You will likely see many people commenting on this in many places in the days ahead. Rather than pick apart everything in the Executive Order, I will tailor my comments to the areas of my practice that are impacted by it. What we are really talking about here is the flood of "refugees," some purely economic, some legal, coming from Mexico and Central America to escape impossible living conditions, particularly in Honduras, Guatemala, and El Salvador, as well as certain sections of Mexico.
The Order states that it is US policy to construct "a physical wall." What this means is really left unsaid. The exorbitant expense and physical impracticality of constructing a wall between the entire southern border of the United States has frequently been pointed out. Prior policy statements from the Administration suggested that "the wall" would really be a series of enhanced fences. My observation is simply that desperate people migrating in fear of their lives will not be passive in seeking entry into the United States by whatever means necessary. How effective "new construction" will be in deterring this remains to be seen.
The Order also enunciates a broad policy of detaining individuals apprehended in the United States illegally and making them subject to "expedited removal." Well, this is already the law. Of the flood of individuals entering the United States illegally, the only ones who have a colorable right to stay are asylum-seekers and so-called "unaccompanied" minors. Asylum-seekers include individuals from legally recognized "particular social groups" such as battered women who cannot leave personal relationships with men because of cultural reasons and the lack of meaningful law enforcement against domestic violence in their home countries; family members who have been the victims of that vendettas that qualify them as being members of a "particular social group"; LGBT individuals subject to severe persecution and death in their home countries because of who they are; and other categories who may include "unaccompanied minors" (individuals 17 years and under).
The Order calls for enhanced presence of asylum officers to conduct "credible fear interviews" and "reasonable fear interviews" for people seeking either asylum or the related relief of "withholding of removal." This, frankly, would be a good thing because many claimants are turned away without real examination of their claims. Of course, whether these nice words are really code for "strict construction" and rejection of these claims remains to be seen.
Of more particular relevance is the question whether these aliens are classified as "arriving aliens," who might be released on "parole," something the administration doesn't want to encourage, and those found unlawfully present in the United States who are eligible to post bond if they have legitimate claims of asylum or other relief. At the present time most aliens are classified as non-arriving aliens who are eligible for bond. This makes sense because most are caught already in the United States rather than literally at the border. However, how this will play out in practice also remains to be seen.
The administration previously announced a hiring freeze on federal employees. Where the new 5000 border patrol agents are going to come from in light of this is a good question. Similarly, the Order calls for construction of new detention facilities. In my view this isn't going to happen overnight, and the detention of thousands of additional aliens from south of the border is likely to place crushing demands on current facilities that will in turn result in lawsuits because of inhumane and illegal treatment of the aliens in such facilities. I can also state categorically that the immigration court system, which is still apparently subject to the previously announced hiring freeze, now works under incredible backlogs because of the number of cases and the lack people to process them. A dramatic increase in immigration court resources will be necessary to deal with the new detention policy will only make this problem worse.
I would hope that "unaccompanied minors," will continue to be screened for relatives in the United States to whom they can be sent, so that they may present legitimate claims to remain in the United States. Such claims include rights under current law to petition family courts to stay in the US because they have been the victims of abandonment abuse or neglect in their home countries, or asylum claims themselves. One theory I have previously discussed in posts here is an emerging particular social group of children who have no safe parent or family in the home country to take care of them, thus making them vulnerable to gang violence. In fact, the Order contains language that would suggest that more attention is going to be paid to this often neglected group seeking refuge in the United States. Whether the language is code for exactly the opposite remains to be seen.
There are other provisions in the order dealing with punitive actions against "sanctuary cities" and towns in the United States that do not enforce immigration law (well, that's a federal job to begin with) but we will have to see how this plays out. There is also a section of the Immigration and Nationality Act, "287(g)" that seeks the cooperation of local law enforcement in federal immigration enforcement, but the federal government cannot force the states or local municipalities to participate. We will also have to see how the expressed desire to expand such cooperation plays out in future as well.
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law