Trump Signs Border Security and Immigration Enforcement Improvements Executive Order

Can Donald J. Trump order a border wall built that will cost several billion dollars?

** LEGAL UPDATE **

On January 25, 2017, Donald J. Trump issued major executive orders affecting U.S. immigration policy and enforcement. One of these was titled “Executive Order: Border Security and Immigration Enforcement Improvements.”

By way of background, an executive order is not a law, but a presidential directive stating how the federal agencies should focus their efforts in enforcing existing law.

This order’s most significant points are as follows:

  • Executive departments and agencies are to deploy “all lawful means” to secure the border with Mexico, prevent further illegal immigration into the United States, and send undocumented immigrants back to their home countries “swiftly, consistently, and humanely.” This will include constructing a southern border wall, plus adding monitoring and personnel. The wall is to be a “contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” Here’s what the Executive Director of the American Immigration Lawyers’ Association (AILA) had to say about this: “America has invested billions in border security and despite the constant barrage of claims to the contrary, the truth is that the border is more secure now than it has ever been. Building a wall that will cost billions of more dollars, with the empty promise that Mexico will pay for it and for the sole purpose of fulfilling a campaign promise, rather than working on a smart, balanced strategy is short-sighted and a waste of resources.”
  • Anyone caught and suspected of violating federal or state law, including immigration law, will be detained pending further proceedings regarding those violations. If this means what it seems to, this is a major change and may actually violate existing law. Currently, immigration enforcement officials routinely make a decision, during the course of the arrest, as to whether to release the person and issue a notice to appear in immigration court on a later date. (See What Happens When an Undocumented Immigrant Is Caught.) Only a few categories of arrestees, including those who are high-risk, are put into detention. The order mentions that new detention facilities will need to be built along the southern border for this, and that immigration judges and asylum officers will need to be assigned to these. (This will require significant resources; it’s questionable whether they can be diverted without action by Congress.)
  • Immigration court proceedings are to be sped up. (This will be a major challenge—the immigration courts are underfunded, short on judges, and facing backlogs of several years.)
  • Anyone who has been ordered deported should be promptly removed from the U.S.
  • Federal-state partnerships should be formed to enforce federal immigration priorities. (See the other executive order for an idea of what this will mean.)
  • Steps should be taken to ensure that the parole and asylum provisions of federal immigration law are not illegally exploited to prevent the removal of non-citizens. Many portions of U.S. asylum law already address this very issue, for example the refusal to issue work permits to applicants until their cases have been won or long-delayed; it’s hard to speculate on what more can or will be added. However, it is clear that Trump plans to limit grants of humanitarian parole, specifically to cases in which the applicant can show “urgent humanitarian reasons or a significant public benefit derived from such parole.”
  • An annual report will be prepared showing all U.S. federal aid or assistance to the government of Mexico. (Presumably this is for leverage in carrying out Trump’s plan to charge the Mexican government for building the wall.)

Obviously implementation of the various items on the above list cannot happen overnight. For example, various border experts and former federal officials told the Washington Post that the wall along the U.S.-Mexico border cannot possibly be built without congressional approval, as it will cost $20 billion or more to construct.