Published by The Lawfare Institute
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This afternoon, the Trump administration released the text of a new executive order concerning “Border Security and Immigration Enforcement Improvements.” The stated purpose of the order is to improve national security policy and public safety measures by “direct[ing] executive departments and agencies  to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States and to repatriate illegal aliens swiftly, consistently and humanely.”
Citing, as authority, the Immigration and Nationality Act, the Secure Fence Act of 2006, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the President articulated the following mandates in service of the order’s stated goal. The executive branch shall:
- Construct a physical wall on the southern border of the United States;
- Detain individuals apprehended on suspicion of violating Federal or State law pending proceedings regarding those violations;
- Expedite determinations of eligibility to remain in the United States for those apprehended individuals;
- After criminal and civil sanctions, “promptly” remove those whose claims to stay in the United States have been legally rejected;
- Cooperate with States and local law enforcement to enact Federal-State partnerships to enforce Federal immigration “priorities,” State monitoring and detention programs consistent with Federal immigration law and “priorities”
In addition, the Secretary of Homeland Security shall:
- Evaluate, plan and marshal Federal funds to construct the aforementioned wall;
- Produce a comprehensive study on the security of the southern border within 180 days of the order;
- Construct facilities to detain aliens at or near the land border with Mexico;
- Assign asylum officers to immigration detention facilities to accept asylum referrals and conduct credible fear determinations;
- Issue new policy guidance terminating the “catch and release” practice, in which aliens are released into the United States after being apprehended;
- Ensure that aliens are returned to the territory from which they immigrated “pending a formal removal proceeding”;
- Hire, through U.S. Customs and Border Protection, 5,000 new Border Patrol agents;
- Ensure that the parole and asylum provisions of Federal immigration law are not exploited to prevent the removal of aliens;
- Pursuant to section 235(b)(1)(A)(iii)(I) of the INA, concerning the Inspection of Applicants for Admission, “apply, in [the Secretary’s] sole and unreviewable discretion, the provisions of section 235(b)(1)(A)(i) and (ii) of the INA” allowing an officer who has determined an alien inadmissible because of misrepresentation (212(a)(6)(C)) or does not meet documentation requirements under 212(a)(7)(A) to order the alien removed without further hearing or review unless the alien intends to apply for asylum, “to the aliens designated under section 235(b)(1)(A)(iii)(II),” or those who have not been admitted or paroled in the United States and have not shown that they have been physically present in the United States for the two year period immediately prior to the date of determination of inadequacy;
- Provide DHS personnel with proper training to apply section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232), concerning combating child trafficking, and section 462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2)), and process, care for and, if appropriate, repatriate unaccompanied alien children; and
- Make publicly available monthly reports including statistical data on alien apprehensions around or near the southern border.
The Secretary of Homeland Security, in collaboration with the Secretary of the Interior and other relevant agency heads shall allow all United States officers and employes, and designated State and local officers, to have access to all Federal lands, and perform necessary actions on those lands, in order to implement the order.
Furthermore, the Attorney General (AG) is instructed to immediately assign immigration judges to these immigration detention facilities. The AG will take the necessary steps to establish prosecution guidelines, and allocate resources, to make prosecuting offenses with a nexus to the southern border a “high priority.”
Additionally, within 30 days, every head of each executive department and agency should report to the Secretary of State the sources of direct and indirect Federal aid provided to Government of Mexico for the last five years, reported on an annual basis, including development aid, economic assistance, humanitarian aid and military aid. This will be synthesized into a report for the President.
State and local law enforcement shall be encouraged and enabled, to the “maximum extend permitted by law,” perform the functions of immigration officers under Federal-State Agreements authorized by 287(g) of the INA. These services will be performed in addition to those already performed by Federal officers. The agreement model shall encourage the enforcement of Federal immigration law.
The full text of the Executive Order is available here.