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Update on Immigration-Related Executive Orders

Written by Sujata Ajmera on January 30, 2017

During the week of January 23, 2017, President Donald Trump signed three immigration-related Executive Orders addressing, among other things, the Mexican Border Wall, Interior Security, suspension of the United States Refugee Admissions Program and a ban on entry of immigrant and nonimmigrant visa holders from seven Muslim-majority countries.

Executive Order: Border Security & Immigration Enforcement Improvements

The first of these orders mandates construction of a physical wall along the southern border between the United States and Mexico and an allocation of federal funds to pay for the planning, design and construction of the wall without addressing its long-term financing. The President and his team suggested that a 20 percent tariff on all imports from Mexico would be one possible way to pay for the wall, but it is unclear whether that suggestion will come to fruition. If the President pays for the wall with a tariff, the American consumer would ultimately pay more money for goods imported from Mexico. In this scenario, the costs of construction would still be passed on to the U.S. taxpayer, not Mexico.

The order also calls for the construction of additional detention facilities “at or near the land border with Mexico” and states that additional asylum officers and immigration judges should be allocated to those sites to make credible fear determinations and conduct removal proceedings, respectively. Finally, the order calls for an increase of 5,000 Customs & Border Protection (CBP) agents and a monthly-published report regarding foreign nationals who are apprehended at or near the southern border.

Executive Order: Enhancing Public Safety in the Interior of the United States

The second signed order states that “Sanctuary Cities” across the United States will no longer receive federal funds and calls for the restoration of Secure Communities, a partnership between local law enforcement and Immigration & Customs Enforcement (ICE). Since the release of this order, many cities have reaffirmed their commitment to sanctuary status by stating that they are following all local, state and federal laws and that pulling federal funds is not legally justified. Additionally, these cities maintain that “cooperation” with ICE threatens the relationships they have within their local communities and creates an atmosphere where people are afraid to report crimes. Further, the order puts a financial burden on these cities by forcing them to use their own resources to assist ICE in their effort to enforce federal, not local, laws. However, at least one major metropolis, Miami, that was previously a sanctuary city declared its intent to follow the Executive Order’s sanctuary city ban.

This Executive Order also re-prioritizes deportation enforcement by prioritizing deportation of individuals who have been convicted or charged with any crime. This enforcement mandate is broad and could apply to individuals who commit non-violent offenses (e.g. jaywalking) or even individuals who are wrongly charged and committed no crime at all. To accommodate these increased enforcement efforts, the Executive Order calls for an increase of 10,000 ICE officers, tripling the current number of officers focused on removal issues.

Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals

The third order is the most controversial and includes a temporary suspension of the U.S. Refugee Admissions Program; indefinite suspension of Syrian refugee admission; prioritization of refugee claims on the basis of religion; implementation of an ideological review of applicants prior to entry into the U.S.; suspension of visa interview waiver programs; and a ban on entry of both immigrant and nonimmigrant visa holders from Syria, Iraq, Iran, Yemen, Libya, Sudan, and Somalia. Because of this Executive Order, Strasburger recommends that permanent residents and visa holders who were born in, recently visited, or are nationals of one of these seven countries remain in the United States and not travel internationally until this ban is lifted. 

This third Executive Order was issued at the end of the day on Friday, January 27th, and its immediate ramifications were felt as foreign nationals arrived on flights at airports across the country throughout the weekend. U.S. lawful permanent residents, Canadian citizens, and lawful visa holders were detained at airports and barred from entry. Customs & Border Protection (CBP) interpreted the Executive Order as grounds to deny entry to individuals with approved visas and even permanent residents, who are considered U.S. nationals by virtually every other area of the law.

Immigration attorneys across the nation went to their local airports to assist detained individuals and on Saturday, January 28th, federal judges in New York and Massachusetts granted nationwide stays of removal for individuals with approved refugee status, those with lawful visas, and U.S. lawful permanent residents. The ultimate enforceability of the Executive Order will be adjudicated in the courts, but for now the Department of Homeland Security has confirmed its intent to comply with the court orders. While it appears that U.S. lawful permanent residents will be allowed to enter the U.S., Trump administration officials have issued conflicting statements on whether these individuals were meant to be included in the order. Adopting a better safe than sorry approach, Strasburger recommends that these individuals not travel internationally until their re-entry can be guaranteed.

The implications of these Executive Orders remain to be fully understood. Strasburger will publish further updates as these issues are litigated and interpreted in the courts and enforced by the Department of Homeland Security.