By: James Pittman
The startling ascendancy of Donald Trump has brought the restrictionist immigration view to the national stage. Articulated with inflammatory rhetoric about the dangers of immigration, his presidential campaign made numerous promises on immigration. We will examine the status of the major promises.
Promise #1: Establish a deportation force including tripling the number of ICE agents
Promise #2: Begin swiftly removing criminal aliens
Interior Border Total
FY 2017 67,859 59,840 127,699
FY 2016 60,318 78,351 138,669
FY 2015 63,539 75,829 139,368
While DHS/ICE is taking steps to ramp up operations, the total number of removal and number of criminal removals in FY 2017 were still below what they were under the Obama administration.
Promise #3: Build a wall across the entire southern border and force Mexico to pay for the wall
Trump ordered eight prototypes for his wall built in the desert outside San Diego. He toured the worksite in March 2017, declaring the prototypes superior to existing fencing. The same month, Congress passed a spending bill (Consolidated Appropriations Act of 2017) that included $1.6 billion in barrier funding; however, the bill specified
that the funds provided can only be used for the construction or repair of existing fencing designs. Funding "shall only be available for operationally effective designs deployed as of the date of the Act ... such as the currently deployed steel bollard designs," the bill reads
, referencing designs that existed before the Trump wall prototypes were built. This crucial distinction did not stop Trump from tweeting as soon as the bill was passed that he "Got $1.6 Billion to start Wall on Southern Border, rest will be forthcoming."
Promise #4: End the so-called “Catch and Release policy” at the US-Mexico border
On April 6, 2018, Pres. Trump signed a Memorandum
formally ending the Catch and Release policy and directing DHS to issue new policy guidance regarding the appropriate and consistent use of detention authority. The Memo also directed the Department of State to put diplomatic pressure and use other means to pressure countries to accept return of their deported nationals. Attorney General Sessions announced that the federal government would charge every illegal entrant with a federal misdemeanor and hold them in custody. These developments marked the beginning of the “Zero Tolerance” policy toward illegal entrants and marked the beginning of the crisis at the border.
Promise #5: Detain all illegal entrants
Pursuant to the April 6th Memorandum
, DHS began detaining all illegal entrants and charging them with the federal misdemeanor of illegal entry. The presence of children with many adults marked the beginning of the family separation crisis at the border in light of the Flores
settlement which prescribed conditions under which minors may be held in immigration detention.
Promise #6: Zero tolerance for criminal aliens - detainers for any crime whatsoever
Status: While criminal alien removals in FY 2017 were still below those during the Obama years, ICE and DHS are getting ready to ramp up operations.
Executive Order 13768
, signed on January 25, 2017 (also see discussion in next section) broadened the categories of aliens to be targeted for removal, listed as aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Promise #7: End sanctuary cities by withholding federal funds
On January 25, 2017 Pres. Trump signed Executive Order No. 13768
, an exceptionally strongly worded statement that declared “sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.” Such localities were to be punished, with the machinery of the federal government set in motion with a mandate to “employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens” including ensuring “that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law….”
Based on this Order, the Attorney General began threatening to withhold federal funding except for state and local law enforcement purposes that he himself or the Secretary of DHS had deemed necessary. Executive Order No. 13768
was challenged in Court and the government was ultimately permanently enjoined from enforcing section 9(a) relating to sanctuary cities. County of Santa Clara v Trump,
275 F.Supp.3d 1196 (2017)
Promise #8: End Obama executive orders on DACA and DAPA
On September 5, 2017, Attorney General Sessions made a public statement announcing the rescission of DACA
. The same day USCIS issued a Memorandum stating that USCIS would no longer accept initial DACA requests or renewal requests except for those that fit within a certain narrow time-frame.
The actions of the AG and USCIS provoked a wave of litigation. At the present time there are two federal injunctions in place, a January 9, 2018 injunction
from the Northern District of California, and a February 13, 2018 injunction
from the Eastern District of New York. Essentially these judicial decisions require USCIS to hold open the DACA program on the same terms as it existed before the AG’s announcement. USCIS is not presently accepting requests from individuals who have never before been granted deferred action under DACA, nor is it accepting any requests for Advance Parole based on a grant of DACA.
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was announced in November 2014 by President Obama. Several states
filed lawsuits against the federal government before it went into effect, arguing that DAPA violates the Constitution and federal statutes. A temporary injunction was issued in February 2015, blocking the program from going into effect while the lawsuit proceeds. A SCOTUS split decision (4-4) in June 2016 effectively left the block in place. On June 15, 2017, the Trump Administration announced that it was rescinding the Obama executive order that created DAPA.
Bonus - DACA Practice tips:
- DACA requests are filed on Form I-821D. Applications for Employment Authorization based on a DACA request are filed on Forms I-765 and I-765WS. Attorneys entering their appearance to represent the Applicant must file Form G-28.
- Applicants who previously received DACA and whose DACA expired on or after Sept. 5, 2016, may still file a DACA renewal request. They should list the date their prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
- Applicants who previously received DACA and whose DACA expired before Sept. 5, 2016, or whose most recent DACA grant was previously terminated, cannot request DACA as a renewal because renewal requests typically must be submitted within one year of the expiration date of the last period of deferred action approved under DACA. Instead, these Applicants may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing ther DACA request for acceptance, if filing a new initial DACA request because the Applicant’s DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list (if available) the date the prior DACA grant expired or was terminated on Part 1 of the Form I-821D.
Promise #9: Suspend issuance of visas where adequate security checks cannot be performed. This was the polite phrasing of a promise which grew to include the candidate Trump’s called-for “complete shutdown of Muslims entering the United States."
Status: On June 26, 2018 the US Supreme Court upheld the President’s third executive action barring entries by nationals of certain, mostly
Muslim countries. see full discussion of Trump v Hawaii below.
Besides the attempted Muslim Ban, there were at least two high profile suspensions of US consular services during 2017, in Turkey and Russia.
Turkey - from about October 5 through December 28, 2017, the US suspended visa services at diplomatic posts in that country after a Turkish national working for the U.S. diplomatic mission was arrested, and another was the target of an arrest warrant in October, as of a Turkish government crackdown after an attempted military coup in the country. Turkey immediately reciprocated by temporarily suspending issuance visas for US citizens. The diplomatic row ended in late December after the US said it received assurances from Turkey about the safety of employees of the US consular posts.
Russia - In August 2017 the US announced a suspension of nonimmigrant visa services in Russia said it was forced to make the move after Putin ordered American diplomatic staff to be cut by 755 last month. This was itself a tit-for-tat response to US sanctions brought against Russia for its alleged cyber hacking and military involvements in Ukraine and Syria. Services were resumed in December 2017
Promise #10: Extreme Vetting of all applicants for admission especially refugees, including an ideological test to assess whether they “share our values and love our people”
Status: No ideological test as such has been implemented, but in January 2017 President Trump issued Executive Order 13769, Section 4 “Implementing Uniform Screening Standards for All Immigration” which called for “development of a uniform screening standard and procedure, such as […] a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.”
DOS Changes to routine data collection for nonimmigrants.
In anticipation of issuing regulations, the Department of State issued a Notice
soliciting public comment on its proposal to revise its collection of information to add several additional questions for nonimmigrant visa applicants. One question lists multiple social media platforms
and requires the applicant to provide any identifiers used by applicants for those platforms during the five years preceding the date of application. In addition, the applicant will be given the option to provide information about any social media identifiers associated with any platforms other than those that are listed that the applicant has used in the last five years. DOS intends not to routinely ask the question of applicants for specific visa classifications, such as most diplomatic and official visa applicants. Other questions seek five years of previously used telephone numbers, email addresses, and international travel; whether the applicant has been deported or removed from any country; and whether specified family members have been involved in terrorist activities.
ICE “Extreme Vetting Initiative”, ICE unveiled a $100 million plan, one aspect of which was the use of a machine learning algorithm to use the data collected by DOS on the social media presence of visa applicants and holders with the aim of predicting who is likely to become a terrorist or commit crimes in the US. This proposal was widely criticized; opponents characterized the machine learning portion of the proposal as a way to implement the original Muslim ban that had been blocked by the courts by using algorithms which automate discriminatory screening processes under the guise of enhanced security. ICE subsequently backed down from the machine learning part of the initiative.
Promise #11: Ensure that other countries accept their citizens deported from the US
The administration has stepped up diplomatic pressure and used visa sanctions and other forms of pressure in attempts to compel countries to accept their citizens deported from the US. In May 2017, ICE released its list of so-called recalcitrant countries
which were decreased from 20 to 12 during the first five months of 2017.The uncooperative countries were listed as: Burma, Cambodia, China, Cuba, Eritrea, Guinea, Hong Kong, Iran, Laos, Morocco, South Sudan, and Vietnam
Promise #12: Complete Entry-Exit biometric tracking
Promise #13: Cut legal immigration significantly and switch to an immigration system prioritizing individual merit rather than family unity
Status: The RAISE Act (Reforming American Immigration for Strong Employment) was introduced into the Senate on February 13, 2017 co-sponsored by Sen. Tom Cotton (R-AR) and Sen. David Perdue (R-GA). See full discussion below.
James Pittman is Co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.