President Trump Orders Better Background Checks; Temporarily Suspends Some Immigration Benefits

Through an executive order entitled, "Protecting the Nation From Foreign Terrorist Entry Into the United States," President Donald Trump instructed immigration authorities to devise ways to conduct more thorough investigations into the background of potential visitors, refugees and immigrants to the United States. The measures are aimed at an attempt to prevent aliens with terrorist ties from gaining admission to the United States. While the additional measures are being created, the President also temporarily suspended certain immigration benefits. 

President Trump instructs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine what information is needed to determine whether a person who has applied for an immigration benefit poses a threat to national security. The Secretary of Homeland Security is then to submit a report within thirty days on the information needed, and on which countries do not supply this information.  The Secretary of State is then to request that the countries listed start supplying the information identified by Homeland Security. Sixty days later, the Secretary of Homeland Security is to submit a list of countries recommended to be included in a list from which the President will prohibit entry into the United States. 

To alleviate the burden on the investigating agencies, entries of all aliens from countries that have been determined to be state sponsors of terrorism by the Department of State are being suspended during this ninety day period.  During the ninety day period, the Secretaries of State and Homeland Security may determine on a case-by-case basis if certain individuals should be permitted entry, notwithstanding the suspension. 

Immigration authorities are also instructed to establish a program to identify aliens seeking to entry the United States through fraud, and who have an intention to cause harm or are at risk to cause harm after their admission. This program is to include a database of identity documents to prevent such fraud. 

Finally, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, and  is to review procedures to approve refugee applications to determine what additional measures should be taken to prevent the admission of aliens who pose a threat to U.S. security.  For 120 days, the entire refugee program is suspended. After the instructed review is complete, the Secretary of State, the Secretary of Homeland Security and the Director of National Intelligence will then provide a list of countries for which the addition measures are adequate to protect U.S. security. Only refugees from these countries will be permitted to enter the United States. 

The suspension of immigration benefits is temporary in nature. The suspension is intended to permit U.S. authorities to review security measures, and recommend additional security measures. Contrary to popular media, the measures are not aimed specifically at Muslim countries. The measures are aimed at countries that have been determined to be state sponsors of terrorism. Far from discriminating on religious bases, the President actually condemns all of "those who engage in acts of bigotry or hatred (including 'honor' killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation."

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832

(571) 551-6069 (ESP)

Trump Emphasizes Enforcement Priorities; Prosecutorial Discretion Remains Intact

U.S. President Donald Trump did not appear to curb the authority of immigration officials to engage in prosecutorial discretion when he signed an executive order on immigration policy and internal security on January 25, 2017.  This observation was supported by morning proceedings before the Arlington Immigration Court on January 26, 2017.  An attorney for U.S. Immigration and Customs Enforcement (“ICE”) stated in open court that her agency had received no instructions not to accept applications for prosecutorial discretion.  Accordingly, in a number of cases, Immigration Judge Thomas Snow granted continuances to permit immigration attorneys to submit prosecutorial discretion requests to ICE on behalf of their clients.

The process of exercising prosecutorial discretion to administratively close removal cases pending in Immigration Court which were not high enforcement priorities was first instituted by President Barrack Obama in 2011.  President Obama noted the limited resources available to enforce U.S. immigration law, and instructed immigration authorities to concentrate those resources on certain priority cases.  Those priorities included aliens with a criminal history, who pose a threat to public safety or national security, and who recently violated immigration law by entering without inspection by a Customs authority. 

In a memorandum dated June 17, 2011, ICE Director John Morton formalized the policy of exercising prosecutorial discretion.  Morton listed numerous factors for immigration authorities to weigh, including the length of the alien’s presence in the United States, the circumstances of the alien’s arrival, the alien’s ties to the United States, such as education, family members and contributions to the community, and other humanitarian concerns such as the health of the alien or the alien’s U.S. relatives.  By exercising prosecutorial discretion in appropriate cases, ICE would agree to administratively close a pending removal case, essentially permitting an alien who was present in the United States in violation of immigration law to remain.

President Trump's executive order is entitled "Enhancing Public Safety in the Interior of the United States."  In the opening paragraph, President Trump emphasizes the importance of enforcing U.S. immigration law in the interior of the country, to safeguard national security and public safety.  The President outlines his enforcement priorities to include alien 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. These priorities are similar to those of the Obama Administration.

The President did not specifically mention prosecutorial discretion or the June 17, 2011 memorandum in his executive order.  However, the outlining of enforcement priorities lends credence to the conclusion that the ability of immigration authorities to exercise prosecutorial discretion remains in effect.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832

(571) 551-6069 (ESP)