By Sharon Barney, Esq.
On January 25, 2017, President Trump signed two Executive Orders related to immigration law and policy.
Border Security Executive Order
The first Executive Order, entitled “Border Security and Immigration Enforcement Improvements” (“Border Security Executive Order”), clarified the policies of the Executive Branch regarding security along the southern border of the United States. It specifically directs the new Department of Homeland Security (“DHS”) Secretary, John Kelly; the Attorney General, currently Acting Attorney General Sally Yates; and the new Secretary of the Department of State, Rex Tillerson, to implement its directives.
The Border Security Executive Order directs the DHS Secretary to do the following:
- Take “immediate” steps to “plan, design, and construct a physical wall along the southern border” and to identify and “allocate all sources of Federal funds” towards this end. The Executive Branch has the authority to direct its administrative agencies to allocate already appropriated federal funds, but it is expected that Congress will need to allocate additional funds toward completing the plan.
- Produce a comprehensive study on the current state of the southern border within 180 days.
- Coordinate with the Secretary of the Interior to enable all officers and employees of the United States to have access to “all Federal lands” to accomplish this order.
- Take appropriate action to immediately establish contracts to “construct, operate, or control facilities to detain aliens at or near the land border with Mexico.”
- Assign additional asylum officers to detention facilities to accept asylum referrals and conduct credible fear determinations. The Attorney General is directed to immediately assign additional immigration judges to these detention facilities.
- End the “catch and release” program for those who have been apprehended at the southern border, and ensure the detention of such aliens.
- Return aliens from which they came pending a formal removal proceeding.
- Hire 5,000 additional Border Patrol agents. The President had issued a Presidential Memorandum on January 23, 2017 entitled “Presidential Memorandum Regarding the Hiring Freeze,” which directed that “no vacant positions existing at noon on January 22, 2017, may be filled” and “no new positions may be created, except in limited circumstances.”
- Engage with the Governors of States and local officials to “empower State and local law enforcement agencies across the country to perform the functions of an immigration officer” in relation to “the investigation, apprehension, or detention of aliens in the United States.”
Additionally, the heads of executive departments and agencies were directed to quantify “all sources of direct and indirect Federal aid and assistance to the Government of Mexico on an annual basis over the past five years.” Finally, the Attorney General was directed to establish prosecution guidelines and allocate resources to “accord a high priority to prosecutions of offenses having a nexus to the southern border.”
Interior Enforcement Executive Order
The second Executive Order signed yesterday by the President, “Enhancing Public Safety in the Interior of the United States” (“Interior Enforcement Executive Order”), provides additional directives regarding enforcement priorities for those within the United States and “sanctuary cities.”
The Interior Enforcement Executive Order replaces the current enforcement priorities outlined in the Priorities Enforcement Program (“PEP”) DHS memo that was issued by the previous DHS Secretary, Jeh Johnson, on November 20, 2014. The new Executive Order indicates that the current DHS Secretary will prioritize as removable 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 the United States; or
- Pose a risk to public safety or national security, based on the judgment of an immigration officer.
In addition to setting enforcement priorities, the Interior Enforcement Executive Order also directs the DHS Secretary to institute fines and penalties against those unlawfully present, hire 10,000 more U.S. Immigration and Customs Enforcement (“ICE”) officers, and institute an office within ICE to provide services to victims and their family members of crimes that were committed by deportable aliens.
The Interior Enforcement Executive Order also provides guidance on sanctuary jurisdictions, also known as “sanctuary cities.” It indicates that those jurisdictions that have been designated to be a sanctuary jurisdiction by the DHS Secretary are “not eligible to receive Federal grants.” It further directs the Attorney General to take “appropriate enforcement action” against any entity that “prevents or hinders” the enforcement of Federal law.
Additional Executive Orders related to immigration law and policy are expected to be released soon and will be provided in a future alert.
Sharon Barney is Counsel in the Immigration and Family Law Practice Groups. She is based in the State College, Pennsylvania office and has experience counseling companies and individuals on navigating the landscape of immigration laws, regulations, and policies. Should you have any questions regarding the changing immigration policies and how they affect you, she can be reached at 814-954-5904 or at firstname.lastname@example.org.
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