SUMMARY AND QUESTIONS/ANALYSIS OF EXECUTIVE ORDER Enhancing Public Safety in the Interir f the United States January 25, 2017 This dcument will be updated with additinal analysis as mre infrmatin becmes available. A detailed sectin-by-sectin summary and analysis f the rder fllws the executive summary. Greg Chen, gchen@aila.rg Ryce Murray, rmurray@immcuncil.rg Fr questins, please cntact: EXECUTIVE SUMMARY On Wednesday January 25, 2017, President Trump signed an executive rder, Enhancing Public Safety in the Interir f the United States, annuncing a massive expansin in interir enfrcement. The rder defines enfrcement pririties extremely bradly, placing all unauthrized individuals at risk f deprtatin, including families, lng-time residents, and Dreamers. The rder will have devastating cnsequences fr immigrant cmmunities and undermine public safety rather than make ur natin mre secure. The rder cmpels states and lcalities t enfrce federal immigratin laws withut establishing clear prtectins against abusive and discriminatry practices by lcal law enfrcement that may vilate the Cnstitutin r federal law. Finally, the rder revives the cnstitutinally-suspect Secure Cmmunities prgram (which the Department f Hmeland Security (DHS) terminated in 2012), rders DHS t cnsider stripping federal funding frm s-called Sanctuary Cities, and encurages additinal criminal prsecutins f immigrants fr illegal entry. Universalize Enfrcement Pririties: The rder annunces new interir enfrcement pririties that have the effect f making every undcumented immigrant in the United States a pririty fr remval. The pririties are nt ranked and are presented as equally imprtant. Because it includes thse wh merely cmmitted an act that culd be charged as a crime, all thse wh entered withut inspectin becme pririties because illegal entry is a crime under 8 U.S.C. 1325. Likewise, because the rder asserts the psitin that many visa hlders wh verstay r vilate their visas present a threat t natinal security and public safety, DHS culd seek t deprt them under the new pririty f being a risk t public safety r natinal security. Increase Immigratin and Custms Enfrcement (ICE) Resurces: The rder directs DHS t hire an additinal 10,000 ICE fficers t cnduct enfrcement and remval peratins and encurages the expansin f the prblematic 287(g) prgram which empwers state and lcal law enfrcement t act as ICE fficers and enfrce federal immigratin laws. The 287(g) prgram had been reduced significantly under the Obama administratin. Bth the hiring f ICE fficers and the 287(g) expansin will require significant funds frm Cngress t accmplish. ICE Enfrcement and Remval Operatins currently has apprximately 7,000 fficers s this wuld mre than duble that staffing. Even if the funding is apprpriated it will take significant time t hire and train the additinal fficers. AILA Dc. N. 17012506. (Psted 1/27/17)
Punish Sanctuary Jurisdictins: The rder directs the Department f Justice (DOJ) and DHS t ensure that jurisdictins that limit their cperatin with DHS under 8 U.S.C. 1373 are nt eligible t receive Federal grants, except as deemed necessary fr law enfrcement purpses. The rder authrizes DHS t designate jurisdictins as sanctuary jurisdictins, withut prviding any definitin f the term. Nthing in federal law requires lcalities t enfrce federal immigratin laws; 8 U.S.C. 1373 merely addresses the exchange f infrmatin regarding citizenship and immigratin status amng federal, state, and lcal gvernment entities and DHS fficials. The executive rder des nt immediately strip funding frm sanctuary cities. Nr des it make it clear which federal funding surces culd be denied since it exempts funding fr law enfrcement purpses. Any federal effrt t cmpel lcalities t engage in immigratin enfrcement will face strng legal challenges, including claims that mandatry cmpliance vilates the Tenth Amendment f the U.S. Cnstitutin. Increase Immigratin Prsecutins: The rder directs DOJ and DHS t direct adequate funds t criminal prsecutins f freign natinals crssing the brder withut inspectin. Brder prsecutins, hwever, are nthing new and have increased dramatically in the past decade. In curts acrss the Suthwest brder, the federal gvernment has systematically prsecuted unlawful brder crssers fr illegal entry and illegal re-entry in grup hearings that vilate fundamental due prcess. Asylum seekers have been wrngfully prsecuted under this initiative. These prsecutins, ften referred t as Operatin Streamline, were intended t deter brder crssings but instead have clgged up the federal curts and wasted precius gvernment resurces with little evidence that the prgram is achieving its gals. Immigratin-related prsecutins currently represent mre than half f the ttal federal curt dcket mre than all ther federal prsecutins fr drugs, firearms, and fraud cmbined. Revive Secure Cmmunities: The rder reinstates the cntrversial Secure Cmmunities Prgram and terminates the Pririty Enfrcement Prgram (PEP) which DHS created in its place. Secure Cmmunities required lcal law enfrcement t share with DHS infrmatin abut individuals in its custdy and authrized DHS t issue detainers t lcal jails and crrectinal facilities fr the purpse f hlding an individual beynd the scheduled release date and until ICE culd take custdy. In 2014, DHS terminated Secure Cmmunities after it became mired in cntrversy and litigatin due t cnstitutinal cncerns regarding ICE detainers and the racial prfiling it triggered. Several lcalities nw have expressly limited their rles with respect t immigratin enfrcement, including detainer requests, t better prtect their cmmunities and ensure their law enfrcement fficials cmply with the Cnstitutin. Pressure Recalcitrant Cuntries: The rder directs the Secretary f State t ensure that diplmatic effrts and negtiatins with ther cuntries include a requirement that freign states accept the return f their natinals. This prvisin was included t address the difficulties that DHS has deprting sme individuals, particularly thse with certain criminal histries, because the freign state delays the issuance f identity and travel dcuments. These issues have lng been under negtiatin but the rder s requirement that freign states agree t this in the curse f any ther negtiatins culd greatly cmplicate a wide range f bilateral r multilateral agreements. Sec. 1 and 2: Purpse and Plicy SECTION-BY-SECTION AND ANALYSIS The purpse f the EO is t direct executive departments and agencies t emply all lawful means t enfrce the immigratin laws f the United States. The immigratin laws cannt be faithfully executed if we exempt classes r categries f remvable aliens frm ptential AILA Dc. N. 17012506. (Psted 1/27/17) 2
enfrcement. It ntes that many aliens wh illegally enter the U.S. r verstay r vilate the terms f their visas present a significant threat t natinal security and public safety. The plicy f the executive branch is t: Ensure the faithful executin f the INA against all remvable aliens cnsistent with the Cnstitutin. Use all available resurces t ensure the efficient and faithful executin f U.S. immigratin laws. Ensure that jurisdictins wh d nt cmply with federal law d nt receive federal funding unless required by law. Ensure that individuals rdered remved are prmptly remved. Supprt victims f crimes cmmitted by remvable aliens and their families. Sec. 3: Definitins. Where applicable, the terms f the EO are defined under INA 101. Sec. 4: Enfrcement f the Immigratin Laws in the Interir f the United States. Directs agencies t emply all lawful means t ensure faithful executin f immigratin laws against all remvable aliens. Sec. 5: Enfrcement Pririties DHS shall priritize fr remval nncitizens described in 212(a)(2) [criminal and related inadmissibility grunds], 212(a)(3) [security and related inadmissibility grunds], and 212(a)(6)(C) [fraud, misrepresentatin inadmissibility grunds], 235 [expedited remval f inadmissible arriving aliens], and 237(a)(2) [criminal grunds f remval] 237(a)(4) [security and related grunds f remval], as well as remvable aliens wh: Have been cnvicted f any criminal ffense; Have been charged with any criminal ffense, where such charge has nt been reslved; Have cmmitted acts that cnstitute a chargeable criminal ffense; Have engaged in fraud r willful misrepresentatin in cnnectin with any fficial matter r applicatin befre a gvernment agency; Have abused any prgram related t receipt f public benefits; Are subject t a final rder f remval, but have nt departed; r Otherwise pse a risk t public safety r natinal security. Questins and Analysis: While the EO des nt specifically rescind any prir DHS memranda, it directs the Secretary t review existing memranda and prcedures t ensure they are cnsistent with this directive. This raises a questin as t the effective date f the new enfrcement pririties utlined in the EO. Cmmitted acts that cnstitute a chargeable criminal ffense is exceptinally brad and culd include very minr ffenses such as jaywalking, driving withut a license, etc. The pririties as a whle culd include all undcumented immigrants. Thse wh entered withut inspectin culd be cnsidered t have cmmitted the act f illegal entry under INA 275 and bth they and visa vilatrs culd be cnsidered a pririty as a threat t public safety r natinal security, per sectin 1. AILA Dc. N. 17012506. (Psted 1/27/17) 3
Hw will abuse related t public benefits be interpreted? Nte that there is n ranking f the enfrcement pririties. They are presented as equal pririties. Sec. 6: Civil Fines and Penalties Within ne year, issue guidance and prmulgate regulatins t cllect all penalties DHS is authrized t cllect frm unlawfully present nncitizens and thse wh facilitate their presence in the U.S. Questins and Analysis: May refer t INA 275(b) [penalty fr EWI]; INA 274C [penalties fr dcument fraud]; INA 274D [penalty fr failure t depart]; and INA 274A(e)(4) [emplyer sanctins]. Sec. 7: Additinal Enfrcement and Remval Officers Hire 10,000 additinal ICE ERO fficers. Sec. 8: Federal-State Agreements Directs DHS t immediately take actin t enter int agreements with states and lcalities under INA 287(g) [perfrmance f immigratin fficer functins by state fficers and emplyees]. Thrugh these agreements r therwise, authrize state and lcal law enfrcement fficials t investigate, apprehend, and detain aliens in the United States. Permits 287(g) agreements t be structured in a manner specific t each jurisdictin. Questins and Analysis: Cncern that this sectin authrizing delegatin f federal immigratin enfrcement authrity t state/lcal actrs thrugh 287(g) agreements r therwise may cntemplate infrmal, even verbal delegatins f such authrity that will cmpletely lack transparency and accuntability. Sec. 9: Sanctuary Jurisdictins The AG and DHS shall ensure that sanctuary jurisdictins are nt eligible t receive Federal grants except as deemed necessary fr law enfrcement purpses. DHS has the authrity t designate jurisdictins as sanctuary jurisdictins. The AG shall take enfrcement actins against any entity that vilates 8 USC 1373 [pertaining t cmmunicatin between gvernment agencies and the federal immigratin authrities] r which has a law, plicy, r practice that hinders federal law enfrcement. Directs DHS t publish a weekly list f criminal actins cmmitted by aliens and any jurisdictin that failed t hnr detainers fr such aliens. Directs OMB t btain infrmatin n all Federal funds received by a sanctuary jurisdictin. Questins and Analysis: The AG and DHS Secretary can determine which grants are deemed necessary fr law enfrcement purpses. But it is unclear what grants/funding wuld actually be implicated. Cmmunity develpment blck grants? Other funding? AILA Dc. N. 17012506. (Psted 1/27/17) 4
Sectin 10: Review f Previus Immigratin Actins and Plicies Directs DHS t terminate Pririty Enfrcement Prgram (PEP) and reinstitute Secure Cmmunities (SCOMM). Directs DHS t review regulatins, plicies, and prcedures and if necessary, publish fr ntice and cmment prpsed regulatins t rescind r revise any regulatins that are incnsistent with the EO, and cnsider whether t withdraw r mdify any incnsistent plicies and prcedures. Cnslidate and revise applicable agency frms t mre effectively cmmunicate with recipient law enfrcement agencies. Questins and Analysis: The regulatry/plicy review piece is sandwiched between a directive t terminate PEP and reinstitute SCOMM, and a directive relating t revising frms t mre effectively cmmunicate with law enfrcement agencies (detainers). Was the intentin that the regulatry/plicy review apply t ALL regulatins and plicies that might be implicated by the EO r nly thse relating t SCOMM and detainers? The agency frms the rder is referring t likely are the immigratin detainer and ntificatin frms revised by the Obama Administratin, I-247N, I-247D, and I-247X. It is als unclear t what extent the prtcls gverning when ICE decides t place detainers n r take enfrcement actin against individuals identified thrugh SCOMM prtcls cdified in the SCOMM Standard Operating Prcedures will be revised. Sectin 11: Department f Justice Prsecutins f Immigratin Vilatrs AG and DHS t ensure adequate resurces are devted t criminal immigratin prsecutins. AG and DHS t develp strategies t reduce vilent crime and reach f transnatinal criminal rganizatins int U.S. Sectin 12: Recalcitrant Cuntries DHS and DOS t implement sanctins, cnsistent with INA 243(d), against cuntries that deny r delay accepting return f their natinals wh are rdered remved. Wrk t ensure that accepting the return f natinals rdered remved frm the U.S. is a cnditin precedent in diplmatic negtiatins with ther cuntries. Questins and Analysis: Nte that INA 243(d) indicates that this authrity will be exercised n an individual basis and that visas culd be suspended but nly until the AG ntifies DHS that the cuntry has accepted the individual. S theretically, this wuldn t invlve a lengthy cessatin f visas until a Memrandum f Understanding n repatriatin r ther agreement is reached t cver all individuals frm the recalcitrant cuntry. Sectin 13: Office fr Victims f Crimes Cmmitted by Remvable Aliens ICE must establish an ffice t prvide practive, timely, adequate, and prfessinal services t victims f crimes cmmitted by remvable aliens and the family members f victims. AILA Dc. N. 17012506. (Psted 1/27/17) 5
Includes quarterly reprting requirements t study the effects f victimizatin by criminal aliens in the United States. Sectin 14: Privacy Act Agencies shall exclude anyne wh is nt a U.S. citizen r LPR frm Privacy Act prtectins regarding persnally identifiable infrmatin, t the extent cnsistent with law. Questins and Analysis: Des DHS have the authrity t exclude these individuals frm Privacy Act prtectins? Is this permitted under the Privacy Act and is it already federal plicy? If nt, hw much impact wuld this have with the caveat t the extent cnsistent with the law? Sectin 15: Reprting DHS and AG shall prvide the President with a reprt n prgress made n these directives within 90 and 180 days f this EO. Sectin 16: Transparency DHS and AG shall cllect and prvide quarterly reprts n: Immigratin status f all nncitizens incarcerated by the Bureau f Prisns; Immigratin status f all nncitizens incarcerated as pretrial detainees under the supervisin f the U.S. Marshals Service; and Immigratin status f all cnvicted nncitizens incarcerated in state/lcal facilities. Sectin 17: Persnnel Actins OPM shall facilitate hiring under this EO. Questins and Analysis: Thugh nt explicitly stated, it is likely that the Administratin wuld cnsider ICE ERO fficers as exempt frm the hiring freeze as psitins that are necessary t meet natinal security r public safety respnsibilities. Sectin 18: General Prvisins Nthing in this rder shall affect the legal authrity f any executive department r agency, r the functins f the OMB. EO shall be implemented cnsistent with applicable law and subject t the availability f apprpriatins. EO is nt intended t create any right r benefit enfrceable at law r in equity. AILA Dc. N. 17012506. (Psted 1/27/17) 6