Introduction

On January 25, 2017, President Donald Trump issued Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” [82 FR 8799]. In this article, we will discuss the Executive Order’s provisions on removal priorities, and examine how President Trump’s Executive Order may represent a change from the civil enforcement priorities issued under former President Barack Obama in November of 2014 [see article].

Please note that this is a different Executive Order than the one that suspended entry from seven countries [see article].

Background

Section 2(a) of the Executive Order makes it the policy of the executive branch to “[e]nsure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code” (INA stands for “Immigration and Nationality Act”).

Section 2(d) of the Executive Order makes it the policy of the Executive Order to “[e]nsure that aliens removed from the United States are promptly removed.”

Section 4 of the Executive Order directs all agencies “to employ all lawful means to ensure the faithful execution of the immigration laws against all removable aliens.”

Enforcement Priorities

Section 5 of the Executive Order deals with civil enforcement priorities. First, Section 5 directs the Secretary of Homeland Security to prioritize aliens described by Congress in any of the following sections of the INA for removal:

212(a)(2) — Inadmissibility for criminal and related grounds;
212(a)(3) — Inadmissibility for security and related grounds;
212(a)(6)(C) — Inadmissibility for illegal entrants and immigration violators;
235 — Aliens subject to expedited removal [see article];
237(a)(2) — Deportability for criminal offenses [see article]; and
237(a)(4) — Deportability for security and related grounds.

Additionally, Section 5 designates removable aliens who are described by any of the following points as enforcement priorities:

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 the 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.

It is important to note that Section 5(a)-(g) apply only to aliens who are already removable. For example, an alien who is not otherwise removable and who is charged with a criminal offense would not be any sort of enforcement priority under the Executive Order.

Analysis of the Enforcement Priorities

The new enforcement priorities cover only aliens who are removable under the INA. The first set of priorities cover aliens who are removable due to certain violations covered in the inadmissibility and deportability provisions of the INA as well as in the expedited removal provisions.

The second set of priorities cover aliens who are already removable for being in the United States without legal authorization.

The enforcement priorities ordered by President Trump sweep far more broadly than the civil enforcement priorities designated by the Obama Administration in 2014 [see article]. The 2014 civil enforcement priorities were broken into three levels. The three civil enforcement priorities were as follows:

1. Threats to National Security, Border Security, and Public Safety;
2. Misdemeanants and New Immigration Violators; and
3. Other Immigration Violations.

Individuals who were here illegally but not covered in priorities 1-3 were not designated as civil enforcement priorities. The Immigration and Customs Enforcement (ICE) issued a FAQ on the civil enforcement priorities that we also address on site [see article].

The enforcement priorities found in President Trump’s Executive Order sweep far more broadly than the 2014 civil enforcement priorities. Firstly, President Trump’s Executive Order does not contain tiers of enforcement priorities. Rather, an alien is either covered by one of the enforcement priorities or is not.

The previous set of civil enforcement priorities specified certain types of offenses in each tier. President Trump’s enforcement priorities do not focus on specific offenses for those here illegally. Section 5(a) covers an alien who is here illegally and who is “convicted of any criminal offense.” Even broader, Section 5(b) covers any alien who is here illegally and has been “charged with any criminal offense, where such charge has not been resolved.” Section 5(c) covers an alien here illegally who has committed acts that ‘constitute a chargeable criminal offense,” even if no charges have been filed.

Sections 5(d)-(g) deal with other issues aside from criminal offenses. Section 5(d) covers aliens here illegally who have “engaged in fraud or misrepresentation in connection with any official matter or application before a governmental agency.” Note that this is broader than the inadmissibility provision for fraud or misrepresentation of a material fact to procure immigration benefits. Section 5(e) renders a priority an alien who abused “any program related to receipt of public benefits.”

Section 5(f) covers aliens who are subject to final orders of removal but who have not complied with their legal obligation to depart. Such aliens were also priorities under the 2014 rules. Section 5(g) covers any removable alien who is deemed to be a threat to public safety or national security by an immigration officer. However, the Executive Order does not offer any guidance as to what would support such a finding.

Notably, many aliens who would have previously not fallen within the 2014 civil enforcement priorities will fall within the priorities laid out in this Executive Order. Furthermore, as noted, falling within any priority in the new Executive Order appears to render an alien a top deportation priority.

Questions Regarding Enforcement Priorities

Based only on the language of the Executive Order, it is not entirely clear how certain provisions of the new enforcement priorities will be put into practice. In this section, we will raise some of these questions and examine the need for further agency guidance in these areas.

First, the Executive Order does not explicitly rescind previous agency guidance relating to civil enforcement priorities, most notably the November 2014 guidance.1 Rather, the Executive Order only instructs the Secretary of Homeland Security to review previous agency guidance to ensure that it is in accord with the new enforcement priorities. To this effect, it would be helpful for the Department of Homeland Security (DHS) to issue further guidance upon completion of its review.

Under section 275 of the INA, entering the United States without inspection is a criminal offense. The America Immigration Lawyers Association (AILA) noted that it is unclear whether such individuals would be considered top priorities for having committed the crime of entry without inspection, notwithstanding the absence of any other negative factors.2

Finally, we look forward to clarity on the “abused any program related to the receipt of public benefits” provision. Specifically, it would be helpful for the DHS to specify what “abuse” means in this context. Regarding “public benefits,” the drafting appears to encompass all public benefits. However, it would be helpful for the DHS to explain if there are no distinctions, such as how the concept of “sponsor liability” in the public charge determination context covers only “means-tested public benefits” [see article].

Conclusion

The enforcement priorities set forth in President Trump’s Executive Order appear to cover many more removable aliens than the civil enforcement priorities issued during the Obama Administration in 2014. As noted before, it is important to note that neither set of enforcement priorities cover aliens who are not removable under law. An alien who is apprehended and charged as removable should always seek to retain an experienced immigration attorney immediately, regardless of the enforcement priorities at the time. Those with concerns about the breadth of the new priorities should consult with an experienced immigration attorney for the latest guidance.

We will update the site as more is known about the DHS’s interpretation of the new enforcement priorities.

  1. AILA Doc. No. 17012506
  2. Id.