On January 25, 2017, President Trump issued two Executive Orders on immigration, both of which are focused on enforcement at the border and the interior and address some issues concerning visas and refugees. More Executive Orders are expected to be forthcoming addressing legal immigration and other topics. It is important to note that much of this is political in nature and intended to appeal to his voter base. The orders clearly have their origin from the 79 Stroke of a Pen playbook from the anti-immigration group, Center for Immigration Studies. However, many of the objectives require funding and/or statutory changes that must come from Congress, or require regulatory changes, all of which may or may not happen, and even if they do, may not happen for months or years. Nonetheless, the particulars are scary to many immigrants and their families and employers, not to mention to the immigration lawyer bar. It may take some time to further digest just how and when some of the orders will be operational, if at all. In the case of the Executive Order: Enhancing Public Safety in the Interior of the United States, described below, we expect to see an increase in apprehensions and detentions right away, even though illegal immigration is at a historic low but for recent surges of people coming from Central America to escape rampant violence and murder. Here is a summary of the January 25 Executive Order (“EO”) dealing with interior security, with some of my own opinions and commentary and some issues raised by the American Immigration Lawyers Association. I have a separate post on the January 25 Border Security and Enforcement Executive Order.

Purpose and Policy
• All executive departments and agencies are directed to “employ all lawful means” to enforce the immigration laws of the United States. The policy presumes that “many aliens” who enter illegally or overstay their visas “present a significant threat to national security and public safety.”
• The policy is to apply the immigration laws against all removable aliens consistent with the Constitution using “all available resources” to ensure the efficient and faithful execution of U.S. immigration laws.

• The policy penalizes jurisdictions that do not comply with federal law by preventing receipt of federal funding “unless required by law.”
• The policy is to ensure prompt removal orders and removal.
• The policy supports victims of crimes by removable aliens and their families.

(Of course, there is no discussion about supporting immigrants (whether or not removable) who are victims of crimes by Americans (which is more common than non-immigrants being victims of immigrant crimes)). And, will American family members be liable for a removable immigrant’s crimes?

Enforcement of the Immigration Laws in the Interior of the United States.
• Directs agencies to employ all lawful means to ensure faithful execution of immigration laws against all removable aliens. Basically, anyone who is removable could have problems.

Enforcement Priorities
• DHS shall prioritize for removal non-citizens who are removable under the criminal, security, fraud and misrepresentation grounds of inadmissibility, and expedited removal of inadmissible arriving aliens, and criminal and security grounds of removal (v. inadmissibility). These include those 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 receipt of public benefits;
-Are subject to a final order of removal, but have not departed; or
-Otherwise pose a risk to public safety or national security.

These are very disturbing priorities, in particular those charged with offenses who have not even been convicted or have not yet had cases resolved! Further, the fraud and misrepresentation grounds are rather common unfortunately.  “Abuse” of public benefits? What does that mean? Undocumented immigrants are not entitled to most public benefits.  While the EO does not specifically rescind any prior DHS memoranda, it directs the Secretary to review existing memoranda and procedures to ensure that they are consistent with this directive. Notably, the Obama Administration had a series of ICE priority memos that focused first on violent criminals who had actually been convicted, and recent entrants (who entered illegally or overstayed visas). When these new policies go into effect is unknown.
• “Committed acts that constitute a chargeable criminal offense” is exceptionally broad and could include very minor offenses such as jaywalking, driving without a license, shoplifting, etc.
• The priorities as a whole could include all undocumented immigrants. Those who entered without inspection could be considered to have committed the act of criminal illegal entry under statute, and both they and visa violators could be considered a priority as a threat to public safety or national security.
• Note that there is no ranking of the enforcement priorities. They are presented as equal priorities. Previously, the Secretary of Homeland Security through ICE issued prosecution priority memos.

Keep in mind that having “removal priorities” is not the same thing as actually being removable.  If a person is entitled to a hearing before an immigration judge, the judge will decide if someone is removable. Not everything on the list above is actually a ground of removal.  For example, only some crimes constitute a ground of removal. Further, green card holders (permanent residents) must be convicted of a qualifying crime in order to be removed.  However, enforcement of the laws can include arrest, being detained, and placed in removal proceedings.  Further, even if in removal proceedings, immigrants could be entitled to relief from removal such as asylum, cancellation of removal, voluntary departure, waivers, withholding of deportation, or adjustment of status.

There appears to be no statute of limitations on prior convictions under the order.  However, statutory law would apply until Congress changes it.  It’s also quite amazing that someone who has been charged but has not had their case resolved is included above, although in the area of drug offenses, this has always been true, since all that is needed is a “reason to believe”.  And, what of conduct constituting “acts that constitute a chargeable offense”? Does that include minor offenses? That could also be anyone illegally in the United States.  Finally, a front line immigration officer can determine if someone is a “risk to public safety.”

Civil Fines and Penalties
• Within one year, issue guidance and promulgate regulations to collect all penalties DHS is authorized to collect from “unlawfully present” non-citizens and “those who facilitate their presence” in the U.S.

Presumably, this refers to civil penalties for entry without inspection, or attempting to enter without inspection, civil fines for document fraud, or fines for failure to depart and employer sanctions for knowingly hiring unauthorized workers or failing to complete or maintain I-9 forms.

Additional Enforcement and Removal Officers
• The order calls for hiring 10,000 additional ICE Enforcement and Removal Officers officers. That is a lot. Presumably they would be exempt from the hiring freeze Executive Order. But, Congress would have to allocate enough money for so many hires.

Federal-State Agreements
• DHS directed to immediately enter into 287(g) agreements with states and localities that allows local law enforcement officers to conduct certain immigration functions and also allowing local law enforcement officials to investigate, apprehend, and detain aliens in the United States.

There is concern that language in this section authorizing delegation of federal immigration enforcement authority to state/local actors through 287(g) agreements “or otherwise” may contemplate informal, even verbal delegations of such authority that will completely lack transparency and accountability.

Sanctuary Jurisdictions
• The Attorney General (Dept. of Justice) and the Dept. of Homeland Security shall ensure that sanctuary jurisdictions are not eligible to receive Federal grants except as deemed necessary for law enforcement purposes. DHS would have authority to designate jurisdictions as “sanctuary jurisdictions.”
• The Attorney General shall take enforcement actions against any entity that violates a criminal statute regarding communication between government agencies and the federal immigration authorities or which has a law, policy, or practice that hinders federal law enforcement.
• The order directs DHS to publish a weekly list of criminal actions committed by aliens and any jurisdiction that failed to honor immigration detainers (ICE holds in criminal jails).
• The order directs the federal Office of Management and Budget to obtain information on all Federal grant money that is received by a sanctuary jurisdiction.

It’s unclear what funding is being referred to, especially if grants that are deemed necessary for law enforcement purposes cannot be withheld from sanctuary cities.

Review of Previous Immigration Actions and Policies.
• The Executive Order directs DHS to terminate the Priority Enforcement Program (PEP) and re-institute Secure Communities that was terminated in 2014. Secure Communities required local law enforcement officers to share booking data so that ICE could lodge “detainers” or immigration holds on individuals arrested by local agencies preventing release even if a local law enforcement agency wanted to release someone.  PEP still involved sharing fingerprint data but narrowed the criteria for detainers. This policy will end PEP and restore Secure Communities
• The Order directs DHS to review, withdraw or produce new regulations consistent with this order

It’s unclear whether this section requiring review, withdrawal or new regulations is for Secure Communities or for everything in this order.

Department of Justice Prosecutions of Immigration Violators
• The Order directs the Attorney General and DHS to ensure adequate resources are devoted to criminal immigration prosecutions, and to develop strategies to reduce violent crime and reach of transnational criminal organizations into U.S.

Currently, criminal prosecutions for illegal entry and illegal re-entry after deportation make up 52% of the criminal docket.  Apparently, that’s not enough considering the AG must also prosecute for violent crimes, white collar crimes, and other more egregious offenses.

Recalcitrant Countries
• DHS and the Department of State are to implement sanctions against countries that “deny or delay” accepting return of their nationals who are ordered removed.
• DHS and Department of State are to ensure that accepting the return of nationals ordered removed from the U.S. is a “condition precedent” in diplomatic negotiations with other countries.

Existing statute already indicates that this authority will be exercised on an individual basis and that visas could be suspended but only until the Attorney General notifies DHS that the country has accepted the individual. So theoretically, this wouldn’t involve a lengthy cessation of visas until a Memorandum of Understanding on repatriation or other agreement is reached to cover all individuals from the recalcitrant country.

Office for Victims of Crimes Committed by Removable Aliens.
• ICE must establish an office to provide “proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of victims.”
• Includes quarterly reporting requirements to study the effects of victimization by criminal aliens in the United States.

This provision assumes most criminal removable immigrants commit crimes against non-removable immigrants or US citizens. It says nothing about the more common issue of removable immigrants being the victims of crimes by Americans or other legal immigrants.

Privacy Act
• Agencies shall exclude non-citizens and non-LPRs from Privacy Act protections regarding personally identifiable information, to the extent consistent with law.

• This is a big Wow! It is not clear whether DHS even has authority to exclude non-citizens from Privacy Act protections, and secondly, why are even legal nonimmigrants not entitled to privacy about their cases?

Reporting
• DHS and the Attorney General shall provide the President with a report on progress made on these directives within 90 and 180 days of this EO.

Transparency
• DHS and AG shall collect and provide quarterly reports on immigration status of non-citizens incarcerated by the Bureau of Prisons, or as pretrial pretrial detainees under the supervision of the U.S. Marshals Service; and incarcerated in state and local prisons and jails.

Personnel Actions
• The Office of Personnel Management shall facilitate hiring ICE employees.

Despite the hiring freeze EO mentioned above, it is likely that the Administration would consider ICE ERO officers as exempt from the hiring freeze as positions that are necessary “to meet national security or public safety responsibilities.”

General Provisions
• Nothing in this order shall affect the legal authority of any executive department or agency, or the functions of the OMB.
• EO shall be implemented consistent with applicable law and subject to the availability of appropriations.
• EO is not intended to create any right or benefit enforceable at law or in equity.