Five days into office, President Trump signed several Executive Orders (EO) on immigration, including the travel ban, that wreaked havoc on U.S. immigration laws and procedures and caused chaos, panic, and fear within our immigration community. Below is a summary of what has happened, where we are, and what we can expect.
Current Status of the Travel Ban
As most already know, on January 27 President Trump issued an Executive Order, “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” that temporarily halted all entries for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The Refugee Admissions Program also was suspended. The EO went into effect immediately and its disorganized, chaotic rollout prompted a wave of legal challenges. Several permanent residents and visa holders who were denied entry and detained at airports filed lawsuits, prompting some immediate but limited judicial actions. Suits were filed in Virginia, Massachusetts, New York, Minnesota, and Washington. On February 3, a federal district court in Seattle issued a temporary restraining order (TRO) prohibiting the government from implementing the travel ban. The TRO was affirmed by the Ninth Circuit on February 9. As a result, the travel ban is no longer in effect. President Trump now has several options: he can choose to appeal the Ninth Circuit decision to the Supreme Court, go back to the district court and argue the government’s case on the merits, or scrap the order and draft a revised one.
For the short time that the travel ban was in place, U.S. embassies and consular posts were instructed to immediately suspend issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and consulates had been instructed to cancel visa interviews for affected individuals. Moreover, visas previously issued were summarily revoked. These visas have since been reinstated. There was also confusion whether dual citizens of a targeted country would be banned from travel. DHS has since confirmed that the EO did not restrict the travel of dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country and that embassy and consulates would continue to process their visa applications even if they hold dual nationality from one of the seven restricted countries.
It is expected that President Trump will re-draft an Executive Order travel ban, but as of this writing, no signed or preliminary EO has been released. It is likely that green card holders will be exempt from any new Executive Order travel ban, and it is also expected that language relating to nationality-based travel will be stricken to ensure that the new EO withstands judicial scrutiny.
Other Key Executive Orders: Enforcement Priorities and Border Security
Two other, significant Executive Orders were signed by Trump in January, “Enhancing Public Safety in the Interior of the United States” and “Border Security and Immigration Enforcement Improvements.” These EOs aim specifically to curb and solve unlawful immigration through aggressive detention and deportation of undocumented foreign nationals and by building “the Wall” between the United States and Mexico. The EOs also lay out the Administration’s plans to hire 15,500 new immigration enforcement officers and to enlist the help of state and local police to carry out immigration enforcement. While initially these orders were quickly overshadowed by the President’s travel ban, their impact has already been felt in communities across the United States. In addition to tremendous uncertainty felt by all immigrants in the United States – legal and undocumented alike, Immigration and Customs Enforcement (ICE) officers commenced targeted enforcement actions – immigration raids – by reinstituting “Operation Cross Check,” targeting fugitives, individuals who reentered after they were deported, and at large “criminal aliens” (anyone with any criminal conviction). Raids in Los Angeles, Chicago, Atlanta, San Antonio, and New York City resulted in the arrest of more than 680 people within the first few days. During his campaign, President Trump had promised to allow ICE to operate to the fullest extent of its power, and these orders are the first step in fulfilling that promise.
While the EOs themselves did not give direction to agency personnel on how to implement them, DHS just recently issued two implementing memos, “Enforcement of the Immigration Laws to Serve the National Interest” and “Implementing the President’s Border Security and Immigration Enforcement Improvements,” that did. These memos give ICE and CBP broad authority to enforce the immigration laws and dramatic changes are afoot. (Interestingly, the memos note that the Obama DACA and DAPA memos, from June 2012 and November 2014, are still in place.)
Importantly, the previous Priority Enforcement Program (PEP) is now terminated, and the Secure Communities Program (SCP) is reinstated. PEP significantly narrowed the category of individuals for whom DHS would seek transfer from local enforcement agency custody. Under the program, ICE sought such transfers where a removable individual had been convicted of specifically enumerated crimes, had intentionally participated in criminal gang activity, or posed a danger to national security. It did not seek the transfer of individuals with civil immigration offenses alone, or of those charged, but not convicted of criminal offenses. SCP authorizes state and local law enforcement officers to enforce immigration law, including “the authority to investigate, identify, apprehend, arrest, detain, and conduct searches.”
While the prior PEP is officially rescinded, ICE does not have the resources to remove 11 million people. Nevertheless, the new memos state that any individual who has been convicted or charged with a crime, has committed acts that constitute a chargeable offense, abused public assistance programs, engaged in fraud or misrepresentation before a government agency, has a final order of removal, or is a threat to public safety is a removal priority. ICE may be targeting particular individuals, but anyone in a surrounding area with a questionable immigration status could be apprehended and removed: “Department personnel have full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws [and] initiate removal proceedings.” Moreover, the formerly generous grants of prosecutorial discretion by ICE attorneys in removal proceedings are likely to become a rarity during this Administration. The EOs also threaten “sanctuary cities” through the withholding of federal funds. How this will be implemented has not been addressed in the current implementing memos.
Enforcement on the southern border is likely to become even more dramatic. Most visibly, “the Wall” has been authorized, and DHS plans to begin its construction. Besides the Wall, more serious and imminent is the change to how DHS will be handling those who enter the U.S. unlawfully. The memos call for more immigration judges and asylum officers to be sent to the border, and for increased capacity to detain immigrants in “short-term” facilities — commonly referred to as “the freezers” — as well as increasing the number and capacity of detention facilities. Under President Obama, it was common for CBP and ICE to release those apprehended at the border into the United States, often with alternatives to detention such as ankle monitors after they were assigned to an immigration court and applied for some form of relief. The practice was lauded by immigration attorneys and activists as it provides foreign nationals with greater access to resources in order to prepare for and present their case. This policy has been replaced with almost mandatory detention until removal or relief. Claims to asylum and parole, once relied upon by those fleeing persecution or in need of medical assistance, will be entertained at an increased level of scrutiny.
Other interior enforcement includes the drafting of a rule to expand the use of expedited removal proceedings beyond the present geographic restrictions of those unlawfully present at ports of entry and the border area (within 100 miles) and within 14 days of entry, potentially to anyone unlawfully present who is unable to prove residence in the United States for the two years prior to apprehension. Expedited removal permits the detention and swift removal of an individual without access to the courts.
Another development is the proposed reevaluation of the admittance of unaccompanied minors. Children who arrive at the border alone are turned over to Health and Human Services and allowed into the country to pursue various forms of relief, including asylum, with privileges not afforded to others because of their unique and vulnerable status. We can expect to see additional guidance from ICE and CBP on how they expect to handle unaccompanied minors.
Many aspects of these two implementation memos are still unclear regarding how they will be implemented and whether they can withstand legal muster. As mentioned above, we do not know how or when DHS will choose to expand expedited removal. The EOs and memos also create a “Victims of Immigration Crime Engagement” (VOICE) Office, which directs funding to assist victims of crimes committed by removable aliens. Moreover, the memos mention collecting fines and penalties from unlawfully present foreign nationals and those who assist them; however, “assists” in what way is currently unclear. Most worrisome is the creation of publicly available reports listing the immigration status of detained individuals; the arrest, charge, or conviction of that individual; the jurisdiction that released them after an ICE detainer; and any arrests, charges, or convictions thereafter.
Along these lines, one of the memos also instructs departments to “identify and quantify all sources of direct and indirect federal aid or assistance” to Mexico, presumably in an attempt to threaten Mexico into compliance with President Trump’s demands to pay for the Wall. There is also a section in the memos stating that aliens apprehended upon arrival can be returned to the contiguous territory from which they crossed – Canada or Mexico – throughout the removal proceedings. This, of course, impedes their ability to access family, lawyers, and other resources that could prove necessary to the success of their case. Moreover, it is not clear where funding will come from, whether other countries have agreed to cooperate, or how these orders actually will be implemented.
Getting Stopped or Picked Up by ICE: Know Your Rights
As noted above, President Trump’s EO “Enhancing Public Safety in the Interior of the United States” effectively ended the priority system put in place by President Obama, which classified targets for removal based upon the seriousness of their crimes. Under the old system, by using prosecutorial discretion, foreign nationals who had not been convicted of any crimes while in the United States were reasonable safe from removal – even if they were detained at the scene of an ICE raid. Not anymore.
The abolishment of the PEP under the Executive Order has had two immediate effects. First, those in removal proceedings can no longer depend on prosecutorial discretion to administratively close their immigration court case simply because they have no criminal convictions and strong ties to the community. Second, ICE has been targeting individuals without criminal convictions but who, instead, have old final orders of removal. Under this system, it has become increasingly important for foreign nationals who are unlawfully present to understand their rights.
If agents come to your home, first and foremost, do not open the door. Ask to see a warrant. If the agents have a warrant, make them slip it under the door or through a cracked opening of a chained door. ICE agents cannot enter without your permission if they do not have a judicial warrant. Note that an administrative ICE warrant is not sufficient; it must be signed by a judge. Next, once you have a copy of the warrant, check to make sure all of the information is accurate: it should have the correctly spelled name of someone in the home, it should have the exact address, be valid for the current date, etc. If any of these items are incorrect, you can refuse to open the door and request that ICE leave and only return with an accurate warrant. Should ICE have a judicial warrant with accurate information, you must let them in to search the areas listed on the warrant. At this point, cooperation is always key. If you are in a residence or business that has become the target of an ICE raid, fleeing or resisting could result in harm to you or your property.
Remember, anything you say to an ICE officer, whether during a raid or in detention, can and will be used against you. The best thing you can do in such an event is to say nothing at all, which is your right under the Fifth Amendment of the U.S. Constitution. If you feel compelled to speak, limit it to you name and, if applicable, legal status (such as DACA, TPS, green card holder, etc.). Under no circumstances should you ever give false or misleading information to an ICE officer. ICE is known for trying to force foreign nationals to sign their own removal. Be cordial but do not offer any more information than is necessary, and absolutely do not sign anything. Ask to speak with your attorney or make a phone call to family.
ICE has been increasingly eager to place people in expedited removal if they are able. This is particularly dangerous for those who live in metropolitan areas close to the border. It is not uncommon for people who have valid claims to remain in the United States to be removed without getting an opportunity to be heard. To avoid expedited removal, we encourage those who are vulnerable to keep with them proof that they have been in the United States for more than 14 days, or, once the new DHS guidance is released, for more than the stated amount of time, presumably two years.
Moving Through Customs
In this new period of extreme heightened security, travelers entering the United States can expect increased scrutiny by immigration inspectors. Even before the new EOs heightened scrutiny at the borders, Customs and Border Patrol (CBP) officers had begun asking ESTA travelers for social media account information upon entry — the theory being that this will enable CBP and DHS to better spot individuals with ties to terrorist organizations. Though allegedly “optional,” it is hard to believe that CBP will respect a traveler’s refusal to provide account information. Visitors have already seen CBP look through their phones, laptops, and even make assumptions about their intentions based on business cards in their wallets. Additionally, it is unclear how the common social media practice of reposting from unverified sources will be handled.
If you are pulled aside for additional questioning, it does not automatically mean that you have done something wrong. It does mean that you should expect to be held up for a couple hours and to answer some intrusive questions, particularly in regards to your faith and political views. You are not required to answer such questions. You may be asked the same questions numerous times as well. Unfortunately, the Fourth Amendment search and seizure rights have very limited application at ports of entry (airports). Probable cause and reasonable suspicion are not required to initiate a search of your person or belongings. CBP officers can hold you for hours and search your belongings, including electronic devices.
Reports have circulated concerning green card holders being intimidated into signing documents that relinquish their lawful permanent resident (LPR) status. Officers at the border cannot, however, force LPRs to sign Form I-407, a document that automatically relinquishes status. Make sure you read every form placed before you and don’t sign anything that you don’t understand. You can request your attorney, but CBP is under no obligation to grant that request unless you are actually being charged with a criminal offense.
If you, as a visa holder, are perceived as being uncooperative, you can be denied entry. Permanent residents (green card holders) are in a gray area – their rights to due process exist but they can be detained as they await their removal hearing. U.S. citizens cannot be denied entry; however, there are reports of citizens originally from or having traveled to one of the seven targeted countries being held for long periods and having their Global Entry privileges revoked.
Important Considerations for Employers
When the travel ban was signed, foreign nationals were not the only ones placed in a precarious position. Employers who have foreign nationals affected by the ban were affected as well. When faced with these realities, efforts to continue “business as usual” by reassigning work or passing over an otherwise qualified job applicant may open up employers to a myriad of legal problems.
Employers need to be extremely cautious about inquiring into an employee’s citizenship, national origin, or ethnicity when determining work assignments or hiring practices. The Department of Justice has a special unit that reviews discrimination based on citizenship or national origin, the Office of Special Counsel for Immigration Related Unfair Employment Practices. This office recommends employers ask only limited questions of new hires related to their authorization to work in the U.S. and to not ask specific questions about national origin or citizenship. However, in this delicate time of immigration, employers are justifiably worried about maintaining their business practices – especially employers who have international obligations and travel requirements.
Employers need to stay current on the status of any travel restrictions. In the event of another executive order that restricts or halts travel for certain people, we offer the following advice. Employers should not single out any of their employees when discussing the consequences of immigration-related Executive Orders and laws but instead notify all employees uniformly. If there is legitimate concern about an employee departing the U.S. on business and then not being allowed to return, consider alternatives such as video conferences before reassigning work. Finally, ensure that file maintenance practices are compliant. Voluntarily offered information about immigration status or nationality should be maintained separately from the primary human resources file, and insulated from hiring and assignment decisions.
More Executive Orders in the Pipeline
There are three additional Executive Orders that were drafted and leaked in late January that could be signed by the President. These govern the DACA program, public benefits by foreign nationals, and nonimmigrant visas, with specific focus on H-1Bs. As of this writing, no new information has been issued or leaked about the fate of these EOs.
The DACA program remains in force and has not been affected by the previous orders. However, “Ending Unconstitutional Executive Amnesties,” would put the program on the chopping block. President Trump’s recent rhetoric assuring DACA recipients not to worry is at odds with the language in this draft. If signed, the DACA program would be terminated, work permits obtained through this program would not be renewed, and advance parole for travel would not be granted.
The second draft order scrutinizes the receipt of public benefits by foreign nationals. If signed, the order would direct DOS and DHS to reevaluate the “public charge” criteria for inadmissibility and removability, call for federal studies on the impact of low-skilled foreign workers on Social Security and the costs of the refugee program, as well as determine how to prevent “birth-tourism.”
The final Executive Order in draft format aims to protect the wages and jobs of low-skill American workers. This draft order expects DHS to expand the E-verify system and possibly terminate the issuance of work permits for parole recipients. Data would be published regarding the impact on immigration of wages and employment of U.S. workers since 2000. The draft order also turns an eye to high-skill immigrant work visas, such as H-1Bs. These could be restricted to certain wage or education levels in an effort to make employment-based immigration even more merit-based and exclusive.
As of now, none of these EOs have been signed, but they provide a good sense of what we can expect in the upcoming weeks and months from the current Administration.