United States: Executive Orders Mark A Rising, Roiling Tide Of Immigration Enforcement Actions

In his first week in office, President Donald Trump launched a series of executive orders (EO) directing large-scale changes on high-profile immigration issues. The EOs echo the themes of beefing up border security, cracking down on undocumented immigration, escalating deportations, emphasizing national security objectives, and increasing worksite enforcement. So far, the direct impact of these EOs on employers has been fairly limited, but that status could change with the anticipated issuance of further EOs in the days ahead. Given the highly-charged and deeply polarizing nature of immigration issues in the United States, the EOs so far have been met by strong reactions across the country.

The following is a guide to the immigration-related EOs President Trump has issued so far, along with a brief look at several additional draft EOs that are anticipated, but that have not yet been issued.

Executive Order: Border Security and Immigration Enforcement Improvements (January 25, 2017)

The primary purpose of this EO, as reflected in its policy statement, is to spur "the immediate construction of a physical wall on the southern border." Although the EO calls for U.S. Department of Homeland Security (DHS) Secretary John Kelly to take on the immediate planning, design, and construction of a physical wall, details concerning the exact nature of the wall as well as the source of its funding are left open. Instead, the EO simply directs the Secretary to allocate federal funds. Estimates, while varied, have placed the cost for building a wall along the U.S.-Mexico border at anywhere from $12 billion to $25 billion. President Trump has consistently maintained that Mexico will pay for the wall, either up front or through some form of reimbursement. In the face of Mexico's staunch and vocal unwillingness so far to do so, the EO directs the Secretary of State to submit to the president a report identifying sources of federal aid to the government of Mexico, including multilateral development aid, economic assistance, humanitarian aid, and military aid, as possible sources of funding that could be tapped to help finance the wall's construction.

Elsewhere the EO instructs the Secretary to issue new policy guidance aimed at ending a practice whereby foreign nationals apprehended while attempting to illegally enter the United States were permitted to remain inside the United States instead of being held in a detention facility while awaiting a deportation order (colloquially referred to as "catch and release"). In other sections, the EO calls for the hiring of 5,000 additional border patrol agents and the immediate construction and operation of additional detention facilities at or near the U.S.-Mexico border.

On February 20, 2017, Kelly issued a memorandum intended to guide implementation of this EO. The memorandum clarifies policy governing specific sections of the EO, and sets forth plans for increasing resources and personnel to accomplish the EO's main goals of facilitating "the detection, apprehension, detention, and removal of aliens."

Executive Order: Enhancing Public Safety in the Interior of the United States (January 25, 2017)

The main thrust of this EO is to expand deportation efforts, in part, by cutting off federal funding to jurisdictions where local leaders do not cooperate with federal officials in identifying immigrants for deportation. Under the terms of the EO, and subject to the discretion of the U.S. Attorney General and DHS Secretary Kelly, these locations, known as "sanctuary cities," would no longer be eligible to receive federal grants, except as deemed necessary for law enforcement. To further promote deportations, the EO dramatically expands the class of immigrants that the administration prioritizes for removal beyond those with actual criminal records to include virtually any undocumented foreign national in the country. It also calls for Kelly to pursue agreements that could empower state and local law enforcement to perform the functions of an immigration officer.

Finally, and of direct relevance to employers, this EO authorizes Kelly to hire 10,000 additional U.S. Immigration and Customs Enforcement (ICE) officers. This move signals the start of what will likely be a dramatic increase in enforcement raids by ICE at employer worksites across the country. Companies should review their Forms I-9 to ensure their workforces are fully compliant with federal law in preparation for these changes.

On February 20, 2017, Kelly issued a memorandum intended to guide implementation of this EO. The memorandum clarifies enforcement priorities established by the EO, directs an effort to expand resources devoted to various enforcement programs, and sets forth broad guidelines for the exercise of prosecutorial discretion in the handling of removable aliens.

Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States (January 27, 2017 – Blocked by federal court order; revised and reissued March 6, 2017)

The EO that has received the most attention so far has been the so-called immigration travel ban. The original version of this EO put in place orders that would have suspended admission to the United States of foreign nationals from the following seven countries for a period of at least 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended implementation of the Visa Interview Waiver Program (known also as "drop- box"). This order sparked sharp controversy during its implementation—an abrupt and somewhat uncertain process that resulted in chaos at ports of entry—and encountered immediate legal challenges.

On February 3, 2017, U.S. District Judge James L. Robart granted a temporary restraining order (TRO) that blocked implementation of several of the EO's key sections. A Department of Justice challenge to the TRO was denied by the Ninth Circuit Court of Appeals. In response to the court's action, on March 6, 2017, President Trump issued a revised EO tailored to avoid some of the legal issues cited by the court. The revised EO took a more narrow approach than its predecessor, excluding green card holders and certain other categories of foreign nationals from the ban and leaving Iraq off the list of countries subject to the order. The new EO also revokes the original EO as of the new EO's effective date of March 16, 2017. A number of states, including Washington, New York, and Oregon have taken steps to challenge the revised EO in court, and a federal judge in Hawaii ordered a new nationwide TRO on March 15, 2017, just hours before the revised EO was set to take effect, ensuring that the ultimate fate of the travel ban remains to be seen.

Other Executive Orders (Still Pending)

President Trump is also expected to issue several additional EOs in the coming weeks. Although final versions of these EOs have not yet been signed, leaked drafts have offered some insight into their possible provisions. The summaries below are based upon these leaked drafts. Specific provisions in the actual EOs, when and if issued, may differ.

  • Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs. According to the leaked draft, this EO calls broadly for added scrutiny and more stringent guidelines for a range of popular employment-based immigration programs, and ratchets up worksite investigations. Despite its longer-term ambitions, however, the EO is unlikely to have any immediate impact on the current law. Instead, the EO directs the U.S. Department of Homeland Security (DHS), the U.S. Department of Labor (DOL), and the U.S. Department of State (DOS) to conduct reviews of these work visa programs within varying time frames (30 days to two years), and then to propose new rules to align existing regulations with congressional intent and the national interest. In most cases, those new rules will be subject to a formal rulemaking or legislative process.
  • Ending Unconstitutional Executive Amnesties. According to the leaked draft, this EO would end the Deferred Action for Childhood Arrivals (DACA) program that provides deportation relief and work authorization to certain undocumented immigrants brought to the United States as children, but it would permit work authorization already issued under DACA to remain valid through its existing expiration date. President Trump has on several occasions expressed sympathy and a desire to find some relief for children who were brought to the United States without legal status when they were young and who are currently protected under DACA. Whether such relief will be established, and, if so, what it would consist of is not yet known. The EO would also immediately rescind Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a policy that had been created through executive action by President Barack Obama, but whose implementation had been blocked by court injunction.
  • Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility. According to the leaked draft, this EO would seek to expand the "public charge" grounds upon which aliens could be determined to be inadmissible and deportable, investigate the public benefits that immigrants receive, and call on agencies to seek reimbursement for the cost of those benefits from sponsors who signed legally enforceable affidavits of support on behalf of the aliens.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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