The second of the three Executive Orders signed by Trump in his first week – like the first signed on January 25 – is titled “Enhancing Public Safety in the Interior of the United States” and dealt, as the name suggests, primarily with interior enforcement.
Included in this EO:
Alteration of federal interior enforcement policies with regard to immigration to specify that any removable individual (running contrary to the Obama policy of pursuing those with a criminal background first, and effectively making removal of “criminal aliens” less of a priority for pursuit and arrest).
While the order seeks to broaden interior enforcement as described above, once an individual is in immigration proceedings this EO seeks to make those not only convicted of a criminal offense, but those charged with or even suspected of having committed the elements of a criminal offense priorities for actual removal from the US. Also among the priorities for removal: those who have committed any kind of immigration fraud, those already subject to a final removal order, those who pose a risk to public safety or national security (this is left to the discretion of the immigration officer rather than a qualified judge), and those unfortunate enough to have received public benefits – even those few to which the undocumented have previously been entitled such as certain healthcare and child health benefits.
Declares that the federal government “make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States.” It is unclear what this means or if it applies to specific systems – such as cross-referencing IRS systems to target the undocumented who have faithfully been paying taxes or the systems tracking individuals brought here unlawfully as children who made the effort to obtain lawful permission to be here by applying under the Obama “Deferred Action for Childhood Arrivals” (“DACA”) program.
Requires the Department of Homeland Security to collect penalties/fines from unauthorized people or entities that “facilitate the presence” of undocumented immigrants – this may apply to charities helping immigrants or even in theory attorneys, though this is unclear…as is the constitutionality of so much of the executive orders.
Directs issuance of regulations and guidance to assess and collect fines (“civil penalties”) from those who “from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.” It isn’t clear what these fines would be, how they would be assessed (based upon time spent unlawfully in the US? Per entry?) or what “facilitating their presence” means.
Directs hiring of 10,000 additional Enforcement and Removal Officers, though gives no time frame for doing this nor source of funding.
Return of 287(g) programs – These federal-state cooperation programs allow local law enforcement to perform federal immigration functions, but had been limited in scope under the Obama administration with the focus again being on identifying terrorist or violent criminal threats among those already incarcerated. The later, misleadingly named “Secure Communities” program automatically sent biometrics (fingerprints) taken locally to Immigration and Customs Enforcement, reducing any benefit of 287(g) programs…yet this EO directs the Attorney General to seek to expand 287(g) agreements with states. Most states have realized that this tends to decrease community trust and cooperation with local law enforcement and leads to instances of racial profiling, so it remains to be seen how many takers there will be when the Secretary makes overtures.
Attempt to thwart so-called “Sanctuary Cities” – referring to local jurisdictions (cities, towns, villages, etc.) that take certain steps to protect undocumented residents such as not permitting local law enforcement to ask about immigration status, not restricting access to city services, and refuse to honor “detainers” – requests from federal government officials to hold on to individuals without valid status taken into custody locally until Immigration and Customs Enforcement officials can take custody. The EO gives the Secretary of DHS authority to designate a city as a Sanctuary City, requests reporting on all federal grant money given to such cities, and attempts to shame such cities into submission by requiring the release of reports on declined detainers and on crime committed by undocumented individuals in the jurisdiction.
This EO relies solely on Section 212(f) of the Immigration and Nationality Act (INA) of 1952, which gives the President a very general and undefined “authority to suspend the entry of any class of aliens the president deems detrimental to the national interest.”
Whether this order is in fact constitutional is a separate question that we expect to be heavily litigated, and so decided by the courts. We remind the reader to check our blog page for more recent developments.