During the week beginning on January 22, the current president Donald Trump issued three Executive Orders (“EOs”) having a direct impact on various aspects of the US immigration system. This is the first of three updates attempting to summarize the substance of these orders.
We expect the constitutionality of substantial portions of these orders to be challenged in the courts, and will be posting new blog articles detailing further developments rather than trying to update existing posts on aspects of these actions. Please check our blog page for further updates.
The first two of these executive orders were issued on January 25, 2017, with another issued two days later on the 29th. The first of the two January 25 Orders was entitled “Border Security and Immigration Enforcement Improvements” and relies for authority on the Immigration and Nationality Act of 1952, as well as the Secure Fence Act of 2006 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (often referred to as “IRAIRA”).
The “Border Security and Immigration Enforcement Improvements” Executive Order provides for the following:
The signature point of this EO is authorization of Trump’s promised border wall.
Mandates detention – arrest and holding in prison-like detention facilities – of everyone crossing at the southern border (even if no other offense was committed and all individuals in removal proceedings even if no final order determines them to be removable). Formerly, some individuals were issued paperwork for removal proceedings and allowed to go free – this was known as “Catch and Release,” a program already cut back in 2005/2006 under the Bush administration (Mexican Nationals would now undergo “Expedited Removal and immediately returned, everyone else was subject to detention with some still released).
Authorizes criminal prosecution of “unlawful entry” to the US, a misdemeanor under 8 USC §1325 absent prior unlawful entry or prior removal, which would elevate the crime to a felony.
Mandates construction of additional detention facilities near the southern border.
Significantly expands “expedited removal,” which allows for immediate removal from the US of an individual (essentially a form of “mini-deportation” at the discretion of immigration officers without a judicial determination, with a five-year bar to reentry instead of the normal ten-year bar). Where expedited removal currently only applies at the border or within 100 miles of the border, and only to people who have entered within the last 14 days, this EO expands this to anywhere in the country and to anyone who can’t prove that they have been in the US for at least two years.
Imposes restrictions on the use of Parole, a means by which individuals may be admitted absent citizenship, permanent residence or a non-immigrant visa. It is unclear exactly how limited parole admission will be – the EO indicates that the Secretary of Homeland Security take action to ensure that parole and asylum are not used to prevent removal of “otherwise excludable aliens” and “to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.” We don’t know if this impacts the widely-used parole issued to those with a pending Adjustment of Status application – ordinarily the last stage of a permanent residence process – or whether it supersedes judicial decisions allowing parole reentry even where an individual issued parole (such as under Temporary Protected Status, DACA, or various other programs where the individual may have no other underlying non-immigrant status).
The Executive Order appears to contemplate returning individuals entering unlawfully from Canada and Mexico to their home country pending removal proceedings, and incarcerating them there/holding legal proceedings in those home countries. It is completely unclear how this would work, whether their home country would be willing to detain them having normally committed no crime in that home country, or whether the home country would allow operation of US judicial proceedings on their soil.
Directs hiring of 5,000 additional Border Control Agents by Customs and Border Protection (CBP), though gives no timeframe for doing this nor source of funding.
Reporting is mandated, both to the President on progress within 180 days of the order and to the general public on apprehensions near the southern border.
Reporting to the President on foreign aid to Mexico is also mandated here.