Immigration and firm news

Border Enforcement Executive Order Issued by the President

On January 25, 2017, President Trump issued two Executive Orders on immigration, both of which are focused on enforcement at the border and the interior and address some issues concerning visas and refugees. More Executive Orders are expected to be forthcoming addressing legal immigration and other topics. It is important to note that much of this is political in nature and intended to appeal to his voter base. The orders clearly have their origin from the 79 Stroke of a Pen playbook from the anti-immigration group, Center for Immigration Studies. However, many of the objectives require funding and/or statutory changes that must come from Congress, or require regulatory changes, all of which may or may not happen, and even if they do, may not happen for months or years. Nonetheless, the particulars are scary to many immigrants and their families and employers, not to mention to the immigration lawyer bar. In the case of the Border Security and Enforcement Executive Order described below, we expect to see an increase in apprehensions and detentions at the Southern border right away, even though illegal immigration is at a historic low but for recent surges of people coming from Central America to escape rampant violence and murder. Here is a short summary of the January 25 Executive Order dealing with border security, with some of my own opinions and commentary and some issues raised by the American Immigration Lawyers Association. I have a separate post on the January 25 interior enforcement order.

Executive Order: “Border Security and Immigration Enforcement Improvements”

Purpose and Policy.

  • Purpose: To “direct executive departments and agencies … to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”

The Southern Border Wall

  • US Department of Homeland Security (DHS) is directed to immediately control the southern border by planning, design and construction of a wall, allocating federal funds to build it, projecting long term funding of the wall, and to provide a security study and strategy within 180 days to include “complete operational control” or presumably zero unlawful entries.

Detention Industrial Complex (my words)

  • Directs DHS to immediately construct detention facilities at or near the southern border, presumably private facilities with an estimated 5 new centers from some reports. (See the stock value increases for Corrections Corporation of America and GeoGroup, two of the biggest private detention builders and management companies. Just check out their rising stock prices!)
  • DHS is directed to assign asylum officers to immigration detention facilities to conduct credible and reasonable fear interviews. (If asylum officer funding is not matched, more than likely asylum officers abroad will be detailed back to the USA rather than process refugee applications abroad, considering in the other executive order(s) the President plans to limit refugees coming to the USA anyway.)
  • DHS is directed to assign immigration judges to immigration detention facilities to conduct removal proceedings. (First of all, immigration judges do not work for DHS – they work for the US Department of Justice. Secondly, a previous Executive Order freezes federal hiring, which may mean relocating asylum officers and immigration judges to detention centers rather than hiring more of them, resulting in continued backlogs adjudicating existing asylum applications and even longer backlogs for removal cases already in the immigration court system outside of the detention process. You’ll see later that the goal is mass round ups and putting anyone caught into detention pending the outcome of their case. This will result in a massive detention industrial complex feeding the coffers of the private prison business.

Meanwhile, The Federal government is under a Continuing Resolution concerning the budget until April 28th, so it is unclear if significant funds exist to implement these plans. The direction to build facilities, and assign asylum officers and immigration judges to detention facilities will be of little utility without additional hiring and appropriations, as most asylum officers are already spending much of their time processing Credible Fear Interviews and Reasonable Fear Interviews (pre-asylum assessments for detainees caught at the border or picked up in reinstatement of removal order proceedings). Additionally, DOJ, home of the Immigration Courts or EOIR, has been unable to hire enough immigration judges for years. There is a current backlog of 533,000 cases in the court system thanks to President Obama’s enforcement efforts (the most in history so far). Thus, it is unclear whether asylum officers or immigration judges would be deemed exempt from the recently-announced hiring freeze.

Detention for Illegal Entry

  • Directs DHS to apprehend and detain “for violations of immigration law pending the outcome of their removal proceedings or their removal …to the extent permitted by law.” This means anyone encountered to be undocumented because of illegal entry must be detained until their case is resolved.
  • DHS is directed to end “catch and release.”

However, DHS’s detention authority is limited by statute, so this policy may be outside of statutory authority requiring an act of Congress to change. In addition, these provisions are in the “Illegal Entry” section of the Executive Order, which is focused on the southern border, and it references “catch and release,” so it may be intended to be limited to individuals that are apprehended at the border rather than randomly caught in the interior. (But see the summary of the other Executive Order below focusing on interior enforcement.) Also, the “catch and release” policy ended 10 years ago.

Return to Territory

  • DHS must ensure that applicants for admission arriving on land from contiguous territories (eg., Mexico, Canada) are returned to the territory from which they came pending a formal removal proceeding. However, the relevant statute excludes people subject to “expedited removal.” One issue is that if the administration’s intentions are to have this apply to asylum seekers, they would have to end expedited removal for that population and instead issue those individuals Notices To Appear, which starts the immigration court removal proceeding. There are more protections in immigration court proceedings versus expedited removal by a border officer without opportunity to see a judge or appeal.

Additional Border Patrol Agents

  • DHS is directed to hire 5,000 additional Border Patrol agents “as soon as practicable.” Customs and Border Patrol (CBP) was already under mandate to have 21,370 agent but has not been able to meet this requirement since it is up to Congress to allocate funding for these hires.

Foreign Aid Reporting Requirements

  • Directs the head of each executive department and agency to identify and report to DHS within 30 days all Federal aid given to the Government of Mexico for the past five years with DHS to present a consolidated report to the President within 60 days. Presumably, this is aimed at coming up with a way for the President to bill Mexico for the wall. (President Peña announced today as well that Mexico flat out refuses to pay for the wall.)

Federal-State Agreements

  • DHS is instructed to enter into “INA §287(g)” agreements – these are the same ICE-Local Law Enforcement agreements that did not work or were objected to by many local jurisdictions during the last administration.
  • DHS is to authorize state and local law enforcement officials to investigate, apprehend, or detain aliens – through 287(g) agreements, “or otherwise” “to the extent permitted by law, and with the consent of State or local official.”
  • Allows DHS to structure 287(g) agreements in whatever way is most effective for enforcing immigration laws and obtaining operational control over the border for that jurisdiction.

There is some concern that the language of this section – authorizing delegation of federal immigration enforcement authority to state/local actors through 287(g) agreements “or otherwise” may contemplate informal, even verbal delegations of such authority that will lack transparency and accountability.

Parole, Asylum and Removal

  • DHS is to ensure that the parole and asylum provisions of the immigration statute “are not illegally exploited to prevent the removal of otherwise removable aliens.” (Parole is founded in statute and is a legal fiction type of status – not a visa, nor green card, nor citizenship, nor removal, but being in the US with government authority, often for national interest or significant public benefit or humanitarian reasons. All three sub-agencies of DHS – CBP, ICE and USCIS – have parole authority.)
  • DHS is to ensure that referrals to asylum officers and credible/reasonable fear determinations for those in “expedited removal” and “reinstatement of removal” are conducted “in a manner consistent with the plain language of these provisions.”
  • DHS is to use “expedited removal” to the maximum extent permitted by statute: to any individual who has not been “admitted or paroled” who cannot prove s/he has been continuously present in the U.S. for the 2 years prior to being determined inadmissible. Expedited removal means there is no immigration court hearing and the person is immediately sent out of the USA. In other words, the goal is to get more people removed through expedited removal than through the courts where there are more protections.

Current policies restrict the application of expedited removal to non-citizens apprehended at ports of entry or within 100 miles of any U.S. border who cannot prove they have been continuously present for 14 days. This directs the DHS to expand Expedited Removal authority to cover anyone in the nation who entered without inspection within two years. Further, by statute, expedited removal only applies to certain categories of non-citizens: those (1) who lack valid entry documents, (2) who commit fraud or misrepresent a material fact to obtain admission, or (3) who falsely claim U.S. citizenship. That is, expedited removal only applies to those who are inadmissible under two sections of the statute. The Executive Order does not alter these requirements..

  • DHS is to limit its authority to issue humanitarian parole only on a “case by case” basis, in accordance with the “plain language” of the provision, and only when a non-citizen can demonstrate “urgent humanitarian reasons” or “significant public benefit.” These criteria are already in the parole statute. Basically, the President wants this type of parole to be used less often (assuming it has been abused, when, frankly, it is very, very difficult to get already.)

It is unclear whether the parole section is meant to apply to the parole of only of asylum seekers, or whether it could be interpreted more broadly to apply to the parole of adjustment applicants (advance parole for travel while adjustment is pending) or to individuals with Temporary Protected Status (TPS), or even Parole in Place for military families.

  • All DHS personnel must be trained on the unaccompanied children sections of the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA) and the Homeland Security Act of 2002 to ensure that these children “are properly processed, receive appropriate care and placement” while in DHS custody, and when appropriate, “are safely repatriated in accordance with law.”

Authorization to Enter Federal Lands

  • Directs the DHS Secretary, the Secretary of Interior, and any other agency head to:
  • Authorize U.S. officers and employees, and certain State and local employees to have access to Federal lands as is necessary to carry out the Executive Order.
  • Enable the officers and employees to be able to perform actions necessary on Federal lands to carry out the Executive Order

Priority Enforcement

  • Directs the Attorney General to create prosecution guidelines and emphasize that the prosecution of offenses having a nexus to the southern border should be highly prioritized and given the necessary resources.

The Attorney General oversees federal prosecutors who can charge illegal entrants with the crime of illegal entry or illegal re-entry. These type of cases make up the majority of cases nowadays on the federal court criminal docket far surpassing criminal prosecutions of violent criminals or white collar criminals. Thus, these types of cases will continue to clog the federal courts for years.


  • DHS must publicly report the number of non-citizens apprehended at or near the southern border on a monthly basis. Both DHS (within 90 days) and the Attorney General (within 180 days) are required to report to the President on the progress of the directives outlined in the EO.


  • The Office of Personnel and Management will facilitate hiring of personnel to carry out the Executive Order.

It is unclear whether the Administration means that employees necessary to carry out this Executive Order. Will additional Border Patrol officers, asylum officers and immigration judges be exempt from the recently announced hiring freeze? The Administration would likely consider Border Patrol officers exempt as jobs deemed “necessary to meet national security or public safety responsibilities,” but it is less clear if the same would apply to asylum officers and immigration judges.

General Provisions

  • Nothing in this order shall affect the legal authority of any executive department or agency, or the functions of OMB. The Order shall be implemented consistent with applicable law and subject to the availability of appropriations, and it is not intended to create any right or benefit enforceable at law or in equity.