Legal guidance on and Analysis of President Trump’s Executive Orders on Immigration
In case of a detention you should Know Your Rights (KYR)
Executive Orders Alert
As many of you already know, President Trump issued a series of executive orders affecting border security, interior immigration enforcement, and travel. We provide this information as a general description of those orders, as well as some guidance for your consideration. So far implementation has been delayed, fragmented or temporarily halted by federal court orders. It is important to keep current on developments as they occur.
The first executive order, signed on January 25, 2017, includes plans to build a wall along the southern border and expand efforts to detain individuals at the border who violate immigration laws.
Among its deportation provisions, the order directs immigration officials to apply the “expedited removal” process to any individual who entered without permission and has been continuously present in the United States for less than 2 years. Under the expedited removal process, any individual found entering illegally into the United States is detained and immediately deported without seeing an immigration judge. By law, expedited removal may be applied when an individual presents no valid entry document or commits fraud at a port of entry or within 100 miles of any U.S. border. The order, however, appears to expand expedited removal to anyone who entered without inspection and has been living anywhere in the United States for less than 2 years.
It is uncertain whether immigration authorities will apply expedited removal to undocumented individuals found within the United States. We are currently unaware of any such instances. However, it is advisable that immigrants without lawful status keep documents (e.g., leases, bills, and receipts) at home or in their possession to demonstrate physical presence in the U.S. for over two years to avoid expedited removal.
Click here to see a full copy of the executive order on border security.
The second executive order, signed on January 25, 2017, announces plans to expand interior enforcement of immigration laws. It provides a very broad set of enforcement priorities for deportation, including anyone who has been convicted of a crime, charged with a crime, or committed an act that could be charged as a crime. The new priorities also include individuals who have engaged in fraud or willful misrepresentation in regard to any official matter or application before a government agency, have abused any public benefits program, have not departed after a final deportation order, or pose a security or public safety risk. Notably, the order does not rank the enforcement priorities and therefore are presumed to be of equal importance.
The order also directs the federal government to enter into agreements with state and local law enforcement agencies to train and authorize and their officers to perform immigration functions, such as investigating, apprehending, and detaining immigrants. The order simultaneously plans to cut off federal funding to cities that refuse to cooperate (also loosely defined as “sanctuary” cities).
It remains to be seen how the federal government will carry out this massive enforcement effort. Absent clarification by the Trump administration, the order can be interpreted to mean that immigration officers may apprehend and detain individuals who have committed very minor offenses, such as traffic misdemeanors-which covers a lot of people!
Nevertheless, it is important to know that ICE cannot generally deport individuals from the country who are currently maintaining legal status without a criminal conviction, including lawful permanent residents, TPS holders, and nonimmigrants.
Click here to see a full copy of the executive order on interior enforcement.
The third executive order, signed on January 27, 2017, announces a 90-day ban on entry by nationals from the following restricted countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. However, the Department of State later clarified that dual nationals with a valid U.S. visa in a passport of an unrestricted county will not be subject to the ban.
In wake of lawsuits, DHS later clarified that lawful permanent residents who are nationals of any of the restricted countries are not subject to the travel ban and instead may enter the United States without the existence of derogatory information indicating a serious public safety threat.
The order suspends the issuance of immigrant and nonimmigrant visas to nationals of the restricted countries, and halts the U.S. refugee admissions program for 180 days. Syrian refugees are indefinitely banned until further notice.
The order further suspends the Visa Interview Waiver Program (VIWP), requiring all visa applicants formally eligible for VIWP to now attend a visa interview before renewing their nonimmigrant visa.
Despite the ban on travel and “other immigration benefits,” USCIS has indicated that it will continue processing applications and petitions in accordance with existing policies and procedures.
On February 3, 2017, a federal district court in Washington issued a nationwide temporary restraining order against the travel and visa restrictions imposed by the executive order. The restraining order also lifted the suspension of refugee admissions, including for Syrian refugees. Keep in mind that the restraining order is only temporary pending the final outcome of litigation regarding those controversial provisions of the executive order.
Click here to see a full copy of the executive order on the travel ban.
The White House indicated no immediate plans to terminate the DACA program. There have been reports that the Trump administration plans to cancel DACA in some time in the future. Other reports indicate that the Trump administration is waiting for Congress to pass legislation to protect DACA eligible individuals or “Dreamers” before any action is taken on the DACA program.
In the meantime, USCIS has indicated that it is processing DACA applications consistent with existing policies and procedures. DACA applicants are encouraged to renew their work authorization if eligible.
Because the future of the DACA program is uncertain, it is advisable to consult with an immigration lawyer before travelling with an advance parole document issued pursuant to DACA.
• If you are arrested or charged with a crime, consult with an immigration lawyer to determine the immigration consequences.
• If you are taken into ICE custody, do not sign any document that you do not understand and agree to. If you do not have legal status in the United States, do not provide the police or ICE officer any information about your nationality or country of origin-they first must establish that you are not a citizen before they can deport you. Ask to speak with a lawyer first and have your family contact one right away.
• Consult with an immigration lawyer before traveling outside the U.S. if you are a lawful permanent resident from one of the restricted countries or have a criminal record.
• If you are a lawful permanent resident, explore the option of becoming a U.S. citizen. These immigration-related executive orders to not apply to U.S. citizens.
• If you are questioned by a port of entry officer about your lawful permanent resident status or refused admission, do NOT sign the form (Form I-407) giving up your lawful permanent resident status. By doing so, you might not have the opportunity to challenge the officer’s decision in court.
Please note this communication is not meant as a substitute for legal advice. If you believe you may be affected by these new orders you should consult with an immigration attorney.