Criminal Justice & the Rule of Law Executive Branch

Trump's Executive Order on Deportation and Sanctuary Cities: A Summary

Shannon Togawa Mercer
Wednesday, January 25, 2017, 10:30 PM

Two executive orders released today dealt with the new administration’s immigration policy. One, summarized here, focuses on immigration enforcement in the context of border security.

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Two executive orders released today dealt with the new administration’s immigration policy. One, summarized here, focuses on immigration enforcement in the context of border security. The other, entitled “Enhancing Public Safety in the Interior of the United States,” operates under the authority of the Immigration and Nationality Act (INA), to “ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed.” It covers two broad areas: deploying federal muscle against so-called “sanctuary cities” and directing increased enforcement of federal immigration law.

In the order’s statement of purpose, the executive explicitly states that “sanctuary jurisdictions” (more colloquially “sanctuary cities”) “willfully violate Federal law” by shielding aliens from deportation. Having characterized the existence of sanctuary jurisdictions as “causing immeasurable harm to the American people and to the fabric of our Republic,” the order then declares that the past administration failed to “discharge [the] basic sovereign responsibility” of enforcing immigration laws.

Sanctuary jurisdictions are addressed in more detail later in the order, wherein the Attorney General and the Secretary of Homeland Security (the Secretary) are compelled to ensure that Sanctuary Jurisdictions, which will be designated as such at the discretion of the Secretary, are both denied federal funding and subject to “appropriate enforcement action” by the Attorney General. Sanctuary jurisdictions are defined as jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373,” which prohibits Federal, State, and local officials from refusing to provide information on citizenship or immigration status requested by immigration authorities.

The order also directs executive departments and agencies to enforce the immigration laws of the United States by:

  • Enforcing the INA against all removable aliens consistent with Article II, Section 3 of the Constitution (which includes the Take Care Clause) and 5 U.S.C. 3331 (the Oath of Office for elected or appointed officials excluding the President);
  • Refusing federal funds to those jurisdictions that do not comply with Federal law, except as mandated by law;
  • Promptly removing aliens who have been ordered to be removed from the United States;
  • Supporting those victimized by the crimes committed by removable aliens; and
  • Guaranteeing that privacy policies under the Privacy Act that protect personally identifiable information no longer apply to individuals who are not United States citizens or lawful permanent residents (to the extent consistent with applicable law);


  • The Secretary shall, on a weekly basis, compose a comprehensive list of criminal actions committed by aliens and jurisdictions that have failed to honor related federal requests for the detainment of individuals suspected of being in the country unlawfully;
  • The Secretary will immediately terminate the Priority Enforcement Program (PEP), which limited the scope of instances in which the transfer of an alien was requested by the Immigration Customs Enforcement, and reinstitute the Secure Communities program (the program that preceded the PEP). The Secure Communities program was aimed at identifying and removing aliens in the custody of state and local law enforcement agencies. Pursuant to this reinstatement, the Secretary shall review and revise agency regulations, policies and procedures as well as forms and communication with law enforcement agencies;
  • The Office of Management and Budget must obtain and provide information on Federal grant money received by sanctuary jurisdictions;
  • The Secretary, through the Director U.S. Immigration and Customs Enforcement, will take action to hire 10,000 new immigration officers;
  • At most within a year of this executive order, the Secretary will also collect fines authorized under law from aliens unlawfully present in the United States and those who have “facilitate[d] their presence”; and
  • Much like in the accompanying order, the Secretary is compelled to pursue Federal-State agreements authorizing State and local law enforcement agencies to act as immigration officers in the interior of the United States. These agreements will be designed to encourage agencies and officers to effectuate, as the law permits, Federal immigration laws for their jurisdictions.

Furthermore, the Secretary should prioritize the removal of the following classes of aliens:

  • Those who have been convicted of or implicated in in criminal violations as classified in INA 212(a)(2) and separately under INA 237(a)(2);
  • Those who may be a threat to national security under INA 212(a)(3) and separately under INA 237(a)(4);
  • Those who entered illegally or violated other immigration laws as characterized by INA 212(a)(6)(C);
  • Those who are removable under INA 235, generally addressing individuals who have been found inadmissible under inspection by immigration officers;
  • Removable aliens who have been convicted of a crime;
  • Removable aliens who have been charged with a crime even if the charge has not been resolved;
  • Removable aliens who have “committed acts that constitute a chargeable criminal offense”;
  • Removable aliens who have, in connection with an application or matter before a government agency, engaged in fraud or misrepresentation;
  • Removable aliens who have abused a public benefits program;
  • Removable aliens who have not complied with a final order of removal; or
  • Removable aliens whom immigration officers have identified as a risk to public safety or national security.

The Department of Justice and the Secretary will develop and implement a program focused on prosecuting criminal immigration offenses and, and to cooperate in the effort to reduce violent crime and the reach of transnational criminal organizations into U.S. territory.

The Secretary of Homeland Security and the Secretary of State shall implement the sanctions against other countries provided for in the Section 243(d) of the INA, including the discontinuation of the granting of immigrant and nonimmigrant visas to citizens, subjects, nationals and residents of those countries. The Secretary of State shall focus on including in negotiations and diplomatic relations with other States the condition that nationals of those states be subject to removal from the United States.

The Director of U.S. Immigration and Customs Enforcement shall establish an office providing support and services to “victims of crimes committed by removable aliens and the family members of such victims.”

The Secretary and the Attorney General must submit, in addition to two progress reports at 90 and 180 days for the President’s consumption, quarterly reports on the immigration status of: incarcerated aliens in Federal prisons, aliens imprisoned as pretrial detainees, and convicted aliens in State and local prisons and detention centers.

The full text of this order is available here.

Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.

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