Post by the Scribe on Apr 25, 2020 9:34:39 GMT
Recent developments: New executive orders on immigration
•From January 25 to 27, 2017, President Trump unveiled three executive orders mandating sweeping changes to immigration enforcement and reversing many policies enacted by the Obama administration. The first two executive orders expand border security and interior enforcement. The third executive order promised to impose a moratorium on refugees and institute a travel ban barring nationals of seven Muslim-majority countries from entering the United States. Implementation of that executive order was enjoined by multiple federal courts, and the order was rescinded and replaced with a revised executive order that has itself been preliminarily enjoined.
•A pair of memorandums published by Secretary of Homeland Security John Kelly on February 20, 2017, signal dramatic changes to border security, interior enforcement, and asylum procedures. These memorandums provide detailed guidelines for the implementation of reforms described in President Trump’s executive orders.207
•Border security •President Trump’s January 25 executive order on border security requires that DHS immediately move toward the completion of a fence along the entirety of the U.S.-Mexico border.208 DHS’ February 20 memo signals an intention to move forward with its construction promptly.209
•The February 20 DHS memorandum requires that, with limited exceptions, all apprehended immigrants deemed inadmissible be held in detention facilities until their cases have been decided. This will lead to the detention of large numbers of people, including many eligible for asylum. Given lengthy backlogs in immigration courts, many could be detained for years. This could cost taxpayers an estimated $9 billion over 10 years.210 Further, the executive order and DHS memo authorize the construction of new detention facilities to house apprehended immigrants, adding to already steep costs.211
•The February 20 DHS memorandum lays the foundation for an unprecedented expansion of expedited removals—deportations without judicial review or due process. Currently, expedited removal is limited to individuals apprehended within 100 miles of the border who have been in the United States for less than 14 days. The DHS memo discusses the publication of a designation in the Federal Register that could expand expedited removal to individuals apprehended anywhere in the United States who cannot prove they have been in the United States continuously for two or more years.212
•The executive orders and memorandums instruct the CBP to hire and deploy an additional 5,000 Border Patrol agents and 500 air and marine agents.213 These additional hires could cost taxpayers at least $8.6 billion over the next decade.214
•The executive orders and DHS memorandums encourage new and expanded 287(g) agreements, which would allow DHS to deputize state and local authorities to investigate, apprehend, and detain immigrants, reversing reforms implemented by the Obama administration.215The 287(g) program previously came under fire due to allegations that agreements were costly and inefficient, resulted in racial profiling, and led to few apprehensions of immigrants with criminal backgrounds. As a result, DHS scaled back such agreements in 2012 to focus only on jail enforcement model agreements.216
•The February 20 DHS memorandum contemplates authorizing CBP personnel to return apprehended migrants to Mexico while they await immigration hearings in the United States. If applied to asylum seekers, this could expose vulnerable individuals, including women and children, to danger in Mexican border cities and heighten their risk of deportation by the Mexican government.217
•The Trump administration has signaled interest in tightening existing standards for granting asylum. President Trump’s executive order instructs the DHS to take “appropriate action” to ensure that asylum laws are not abused. It calls for a narrow and legalistic application of asylum and parole laws, jeopardizing asylum seekers’ likelihood of obtaining refuge.218 The February 20 DHS memorandum calls upon asylum officers to conduct a rigorous review within days of an individual’s arrival, leaving them vulnerable to deportation without an opportunity to present their case before a judge.219 The USCIS Asylum Division subsequently issued a new lesson plan heightening the standard required to establish a credible fear of persecution, effectively increasing the likelihood that bona fide asylum seekers will be returned to countries where they will be persecuted.220
•The February 20 DHS memorandum presages the elimination of critical procedural protections for unaccompanied minors. In the future, many unaccompanied children could be subject to expedited removal and detained by ICE rather than placed in shelters run by the Office of Refugee Resettlement or reunited with family members in the United States.221
•Per the February 20 DHS memorandum, parents who provide financial support to their children and other relatives seeking to escape violence and persecution could be subject to deportation and/or criminal prosecution.222
•Interior enforcement •Interior enforcement policy changes could lead to the deportation of 8 million or more people. The executive orders and the other February 20 DHS memorandum eliminate the Obama administration’s Priority Enforcement Program, which emphasized the removal of unauthorized immigrants suspected of terrorism or convicted of serious crimes, such as felonies. The DHS memorandum instead effectively makes all removable immigrants priorities for enforcement. The memo also mandates that the DHS hire an additional 10,000 ICE agents and officers to facilitate apprehensions and removals.223
•The February 20 DHS memo terminates existing prosecutorial guidance pertaining to immigration enforcement, except for DACA, including rules that protect victims and witnesses of crime and guidance that protects vulnerable populations such as LGBT individuals from detention.224
•The executive order also threatens to withhold federal grants from jurisdictions that the secretary of homeland security or the attorney general believes are unwilling to comply with federal immigration enforcement efforts, so-called sanctuary jurisdictions. Nationwide, more than 600 counties and municipalities, as well as a handful of states, limit cooperation with federal immigration officials.225
•Muslim and refugee ban •On January 27, President Trump issued an executive order designed to ban Muslims from entering the country and limit the refugee resettlement program. This executive order would have suspended the entry of citizens of Iran, Iraq, Libya, Yemen, Sudan, Syria, and Somalia for a 90-day period. It also would have granted the DHS discretion to expand the geographic scope and duration of the ban. Furthermore, the order would have suspended all refugee admissions for 120 days and all refugee admissions from Syria indefinitely.226 After 120 days, refugee admissions would have been limited to specific countries and would have prioritized religious minorities.
•Federal courts halted President Trump’s January 27 executive order. On February 3, after the attorneys general of Washington and Minnesota filed suit to stop the executive order, the U.S. District Court for the Western District of Washington temporarily suspended several of its key provisions, arguing that they violated the First and 14th Amendments by discriminating on the basis of nationality and religion. Amicus briefs were also filed by several former senior government officials, 16 state attorneys general, and more than 90 tech companies.227 On appeal, the 9th Circuit denied the government’s request to reinstate the ban.228
•On March 6, President Trump rescinded the original executive order and issued a new executive order that largely retains the provisions of the first one. Like its previous iteration, the new order will suspend the entry of citizens of Iran, Libya, Yemen, Somalia, Sudan, and Syria for 90 days. Iraqi citizens were exempted from the new order after the Iraqi government pledged to increase information sharing with the United States.229 Under the new order, people whose visas were approved by March 16 and current U.S. lawful permanent residents will be exempt from the entry ban. Further, the new order removes the indefinite ban on Syrian refugees. Instead, all refugee admissions, including the admission of Syrian refugees, will be suspended for 120 days.230
•The March 6 executive order has also been halted by the courts. On March 15, federal judges in Hawaii and Maryland issued temporary restraining orders on the new executive order hours before it was scheduled to take effect, and on March 29, a judge in Hawaii extended the temporary restraining order, converting it to a preliminary injunction. The Trump administration is appealing both rulings.
•From January 25 to 27, 2017, President Trump unveiled three executive orders mandating sweeping changes to immigration enforcement and reversing many policies enacted by the Obama administration. The first two executive orders expand border security and interior enforcement. The third executive order promised to impose a moratorium on refugees and institute a travel ban barring nationals of seven Muslim-majority countries from entering the United States. Implementation of that executive order was enjoined by multiple federal courts, and the order was rescinded and replaced with a revised executive order that has itself been preliminarily enjoined.
•A pair of memorandums published by Secretary of Homeland Security John Kelly on February 20, 2017, signal dramatic changes to border security, interior enforcement, and asylum procedures. These memorandums provide detailed guidelines for the implementation of reforms described in President Trump’s executive orders.207
•Border security •President Trump’s January 25 executive order on border security requires that DHS immediately move toward the completion of a fence along the entirety of the U.S.-Mexico border.208 DHS’ February 20 memo signals an intention to move forward with its construction promptly.209
•The February 20 DHS memorandum requires that, with limited exceptions, all apprehended immigrants deemed inadmissible be held in detention facilities until their cases have been decided. This will lead to the detention of large numbers of people, including many eligible for asylum. Given lengthy backlogs in immigration courts, many could be detained for years. This could cost taxpayers an estimated $9 billion over 10 years.210 Further, the executive order and DHS memo authorize the construction of new detention facilities to house apprehended immigrants, adding to already steep costs.211
•The February 20 DHS memorandum lays the foundation for an unprecedented expansion of expedited removals—deportations without judicial review or due process. Currently, expedited removal is limited to individuals apprehended within 100 miles of the border who have been in the United States for less than 14 days. The DHS memo discusses the publication of a designation in the Federal Register that could expand expedited removal to individuals apprehended anywhere in the United States who cannot prove they have been in the United States continuously for two or more years.212
•The executive orders and memorandums instruct the CBP to hire and deploy an additional 5,000 Border Patrol agents and 500 air and marine agents.213 These additional hires could cost taxpayers at least $8.6 billion over the next decade.214
•The executive orders and DHS memorandums encourage new and expanded 287(g) agreements, which would allow DHS to deputize state and local authorities to investigate, apprehend, and detain immigrants, reversing reforms implemented by the Obama administration.215The 287(g) program previously came under fire due to allegations that agreements were costly and inefficient, resulted in racial profiling, and led to few apprehensions of immigrants with criminal backgrounds. As a result, DHS scaled back such agreements in 2012 to focus only on jail enforcement model agreements.216
•The February 20 DHS memorandum contemplates authorizing CBP personnel to return apprehended migrants to Mexico while they await immigration hearings in the United States. If applied to asylum seekers, this could expose vulnerable individuals, including women and children, to danger in Mexican border cities and heighten their risk of deportation by the Mexican government.217
•The Trump administration has signaled interest in tightening existing standards for granting asylum. President Trump’s executive order instructs the DHS to take “appropriate action” to ensure that asylum laws are not abused. It calls for a narrow and legalistic application of asylum and parole laws, jeopardizing asylum seekers’ likelihood of obtaining refuge.218 The February 20 DHS memorandum calls upon asylum officers to conduct a rigorous review within days of an individual’s arrival, leaving them vulnerable to deportation without an opportunity to present their case before a judge.219 The USCIS Asylum Division subsequently issued a new lesson plan heightening the standard required to establish a credible fear of persecution, effectively increasing the likelihood that bona fide asylum seekers will be returned to countries where they will be persecuted.220
•The February 20 DHS memorandum presages the elimination of critical procedural protections for unaccompanied minors. In the future, many unaccompanied children could be subject to expedited removal and detained by ICE rather than placed in shelters run by the Office of Refugee Resettlement or reunited with family members in the United States.221
•Per the February 20 DHS memorandum, parents who provide financial support to their children and other relatives seeking to escape violence and persecution could be subject to deportation and/or criminal prosecution.222
•Interior enforcement •Interior enforcement policy changes could lead to the deportation of 8 million or more people. The executive orders and the other February 20 DHS memorandum eliminate the Obama administration’s Priority Enforcement Program, which emphasized the removal of unauthorized immigrants suspected of terrorism or convicted of serious crimes, such as felonies. The DHS memorandum instead effectively makes all removable immigrants priorities for enforcement. The memo also mandates that the DHS hire an additional 10,000 ICE agents and officers to facilitate apprehensions and removals.223
•The February 20 DHS memo terminates existing prosecutorial guidance pertaining to immigration enforcement, except for DACA, including rules that protect victims and witnesses of crime and guidance that protects vulnerable populations such as LGBT individuals from detention.224
•The executive order also threatens to withhold federal grants from jurisdictions that the secretary of homeland security or the attorney general believes are unwilling to comply with federal immigration enforcement efforts, so-called sanctuary jurisdictions. Nationwide, more than 600 counties and municipalities, as well as a handful of states, limit cooperation with federal immigration officials.225
•Muslim and refugee ban •On January 27, President Trump issued an executive order designed to ban Muslims from entering the country and limit the refugee resettlement program. This executive order would have suspended the entry of citizens of Iran, Iraq, Libya, Yemen, Sudan, Syria, and Somalia for a 90-day period. It also would have granted the DHS discretion to expand the geographic scope and duration of the ban. Furthermore, the order would have suspended all refugee admissions for 120 days and all refugee admissions from Syria indefinitely.226 After 120 days, refugee admissions would have been limited to specific countries and would have prioritized religious minorities.
•Federal courts halted President Trump’s January 27 executive order. On February 3, after the attorneys general of Washington and Minnesota filed suit to stop the executive order, the U.S. District Court for the Western District of Washington temporarily suspended several of its key provisions, arguing that they violated the First and 14th Amendments by discriminating on the basis of nationality and religion. Amicus briefs were also filed by several former senior government officials, 16 state attorneys general, and more than 90 tech companies.227 On appeal, the 9th Circuit denied the government’s request to reinstate the ban.228
•On March 6, President Trump rescinded the original executive order and issued a new executive order that largely retains the provisions of the first one. Like its previous iteration, the new order will suspend the entry of citizens of Iran, Libya, Yemen, Somalia, Sudan, and Syria for 90 days. Iraqi citizens were exempted from the new order after the Iraqi government pledged to increase information sharing with the United States.229 Under the new order, people whose visas were approved by March 16 and current U.S. lawful permanent residents will be exempt from the entry ban. Further, the new order removes the indefinite ban on Syrian refugees. Instead, all refugee admissions, including the admission of Syrian refugees, will be suspended for 120 days.230
•The March 6 executive order has also been halted by the courts. On March 15, federal judges in Hawaii and Maryland issued temporary restraining orders on the new executive order hours before it was scheduled to take effect, and on March 29, a judge in Hawaii extended the temporary restraining order, converting it to a preliminary injunction. The Trump administration is appealing both rulings.
