Some highlights of the January 25, 2017 Executive Order:
Enhancing Public Safety in the Interior of the United States
by Farhad Sethna, Attorney, © 2017
On January 25, 2017, President Donald J. Trump issued an executive order (EO) requiring government agencies undertake certain interior US immigration enforcement tasks.
In a slap at the Obama administration, the EO declares piously that “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.” (EO Section 1). The EO specifically rescinds the November 20, 2014 Removal Priorities memo issued by (then) Homeland Secretary Jeh Johnson. (EO Section 10)
In my opinion, this EO is nothing but a public relations gimmick by the Trump administration. It creates a dedicated “Office for Victims of Crimes Committed by Removable Aliens”, which will provide quarterly reports studying the “victimization by criminal aliens present in the United States.” In other words, present to the American public how “aliens” supposedly commit crimes and the nature of those crimes (EO Section 13). Another report attempts to shame so called “sanctuary jurisdictions” by publishing, on a weekly basis a “comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” (EO Section 9(b)). [Never mind that several courts have held that local jurisdictions do not have to follow ICE detainers because they are NOT mandatory]
Besides the “alien shaming” provisions above, the EO is notable in listing the enforcement priorities of the new administration.
This is where we see how due process is truly on the slippery slope toward extinction:
Priorities for removal include not only those who are already convicted, but those convicted of ANY criminal offense (EO Section 5(a)) – never mind the law at INA § 237.[8 USC § 1227]
Priorities for removal also include (hold your breath here) – aliens who have been charged with any criminal offense, where such a charge has not been resolved. (EO Section 5(b))
And if you want to come up for air for an even bigger breath – you will need it – priorities for removal also include – aliens who have committed acts that constitute a chargeable criminal offense. (EO Section 5(c))
Wow! So under EO 5(b) and (c), an alien can be removed without a trial, and maybe even without having been indicted – just on accusation of having supposedly committed acts that constitute a chargeable offense. What about state’s rights to enforce and punish a person who has violated state law? Does that person get picked up by ICE and removed from the USA before serving time for his or her crime in the USA? How is the rule of law and victims’ rights served by a rush to judgment and a rush to deport?
Breathtaking! What an abuse of our beloved constitution! And this from an administration that professes to love our nation so much! Rule of law – forget it! Due process – forget it! Constitution – convenient document to talk about, not to actually follow.
What are Trump’s other enforcement priorities?
8 USC § 1182 (a)(2): Criminal grounds for exclusion [INA § 212]
8 USC § 1182 (a)(3): Security and related grounds for exclusion
8 USC § 1182 (a)(6)(C): Aliens who sought a visa or other benefit by fraud or willful misrepresentation
8 USC § 1225: Expedited removal (including for asylum seekers) [INA § 235]
8 USC § 1227 (a)(2): Criminal grounds for removal [INA § 237]
8 USC § 1227 (a)(4): Security and related grounds for removal
In order to effectuate this “zero tolerance” policy, the DHS is authorized to hire an additional 10,000 immigration officers. (EO Section 7)
Additionally, aliens may be removed from the USA if they have “engaged in fraud or wilful misrepresentation” with any government agency (EO Section 5(d)), abused any public benefits program (Section 5(e)), are subject to a final order of removal (Section 5(f)), or otherwise pose a threat to public safety or national security. (Section 5(g)).
It is curious why the EO has to list these priorities; they are already codified in immigration law. While the EO rescinds the Priority Enforcement Program under the Obama administration, it simultaneously replaces the exempt classes with its own, new exemptions. (Entire classes of aliens who are non-criminals). As I surmised above, I believe this EO is simply “window dressing”, to prove to Trump’s supporters that he is making good on his campaign promises.
Finally, the EO requires the Secretary of State to enter into negotiations with nations only if those countries first agree, as a condition of further negotiations to accept back their citizens who have been ordered removed from the USA. (EO Section 12)
More Executive Orders are expected to follow. Stay tuned…..
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.