ban all admissions of Syrian nationals
6. For fiscal year 2017, cut refugee entrances from 110,000 to 50,000
7. Expedite the implementation of the Exit-Entry Tracking system
8. Suspend Visa Interview Waiver Program
9. Review of current visa reciprocity agreements of countries that do not offer the same to U.S. nationals
10. Collect data of persons who have any terrorist related issues, who have been radicalized in the U.S. or provided material support to terrorist organizations and the number and types of acts honor killings of women in the U.S.
***** This is not meant as legal advice and you should consult with an immigration attorney if you believe you may be affected by these new Orders. ******