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Executive Orders Change Immigration Policy - January 26, 2017

President Trump issued Executive Orders affecting immigration policy on border and interior enforcement yesterday (January 25, 2017).

 

Below is a summary of the major provisions and advice we can offer at this time.

 

Executive Order on Border Enforcement

 

The wall and border detention

This order directs the planning, design, and construction of a wall on the southern border. The “wall” could mean a physical wall or other “similarly secure, contiguous and impassable physical barrier”. While the initial cost will be borne by the U.S., the order requires a report on foreign aid to Mexico in the last five years, presumably with the view to renegotiating aid to pay for the wall.

 

Additionally, more detention facilities will be constructed (or contracts entered into to provide such facilities - i.e., private prisons) to detain people at or near the border with Mexico. 

 

Changes regarding asylum claims

Asylum claims will be adjudicated at the border detention facilities, as well as hearings on admissibility.  The order directs assignment of asylum officers and immigration judges “immediately” to immigration detention facilities for this purpose.

 

The order also addresses “credible fear” determinations that are made when people claim asylum, and promises to issue regulations to assure that they are conducted “in a manner consistent with the plain language” of the law.

 

Changes regarding treatment of those making illegal entries

The order makes changes regarding how people making illegal entries will be treated.  It is unclear as to how far this will reach.  As of right now, many individuals who are apprehended and placed in removal proceedings are eligible for immigration bonds that allow them to be released from Immigration Detention while their case is pending.  Some are already subject to mandatory detention by law.  It appears that the Trump Administration will be seeking to reduce the number of immigration bonds and holding more people in detention facilities while they are waiting for their claims to be adjudicated.  It is also possible that this could extend to undocumented immigrants already in the United States who are apprehended.

 

This could also mean that immigrants who the government believes are deportable will be held at the border instead of being sent to their home areas and processed there.

 

Additionally, those apprehended entering by land from Mexico or Canada may be returned to that country pending removal proceedings, rather than being released in the United States.

 

The order also directs the Attorney General to establish prosecutorial guidelines and allocate resources to ensure that offenses “having a nexus to the southern border” are given high priority.

 

Five thousand new border patrol agents will be hired as soon as possible to carry out these priorities.

 

Federal-State cooperation

The Administration will engage with Governors and local officials to enter into agreements (called 287(g) agreements) to train and empower local and state law enforcement to enforce the federal immigration laws.  This provision is duplicated in the Interior Enforcement Executive Order (discussed below).

 

Changes to parole (including, possibly, advance parole)

The order directs the Secretary of Homeland Security to “ensure that parole authority . . . is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

 

“Parole” is used in a variety of situations, including admission of people outside the U.S. for various purposes.  It is most commonly used to provide “advance parole,” a travel document that allows a person in the process of obtaining permanent residence in the U.S. (known as “adjustment of status”) to depart and return without a visa.

 

For many years, USCIS has issued advance parole to adjustment of status applicants without individual determinations of the humanitarian or public benefit reasons for travel. This order could significantly restrict foreign travel of people in the adjustment of status process.

 

Other matters

The order provides for public reporting of certain statistics.  It also addresses obtaining access to all federal lands to carry out its mission.

 

Our advice

While too early to provide extensive advice, we recommend:

  • Keeping H-1B or L-1 nonimmigrant status in place even if an adjustment of status application has been filed.  If the availability of advance parole becomes limited, having this status will allow foreign travel.  Note that only those on H-1B or L-1 can travel after filing adjustment of status without abandoning that filing. Others should consult their attorney regarding the advisability of plans for foreign travel during adjustment of status, including those married to U.S. citizens or who are filing other family-based applications.

 

Executive Order on Interior Enforcement

 

Enforcement priorities 

This order sets enforcement priorities, including removal of persons already inadmissible under current law (those convicted of certain crimes, those considered to be a threat to security, and anyone who misrepresented a material fact to procure a visa, admission or other benefit), and those deportable for having committed criminal offenses or for security reasons, and “removable aliens” who:

  • Have been convicted of any criminal offense
  • Have been charged with any criminal offense, where such charge has not been resolved
  • Have committed acts that constitute a chargeable criminal offense
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency
  • Have abused any program related to the receipt of public benefits
  • Are subject to a final order of removal
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

 

The current Priority Enforcement Program (PEP), instituted on November 20, 2014, is immediately terminated and the “Secure Communities” program (initiated under the George W. Bush Administration) is to be reinstated.

 

Practically speaking, secured communities meant that local law enforcement played an active role in assisting ICE in executing their duties.  Upon arrest, even for minor offenses, local jurisdictions would notify local ICE offices of foreign born individuals arrested for even the most minor offenses.  After notification, ICE would initiate removal proceedings for those who were present without authorization.  This partnership with ICE ended under the Obama administration (in 2014) and immigrants arrested for criminal matters were allowed to post their criminal bond, and be released from criminal custody.  ICE would then be free to locate, detain, and charge these individuals for immigration violations.

  

Fines and penalties

No later than one year from today, regulations will be issued to ensure collection of “all fines and penalties that the Secretary [of Homeland Security] is authorized under the law to assess and collect” from people unlawfully present “and from those who facilitate their presence.” Exactly what fines and penalties this section refers to is unclear.  However, it could signal an increase in worksite enforcement activity, including I-9 inspections, which include fines and penalties for employers who have not correctly completed the form and those who are found to have knowingly employed unauthorized workers.

 

Ten thousand more immigration officers are to be hired to perform law enforcement functions.

 

Federal-State cooperative agreements

The order also repeats the directive in the Border Enforcement Executive Order to enter into federal-state cooperative agreements regarding immigration enforcement at the state and local level.

 

“Sanctuary” jurisdictions

Those jurisdictions that “willfully refuse to comply with 8 U.S.C. §1373” will no longer be eligible to receive federal grants except for law enforcement.  The section of law referenced (§1373) says that no government entity or official may prohibit information sharing regarding immigration or citizenship status of any person.  The order calls a jurisdiction that so refuses a “sanctuary jurisdiction”.

 

The Secretary of Homeland Security is given the authority to designate a “sanctuary jurisdiction”.  The Attorney General shall have enforcement authority against any entity that violates this law or which has in effect a “statue, policy, or practice that prevents or hinders the enforcement of federal law.”  Reports about actions considered to violate §1373 will be made public.

 

Other matters

An office for victims of crimes committed by removable aliens will be created. The Privacy Act will exclude persons who are not U.S. citizens or lawful permanent residents regarding release of personally identifiable information. Various reports will be issued on information related to the order.