On immigration, Trump will learn promises are easier made than kept

On Wednesday, President Donald Trump signed an Executive Order (EO) titled “Enhancing Public Safety in the Interior of the United States,” to implement his campaign promises regarding interior immigration enforcement.

It is time to explain exactly what the EO instructs, and how difficult it will be to carry out.

Expanded local authority.

{mosads}The Immigration and Nationality Act authorizes the executive branch to delegate immigration enforcement authorities to state and local government agencies. Trump’s EO expands this program.  

From January 2006 through Sept 30, 2015, the U.S. Immigration and Customs Enforcement’s (ICE) 287(g) Program identified 402,079 potentially removable aliens. ICE has also trained and certified more than 1,675 state and local officers to participate in the program but the backlog crisis in our immigration courts makes a large increase in the number of removal proceedings virtually impossible.  

10,000 additional immigration enforcement officers.  

The EO authorizes the ICE Director to hire 10,000 additional immigration officers, but it may not be possible to find, screen, and train 10,000 qualified applicants in a reasonable amount of time.  

Former President George W. Bush ordered the Border Patrol to hire and train an additional 10,000 border patrol officers in two-and-a-half years.  

According to the National Border Patrol Council it was not possible to recruit, properly screen, and train that many qualified agents in such a short period of time.  For instance, a high school diploma was no longer required.  And security screening was limited to a criminal history check and polygraph examination.  

The required background investigations had to be deferred until later.

Trouble ahead for DACA participants.  

Nor does the EO bode well for participants in former President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program.  In the first section, it says, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”  

And in the second section it states, “Ensure the faithful execution of the immigration laws of the United States … against all removable aliens.”

Enforcement priorities.

The EO enforcement priorities include aliens who are excludable on security and related grounds or as a public charge; have been convicted of any criminal offense; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; and who otherwise pose a risk to public safety or national security.

It sounds harsh to deport someone because he has been charged with a crime, but remember that all of the aliens these priorities apply to are deportable for being in the United States in violation of law.  

Sanctuary Cities.  

The EO ensures that jurisdictions that refuse to comply with the executive’s immigration policies do not receive Federal funds, except as deemed necessary for law enforcement purposes or mandated by law.  This provision just prohibits the imposition of restrictions that prevent state or local government entities or officials from sharing immigration-related information with federal immigration authorities.

The EO also instructs the secretary of Homeland Security to track cases in which sanctuary cities refuse to detain criminal aliens until ICE can take them into custody, and make weekly reports to the public on any crimes they commit after they are released.

Secure Communities program.  

The EO terminates the Priority Enforcement Program (PEP) described in the memorandum issued by the secretary of Homeland Security on Nov. 20, 2014, and reinstitutes the immigration program known as “Secure Communities.”  

When state and local law enforcement officers arrest and book someone for a criminal offense, they generally fingerprint the person and submit the fingerprints to the FBI, and the FBI forwards them to ICE.  Under PEP, aliens who are not in one of the priority categories described in that memorandum were not pursued.   

Presumably, all of them will be pursued under the priorities set forth in this EO.

Review of previous immigration actions and policies.  

The Department of Homeland Security is to rescind or revise regulations inconsistent with Trump’s order and consider whether to withdraw or modify any inconsistent policies or procedures.

Department of Justice prosecutions of immigration violators.  

The EO ensures that adequate resources are devoted to the prosecution of criminal immigration offenses.   

This instruction could cause a backlog crisis in the federal criminal courts, as criminal prosecutions for immigration offenses already made up 52 percent of all Federal criminal prosecutions in FY 2016.  

The districts registering the largest number of prosecutions of this type during FY 2016 are shown in this table:

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Recalcitrant countries.  

Trump instructs the increased use of Section 243(d), which requires the secretary of State to discontinue granting visas to citizens, nationals, and residents of a country that has refused or unreasonably delayed accepting a deportable alien who is a citizen, subject, national, or resident of that country.  

As of May 2, 2016, there were 23 countries considered recalcitrant because of such refusals or unreasonable delays.

Office for victims of crimes committed by removable aliens.  

The president’s EO also instructs for the establishment of an office to provide professional services to victims of crimes committed by removable aliens.  This office shall provide quarterly reports on the effects of the crimes committed by these aliens.

Privacy act.  

To the extent consistent with applicable law, the protections of the Privacy Act regarding personally identifiable information will be limited to persons who are citizens or Lawful Permanent Residents, under Trump’s EO.

Transparency.  

Finally, quarterly reports shall be made on the immigration status of all aliens incarcerated in Federal prisons; all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and all convicted aliens incarcerated in State prisons and local detention centers.

President Trump deserves credit for trying to carry out his campaign promises on interior immigration enforcement, but it is a tall order. It always was.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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