President Trump’s Immigration Orders: Some Preliminary Thoughts

by Jason Dzubow on January 27, 2017

During the first week of his Administration, President Trump has signed two “executive orders” on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.

This is how it looks when America compromises its values.

The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client–and a lawful permanent resident based on asylum–was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend’s client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending–and minor–criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion–closing certain cases where the alien has no criminal issues and has equities in the United States–has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:

  • Don’t panic. The President has the power to issue executive orders (“EOs”), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
  • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can’t just be thrown out of the country. Even an expedited process usually takes months.
  • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing–see below) any crimes.
  • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from “countries of particular concern” (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO’s seem to temporarily suspend immigration benefits for people from those nations.
  • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
  • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for “extreme vetting.” Since we don’t really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
  • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.

In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.

The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone’s guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from “countries of particular concern.” The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.

The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end “sanctuary” jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply “information needed for adjudications” of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.

So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump’s actions (spoiler alert: They are terribly damaging to our national interests and our country’s character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

{ 9 comments… read them below or add one }

Lia February 20, 2017 at 3:30 am

Hi Jason, do you know what will happen to those who have been granted Prosecutorial Discretion in the past? What’s likely to happen to them in the near future? Thank you

Reply

Jason Dzubow February 20, 2017 at 8:10 am

We do not know yet, but it will create a real mess if they try to put all those cases back before judges. I suspect that such people will be allowed remain in PD, as there is not much else to be done with their cases, and there is not enough resources to reopen all those cases. Take care, Jason

Reply

Nolan February 4, 2017 at 2:29 pm

I applied asylum I have been watching at the interview bulletin schedule . Most of the office are not moving at all.even Arlington considered as one of fatest has been stuck since for almost a year on jan 2014 interviews. Is really this bulletin being up dated.

Reply

Rayan February 5, 2017 at 12:54 pm

interview bulletin are useless,not just for Asylum cases but even for adjustment cases

Reply

Jason Dzubow February 5, 2017 at 11:29 pm

I think it is – it is just moving slowly. If you have a reason to expedite (health problem, family separation, etc), you can ask the asylum office to expedite your case. Contact them for the procedure. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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Jamie February 3, 2017 at 11:21 pm

Hi Jason, I have a question. I have a pending asylum since 2015 and still waiting for my interview. I’m from Iran. My question is:” what will happen for my cause? are they stopped interviewing
asylum-seekers from these seven countries who lives for years in America and waiting for their interview?”

Thanks Jamie

Reply

Jason Dzubow February 5, 2017 at 11:14 pm

USCIS is currently adjudicating all cases, even if you are from a banned country. This may change in the future, and you will have to watch the http://www.USCIS.gov website for info about what is happening, but for now, cases are being processed as before. Take care, Jason

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Alex February 3, 2017 at 9:29 pm

Hi Jason, I have a question. I have a pending asylum since 2014 and still waiting for my interview. Im from Kazakhstan just recently got extended my EAD for two years. My question is can Trump sign Executive Order to remove or deport people with Pending Asylum from the States. Or can he send people back to their countries and make them wait for their interview outside of the US?? Thanks Alex

Reply

Jason Dzubow February 5, 2017 at 11:04 pm

An EO cannot violate the law, and the law – and the Constitution – require that you have certain procedures (trial with a judge, appeal) before you can be deported. So Trump cannot simply send you out of the country without going through the procedures. Take care, Jason

Reply

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