-Last updated Thursday, February 22, 2017
The President signed two Executive Orders (EO) on Wednesday, January 25, 2017 relating to border security and enforcement of the immigration laws in the interior of the United States. On February 21, 2017, Secretary of the Department of Homeland Security, John Kelly, issued two memoranda, one on interior enforcement and one on border security, providing further direction on the implementation of the Executive Orders.
What are the key objectives of the Executive Orders relating to border security and interior enforcement?
The Executive Orders (EO) became effective as of the date of signing – January 25, 2017. Among the EOs’ key objectives are the following:
- The construction of a physical wall on the southern border.
- The construction of detention facilities along the border with Mexico, and the assignment of asylum officers and immigration judges to expeditiously process applications for asylum or other forms of relief from removal.
- Expansion of detention for those apprehended upon entry to the United States.
- Expansion of the use of expedited removal to undocumented persons in the United States who cannot establish two years of physical presence since entry.
- Enforcement of immigration laws against those individuals who – directly or indirectly – facilitate the smuggling or trafficking of children into the United States.
- Proposed changes to the processing of cases involving unaccompanied alien children.
- Expansion of immigration enforcement to include almost anyone who is subject to removal from the United States.
- Notification that localities that “willfully refuse to comply” with certain Federal laws (sanctuary jurisdictions) will not be eligible to receive Federal grants, and face possible federal lawsuits.
- The publication of a comprehensive list of criminal actions committed by noncitizens and of localities that failed to honor detainer requests made by Immigration and Customs Enforcement (ICE) regarding these noncitizens.
- The termination of the Priority Enforcement Program (PEP) and the reinstatement of the Secure Communities program to deputize state and local law enforcement agencies to enforce federal immigration laws.
- Mandating DHS to take immediate action to engage with the Governors of States and local officials to enter into collaborative programs, empowering State and local law enforcement agencies to perform the functions of an immigration officer.
- The hiring of 10,000 additional ICE officers and 5,000 additional CBP officers.
- Sanctioning countries that fail to assist in their citizens’ removal from the U.S. after issuance of final removal order.
- A requirement that the Department of Homeland Security (DHS) promulgate, as soon as practicable, regulations on the assessment and collection of all fines and penalties from unauthorized individuals and from those who facilitate their presence.
- Creation of an office for victims of crimes committed by individuals who are removable.
- The exclusion of persons who are not U.S. citizens or lawful permanent residents from the protections of the Privacy Act, regarding personally identifiable information.
How will these Executive Orders be implemented?
As noted above, DHS Secretary John Kelly signed two Memoranda on February 21, 2017. These memoranda explain the plan for enforcing the President’s Executive Orders in the interior of the United States and at the border. The memoranda provide details on the Department’s plans to hire thousands of additional ICE and Customs and Border Protection (CBP) agents, to expand the pool of noncitizens who are priorities for immigration enforcement, to limit prosecutorial discretion in enforcing the laws and to deputize local law enforcement agencies to assist in enforcing the immigration laws of the United States.
Who is considered a removable alien?
Any individual who is subject to the grounds of removal under the Immigration and Nationality Act (INA) is considered a removable alien. It is important to note that grounds of removal may apply to lawful permanent residents (LPR), nonimmigrants who have been issued visas to come to the United States and who have violated the terms of their visas, and persons who entered the United States without permission. They do not apply to United States citizens.
The grounds of removal contained in the INA include, but are not limited to, the following: violations of the terms of nonimmigrant visa status; certain criminal offenses; immigration fraud; security and related grounds; public charge issues; health related grounds, unlawful presence in the United States; illegal entry; and prior deportation.
Which categories of noncitizens are considered an enforcement priority under current policy?
Section 5 of the Executive Order relating to interior enforcement establishes the following priorities for removal of noncitizens from the United States:
- Noncitizens who are subject to the grounds of removal related to crimes, criminal behavior, allegations of terrorism or national security concerns, or misrepresentation of material facts to procure an immigration benefit.
- Noncitizens convicted of any criminal offense.
- Noncitizens charged with any criminal offense where the charge “has not been resolved.”
- Noncitizens who have committed acts that constitute a “chargeable criminal offense.”
- Noncitizens subject to “expedited removal.”
- Noncitizens with final removal orders and who have not departed the United States.
- Noncitizens who have engaged in fraud or willful misrepresentation in connection with an application before a government agency.
- Noncitizens who have abused any government benefit program.
- Noncitizens who are considered a threat to public safety or national security in the judgment of an immigration officer.
It is important to note that the Executive Orders do not and cannot expand who is removable from the United States. That is governed by the Immigration and Nationality Act. Only Congress can change the Immigration and Nationality Act to expand the grounds of removal. The Executive Orders and the memoranda, however, direct which categories of removable noncitizens will be targeted by enforcement actions.
Are there any categories of removable noncitizens that are not considered a priority?
The memos instruct that, while the above-listed individuals are considered priorities for enforcement, the Department of Homeland Security will no longer exempt classes or categories of removable noncitizens from potential enforcement. However, it is important to note that the Memoranda specifically do not rescind the June 15, 2012 memorandum underpinning the Deferred Action for Childhood Arrivals (DACA) program. This means that the DACA program remains in effect.
While it appears from the Executive Orders that everyone who is removable under current law is at risk of being placed into removal proceedings or removed, they charge DHS personnel with prioritizing the removal of noncitizens with certain criminal convictions or who have committed certain criminal offenses, noncitizens involved in immigration fraud, and matters related to security and related removability grounds.
In addition, DHS Secretary Kelly makes clear that agency personnel must prioritize removable noncitizens who:
- Have been convicted of any criminal offense.
- Have been charged with any criminal offense that has not been resolved.
- Have committed acts which constitute a chargeable criminal offense.
- Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency.
- Have abused any problem related to receipt of public benefit.
- Are subject to a final order of removal and have not departed from the United States regardless of the date of the final order.
- Pose a risk to public safety or national security, in the judgment of an immigration officer.
Neither the Executive Orders nor the implementing memoranda provide any specific criteria or guidance on how ICE agents will determine whether certain acts constitute a chargeable criminal offense or whether a noncitizen poses a risk to public safety or national security. There is also no explanation of what constitutes an abuse of a government benefit program.
A noncitizen who has been arrested and charged with any criminal offense should speak with an immigration attorney to determine the effect of the Executive Orders and the implementing memoranda in his or her particular case.
Can a noncitizen with no prior record be an enforcement priority?
Any removable noncitizen who has committed any act which constitutes a crime is considered a priority. For example, illegal entry into the United States is a crime under law. Thus, all noncitizens who entered the United States illegally -- even if they have had no contact with criminal law enforcement – may now be considered an enforcement priority for ICE.
Is an individual who simply overstays his or her nonimmigrant visa subject to removal?
Yes. Anyone who is subject to removal under the grounds laid out in the Immigration and Nationality Act may be placed into removal proceedings. The Executive Orders and implementing memoranda have not changed this. Under the Immigration and Nationality Act, noncitizens who fail to maintain their nonimmigrant status in which they were admitted are subject to removal. This may include those who work without the appropriate authorization, students who do not comply with the terms of their student visa, or visitors who overstay.
Are noncitizens with traffic violations considered a priority?
It depends. Some jurisdictions make certain traffic offenses – such as driving without a license – a criminal offense. If a removable noncitizen is convicted of a traffic-related matter in a jurisdiction that criminalizes traffic offenses, they may be considered a priority for removal.
However, it is important to remember that individuals who are permanent residents or who hold another valid status, such as asylum status, refugee status, or Temporary Protected Status, cannot be subject to removal unless the Immigration and Nationality Act authorizes it. In most cases, a traffic offense will not subject an individual who holds a valid status to removal because the law does not authorize it.
Are noncitizens with pending criminal matters considered a priority?
Yes. It is clear from both the Executive Orders and the implementing memoranda that removable noncitizens with pending criminal cases are prioritized for removal from the United States. It is important to note that ICE will not postpone removal proceedings to permit a noncitizen to resolve the criminal matter prior to completion of removal proceedings.
Again, not all noncitizens with pending criminal cases are subject to removal under the law. Individuals who are permanent residents or who hold another valid status, such as asylum status, refugee status, or Temporary Protected Status, cannot be subject to removal unless the statute authorizes it. In many cases, a pending criminal matter will not subject an individual who holds a valid status to removal because the law does not authorize it.
How will state and local law enforcement agencies enforce the immigration priorities established in the Executive Orders?
Under Section 287(g) of the Immigration and Nationality Act, DHS may deputize state and local law enforcement agencies to perform certain functions of ICE agents. Similar to ICE agents, these officers will have access to federal immigration databases, will have authority to interrogate and arrest noncitizens believed to have violated federal immigration laws, and may lodge detainers against noncitizens in state and local criminal custody.
The Secure Communities program was created pursuant to INA 287(g) in 2004 to identify and prioritize noncitizens with criminal convictions for deportation. It drew considerable criticism as deportations under the Obama Administration increased. Local authorities increasingly opposed the program by refusing to detain and hold noncitizens with low-level infractions.
Secure Communities remained in effect until November 2014 when President Barack Obama replaced it with the Priority Enforcement Program (PEP). While DHS continued to check fingerprints of noncitizens arrested and charged with crimes, the agency focused its resources on serious criminals and those who posed a threat to public safety under PEP. The Priority Enforcement Program has now been rescinded. DHS will reinstate the Secure Communities program to identity and remove individuals in state and local custody and to work with law enforcement agencies to identity and arrest those considered to be enforcement priorities.
How does Secure Communities work when a noncitizen is arrested?
When a person is booked into a jail, authorities send their fingerprints to the Federal Bureau of Investigation (FBI) to be checked against criminal databases. Under Secure Communities, the FBI will also send the fingerprints to ICE, where they will be checked against the U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT) and the Automated Biometric Identification System (IDENT). If the arrested noncitizen is matched to a record indicating a potential immigration violation, ICE and local law-enforcement authorities will be notified. ICE then evaluates each case to determine the individual’s immigration status and whether any action is necessary or appropriate based on agency priorities. If the person is considered a priority, ICE will issue a detainer against the jailed individual. A detainer is a request from ICE to the law enforcement agency that conducted the arrest to notify ICE before it releases the jailed individual.
Is it realistic to think that ICE can arrest, detain and remove all enforcement priorities as listed in the Executive Orders?
Given current resources, no. However, the Executive Orders authorize the hiring of 10,000 additional ICE agents and 5,000 additional CBP agents. The implementing memorandum also note that “additional operational and mission support and legal staff” will be hired to support the agents’ activities. The Executive Orders almost double the current number of ICE agents, which will likely require increased Congressional funding. Security clearances – which take significant time – must be done for all new hires. Finally, the agents and other personnel have to be trained properly before assuming their duties. Thus, it may take some time for the Executive Orders to be fully implemented.
It is also important to remember that individuals who are apprehended by ICE are entitled to a hearing before an immigration judge. Given current court backlogs, it can take years before a hearing on the merits of a particular case is scheduled. An increase in enforcement may simply lead to an increase in waiting time for a hearing, if there is no corresponding increase in the number of immigration judges.
Given current ICE resources, who is most at risk for immigration enforcement under the Executive Orders and the implementing memoranda?
Given current resources and practices, the following individuals are at greatest risk of immigration enforcement in the short term:
- Noncitizens with criminal matters: Removable noncitizens who are arrested, charged and fingerprinted by a law enforcement agency for a criminal offense and who reside in states or localities who are cooperating with ICE under the Secure Communities program.
- Noncitizens with prior deportation orders: Noncitizens with prior deportation orders and who are required to report to ICE under an Order of Supervision.
- Collaterals: Undocumented or out of status noncitizens who live and/or work with high priority targets are also at risk. While they may not be at the top of the list for removal, ICE may detain anyone who is subject to removal under the Immigration and Nationality Act if and when encountered.
Are undocumented parents whose unaccompanied children come to the United States to join them at risk of heightened immigration enforcement or criminal penalties?
They may be. Under current law, anyone who assists in the illegal entry of another person into the United States may face criminal penalties. The Department of Homeland Security has stated in its FAQ on border enforcement that it will ensure the proper enforcement of the immigration laws against removable parents or guardians by placing them in removal proceedings, or referring them for criminal prosecution, where appropriate.
Can the Department of Homeland Security (DHS) exercise prosecutorial discretion and decide not to institute proceedings against a person who is considered a priority?
Both the Executive Order and the implementing memoranda clearly state that categories or classes of removable noncitizens will not be exempt from immigration laws of the United States, with the exception of DACA recipients. Anyone suspected of being in violation of the immigration laws may be arrested and detained. Anyone subject to removal under the Immigration and Nationality Act who is encountered by ICE may be placed in removal proceedings. Thus, all removable noncitizens may be subject to immigration enforcement, if they happen to be encountered by ICE.
The implementing memorandum relating to enforcement in the interior does note, however, that the exercise of prosecutorial discretion with regard to any noncitizen subject to arrest, criminal prosecution or removal shall be made on a case-by-case basis. Thus, prosecutorial discretion will continue, albeit in a far more limited manner than under the Obama Administration.
Do noncitizens face greater risk of enforcement based on where they live?
Yes. Noncitizens who reside in states and localities that are part of the Secure Communities program are most at risk. When state or local law enforcement wish to partner with the Department of Homeland Security, they must sign a Memorandum of Understanding (MOU) with the state or local subdivision for which they work. Once the agreement is signed, agency personnel will receive training on how to access databases, complete immigration forms, and otherwise carry out functions of immigration agents.
As of 2015, ICE had 38 agreements under INA 287(g) with law enforcement agencies in 16 states. https://www.ice.gov/factsheets/287g It is anticipated that the Administration will move quickly to reinstate procedures under Secure Communities to sign as many agreements as possible with local law enforcement.
States, cities and other localities which hold themselves out to be sanctuary jurisdictions may provide greater protection for undocumented and out of status noncitizens who are subject to removal as per the Executive Orders and the implementing memoranda. At a minimum, law enforcement agencies in sanctuary jurisdictions will not enforce immigration laws on behalf of the federal authorities. However, they have limited tools to stop enforcement efforts by Immigration and Customs Enforcement within their jurisdictions.
What are sanctuary jurisdictions?
There is no universal definition of sanctuary. Sanctuary policies generally mean that local officials do not ask about an individual’s immigration status. Sanctuary jurisdictions limit how much their local police cooperate with federal authorities to hold noncitizens in detention. While there is no exact calculation of the number of sanctuary jurisdictions in the United States, at least five states have laws that limit how much their police authorities can cooperate with the immigration authorities. There are at least 633 counties throughout the United States that have similar policies.
What is the status of sanctuary jurisdictions in the Executive Orders?
The Executive Orders confirm the policy of the Executive Branch to ensure that States and their political subdivisions shall comply with 8 USC 1373 which provides that “…a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, or any individual.” According to the Executive Orders, jurisdictions that refuse to comply with 8 USC 1373 will not be eligible to receive Federal grants, with the exception of those needed for law enforcement purposes.
There are strong arguments that such a policy is unconstitutional and many sanctuary jurisdictions have indicated that they are prepared to litigate this issue in court.
Do the Executive Orders and implementing memoranda affect the privacy rights of noncitizens?
Yes. The Executive Order mandates that agencies shall ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents. Under previous policy, the Department of Homeland Security treated all personal information contained in its databases as being subject to the Privacy Act regardless of an individual’s immigration status. As per the Executive Order, that policy will be rescinded.
The Privacy Act governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in a group of records by federal agencies. The Privacy Act prohibits the disclosure of an individual’s record unless the individual consents in writing or the disclosure is permitted by a statutory exception. This particular protection will no longer be afforded to persons who are not United States citizens or lawful permanent residents.
What rights do noncitizens have if apprehended by ICE?
Every person in the United States has certain rights regardless of his or her immigration status, including the following:
- Noncitizens have the right to remain silent if ICE or the police show up at their homes or their places of work.
- Noncitizens have the right to see a warrant issued by a judge before they permit ICE to enter their homes. A judicial warrant must be signed by a judge and have the noncitizen’s specific address on it. If the officers have a warrant, noncitizens should ask that it be slipped underneath the door or shown through a window. If the officers have an administrative warrant, they must have the individual’s consent to enter.
- Noncitizens have the right to speak to a lawyer and ask for a phone call if they are detained. However, unlike in criminal proceedings, the government will not provide them with a lawyer.
- In many cases, noncitizens have the right to a hearing before an immigration judge prior to deportation. Noncitizens should not sign anything without first speaking with a lawyer.
Noncitizens in the United States who do not have a prior order of deportation generally have a right to appear before an Immigration Judge in removal proceedings. If they are eligible for relief from removal through asylum, cancellation of removal or other avenues, they will have a chance to present their request at a full hearing before an immigration judge. If they have not been convicted of certain offenses and are otherwise eligible, they will have the right to seek bond and be released pending the final outcome in their removal proceedings.
Can these policies be challenged?
In some cases, yes. Many of the policies will not be implemented immediately, as they will need Congress to fund them. Some other policies, such as the proposed expansion of expedited removal, will require a change to current regulations. Many of these policies are also likely to be challenged in court.
For individual advice or to know how these Executive Orders and Memoranda may impact you, we advise that you consult with an immigration attorney. Any noncitizen who has been arrested, charged and/or committed any crime should immediately speak with an immigration attorney to determine the effect of these orders and memoranda on their status.