President Trump’s Executive Orders

As widely reported, three Executive Orders affecting immigration have been issued by President Trump’s new administration. Additional draft memos, heavy on enforcement, have also been leaked. We are following these administrative developments on a daily basis, and are available to discuss. While we of course want national security, we stand with immigrants and our proud national heritage of being a welcoming country. America is not just a nation of immigrants; America is THE nation of immigrants. We hope this continues, and will fight to make it so. Immigration is our strength as a nation.

Executive Orders are not statutes. They are orders to the administration on how to implement existing law, though Presidents may effectively make law with some orders. The Republicans were highly critical of the Obama Administration for its executive orders and actions regarding immigration. Texas and a number of other states challenged the constitutional validity of Obama’s actions, ending with a 4-4 split in the Supreme Court.

Now the shoe is on the other foot. President Trump’s executive actions are completely different, but courts are already restraining parts of them. Today, Judge James Robart of the Western District of Washington issued a temporary restraining order on the temporary ban placed upon nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan and Libya. Washington State, joined by Minnesota, alleged violations of the First Amendment (Establishment Clause), the Fifth Amendment’s Equal Protection and Due Process clauses, the Immigration and Nationality Act, the Administrative Procedures Act, the Convention Against Torture, et al. The judge determined the States are likely to prevail, and there is risk of irreparable harm to citizens of the State. These risks included immediate harm to families, the high tech industry, and education, amongst others. The Order is effective nationwide, on a temporary basis, and the matter is now before the Ninth Circuit Court of Appeals.

Meanwhile, in Boston, a federal judge today refused to extend the temporary restraining order which was issued last week. Litigation has ensued in other jurisdictions, such as Chicago. And so it goes, elsewhere around the country.

The order imposing certain travel and refugee bans was not properly vetted, and the rollout has been described as amateurish.  By most reports, agencies struggled with aspects of the orders, such as whether the bans applied to permanent residents and dual nationals.  No consideration was given for special immigrants, who have acted as interpreters in the fight against terrorism. The complete ban has caught students, including doctors in the middle of their residencies, unawares. Some of the issues are getting addressed, but smart policy requires careful review, and some of the mistakes were clearly avoidable.

Where Obama was accused of creating a blanket amnesty, Trump is instituting blanket bans of immigrants classes (refugees for 120 days, Syrian refugees indefinitely, et al.), and effectively those of the Muslim religion from specified countries. The orders are justifiably criticized for omitting several countries which have originated terrorists. Clearly, President Trump is pushing forward with fulfilling his campaign promises, and is intent on showing he will be a President of action. Campaign politics and sound government policy are two very different things sometimes.

So far, the State Department revoked somewhere between 60,000 and 100,000 visas from the seven countries, depending on the report. After Judge Robart’s decision, the Department of State is reporting that these are reinstated, unless physically revoked. Persons departing the country on a revoked visa will have to interview again for a new visa. Travel is therefore inadvisable in most affected cases. In light of last weekend’s events, it may be advisable to consult with an immigration attorney before traveling abroad, at least in the short term until things settle down.

Trump said he’d build a wall and Mexico would pay for it. He said we are going to get control of the border. His executive order on border security calls for an increase in 5000 Customs and Border Patrol agents. CBP is already the largest law enforcement agency in the U.S. The agency’s union endorsed him, a fact he proudly touted. Perhaps this is because his election would be good for them, as it seems is the case.

There will be a large effort to  build detention facilities along the border, if Congress appropriates the funds. The growth in the detention business over the past 10 yeas has already been exponential. The Obama Administration deported over 400,000 persons per year. These numbers may reflect “catch and release” actions—a practice Trump has now stricken. There will be a lot of jobs and construction related to this burgeoning detention business. Immigration enforcement, whether it be detention or walls, is big business for contractors.

Locally, know that the Trump Transition Team asked CBP for information about building a wall on the U.S.-Canada side. Nothing definite, and it seems unlikely. It appears they were just looking to identify what studies have been done. The border security order also calls, once again, for the implementation of an entry-exit system, to better keep track of arriavals and departures in the air, land, sea, and in between. The government has been working on this since at least 1996. Some progress has been made as technology has improved, and the work continues, apparently.

The complete ban on refugees to the U.S. is horrific, given the U.S.’s means to accommodate, and its role as a leader in the world. The world is in the midst of the greatest refugee crisis since World War II. The U.S. has a role to play with its allies in accommodating refugees, and that role is being shirked. National security concerns are understandable, but over 2/3 of the refugees are women and children. There are better ways. The refugee program involves two to three years of vetting and waiting—it is not the likely path of entry for a terrorist.

The “Enhancing Public Safety in the Interior of the U.S.” Executive Order calls for 10,000 more Immigration and Customs Enforcement (ICE) agents. ICE is the agency that handles interior enforcement. The enforcement priorities have been elevated from serious crimes to now anyone who has been arrested. This is a significant change in immigration policy, albeit not unexpected with Trump’s election. Adding boots on the ground, a wall, and detention facilities will require significant Congressional appropriations. The intent may be there from the White House, but actual implementation will take some time. In the meantime, there is concern that the agency will begin to conduct worksite raids and be generally more emboldened. It is important that undocumented and persons otherwise out of status know your rights.

The Trump administration wants to reinvigorate the 287(g) program, which makes local law enforcement immigration enforcement. In Washington State, I’ve mainly heard great resistance to this. In Whatcom County, sitting on the border, the perennial question on these programs, right or wrong, is where’s the funding?

Trump is also going after the “sanctuary cities”, by threatening their federal funding. This will be harder than it sounds, and there will be some wait and see. The issues include precisely what it means to “inhibit” a federal effort, and also there is Supreme Court law which says limitations of this sort need to be focused on related programs, rather than wholesale funding cuts.  Federal immigration holds, strictly for immigration purposes, has been held to violate the 4th Amendment, which potentially makes municipalities liable it tort for holding a person too long.

Still to come: possible renegotiation of NAFTA, which has the potential to have great impact on locally, with regard to workers and cross-border business travel. Also, we’re still waiting to hear what the Administration will do about the Deferred Action for Childhood Arrival program. It seems this is on hold for the moment. And, there’s a leaked White House memo calling for evaluation of all business class nonimmigrant statuses, and the enforcement of certain employer compliance measures. We are also watching for changes to trusted traveler programs such as Global Entry and NEXUS, as we understand some statuses have been revoked.

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