Summary of President Trump’s Executive Orders Relating to ImmigrationPublished: Thursday, May 18, 2017
Since assuming the presidency on January 20, 2017, Donald Trump has signed multiple executive orders that may have dramatic impacts on immigrant communities and work places throughout the United States. Some of these orders are being implemented and others are being challenged in court. The most relevant orders are the following:
- On January 25, 2017, Mr. Trump signed two executive orders, one addressing border security and one addressing interior enforcement (the removal of immigrants already in the United States).
- On January 27, 2017, Mr. Trump signed an executive order limiting the classes of people who could enter the United States. This order was enjoined by a federal court.
- On March 6, 2017, Mr. Trump revoked the January 27, 2017, executive order, and replaced it with a similar one designed to rectify the concerns expressed by the 9th Circuit Court of Appeals which enjoined the previous executive order.
Below is a summary of each executive order and a projection of how each could impact our communities. If you have any questions about how you could be affected by any of these changes, please do not hesitate to contact our office.
Executive Order: Border Security and Immigration Enforcement Improvements
Signed January 25, 2017
This executive order focuses on securing the southern border with Mexico. It requires the Secretary of Homeland Security (“the Secretary”) to immediately take steps to obtain complete “operational control” of the southern border. Most famously, the order directs the Secretary of Homeland Security to identify all sources of Federal funds to plan and construct a physical wall along the border. In addition to building a wall along the border, the order is geared towards stopping more immigrants near the border and processing their removal more quickly. To that end, the executive order directed the Secretary to do the following, among other things:
- Work to construct new detention facilities near the border with Mexico and assign asylum officers and immigration judges to those facilities.
- Hire 5,000 more Border Patrol agents as soon as possible.
- Gather data on all Federal aid to Mexico, and also publish monthly information about non-citizens apprehended at or near the border.
- Increase the use of local and state law enforcement agencies in immigration enforcement through 287(g) agreements and other means.
- Expand the use of expedited removals to remove anyone who has been in the United States for less than two years. (Under expedited removal proceedings, a non-citizen is not entitled to a formal hearing with an immigration judge.)
- The Attorney General was also directed to prioritize the criminal prosecution of offenses relating to the southern border.
As you can see, everything in this executive order is directed towards making it harder to enter the United States illegally and easier to deport people who are here illegally. Significantly, anyone attempting to enter the United States illegally or anyone who has been in the United States illegally for less than two years is subject to expedited removal proceedings, which means they can be deported without seeing an immigration judge.
Executive Order Enhancing Public Safety in The Interior Of The United States
Signed January 25, 2017
This executive order focuses on facilitating the removal of unauthorized immigrants present within the United States, and makes clear that the Trump administration is determined to increase the resources spent on deporting immigrants and to also pressure local and state jurisdictions to assist in the enforcement of immigration laws. The executive order makes clear that nearly every undocumented immigrant is now a priority for removal, effectively ending the policy of prosecutorial discretion put in place under President Obama. Finally, it appears that the Trump administration is continuing its anti-immigrant rhetoric by publishing information about immigrants who have committed crimes. Below is a summary of the different elements of this order:
The Secretary of Homeland Security is directed to do the following:
- Promptly remove immigrants already ordered removed.
- Hire 10,000 additional immigration officers.
- Eliminate the “priorities” created by President Obama and instead prioritize the following immigrants for removal:
- Convicted of any criminal offense.
- Charged with any criminal offense where the charge has not been resolved.
- Committed acts that constitute a chargeable criminal offense.
- Engaged in fraud or misrepresentation on any official or government matter.
- Abused programs related to public benefits.
- Subject to final order of removal.
- Otherwise pose a risk to public safety or national security.
- Engage in 287(g) agreements and otherwise authorize State and local law enforcement to enforce immigration laws.
- Reinstate the “Secure Communities” program, which had been discontinued under President Obama.
- Deny federal funds to jurisdictions that fail to cooperate with requests immigration enforcement.
The executive order also directs the Department of Homeland Security to publish unfavorable information about immigrants and those jurisdictions which refuse to cooperate with DHS/ICE immigration enforcement. DHS is ordered to:
- Collect data regarding the immigration status of incarcerated non-citizens.
- Publicize a list of crimes committed by non-citizens in jurisdictions that did not cooperate with detainers.
- Detainers, which are opposed in many jurisdictions, are requests made by DHS asking a detention center hold a person after the sentence has been completed to give DHS time to investigate the person and process them for removal if possible.
- Establish an office to provide services to victims of crimes committed by removable non-citizens.
Executive Order: Protecting the Nation From Foreign Terrorist Entry Into The United States
Signed January 27, 2017
This executive order, often referred to as the “Muslim Ban,” aimed to greatly limit the ability of foreign nationals to enter the United States. It was justified by a stated need to protect the United States from foreign born terrorists and echoes Mr. Trump’s consistent rhetoric that immigrants and nonimmigrants to our country are not sufficiently vetted to ensure that they have no intent to harm to United States.
Under this executive order, citizens from seven predominantly Muslim countries were to be banned from entering the United States for 90 days, including lawful permanent residents and those who had already been issued visas to enter the United States. Additionally, the refugee program was to be suspended for 120 days, would be limited to 50,000 refugees in fiscal year 2017 (down from nearly 85,000 refugees in fiscal year 2016) and Syrian refugees were to be banned indefinitely.
This executive order was issued and implemented immediately and without warning. The following day two men from Iraq who had worked for the U.S, military were detained at the airport upon entering the United States with a validly issued visa. The ACLU immediately filed a lawsuit in New York, and multiple other lawsuits were filed throughout the country. A District Judge in Washington State prevented the order from going into effect, and the Ninth Circuit Court of Appeals upheld that decision. Rather than continue appealing the ruling, the Trump administration chose to revoke the executive order and reissue a revised version of it on March 6, 2017, which will be discussed below.
Executive Order: Protecting the Nation From Foreign Terrorist Entry Into The United States
Signed March 6, 2017
As stated above, the executive order from January 27, 2017, was stalled in court, and the Trump administration chose to issue a new version of the order instead of appealing to the Supreme Court. This executive order was set to take effect on March 16, 2017.
The new executive order kept many provisions in place from the previous order, but made several changes as well. First, the executive order eliminated Iraq from the list of banned countries, but would continue to ban all visa applicants from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. Importantly, this ban no longer extended to lawful permanent residents, or people who had already been granted asylum or refugee status or other nonimmigrant visas. Unfortunately, the new executive order did still order the suspension of the refugee program for 120 days and capped the number of refugees at 50,000 for fiscal year 2017. Finally, the new executive order does require the creation of databases designed to track foreign nationals who have been charged with terrorism related crimes or other major offenses.
Below is a brief summary of the important provisions in this order:
- No visas can be issued to citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, for 90 days (subject to certain exceptions). Citizens of Iraq can be admitted, but every visa application requires special review.
- A worldwide review must be conducted to identify additional information that is needed from foreign countries to decide visa applications. Citizens of countries that do not timely provide the requested information may be banned from entering the United States. Based on the information provided, countries may be added to or removed from the above list of restricted countries.
- The visa ban applies only to foreign nationals who are outside the United States, did not have a valid visa on 1/27/2017, and do not have a valid visa on 3/6/2017. It also does not apply to permanent residents, people already admitted to the United States, dual nationals of a country not on the list, as well as certain other exceptions.
- Case by case exceptions can be made if denying entry to a foreign national would cause undue hardship, would not pose a threat to national security and would be in national interest.
- A special program is to be implemented to identify individuals who seek to enter on fraudulent basis or support terrorism or extremism.
- The refugee program is to be suspended for 120 days (with case-by-case exceptions) to review the program and see what new procedures should be implemented to ensure refugees do not pose a threat to the United States. It can then be resumed for countries where the procedures are deemed adequate to ensure the security and welfare of the United States.
- 50,000 refugees to be admitted in fiscal year 2017 (from just under 85,000 in fiscal year 2016).
- State and local jurisdictions should be granted a role in determining the placement or settlement of refugees in their jurisdictions.
- DHS must expedite the completion and implementation of a biometric entry-exit tracking system for travelers to the US and submit progress reports.
- The Visa Interview Waiver Program will be suspended (minus certain exceptions), meaning that everyone seeking a visa will require an in-person interview.
- The Department of State (DOS) must review all nonimmigrant visa reciprocity agreements with other countries to ensure they are truly reciprocal.
- DHS will create databases of foreign nationals who have been radicalized, charged with terrorism, committed gender-based violence against women, or charged with major offenses, among other things.
As stated above, this executive order made several changes in response to the litigation over the January 27, 2017, order. However, portions of this executive order were also challenged in court. On March 16, the day the order was set to go into effect, a Maryland judge found that the travel ban was intended to discriminate against Muslims and issued a nationwide injunction preventing the travel ban from being enacted. The Trump administration appealed this injunction to the Fourth Circuit Court of Appeals, and oral arguments were heard on May 8, 2017. At this point, no decision has been issued.
This executive order has the potential to dramatically impact all non-citizens in the United States. Non-citizens must be aware that government is collecting data about non-citizens, especially those who have been charged with crimes or the government believes have been radicalized. It is unclear what evidence the government requires to include someone in these databases, and how someone wrongfully included could be removed from a database. Furthermore, in light of the entry-exit tracking system, non-citizens traveling to and from the United States should be sure that their documents are in order and they maintain proof of when they enter and exit the United States. This is especially important for people with nonimmigrant visas, because these visas will have to be renewed or extended. Additionally, given the new travel restrictions, people in the United States with family in their home countries may find that their family members can no longer come to the United States to visit. Lastly, citizens from the seven countries named in this order – Iran, Libya, Somalia, Sudan, Syria, Yemen, and Iraq – may experience additional scrutiny when traveling to and from the United States or having any contact with immigration officials.
As you can see, the Trump administration does not shy away from relying on executive orders to tighten restrictions on immigrants entering the United States and to broaden the reach of immigration enforcement inside the United States. Because one of the executive orders is being challenged in court, there is still uncertainty about who will be affected. Additionally, President Trump has the power to issue more executive orders, which can have further impact on immigrant communities and their employers in the United States. If you have any questions about how these orders may affect you, your families, or your employers, please do not hesitate to contact our office.