Early in the first week of the Trump Administration six draft Executive Orders (EOs) on immigration were leaked to the press. Of those six, three have so far been signed in their unrevised (or nearly unrevised) condition. Because half of them were signed, many believe there is a high chance the remaining three will be signed with little or no revision in the near future. Additionally, two more EOs mentioning immigration were signed on February 9, 2017. They were not some of the ones leaked in the first week.
It is not unusual for presidents to issue EOs. Indeed, it is a necessary aspect of running the Executive Branch. The president must provide instructions to his administrative agencies so they can perform their functions. While the early presidents issued few in writing – several only issued one during their entire administration – this may be because the process was more informal, so an official, written EO was uncommon, even though the presidents may have been accomplishing the same thing through other methods. As the number of agencies grew, so did the number of Executive Orders. Franklin Roosevelt issued about 3500 during his administration. After that, Congress decided that there should be some controls over how EOs are done, and created the Administrative Procedures Act (APA) to accomplish that. The APA requires that certain changes in administrative procedures be announced in advance, clearly described in writing with an explanation for why the procedures are being added or changed, and only finalized after the public has had an opportunity to comment and possibly prepare legal challenges. Modern presidents issue about 35-45 EOs per year on average, though it is not strange for many to be issued in the first few weeks of a new administration. The number of EOs issued by Trump in the first few weeks is comparable to the number issued by Obama in his first few weeks. While the number of EOs is not unusual, it has been charged that the impact of those orders has been unusually sweeping.
An Overview of the Executive Orders
While some of the EOs describe specific policy and rule changes that are to be effective immediately, the bulk of the orders are instructions to the various agencies to begin making rule changes per the APA, without specifics on what those rules are to be. In many places, President Trump orders that reports be collected, with the implication that there will be orders for rule changes once there are reports that will support the political direction he’d like to go in. Studying these EOs fills the reader with more questions than answers; it is apparent that the President seeks to revise policies and procedures in nearly every area of immigration law, though very few specifics are described, leaving immigration attorneys to wonder anxiously what the near future will hold. There is too much contained in the EOs for everything to be described thoroughly in a quick summary. Here, I will only go over the highlights and the things that I feel are the most important.
Enhancing Public Safety in the Interior of the United States (signed)
• Expand Expedited Removals. An Expedited Removal is a deportation without a trial for someone who has been present in the US for less than two years and is either an arriving alien at a port of entry or has entered without inspection or with fraud. This is in the statute – the Immigration and Nationality Act (INA) – passed by Congress 20 years ago. While the INA does not limit Expedited Removals to the border region, previous administrations have chosen to only conduct them within 100 miles of border and only when the foreign national is suspected to have been in the US for less than 14 days. While nothing in the EO clearly states that the “100 mile rule” is no longer the policy, people who might be deportable under that section of the INA make the list of enforcement priorities for the INTERIOR of the United States. This strongly implies that Trump plans to conduct Expedited Removals throughout the US to the fullest extent of the law, which means for anyone suspected of being here less than two years. This opens the door for mass deportations as Expedited Removals are relatively fast and cheap, compared to standard removals. Legal challenges under the 4th Amendment (right against unreasonable search and seizure) and 14th Amendment (equal protection under the law) are expected, but as there has never been Expedited Removal in the interior of the country, there is very limited case law to turn to that would be helpful at this time.
• Increase ICE by 10,000. Right now the total number of people employed by Immigration and Customs Enforcement (ICE) is 20,000, though many of them are in administration and removal proceedings and aren’t the ones who go out and apprehend people. The number of current ICE officers who apprehend foreign nationals might be closer to 5000, though exact numbers are a matter of debate. Increasing the number of apprehending ICE officers by 10,000 is a major increase – one that indicates a clear intent to conduct mass deportations on the interior of the country. This increase will overwhelm the immigration attorney community as removal defense takes much longer to learn and master than basic training for an ICE officer. With funding, ICE can triple its deportation force in a year. It would take a decade to triple the number of quality, experienced removal defense attorneys. There is absolutely nothing illegal about a government agency increasing its staff.
• Deputize local police under 287(g). For the past 20 years the INA has had a section that allows ICE to enter into agreements with local police officers to train them for immigration enforcement activities. To date, only about 70 local jurisdictions have agreed to enter into such agreements. Trump wants to make efforts to substantially increase that number. This is controversial as the 10th Amendment of the Constitution says that the states should not do what has been delegated to the federal government. There is very little case law on 10th Amendment challenges.
• Punish Sanctuary Jurisdictions. The term “Sanctuary City” is essentially slang. It doesn’t have a consistent definition. In the EO, a “Sanctuary Jurisdiction” is defined as one that refuses to comply with a request to provide information on the citizenship/immigration status of an individual, presumably an individual in custody after a criminal arrest. This definition seems to be much narrower than how the term is commonly used. The EO says that Sanctuary Jurisdictions can lose their federal grants and the Secretary of Homeland Security will decide which jurisdictions meet the definition. The legality of this move is being explored.
• Recommence ICE holds. An ICE hold is a request by ICE to local law enforcement to keep a criminal suspect in custody – even after he/she has “made bail” or been cleared of criminal charges – based on a suspicion that the person may be removable (deportable) and ICE wants to come collect the individual. An ICE hold can last up to 48 hours, excluding weekends and holidays. In November of 2014, the Department of Homeland Security (DHS) stopped doing ICE holds due to the number of lawsuits regarding unlawful imprisonment. Despite the lawsuits, which frequently found the detention unlawful in certain individual cases, there was never a major court decision finding that ICE holds were invariably illegal. DHS had voluntarily stopped. The EO instructs DHS to recommence ICE holds.
Border Security and Immigration Enforcement Improvements (signed)
• The wall. The EO includes a directive to start plans and appropriations for a wall along the border with Mexico. This appears to be legal, if expensive.
• Increase Detention facilities along the southern border. Additional detention facilities are to be built and/or arrangements made for Customs and Border Protection (CBP) to rent space in existing prisons for the purpose of holding those apprehended close to the border. This appears to be legal, if expensive.
• Increase Border Patrol by 5000 agents. CBP currently has about 20,000 people, so this would be an increase of 25% of the agency, which is significant.
• Deputize local police under 287(g). This is essentially the same as the corresponding section in the Interior Enforcement EO.
• End “abuse” of parole. In an immigration context, “parole” means permission to enter the United States despite not having the normal requirements for entry, such as a visa. It is commonly granted to people applying for asylum at a point of entry (in lieu of being held in detention pending a hearing), to people who are in the middle of an adjustment of status (green card application) case and wish to travel for business or family needs, and people who are in DACA status who need to travel for humanitarian reasons. The EO says that parole is to stop except for serious humanitarian reasons, as described in the law. This will result in asylum applicants being held in detention and increased travel restrictions on those with pending adjustment of status applications and those in DACA status.
Protecting the Nation from Foreign Terrorist Entry into the United States (signed)
• “The Muslim Ban”. Everyone from Yemen, Iran, Iraq, Syria, Libya, Sudan and Somalia is banned for 90 days from the date the EO is signed. This is being hotly challenged in courts across the country as a possible violation of religious freedom, violation of the APA, and violation of the INA as many of the people being turned away had already lawfully acquired visas. The general argument against the ban is that while the President has wide authority to protect the interests of the United States against foreign nationals, his authority is not unlimited. What those limits are is the question before the court.
• Refugees banned for 120 days. This may be a violation of international agreements and the INA. Those already granted refugee status may have to go back and be re-vetted, meaning it will be more than 120 days before they are allowed to come. Refugee resettlement organizations may lose their funding during that gap and might not be able to financially survive, meaning once the ban is up, the institutions will not be there to receive them. This will also hurt refugees currently in the country who are still receiving services from these organizations.
• Syrian refugees banned indefinitely. Self-explanatory.
A Task Force on Crime Reduction and Public Safety (signed)
• Create Task Force. A temporary “task force” or working group is to be established under the Department of Justice to look for ways that laws can be changed and resources – local, state and federal – can be used differently so that illegal immigration, drug trafficking and violent crime can be reduced.
• Dissolve Task Force. The EO states that once the reports and recommendations have been presented, the task force is to be dissolved.
Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking (signed)
• Target transnational crime and criminal organizations. This EO takes aim at criminal activity that typically crosses international borders, such as human trafficking, drug trafficking, weapons trafficking and cybercrimes. Target organizations include criminal (street) gangs, cartels, and other organized crime.
• Prosecute visa fraud criminally. Usually visa fraud is punished with immigration consequences, which are civil, rather than criminal punishments. There are criminal penalties for visa fraud, but those violations are rarely pursued criminally. This EO directs US law enforcement agencies to prosecute visa fraud criminally where it is suspected that a criminal enterprise is involved. It is unclear whether this means that only those deeply involved with the criminal enterprise would be prosecuted or whether it includes anyone who purchases a fake visa from the criminal enterprise.
• Increase visa denials for suspected criminals. The EO directs the administration to study the INA to identify how existing sections may be used to keep out more suspected members of organized crime units. This suggests expanded use of INA 212(a)(3)(A(ii), which allows visa denial for anyone suspected of coming to commit crimes in the future. This section of the law has already come under fire by attorneys who charge that it has been used to keep out people who are suspected of being in gangs, who in fact are not and have never been in gangs, i.e. a “false positive”. Expanding the use of this section is likely to lead to more false positives.
Ending Constitutional Amnesties (unsigned)
• End DACA. In 2012 President Obama signed an EO giving temporary lawful status and an Employment Authorization Document (EAD) to people who had entered the country before age 16, had been in the US at least 5 years, had not been convicted of any significant crimes, were under age 30, and had graduated high school, gotten a GED, or completed military service. The program was called Deferred Action for Childhood Arrivals (DACA). This new EO would allow those with facially valid EADs to continue using them, but would not allow any DACA renewals, no new DACA approvals, and no new Advanced Parole (AP) documents based on DACA status. Trump’s authority to end DACA is clear as he would merely be rescinding a previous EO.
• Prevent DAPA. In 2014 President Obama signed an EO giving temporary lawful status and an EAD to certain parents of US citizens. The program was called Deferred Action for Parents of Americans (DAPA). The EO was immediately blocked by the courts where it currently remains, awaiting the next appeal. This new EO kills the program before it reaches the Supreme Court.
Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs (unsigned)
• Create reports on how foreign workers hurt American workers. This EO is primarily a demand for a series of studies on how various types of employment-based immigrant and nonimmigrant visas hurt American workers. There appears to be an open desire for bias in the reports. One can only presume that the Trump Administration wants to create a foundation of research that will support a future push to reduce employment-based immigration. However, there is nothing in there that substantially affects employment-based immigration immediately.
• Do L1 site visits. DHS is to commence site visits for L1 international executives to be sure they are in compliance. This could inconvenience some powerful corporations.
Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (unsigned)
• Rescind current public charge guidelines. Foreign nationals are already inadmissible if the government finds that the person is likely to become a public charge, meaning if they are likely to receive mean-tested public benefits in the future. “Public benefits” are not described in the INA, but the AO refers to the Personal Responsibility and Work Opportunity Reconciliation Act signed by President Clinton, which describes public benefits as: “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.” A “means-tested” public benefit is one where the person’s income and resources are evaluated to determine how much benefit the person will receive, if any. Under the INA, refugees and asylees are allowed to receive means-tested public benefits in their first five years, while most other immigrants are not. The ground primarily affects family-based cases and employment-based when the business sponsoring the foreign national is owned by a relative. Normally, the sponsor needs to show that he/she makes at least 125% of the poverty level for the household size, though the INA says that other factors – such as serious health problems or disability – can increase the required amount. Nothing in the law prevents the government from requiring the sponsor to make more than 125% of the poverty level. Stricter guidelines are expected, though it is not known what they will be. This will affect working class families attempting to reunify.
• Make the receipt of public benefits grounds for removal. It is not entirely clear what the Trump Administration is getting at with this directive. There are already strict rules about immigrants receiving public benefits in their individual capacity. I theorize that he is taking aim at mixed-status families where there are US citizens, lawful immigrants, and/or unlawful immigrants in the same household and the household receives benefits on behalf of the US citizens, even when the others are not eligible. Right now this is technically legal. It appears that Trump wants to change the definition of public charge so that so that those indirectly receiving benefits through their US citizen children or spouse will be deportable under INA 237(a)(5) if the benefit is received within five years of gaining permanent residence.
• Require a valid social security number for Child Tax Credit. Right now a valid social security number is required for the taxpayer in order to receive the Earned Income Tax Credit (EITC). For married couples, both must have a valid social in order to get the EITC. A valid social for the taxpayer is not required for the Child Tax Credit; an Individual Taxpayer Identification Number (ITIN) can be used. In the EO, Trump directs the Secretary of the Treasury to make a rule to start requiring a valid social security number in order to get the Child Tax Credit.