What Effect Will Trump's Immigration-Related Executive Order on "Enhancing Public Safety in the Interior" Have?

Broadening of federal and state enforcement against any non-citizen suspected or convicted of a crime.

** LEGAL UPDATE **

On January 25, 2017, Donald J. Trump issued major executive orders affecting U.S. immigration policy and enforcement. The first order is titled “Presidential Executive Order: Enhancing Public Safety in the Interior of the United States.”

It will, in some respects, have far-reaching effects on people living in the U.S. and abroad. Other aspects of the order will result in less change to existing policy than someone unfamiliar with the U.S. immigration system might expect.

Section 4, “Enforcement of the Immigration Laws in the Interior of the United States”

The substantive parts of the order starts with the statement, “I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” What this means is apparently spelled out in subsequent sections.

Section 5, “Enforcement Priorities”

U.S. officials apprehending and removing undocumented immigrants are directed to put at the top of the list people who:

  • have been convicted of any criminal offense
  • have been charged with any criminal offense, where such charge has not been resolved
  • have committed acts that constitute a chargeable criminal offense
  • have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency
  • have abused any program related to receipt of public benefits
  • are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States, or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

In spirit, these priorities aren’t far different than enforcement priorities under President Obama, in which criminals and terrorists topped the priority list, and people who are law-abiding family and community members were at the bottom of the list. Nevertheless, the concept of who is a criminal has been hugely expanded.

The top priorities under President Obama focused on people who had been actually convicted of felonies and misdemeanors. Trump is creating a zero-tolerance policy for anyone so much as suspected of or arrested for a crime. Immigration authorities need no longer wait to see whether the person will actually be arrested or found guilty.

Also, because crossing the border without permission is a crime (under Section 275 of the Immigration and Nationality Act), anyone who entered the U.S. unlawfully (as opposed to overstaying a visa or permitted stay) is added to the top-priority list for deportation.

What's more, defining fraud as a crime could pull in anyone who has ever used a false Social Security Number or fake green card.

And if this weren't broad enough, immigration officers have the power to prioritize for deportation anyone whom they adjudge to be a possible threat to "public safety or national security."

Trump clearly intends to deport massive numbers of undocumented immigrants. However, remember that the reason enforcement priorites are set in the first place is because the government agencies expected to enforce the immigration laws, and the immigration courts, are already overloaded with work. Changing that will require a huge shift in resources and expansion of staff, which can't happen overnight.

Section 6, “Civil Fines and Penalties”

The order also announces a plan to ensure the assessment and collection of all possible legal fines and penalties from people who are unlawfully present in the U.S. or help others enter illegally.

Undocumented immigrants are not typically fined for being here without legal papers, but the law already allowed them to be, as described in Is Illegal Entry to the U.S. a Crime?.

And coyotes or ordinary people who help smuggle someone into the U.S. could also already be punished under existing U.S. law, so this is not new in and of itself. See Smuggling Noncitizens Into the U.S.: Possible Legal Consequences. But it could end up tearing apart some families, in that immigration officials will have a harder time looking the other way if making a decision on, say, a green card application and it becomes obvious that one family member helped another one enter the U.S. without permission.

Section 7, “Additional Enforcement and Removal Officers”

The order goes on to urge Immigration and Customs Enforcement (ICE) to hire more officers. This will likely have little effect until a budget is in place allowing ICE to follow up.

Section 8, “Federal-State Agreements”

The section begins, “It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.”

In other words, after signing specific agreements with state governors and local officials, police officers and the like will, if they come across someone whom they think might be undocumented, be “empowered” to question and possibly arrest that person. They would then turn the person over to federal immigration authorities.

Critics point out that this type of enforcement model creates significant disincentives to reporting crime, along with distrust of police among the immigrant community. It can also create opportunities for harassment of people of different color or who came to the U.S. from other countries legally. While executive orders are meant to direct enforcement priorities, this portion might be ripe for disputes or lawsuits in that no current law actually requires local jurisdictions to assist with federal immigration enforcement.

Section 9, “Sanctuary Jurisdictions”

Any place the federal government considers to be a “sanctuary jurisdiction” will be “not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes,” and the attorney general “shall take appropriate enforcement action.” (But see the New York magazine article, “Antonin Scalia Might Have Saved Sanctuary Cities.”)

What’s more, the public will be able to view a weekly list of “criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

Let’s hope this list won’t come with actual names. Whether final convictions will be required for someone’s actions to make the list is unclear. Notice also that the order doesn’t specify “undocumented” immigrants—actions by any non-citizen of the U.S. could, per the legal definition of “alien,” make the list.

Section 10, “Review of Previous Immigration Actions and Policies”

The immigration program known as "Secure Communities" will be reinstated in place of the Priority Enforcement Program (PEP).

Section 11, “Department of Justice Prosecutions of Immigration Violators”

This simply directs the Attorney General and Secretary of the Interior to work together to prosecute crimes by immigrants.

Section 12, “Recalcitrant Countries”

Here, foreign countries that don’t agree to take back their deported citizens will face diplomatic consequences.

Section 13, “Office for Victims of Crimes Committed by Removable Aliens”

A new office is being created, to “provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.”

This should be interesting, as the agency in charge is an enforcement-related one, namely Immigration and Customs Enforcement, known by the ominous acronym of “ICE.”

Section 14, “Privacy Act”

Non-U.S. citizens, including lawful permanent residents (green card holders), can say goodbye to the protections of the U.S. Privacy Act regarding personally identifiable information. Such information, when held by federal agencies, will apparently now be subject to disclosure without consent.

The rest of the sections of this Executive Order have more to do with internal administrative matters.