President Trump’s Executive Orders for Immigration institute wide-ranging changes. Beyond the “travel ban” that has garnered most of the focus, President Trump has also made many other changes to the immigration landscape through his executive actions. His actions range from detaining more individuals who are caught crossing the border to broadening the definition of “criminal” for purposes of who will be a priority for deportation as a “criminal alien.”
This particular order stands to have a huge impact on the undocumented population. President Trump is also seeking to implement a wholesale review of all immigration categories and end the Deferred Action for Childhood Arrivals (DACA) program. Ending DACA would affect an estimated 800,000 undocumented immigrants in the United States.
Detention During Border Crossings and Broadening Definition of Criminal
With the issuance of his executive order on detention during border crossings, President Trump has ended the practice of “catch and release.” His order requires Customs and Border Protection (CBP) agents to detain every unauthorized immigrant caught at the border. Trump’s executive order basically leaves CBP agents with only two options, either immediate deportation or detention.
This order will create multiple issues – including logistical and humanitarian issues - by forcing CBP to put a significantly larger number of aliens into detention, which is arguably something that the federal government does not have the resources to do. It also presents a humanitarian issue as individuals caught crossing the border or present within the United States without authorization are detained in private facilities which have been heavily criticized for their conditions.
Every Presidential administration has sought to deport alien criminals, so this concept is not new. However, President Trump intends to greatly widen the net for what is sufficient criminality that will result in deportation.
Per Trump, What is Sufficient Criminality that will Result in Deportation?
First, Trump’s executive order creates an office that advocates for victims of crimes committed by unauthorized aliens and will also publish a report of crimes committed by these aliens.
Secondly, under President Obama, ICE agents focused on aliens that had been convicted of a crime, while President Trump’s enforcement priorities encompass any aliens that have been convicted of, charged with, or have committed acts that constitute a chargeable criminal offense.
Trump’s executive order so greatly broadens the definition of enforcement priorities as to include almost any alien living without authorization in the United States. Included within the “offenses” in the order is any “fraud or willful misrepresentation in connection with an official matter.” This could easily be construed to encompass common unauthorized immigrant actions such as driving without a license.
The new implementation memos released by DHS, make clear that any unauthorized immigrant is now at risk of detention and deportation. Immigration and Customs Enforcement (ICE) has stated that “all of those present in violation of the immigration laws may be subject to immigration arrest, detention, and, if found removable by final [removal] order, removal from the United States.” This is a vast expansion of previous administrations’ focus on criminal aliens. The new implementation memos put even entirely law-abiding and contributing undocumented aliens at risk for deportation.
Third, Trump is restarting the Secure Communities program that was ended under the Obama administration. The program checks local jail rosters and automatically compares them to immigration databases to find unauthorized immigrants. Once a match is made, ICE agents will ask local officials to hand over the immigrant for deportation. This means that any immigrant that has been caught up in the criminal justice system, even without a conviction would be considered a “criminal” and be subject to deportation.
Massive Expansion of Border Security and Deportation Efforts
The Secretary of Homeland Security, John Kelly, has issued new directives which make clear that the Federal Government will seek to massively expand the workforce of U.S. Customs and Border Protection (CBP). The Commissioner of CBP has been ordered to hire an additional 5,000 Border Patrol Agents as well as 500 Air & Marine Agents/Officers. Further, DHS will expand the number of detention facilities under its control in order to house thousands of individuals that will be caught up in these wide-ranging changes.
In addition, Mr. Kelly has ordered DHS and CBP to enter into agreements under Section 287(g) of the INA with local law enforcement. This means that local police will be asked to assist in the arrest and removal of aliens. Where 287(g) agreements are in place, there is a risk that local law enforcement will discriminate against individuals based on their race or language. 287(g) agreements are not a new policy – these agreements have been in place in 38 areas as reported by the Houston Chronicle.
Also, the Trump administration is expanding the use of “expedited removal,” a process which allows DHS to physically remove a non-citizen from the country without any hearing or other due process rights. Previously, expedited removal was used only for immigrants that were arrested within 100 miles of the border and who had been in the country no more than 14 days. Under the Trump executive orders, expedited removal will be expanded to include any alien who has been in the country for under two years.
To further reduce unauthorized border crossings, DHS will also seek to prosecute or deport parents of children who are smuggled into the country. This means that ICE will continue to process (as opposed to deport) unaccompanied alien children, but will now seek to target the parents of these children for prosecution for smuggling or human trafficking.
Ending DACA and Establishing Limits on Legal Immigration and Work Visas
Two programs enacted by the Obama administration, DACA (Deferred Action for Childhood Arrivals, a program to exercise prosecutorial discretion for individuals who came to the United States as children) and DAPA (Deferred Action for Parental Accountability, a prosecutorial discretion program for people who are parents of U.S. Citizens or Permanent Residents) shall be effectively terminated by President Trump.
The goal of DACA and DAPA was to give certain unauthorized immigrants benefits such as work authorization, access to the Social Security Trust Fund and the Earned Income Tax Credit, and reprieve from deportation in two-year increments.
The DACA program was announced in 2012 and has been in effect since then. Trump’s Executive Order keeps the Employment Authorization Documents (EAD) that had been issued to DACA applicants under the Obama administration but ceases the issuance of any new EADs. This means that unauthorized immigrants who qualify for DACA will not be allowed to renew their work authorizations, and once their EADs run out, they will no longer be able to apply for employment authorization under the program. Also, no advance parole will be granted to these individuals, meaning that if they leave the country they will not have authorization to be allowed back in.
The DAPA program, unlike DACA, was never implemented. After President Obama announced the creation of the program in November 2014, several states sued to stop its implementation. In the end, the government was enjoined from implementing the program. The termination of DAPA seems to be a move to ensure that there will be no future litigation to declare DAPA as constitutional
Besides termination of DACA and DAPA, President Trump is also focused on eliminating any unlawful unemployment of aliens and purports to prioritize “the interests of American workers.” He seeks to limit visa programs that harm the “national interest” and the jobs and wages of U.S. workers.
First, he has ordered DHS to review all regulations that allow foreign nationals to work in the United States, and determine if any of the regulations violate the immigration laws or are not in the national interest. Second, the Order greatly restricts the use of Parole and terminates all existing parole policies, guidance, and programs that do not protect U.S. workers or are not in the national interest.
The Order also demands that the Secretaries propose regulations that restore the integrity of employment-based nonimmigrant worker programs and make the process for allocating H-1B visas more efficient. This is a broad and somewhat vague request. In addition, the Secretary of Labor shall investigate the extent of injury caused by foreign workers on U.S. workers and shall issue a report within 18 months. Beyond that, the Secretary shall also provide a report within nine (9) months on actual or potential injury to U.S. workers caused by H-1B, L-1, and B-1 visa workers.
Before the Executive Order was issued, USCIS already had a Fraud Detection and National Security Unit tasked with verifying that employers and employees complied with the terms of work visa petitions. The H-1B application process already had a requirement that all employees at an H-1B worker’s worksite be notified of procedures to complain to the Department of Labor if wage and hour violations were occurring, but no such requirement exists for the L-1 and B-1 visas.
ICE has always had the ability to review employers’ documentation for compliance with employment verification. In other words, ICE had the ability to audit and inspect employers’ records to determine if it they employ unauthorized workers. It is unclear at this time what mechanisms will be used to track actual or potential injuries to U.S. workers (and what might constitute an actual or potential injury).
Increased Risks for Undocumented Persons
In summary, these executive orders seek to broaden the range of people who are considered immigration enforcement priorities, broaden the circumstances in which CBP uses expedited removal, end the DACA and DAPA programs, and aim to have additional scrutiny of employers employing individuals on work visas. Anyone in the United States without status has always been at risk of deportation.
These order aim to ramp up enforcement efforts but leave questions of how specifically to implement these efforts and how to pay for the required facilities and personnel that will be needed. Beyond the focus on undocumented persons, these executive actions signal the Trump administration’s hostility toward even legal immigration and seek to increase scrutiny on work visa programs.
The Law Office of Kathryn N. Karam PC will continue to monitor the Trump administration’s announcements regarding new policies and continue to post blogs as new information is issued. Click "subscribe" at the top of this page to receive the next blog straight to your inbox. Also, if you would like to schedule a consultation with the Law Ofice of Kathryn N. Karam PC, please click this button: