Making sense of Trump’s first executive orders on immigration

On Wednesday, Jan. 25, 2017, President Donald J. Trump signed two executive orders relating to immigration. The first, entitled, “Border Security and Immigration Enforcement Improvements,” sets new priorities for the enforcement of immigration laws and the removal of immigrants from the United States.

The order prioritizes the removal of undocumented immigrants who have already violated existing sections of the Immigration and Nationality Act (INA), as stated below:

In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2) [criminal and related grounds], (a)(3) [security and related grounds], and (a)(6)(C) [inadmissibility relating to misrepresentation], 235 [inspection of arriving aliens; expedited removal procedures], and 237(a)(2) [deportable criminal offenses] and (4) [security and related grounds] of the INA.

In addition to these categories, the order prioritizes the removal of the following classes of undocumented immigrants:

[R]emovable aliens who:
(a) Have been convicted of any criminal offense;

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

The executive order does not provide clear information about how the term “criminal offense” will be defined. For example, it is unclear whether traffic offenses, such as misdemeanor driving without a license, will be included in the definition of criminal offense. We hope to receive clarification from the White House and the Department of Homeland Security in the coming days to better understand the impact of this executive order.

The executive order further states that the new enforcement priorities will replace those established by former President Barack Obama, stating that the new Department of Homeland Security (DHS) Secretary: “shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014.”

The executive order also provides new responsibilities for local law enforcement officials relating to the investigation of immigration violations. Further, the order states that communities identified as “sanctuary cities” will be barred from receiving certain types of federal funding. In addition, the order announces the creation of a new “Office for Victims of Crimes Committed by Removable Aliens.”



The second executive order signed on by President Trump on Wednesday is entitled, “Enhancing Public Safety in the Interior of the United States.” This order mandates the construction of a wall on the U.S.-Mexico border. In addition, the second order addresses immigration enforcement specific to border-area detention and removal operations, including an increase in the number of border patrol agents and the end of the “catch and release policy.” As a result, we expect to see more long-term detentions and expansion of expedited removal at the border.

It is important to note that the Deferred Action for Childhood Arrivals (DACA) program implemented by former President Obama in 2012 has not been cancelled by the two executive orders signed on Wednesday, Jan. 25. We will provide a separate update on DACA, if and when new information becomes available.

The full text of the executive orders are available on the White House’s website here: 

Another executive order on immigration is expected to be released today, Jan. 26, on the suspension of visa issuance and other immigration benefits to nationals of “countries of particular concern,” which will also stop refugee admissions and add requirements for screenings and procedures for all immigration benefits.

Emily Gorces, Glorily A. López, and Maryam Ghayyad make up the Immigration Practice Group at Murphy Desmond S.C.

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