By now, nearly every news outlet is reporting that newly-inaugurated President Trump has signed three (3) Executive Orders/ Actions this week. While the headline-grabbing and infamous border wall is an easy lead-off for the 5:00 news, the Executive Orders/ Actions had widespread impact on removal actions and priorities, especially along the Southern border of the United States, and admission of Muslims from around the world.
What Is an Executive Order?
Before we delve into the newly-penned orders, let’s begin with a fantastic overview of what they are and are not. Our friends and colleagues at Robert Reeves Law Group in Los Angeles put together a great summary:
Are you back? OK then, let’s proceed with the task at hand. Here is our initial breakdown of the Executive Orders. Many of the provisions will likely be subjected to judicial review as federal lawsuits are filed; but for now, these orders are new “law.”
Executive Order/ Action #1 – Enhancing Public Safety in the Interior of the United States:
The first of the executive orders/ actions targets those within the United States. The key points are:
- Removal of federal grants and most funding to any cities deemed “sanctuary cities.”
- Creation of a program to provide support to victims (and their families) of crimes committed by those unlawfully in the United States.
- Enhanced action to remove those who are deemed inadmissible under INA section 212(a)(2) [criminal grounds]; 212(a)(3) [security grounds]; 212(a)(6)(c) [fraud or misrepresentation]; 235 [those eligible for expedited removal]; 237(a)(2) [those convicted of crimes of moral turpitude, or an aggravated felony]; and 237(a)(4) [security grounds].
- Removal of those convicted of any criminal offense in the United States; charged with a criminal offense; or those who have completed acts that are criminal, even if not charged or convicted.
- Removal of anyone who has committed fraud or material misrepresentation to obtain any public benefit.
- Removal of anyone who otherwise poses a risk to public safety or national security.
- A mandate to levy and collect fines from anyone in the United States without authorization.
- Termination of the Priority Enforcement Program.
- Levy of sanctions against any countries who refuse to repatriate and accept its citizens who have been ordered removed.
Executive Order/ Action #2 – Border Security and Immigration Enforcement Improvements:
The second executive order/ action focuses on matters related to the Southern Border of the United States. Specifically, this order mandates the following:
- Construction of the border wall along the entirety of the US-Mexico border.
- Detention of anyone apprehended along the US-Mexico border.
- Prompt removal of those ordered removed from the United States by any immigration official.
- Increase in the construction of detention facilities along the US-Mexico border.
- Assignment of asylum officers to the US-Mexico border to promptly evaluate and adjudicate “credible fear” interviews of those seeking political asylum.
- Increase in available US Border Patrol officers.
- Decrease in or elimination of parole of asylees at the ports, mandating that they remain in custody pending asylum hearings.
- Increase in criminal prosecution of anyone who has committed any offense that has a nexus to the US-Mexico border.
Executive Order #3 – Protecting the Nation from Foreign Terrorist Entry Into the United States:
The third Executive Order/ Action was signed by President Trump on January 27, 2017, and targets those from predominantly Muslim counties. However, some of the provisions have effects that span far wider than these targeted countries.
Specifically, this order requires the following:
- 90-day ban on any entry (including immigrant and nonimmigrant) by those individuals who are from 7 designated countries: Iraq, Iran, Syria, Somalia, Libya, Sudan and Yemen. Clarifications from DHS on January 28th confirm that anyone from these counties who holds a nonimmigrant visa will be allowed to withdraw request for admission to the US, and denied US entry; those who refuse will be placed into expedited removal proceedings. Those who hold a ‘greencard’ and are from one of these countries may also be refused US admission.* Finally, anyone who is a dual citizen of one of these countries may be refused admission despite holding a passport from a non-designated country.
- Places a 120-day ban on the admission of any refugees into the United States, and an ongoing reduction of admitted refugees by more than 50%.
- Bans the admission of Syrian refugees indefinitely, and until DHS feels comfortable with the vetting process.
- Suspends the program that waives in-person interviews for some individuals who are renewing valid visas. Note that this applies to all worldwide consulates and embassies.
- Expedites the completion of the biometric entry-exit program at all US land, sea and airports.
* This is a quickly-evolving topic, and one that will shift with emergency court filings and stays. Be sure to check our blog or call our office for the most recent positions.
What does this mean for you, your family and your employees?
These executive orders/ actions signal a major shift of immigration policies under the Trump administration. Specifically, interior enforcement will significantly increase; in fact, as early as January 26, 2017, the day after the first 2 orders were signed, reports were coming in across the US that detentions were limited “only by available handcuffs.”
Those caught attempting to unlawfully cross the southern border are likely to find themselves in detention, charged with an expanded definition of a crime, and placed into formal exclusion and expedited removal hearings; this signals the end of the “catch and release” approach, and the pattern of granting voluntary return (VR) to those whose only act was the attempted entry.
Further, those who present themselves at the US-Mexico border for asylum processing will be more expeditiously interviewed and their cases reviewed; and if they are referred for an asylum hearing following a credible fear interview, many will remain in detention until there is a final outcome of their cases.
Reading Between the Lines:
While the focus has naturally been the contents of the orders, equally important were the items and issues that were missing from President Trump’s first Executive Orders/ Actions:
- There was no mention of DACA, or termination of this program. This is particularly surprising given President Trump’s campaign promises to end DACA on his first day in office;
- There was no signal that President Trump will withdraw from the NAFTA provisions, which include the TN employment-based nonimmigrant visas;
- There was nothing proposed to overhaul the current H-1B program, which is most certainly in the crosshairs of Senator Jeff Sessions, the new Attorney General;
- H-4 spousal EADs remain untouched;
- Extended validity of STEM OPT cards was not cancelled or rolled back;
What can you do?
If you, or anyone you know, is taken into custody, it is imperative that you know your potential right to a fair hearing before an Immigration Judge. Our office is highly skilled in removal defense, and has decades of experience within immigration courts; be sure to contact us immediately if you or anyone you know has been detained under the new Executive Orders/ Actions.
Further, it becomes even more important that you maintain any current valid non-immigrant status, and that you fully abide by any and all terms of any admission. Do not allow your current non-immigrant status to lapse, and do everything in your power to fulfill the terms of your issued visa and I-94. Our office is very skilled in a wide variety of non-immigrant issues, and we can assist you with maintaining your status.
Finally, if you do not have to travel outside of the country, it is recommended that you stay put. As we have seen with the final executive order, the actions become effective immediately, blocking US entry for many who were in the air when the order was signed. As there is no way to predict President Trump’s future actions, international travel should be placed onto the back burner for a minimum of 90-120 days while the dust settles and the pathways become more clear.
Please do not hesitate to contact our office at any time. We welcome your calls and emails with any additional questions you may have.