A (Quieter) Ban on Immigrants: The Executive Order You Did Not Read About

by Azadeh Erfani, Esq.

Throughout this past week, President Trump's January 27th Executive Order barring entry to non-citizens of seven predominantly Muslim nations has been making headlines. Protestors poured into the streets while lawyers, including CAIR Coalition staff, began staffing airports and hotlines to provide free legal assistance to immigrants impacted by the ban. One lawsuit, among a myriad of suits filed since the enactment of the “Muslim ban,” even managed to temporarily halt the Executive Order's reach, providing a breathing space for affected families, organizers, and lawyers alike. 

Unfortunately, the Executive Order putting the ban into place is one of only several immigration-focused Executive Orders.  The impact of the orders together have the frighteningly great potential to increase summary deportation and arbitrary detention for immigrants and individuals seeking refuge in the U.S.

In fact, President Trump's January 25 Executive Order, entitled “Enhancing Public Safety in the Interior of the United States,” places an estimated 8 million immigrants within the enforcement priorities for deportation.   The most troubling of proposals in the Executive Order can be grouped into two categories:

Expanding the Detention and Deportation Pipeline

Currently, the majority of adult immigrants who are apprehended and facing deportation find themselves detained after an interaction with the criminal justice system.  This includes individuals with pending charges who are presumed innocent.  Under the new Executive Order, the government aims to direct resources to greatly increase the number of immigrants caught in the pipeline from the criminal justice to immigration system.  Here are three ways that the Executive Order aims to accomplish this:

  1. Part 1: Prioritizing anyone charged with any offense.  The January 25 Executive Order includes a directive to the Immigration and Customs Enforcement (ICE) to prioritize any immigrant who commits an act that constitutes a “chargeable offense.”  This means that ICE will be empowered to detain any immigrant who has any run-in with law enforcement.  This has the potential to expand ICE enforcement to the conclusion where any noncitizen must be in fear of any interaction with any government official. 
  1. Part 2: Prioritizing anyone convicted of any offense.  Under President Obama, ICE was directed to prioritize the apprehension and detention of certain categories of immigrants.  ICE was to focus its efforts on immigrants with more serious criminal convictions.  Under President’s Trump’s Executive Orders, however, priorities are out the window.  ICE is now directed to prioritize any immigrant who has been convicted of any criminal offense.  This means an immigrant with minor traffic violation convictions is now a priority. 
  1. Part 3: Prioritizing anyone ICE “judges” to pose a risk.  If the redefining of criminal justice priorities did not already broaden the net cast by ICE enough, the Executive Order includes a catch-all provision that allows ICE to apprehend anyone who, “in the judgment of an immigration officer, … pose[s] a risk to public safety or national security.”  This language is highly concerning in that it provides ICE broad latitude to make judgments, absent criminal convictions, as to who constitutes a risk.  This vast expansion of ICE’s power opens the door for arbitrary apprehensions at best—racial profiling at worst.

Expanding Cooperation with Local Law Enforcement

President Trump also called for disturbing levels of cooperation between local police and immigration authorities to enforce immigration law. Here are some particularly troubling highlights of this Executive Order:

  1. Punishing Sanctuary Jurisdictions.  The Executive Order directs the Attorney General to penalize “sanctuary jurisdictions” by withdrawing federal funding from those jurisdictions. “Sanctuary jurisdictions” is a term that is not defined, but the Executive Action gives broad authority to the Secretary of the Department of Homeland Security to designate any locality that makes efforts to shield immigrants who encounter local police from being automatically referred to Immigration & Customs Enforcement (ICE) as a “sanctuary jurisdiction.” As many federal courts have ruled, local police are under no obligation to make such referrals—or honor ICE detainers.  
  2. Secure Communities.  The controversial program "Secure Communities" will be reinstated. Under this program, local police sends fingerprints of apprehended immigrants to the Federal Bureau of Investigations, which then sends them to ICE to check if the individual is deportable.  Upon finding that the arrested individual is undocumented, ICE could demand that local authorities keep the individual in jail until ICE picks them up to face removal charges.  Although the purpose of the collaboration between local police and federal immigration enforcement was to prioritize the deportation of high-risk criminal immigrants, experts noted “no observable effect” to the program’s reduction of crime.  In 2014, the program was cancelled following years of organizing and litigation.
  3. Deputizing local police. The Secretary of Homeland Security is to take immediate action to enter into agreements with local governments. Similar to Secure Communities, these programs deputize local police to detain immigrants for the purpose of enforcing federal immigration law, and effectively allocates local law enforcement resources to perform federal immigration enforcement. These practices have previously emboldened local police to engage in discriminatory practices and racial profiling, which the Department of Justice and federal courts have denounced as unconstitutional. 
  4. Publishing Lists of criminal actions.  The Secretary of Homeland Security shall publish a weekly “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.”  In line with President Trump’s campaign promises, this list aims to foster fear of immigrants and perpetuate the myth of the “criminal alien.”

From Mass Incarceration to Mass Deportation

CAIR Coalition’s mission is to serve immigrants subject to detention and deportation in the DC/MD/VA area. As such, we anticipate that the January 25 Executive Order will have devastating consequences for our immigrant community.

Specifically, immigrants who have any encounter with local police may now be subject to ICE detainers, and may face removal proceedings.  Closer collaboration between local police forces and ICE, especially the deputization of local police to act as federal immigration officials, further blurs the already fuzzy line between criminal offenses and immigration violations, which are defined by law as “civil” in nature.    

Our immigrant community likely will experience the paradox of being both at the margins of society and the target of law enforcement; many will fear calling local police when they are victimized due to programs like Secure Communities and the Executive Action may serve to widen the gulf of mistrust and suspicion between these communities and law enforcement.  Local governments may now face costly penalties for refusing to make local resources available for federal enforcement or for failing to share data about their immigrant residents to the satisfaction of the Secretary of the Department of Homeland Security.  Criminal law enforcement officials could become proxies for immigration enforcement authorities, with police officers empowered to arrest and detain individuals for no other reason than their immigration status and foreign nationality.

Finally, this Executive Order will overburden the already saturated immigration dockets, and is likely to lead to a steep rise in the numbers of incarcerated immigrants.  Before President Trump took office, ICE had already announced the opening of new private detention centers, resulting in 3000 new beds for immigrant detainees. With President Trump’s recent order, those beds won’t take long to fill.


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