Other Key Executive Orders: Enforcement Priorities and Border Security

Two other, significant Executive Orders were signed by Trump in January, “Enhancing Public Safety in the Interior of the United States” and “Border Security and Immigration Enforcement Improvements.” These EOs aim specifically to curb and solve unlawful immigration through aggressive detention and deportation of undocumented foreign nationals and by building “the Wall” between the United States and Mexico. The EOs also lay out the Administration’s plans to hire 15,500 new immigration enforcement officers and to enlist the help of state and local police to carry out immigration enforcement. While initially these orders were quickly overshadowed by the President’s travel ban, their impact has already been felt in communities across the United States.  In addition to tremendous uncertainty felt by all immigrants in the United States – legal and undocumented alike, Immigration and Customs Enforcement (ICE) officers commenced targeted enforcement actions – immigration raids – by reinstituting “Operation Cross Check,” targeting fugitives, individuals who reentered after they were deported, and at large “criminal aliens” (anyone with any criminal conviction). Raids in Los Angeles, Chicago, Atlanta, San Antonio, and New York City resulted in the arrest of more than 680 people within the first few days. During his campaign, President Trump had promised to allow ICE to operate to the fullest extent of its power, and these orders are the first step in fulfilling that promise.

While the EOs themselves did not give direction to agency personnel on how to implement them, DHS just recently issued two implementing memos, “Enforcement of the Immigration Laws to Serve the National Interest” and “Implementing the President’s Border Security and Immigration Enforcement Improvements,” that did. These memos give ICE and CBP broad authority to enforce the immigration laws and dramatic changes are afoot. (Interestingly, the memos note that the Obama DACA and DAPA memos, from June 2012 and November 2014, are still in place.)

Importantly, the previous Priority Enforcement Program (PEP) is now terminated, and the Secure Communities Program (SCP) is reinstated. PEP significantly narrowed the category of individuals for whom DHS would seek transfer from local enforcement agency custody. Under the program, ICE sought such transfers where a removable individual had been convicted of specifically enumerated crimes, had intentionally participated in criminal gang activity, or posed a danger to national security. It did not seek the transfer of individuals with civil immigration offenses alone, or of those charged, but not convicted of criminal offenses. SCP authorizes state and local law enforcement officers to enforce immigration law, including “the authority to investigate, identify, apprehend, arrest, detain, and conduct searches.”

While the prior PEP is officially rescinded, ICE does not have the resources to remove 11 million people. Nevertheless, the new memos state that any individual who has been convicted or charged with a crime, has committed acts that constitute a chargeable offense, abused public assistance programs, engaged in fraud or misrepresentation before a government agency, has a final order of removal, or is a threat to public safety is a removal priority. ICE may be targeting particular individuals, but anyone in a surrounding area with a questionable immigration status could be apprehended and removed: “Department personnel have full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws [and] initiate removal proceedings.” Moreover, the formerly generous grants of prosecutorial discretion by ICE attorneys in removal proceedings are likely to become a rarity during this Administration. The EOs also threaten “sanctuary cities” through the withholding of federal funds.  How this will be implemented has not been addressed in the current implementing memos.

Enforcement on the southern border is likely to become even more dramatic. Most visibly, “the Wall” has been authorized, and DHS plans to begin its construction. Besides the Wall, more serious and imminent is the change to how DHS will be handling those who enter the U.S. unlawfully. The memos call for more immigration judges and asylum officers to be sent to the border, and for increased capacity to detain immigrants in “short-term” facilities — commonly referred to as “the freezers” — as well as increasing the number and capacity of detention facilities. Under President Obama, it was common for CBP and ICE to release those apprehended at the border into the United States, often with alternatives to detention such as ankle monitors after they were assigned to an immigration court and applied for some form of relief. The practice was lauded by immigration attorneys and activists as it provides foreign nationals with greater access to resources in order to prepare for and present their case. This policy has been replaced with almost mandatory detention until removal or relief. Claims to asylum and parole, once relied upon by those fleeing persecution or in need of medical assistance, will be entertained at an increased level of scrutiny.

Other interior enforcement includes the drafting of a rule to expand the use of expedited removal proceedings beyond the present geographic restrictions of those unlawfully present at ports of entry and the border area (within 100 miles) and within 14 days of entry, potentially to anyone unlawfully present who is unable to prove residence in the United States for the two years prior to apprehension. Expedited removal permits the detention and swift removal of an individual without access to the courts.

Another development is the proposed reevaluation of the admittance of unaccompanied minors. Children who arrive at the border alone are turned over to Health and Human Services and allowed into the country to pursue various forms of relief, including asylum, with privileges not afforded to others because of their unique and vulnerable status. We can expect to see additional guidance from ICE and CBP on how they expect to handle unaccompanied minors.

Many aspects of these two implementation memos are still unclear regarding how they will be implemented and whether they can withstand legal muster. As mentioned above, we do not know how or when DHS will choose to expand expedited removal. The EOs and memos also create a “Victims of Immigration Crime Engagement” (VOICE) Office, which directs funding to assist victims of crimes committed by removable aliens. Moreover, the memos mention collecting fines and penalties from unlawfully present foreign nationals and those who assist them; however, “assists” in what way is currently unclear. Most worrisome is the creation of publicly available reports listing the immigration status of detained individuals; the arrest, charge, or conviction of that individual; the jurisdiction that released them after an ICE detainer; and any arrests, charges, or convictions thereafter.

Along these lines, one of the memos also instructs departments to “identify and quantify all sources of direct and indirect federal aid or assistance” to Mexico, presumably in an attempt to threaten Mexico into compliance with President Trump’s demands to pay for the Wall. There is also a section in the memos stating that aliens apprehended upon arrival can be returned to the contiguous territory from which they crossed – Canada or Mexico – throughout the removal proceedings. This, of course, impedes their ability to access family, lawyers, and other resources that could prove necessary to the success of their case. Moreover, it is not clear where funding will come from, whether other countries have agreed to cooperate, or how these orders actually will be implemented.