President Trump’s Executive Orders on Immigration and Refugees
Credit: Center for Migration Studies of New York

President Trump’s Executive Orders on Immigration and Refugees

President Trump signed three executive orders the week of January 23 which offend the dignity and threaten the rights of immigrants and refugees both in the United States and globally. On January 25 at the Department of Homeland Security (DHS), Trump signed executive orders on border security and interior enforcement. On January 27, he signed an executive order at the Pentagon on refugees and visa holders from designated nations.

Executive Order on Border Security

The executive order on border security, entitled “Border Security and Immigration Enforcement Improvements,” contains several sections which undermine human rights, including the expanded use of detention, limits on access to asylum, enhanced enforcement along the US-Mexico border, and the construction of a 2,000 mile border wall.

Construction of a Border Wall and Additional Border Patrol Personnel

Section 4 of the border security executive order directs DHS to take steps to obtain operational control of the US-Mexico border by planning, designing and constructing a wall along the length of the border. It also directs DHS to allocate unused funding for the purpose of constructing a wall and to undertake a comprehensive study on the security of the southern border within 180 days. Section 8 directs DHS to hire an additional 5,000 Border Patrol agents “as soon as practicable.”

Response: The construction of a border wall was a main promise of Trump’s presidential campaign, despite concerns by experts that the wall would be expensive, difficult to construct, ineffective in deterring illegal migration, harmful to the environment on the border, offensive to personal property rights, and a threat to the economic and social well-being of border communities.  President Trump’s promise to force Mexico to pay for a wall has created intense tensions in the relationship between these hitherto allied nations.

Adding 5,000 more Border Patrol agents along the border would increase the number of agents to about 25,000, more than triple the number of agents in 2000. The executive order does not explain why the additional agents are needed.

Increased Construction of Detention Facilities and Detention of Immigrants

Section 5 of the order directs DHS to immediately construct detention facilities at or near the southern border and to assign asylum officers and immigration judges to the facilities to conduct asylum interviews and hearings. Section 6 directs DHS to detain noncitizens to the extent permitted by law and to issue guidance on detention authority to terminate “catch and release.”

Response: The executive order does not specify the source of funding for the construction of detention facilities, which can cost tens of millions of dollars, money which will go to private detention companies.

The use of detention for asylum-seekers has been shown to limit their access to due process. This policy would also require the detention of women and children, which has been challenged in court. The use of alternatives to detention, particularly community-based models involving nongovernmental organizations, has proven to be more humane, cost-effective, and beneficial to the court system. These programs also afford immigrants better access to counsel and to know your rights presentations.

Limiting Access to Asylum

Section 11 of the order directs DHS to expand expedited removal throughout the country, as opposed to within 100 miles of the border; to apply humanitarian parole authority only on a “case by case” basis; to train all DHS personnel on the unaccompanied alien children section of the Trafficking Victims Protection and Reauthorization Act (TVPRA); and to ensure that credible fear determinations for those in expedited removal or “reasonable fear” determinations for those in reinstatement of removal proceedings are conducted within the “plain language of the provisions.”

Response: Studies have shown that expedited removal is often applied incorrectly by enforcement personnel and that asylum-seekers are not allowed to adequately communicate their fear in such situations or, even if they do express fear, are simply denied a credible fear interview, leading to their return and peril. The training of DHS personnel on child provisions is needed, but should be conducted by child welfare experts, who also should assist border patrol in making those determinations. Assessments should be made of all children, including Mexican children.

Executive Order on Interior Enforcement

The second immigration-related executive order, entitled, “Enhancing Public Safety in the Interior of the United States,” focuses on such issues as sanctuary cities and local-federal immigration enforcement cooperation, enforcement priorities, the reinstatement of the Secure Communities program and Section 287(g) agreements, and an increase in the number of ICE agents.

Sanctuary Cities and Local-Federal Immigration Enforcement

Section 9 forbids “sanctuary” jurisdictions from receiving federal grants, except those that are necessary for enforcement purposes. It directs DHS to designate jurisdictions as “sanctuary” jurisdictions, although there is no definition of what constitutes a “sanctuary.” Section 8 directs DHS to enter into Section 287(g) agreements, which permit state and local law enforcement to act as immigration agents and to apprehend and detain immigrants. Section 10 terminates the Priority Enforcement Program (PEP), instituted by the Obama Administration, and re-institutes the Secure Communities program, which would require local jurisdictions to issue “detainers” on unauthorized immigrants in their custody.

Response: Many large cities, such as New York, Los Angeles, and Chicago, as well as smaller cities and communities, have chosen not to cooperate with federal authorities in enforcing immigration laws, including participation in the Secure Communities and Section 287(g) programs. The executive order will penalize these jurisdictions if they continue not to participate by withholding federal grant money, except money for “enforcement” purposes. This presumes that other funding, such as Community Block grants, could be withheld. To date, cities such as Chicago and New York have stated that they will continue to not cooperate with federal authorities on immigration enforcement because they have no legal grounds to hold apprehended person beyond a limited period and because they depend upon the cooperation of immigrant communities to “protect and serve” the public.

Secure Communities and Section 287(g), launched during the George W. Bush administration, have been criticized as eroding cooperation between local law enforcement officials and immigrants and their communities, which would be hesitant to report crimes to law enforcement officials who could detain and deport them. Under the Secure Communities program, immigrants with minor offenses, such as loitering, have been deported. Under Section 287(g), local enforcement officials, untrained in immigration law, have repeatedly violated the civil rights of legal residents.

Enforcement Priorities

Section 5 expands the priority list of noncitizens subject to deportation to anyone charged of a criminal offense, who committed acts that constitute a criminal offense, who engaged in fraud or willful misrepresentation, who has abused any program related to public benefits, who is subject to a final order of removal, but has not departed, or who otherwise poses a risk to public safety.

Response: Despite the vow by President Trump to prioritize criminals for deportation, the executive order is so broad that anyone who committed even a minor offense, such as a traffic violation or jaywalking, could be deported. The order also applies to those who may have misrepresented their status to obtain work. In order to carry out the president’s pledge to deport 2-3 million persons he deems as criminals, the Trump administration would need to significantly increase the number of ICE agents and conduct nationwide raids and sweeps.

Increase in ICE Agents

Section 7 authorizes an increase of 10,000 additional ICE agents.

Response: Such an increase would triple the number of ICE agents at a cost of $3.9 billion, likely in anticipation of the launching of more aggressive enforcement activity throughout the country, including raids, which spread fear in immigrant communities.

Combined, the two executive orders on immigration enforcement provide a blueprint to use all available resources and authority to deport as many undocumented persons as possible. This would no doubt lead to an unprecedented separation of families, including families with US-citizen children.

Executive Order on Refugees

On January 27, President Trump signed an executive order entitled, “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The order suspends the issuance of visas to nationals from Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen; shuts down the US refugee program for 120 days; reduces the number of refugees to be admitted to the United States in FY 2017 from 110,000 to 50,000; halts the resettlement of Syrian refugees indefinitely; launches a screening mechanism for the entry of foreign nationals; and requires DHS to expedite completion of an entry-exit tracking system.

Suspension of Visas to Certain Countries and Extreme Vetting

Section 3 of the executive order suspends the issuance of visas to countries designated as being detrimental to the interests of the United States for 90 days, listing Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen. Section 4 requires implementation of uniform screening standards for all immigration programs, to include assessments such as whether an individual is a risk, will be a positive contributor to the nation, and has the ability to make contributions in the national interest.

Response: The countries listed for suspension of visas are Muslim-majority, while other nations that have experienced terrorism have not been listed. This suggests that the executive order is targeting Muslim immigrants. While some countries are listed, others, such as Saudi Arabia, are excluded, even though the 9/11 hijackers originated from that country. The implementation of a screening program in Section 4 is subjective and could lead to discrimination against certain religions and persons of certain income levels.

Suspension of the US Refugee Program and the Ban on Syrian Refugees

Section 5 of the executive order suspends the US resettlement program for 120 days while a review is made to ensure that refugees are being adequately screened for national security purposes. The program will be restored only if the Secretary of State, the Secretary of DHS, and the Director of National Intelligence agree that sufficient safeguards are in place. The order also reduces the number of refugees admitted into the United States to 50,000 for FY 2017, down from 110,000 set by the Obama Administration. It allows the continued processing of refugees on a “case-by-case” basis and individuals with religious-based persecution claims, who would receive priority once the program is resumed. In addition, it suspends the resettlement of Syrian refugees indefinitely.

Response: According to security experts, refugees who enter through the US Refugee program are the most vetted entrants into the United States, going through multiple security screenings before entry into the country, a process that can take as long as two years. Since the 9/11 attacks, the US has resettled nearly 800,000 refugees through the resettlement program and none have launched a terrorist attack on US soil. The conflation of refugees as threats to national security is a tactic used to reduce the number of refugees admitted to the United States. This decision will have grave ramifications worldwide, as other nations will follow the US’ lead in abdicating their legal and moral responsibilities to refugees in the name of national security.

Banning Syrians from resettlement and suspending visa issuance to nationals of Muslim-majority nations will also certainly be used as a recruiting tool by terrorist groups, who will claim these measures prove that the United States is hostile to Islam. Syrian refugees are fleeing the persecution of extremist groups like ISIS and require protection as much as any refugee group at this time.

The exception for those who face religious persecution, according to President Trump, applies to Christian minorities in the Middle East, but also, given the language, could apply to other religious minorities, such as Rohingya in Myanmar, who are Muslim in a majority Buddhist country. While Christian refugees in the Middle East should be protected, either in the region or in a third country, it should not preclude the resettlement of Muslims, who also are top targets of extremist groups. Some faith leaders in the Middle East, including Catholic bishops, oppose the resettlement of their Christian populations, because they fear it will lead to a diminishment of their local Christian communities.

The executive order on refugees, wrapped in national security language, will make the United States less secure. It will give extremist groups a propaganda tool for recruitment; encourage other nations to abdicate their responsibilities to refugees and other vulnerable populations; and will alienate millions of Muslims, both in the United States and abroad, who otherwise would be allies and important sources of counter-terror and law enforcement intelligence.

The three executive orders indicate that the United States is turning its back on its heritage as an immigrant nation and a safe haven for the world’s persecuted. This stance will harm its moral standing in the world, and limit its ability to influence other nations to collaborate with it on humanitarian and other initiatives. It will also harm US relations with long-term allies. Congress should resist these orders and deny funding to implement them.

 

The following are important CMS analyses and resources on these issues, which offer an important, evidence-based counter-narrative to the policies set forth in these executive orders.

Author Names

Robert Warren, Donald Kerwin

Journal Journal on Migration and Human Security
Date of Publication 2017
Pages 1-8
Volume 5
Issue Number 1