Seventy Days and Counting into the Trump Administration

William R. Hummel, Senior Associate Attorney
William.Hummel@garfinkelimmigration.com

President Donald Trump took the oath of office and became the 45th President of the United States on January 20, 2017. After just over seventy days in office, we review the changes the administration has announced to date and look forward to some of the possible changes that may occur in the near future.

Travel Ban

On January 27, 2017 President Trump signed Executive Order 13769, titled "Protecting the Nation from Foreign Terrorist Entry into the United States" which went into effect immediately. Among its provisions, it called for the immediate suspension of entry into the U.S. for individuals from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). In his justification for the order, President Trump cited national security concerns, specifically the need to prevent entry of terrorists into the U.S. Almost immediately there was confusion around the country at the nation's airports and other ports of entry regarding the applicability of the executive order to lawful permanent residents and dual nationals.

Numerous lawsuits were filed around the country in the days after its implementation, and on February 3, 2017, Judge James Robart issued a nationwide temporary restraining order prohibiting enforcement of major portions of this executive order. The administration immediately appealed this ruling to the Ninth Circuit Court of Appeals., but lost the appeal on February 9, 2017.

Rather than appeal the Ninth Circuit's ruling on the original executive order, the administration issued a revised and more narrowly drawn executive order on March 3, 2017. This new order was set to put a 90 day ban on the issuance of new visas to nationals of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) effective March 16. The revised order did not extend to lawful residents, current visa holders, and dual nationals. However this order was also challenged by states in several courts and on March 15, 2017, two federal judges, one in Hawaii and another in Maryland, issued nationwide temporary restraining orders prohibiting the revised order from going into effect. The Trump administration has specifically appealed the order from Maryland and is set for arguments on the appeal on May 8.

Immigration Enforcement and Border Protection

President Trump issued two executive orders on January 25, 2017 calling for more effective border security and increased immigration enforcement. These orders specifically implement new policies to stem unlawful immigration through re-enforcement of the U.S. Southern border, and aim to facilitate the detention and removal of all individuals present in the U.S. without authorization.

Executive Order 13768 titled "Enhancing Public Safety in the Interior of the United States" replaces the former priorities memo established by the Obama administration. Previously under the Obama administration, immigration enforcement was targeted towards foreign nationals with serious criminal records. However under President Trump, enforcement priorities are expanded to a wider class of individuals to include those with minor criminal issues. The executive order also calls for the suspension of federal grants to "sanctuary cities," or cities and localities that do not cooperate with Federal immigration officials in the search and capture of undocumented individuals.

The second executive order (#13767), titled "Border Security and Immigration Enforcement Improvements" calls for the building of President Trump's promised "wall" along the U.S.-Mexico border and for the hiring of significantly more federal agents to monitor U.S. borders. Unlike the executive order mandating stricter levels of interior immigration enforcement, much of President Trump's executive order regarding the wall has not yet been meaningfully implemented as it will require Congressional approval for the funding of both the wall's construction and the hiring of more federal border agents. The one provision of this particular order that was implemented immediately was the expansion of the expedited removal program whereby an individual found in the U.S. without authorization can be removed from the U.S. immediately without further hearing before an immigration judge. Previously expedited removal was only exercised on those found within 100 miles of the border or who had been in the U.S. for less than 14 days. However, Department of Homeland Security Secretary John Kelly has now expanded the use of the expedited removal program to any individual found within the U.S. who can not show they have been physically present in the U.S. for at least two years.

Changes to Come?

While these first two and half months of President Trump's administration have been eventful with numerous executive orders and policy changes, no substantive changes to immigration statutes or regulations have been proposed by the current administration. Numerous rumors are circulating relating to possible changes, including changes to some of the business visas, namely H-1B and L-1 visas There have been several recent proposed bills submitted in Congress, including the re-introduction of the H-1B and L-1 Reform Act by Senators Grassley and Durbin, but currently all proposed legislation is still in committee stage and has not been scheduled for a full vote in either the Senate or House of Representatives. In addition, there have been several leaked draft memorandums from President Trump regarding further immigration review and reform, namely the DACA program and business visas. However, these draft orders have not been implemented.

Overall, President Trump has issued a number of executive actions seeking to alter immigration policy and in particular step-up immigration enforcement efforts. However, no significant legal or regulatory changes have been discussed publicly by the administration. While additional executive actions that change policy interpretation and increase enforcement may come, any significant overhaul of the U.S. immigration system would require Congressional action and would not occur overnight.