Biglaw, Sponsored Content

Presidential Executive Orders on Immigration

Presidential Executive Orders on Immigration – Read our Legal Update Now>> During President Trump's first week in office he…

By Thomson Reuters  
on

Practical Law Labor & Employment

PL_General_#3_Navigate_300x250During President Trump’s first week in office he issued three Executive Orders (EOs) relating to immigration and border security. The EOs temporarily halt refugee admissions, suspend entry for nationals of seven specified countries, seek the addition of 15,000 immigration and border security officers, penalize “sanctuary jurisdictions,” and authorize planning and construction of a wall along the US’s southern border. Together the EOs present a new landscape for immigration in the US.

***

President Trump issued three Executive Orders (EOs) during his first week in office relating to immigration and border security. They include:

  • Border Security and Immigration Enforcement Improvements (EO 13767, 82 FR 8793 (Jan. 25, 2017)).
  • Enhancing Public Safety in the Interior of the United States (EO 13768, 82 FR 8799 (Jan. 25, 2017)).
  • Protecting the Nation From Foreign Terrorist Entry Into the United States (EO 13769, 82 FR 8977 (Jan. 27, 2017)).

Below we highlight the key points and practical implications from these EOs. Practical Law will continue to provide Updates as developments occur.

Entry Ban For Seven Countries and the Refugee Program

Sponsored

EO 13769 implements several key features:

First, in relation to the US Refugee Admission Program (USRAP), the EO:

  • Suspends all refugee admissions for 120 days. During the 120 day period, government officials are tasked with determining if there are additional procedures that can be implemented to ensure that refugee admissions do not threaten the safety or welfare of the US.
  • Suspends indefinitely admission of Syrian refugees.
  • Reduces the number of refugees to be admitted in fiscal year 2017 (which runs through September 30, 2017) to 50,000 from 110,000.
  • Prioritizes refugees who are religious minorities in their home country.

In addition, the EO introduces a 90-day entry ban:

  • For individuals who are nationals of one of the following countries (even if dual citizens with another country):
    • Iran.
    • Iraq.
    • Libya.
    • Somalia.
    • Sudan.
    • Syria.
    • Yemen.
  • That applies to individuals seeking entry in all statuses, including those holding nonimmigrant visa statuses, lawful permanent residents (LPRs) (green card holders), parolees, and refugees. Notice from the Department of Homeland Security on January 30, 2017, confirms that LPRs will be permitted to travel to the US and will be subject to scrutiny during the immigration inspection process. All other individuals from these countries will be barred from traveling to the US or, if permitted to travel to the US, processed by US Customs and Border Protection (CBP) as not admissible and returned abroad. In addition, visa appointments in these seven countries have been cancelled, according to a Notice by the US Department of State.
  • The travel ban does not apply to individuals from the designated countries traveling on:
    • diplomatic visas;
    • North Atlantic Treaty Organization visas;
    • C-2 visas for travel to the United Nations; or
    • G-1, G-2, G-3, or G-4 visas.

Sponsored

The EO permits exclusions from these policies on a case-by-case basis, and includes other sections addressing visa processing, completing a biometric entry-exit system, and reporting.

Practical Implications. Because of its sudden implementation and broad impact, this EO has led to significant confusion and chaos at airports around the world. Several lawsuits have been filed, and temporary stays have been issued in four locations against discrete portions of the EO (see Darweesh et al. v. Trump et al., 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017), Tootkaboni v. Trump, 2017 WL 386550 (Jan. 29, 2017), Doe v. Trump, 2017 WL 388532 (Jan. 28, 2017), and Aziz v. Trump, 2017 WL 386549 (Jan. 28, 2017)). Further legal challenges are likely in the coming weeks, and the EO’s reach and impact may change in light of litigation. Adding to the uncertainty of the EO’s reach and implications is the replacement of Acting Attorney General Sally Q. Yates, who was fired after questioning the EO’s legality and ordering Department of Justice staff to not uphold the ban. Ms. Yates’ successor, Dana Boente, has stated he is committed to enforcing the EO.

The EO’s most immediate impact is for individuals who are nationals of one of the seven designated countries and travel outside the US. Impacted foreign nationals who are in the US currently should reconsider any plans to travel outside of the US during the next 90 days, and should approach international travel after that date only after fully reviewing any guidelines that are issued in response to this EO. (International travel includes travel to Canada or Mexico.) Impacted individuals who are outside the US should seek counsel to consider when they might qualify for exclusion from the policy.

CBP added an FAQ on the EO clarifying how CBP agents are determining whether an individual is “from” one of the designated countries. The FAQ states that travelers are processed for US entry based on the travel document presented. Therefore, if a foreign national was born in one of the seven designated countries, but holds Canadian citizenship and presents a Canadian passport at US immigration inspections, the traveler will be processed as a Canadian.

In addition to the impact on travel, unconfirmed reports suggest pending benefits applications for nationals of the seven designated countries are not being approved. It is not clear if the applications and petitions will be placed in an administrative hold while the applicants undergo additional screening or if they will be denied. Benefits applications include things like applications for naturalization, permanent residence, and employment authorization. This additional process is beyond the scope of the EO, which is limited to visa issuance and entry.

Employers should determine if they have any employees who are or may be impacted by the EO, particularly in light of international travel plans, and any pending applications for immigration benefits and ensure they have thoroughly evaluated all options with the employee. Employers should be mindful that discrimination on the basis of national origin or citizenship remains unlawful under federal law.

The EO permits flexibility and the policy may be extended beyond 90 days, or to nationals of other countries.

Border Security and Immigration Enforcement

EO 13767 authorizes planning, designing, and constructing a physical barrier along the US southern border with Mexico.

In addition, EO 13767 charges the DHS with:

  • Ramping up construction of or contracting for new detention facilities along the southern border.
  • Reassigning asylum officers to detention facilities to accept asylum referrals and conduct credible fear determinations.
  • Reassigning immigration judges to detention facilities to conduct hearings.

The EO authorizes, pending funding, hiring 5,000 additional CBP border patrol agents.

The EO reinstates a policy of empowering local law enforcement to enforce the immigration law authorized by Section 287(g) of the INA (8 U.S.C. § 1357(g)).

Practical Implications. The Executive Branch has the authority to expend only limited funds towards a wall at the US border. The wall’s construction will continue only if Congress appropriates sufficient funds to the project. It’s not clear whether Congress will do so. Reassignment of asylum officers and immigration judges to detention facilities is likely to add to the already significant delays in processing immigration cases, particularly for individuals who are not currently detained.

Public Safety in the US Interior

EO 13768 seeks to penalize localities that refuse to share immigration status information with US Immigration and Customs Enforcement (ICE), called “sanctuary jurisdictions.” The EO makes sanctuary jurisdictions ineligible for federal grants, except as deemed necessary by the Attorney General or DHS Secretary.

The EO rescinds the Obama Administration’s policy, issued November 20, 2014, of removal priorities for criminals and establishes a prioritization that describes criminal foreign nationals very broadly. In meeting this goal, the EO authorizes, pending funding, hiring 10,000 additional immigration officers.

Finally, the EO purports to remove anyone who is not a US citizen or LPR from Privacy Act protections for personally identifiable information.

Practical Implications. It is unclear whether the privacy rights of individuals who are not US citizens or LPRs can be abrogated by an EO. The EOs coming out of the Trump White House are unprecedented, and it is difficult, if not impossible, to definitively identify the practical implications. Legal challenges have come and will continue to come. Practical Law will continue to follow these developments.

For the full Legal Update from Practical Law, click here.

About Practical Law

As part of its mission to provide practical legal know-how that helps attorneys practice more efficiently, Thomson Reuters’ Practical Law offers practical legal guidance in the form of Practice Notes, Standard Documents, Checklists, and more. Use Practical Law resources created by a team of over 200 full-time attorney-editors to practice efficiently, improve client service and keep up with emerging trends.

Topics