Tales from the Borderlands: An Early Analysis of the “Border Security” Executive Order

(This is the first installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Of all of Donald Trump’s promises, perhaps his most famous was his promise that he would personally ensure that the American government would “build a wall” to keep out “illegal immigrants.” It is therefore not surprising that one of his first acts in office is to sign an executive order entitled “Border Security and Immigration Enforcement Improvements,” which outlines his plan for building a wall (among other things). The order is long — it contains seventeen distinct sections — and a lot of it is either vague, confusing, or both. This article is intended to break down what the executive order is actually saying, to help families prepare and to inform the average citizen what we can expect on this front.

Here’s what is new and clearly articulated as of today, January 25:

• The administration is ordering a wall built on the border between the United States and Mexico. Yes, that’s really a thing that is apparently happening. That said, it’s still unclear what the funding streams will be, what the budget will be, or generally what the plan is for construction.
• The administration is ordering new detention facilities built near said wall. Again, it’s not clear where the funding is coming from or what the budget will be, though I’ll write more on that below. If Congress doesn’t cooperate, the actual construction is probably not going to happen.
• Pre-proceeding release will no longer be a thing. The actual language of the executive order describes “the termination the practice known as catch-and-release,” which is really just a fancy way of saying “we won’t let people out before their hearings anymore.” This practice actually was originally terminated in 2006 under President George W. Bush, but much like NSEERS we’ve been walking that back under subsequent policy since 2009 or so. This is a big deal, both because it’s not especially humane and because refusing to release people puts huge amounts of strain on the detention systems, which often aren’t equipped to hold people in the numbers they are apprehended. This executive order does have a plan for that, but… you’re probably not going to like it.
• Though we now have a federal hiring freeze for most government agencies, good news: The Wall is Hiring! The Secretary of Homeland Security “shall” (which is legalese for “this ain’t optional, Hoss”) hire 5,000 more border patrol agents, which the administration wants stationed “as soon as is practicable.” And they said Donald Trump wouldn’t create more jobs.
• The order compels every executive department and agency to report all aid and assistance to Mexico since 2011. Folks, I honestly wish I were making this one up, but the language isn’t exactly ambiguous. Despite it not being remotely illegal to provide funds or otherwise provide aid to Mexico during President Obama’s tenure, each executive department and agency “shall” (there’s that word again) “identify and quantify” all such aid going back five years — in other words, not just what types of help everyone has given, but how much. They make sure to include language specifying that they mean “all bilateral and multilateral development aid, economic assistance, humanitarian aid, and military aid.” The first report is due to the Secretary of State within thirty days of today’s report — so by the end of February, basically. And thirty days after that, the Secretary owes a report directly to the President. Incidentally, note that all of this involves the Secretary of State, not the Secretary of Homeland Security. So, you know, that’s promising. Also, the section outlining all of this contains a grammatical error, which I note in a vain attempt to make myself feel better about the whole thing.
• The Secretary of Homeland Security is now allowed to deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. This is another one I dearly wish I were making up, because my concern that it might happen has been literally keeping me up at night. But again, the language is not ambiguous — “as the Secretary determines are qualified and appropriate,” police can be authorized “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.” Oh, but in case you were worried about those poor ICE officers being out of a job, you needn’t be; the very next sentence clarifies that this is “in addition to, rather than in place of, Federal performance of these duties.”
• This executive order is really hoping you haven’t heard of the concept of ‘sanctuary.’ It grants officers “access to all Federal lands as necessary and appropriate to implement this order” as well as authority “to perform such actions on Federal lands as the Secretary deems necessary and appropriate to implement this order.” I’m not sure how this one will be implemented in cities that refuse to cooperate, but I guess we’ll find out.
• They want prosecution of people detained at borders to be a high priority. I know this because they explicitly say so. There’s a section devoted to it and everything — and the petty part of my brain that wishes none of this were happening would like you to know that they use the term ‘nexus’ wrong while saying so.
• There will be monthly reports on their apprehension statistics. In a “publicly available way,” though it’s unclear what exactly that means.

Here’s what the executive order might be saying, but we need more information to really know:

• Detained immigrants may be sent back to the place they are fleeing — or they might not. The exact language in the executive order is “The Secretary shall take appropriate action . . . to ensure that aliens . . . are returned to the territory from which they came pending a formal removal proceeding.” It’s not clear whether that would mean “we stick you in a truck and give you a nice starlight tour of Mexico,” or it actually means people might be extradited to the country they are fleeing. As awful as the former would be, the latter would be even worse — but it’s likely the latter is the accurate interpretation, because this administration has been adamant in its denial of refugees, and the policies in this order about asylum aren’t exactly much better. Relatedly…
• Asylum might be about to become impossible to obtain at the border. Some provisions of this executive order promise to “end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” This is a confusing statement to me, in addition to being a vague one, for a variety of reasons — first of all, it’s not exactly easy to get asylum granted; though rates vary by location and by type of application, less than one-half of asylum applications are granted annually. But also, from a legal perspective, you’re not a removable alien on the basis of status anymore if you have asylum status granted; it’s literally a status that grants the right to permanent legal residence. This is like saying “we will end abuse of the self-defense doctrine currently used to prevent the lawful incarceration of people who punched someone assaulting them and then ran like hell.” At any rate, that confusion aside, it’s not really clear what abuses they are contemplating or whether they are saying asylum will stop being a defense to deportation, so we’ll need to keep watch on this front and wait to see what is going on.
• Special Immigrant Juvenile Status might also be about to become impossible to obtain at the border. Right now we have a status that is like asylum that specifically can only be applied to unaccompanied children — it’s called Special Immigrant Juvenile Status (or SIJ status for short). This executive order tells the Secretary of Homeland Security to “ensure that unaccompanied alien children are properly processed, receive appropriate care and placement while in the custody of the Department of Homeland Security, and, when appropriate, are safely repatriated in accordance with law.” It’s not clear whether this processing means deportation, or if it means filing SIJ paperwork; I guess we’ll need to wait and see on this one also.
• The administration may be assigning asylum officers and immigration judges directly to detention centers. The language in the order itself isn’t entirely clear, but it sounds like the order is simply installing asylum officers and judges directly in the detention centers. To my knowledge, this is new — though it’s possible to plead asylum as a defense to deportation, traditionally that’s done at the court as part of deportation proceedings, just like the proceeding itself. This provision is probably not legal, in case anyone was curious. It sounds like they are expecting many of these cases won’t even get to the deportation proceeding stage , which would be a staggering change if I’m reading this correctly. Basically, they are aggressively minimizing how much detainees even get to set foot in the country at all.

Here’s what the executive order dictates for the near future, which presumably will clarify some things:

• Several reports or reviews. Per the executive order, there’s a report due to the President in ninety days on the general progress of all of these directives, and another one due in one hundred and eighty days. There’s nothing guaranteeing that any of us will be told anything about this, but I suspect strongly that anything that makes this administration look good will be reported upon at length.
• A budget of some kind for the project. Though there’s nothing guaranteeing we’ll see this either, it is required per the order itself for the current and next fiscal year. That gives them more-or-less six months to slap something together.

And now you know everything you ever wanted to know about this executive order! And presumably several things you didn’t. At any rate, it’s going to be a rough few years, but if you are reading this, you presumably knew this already. Keep on keeping on, and take care of yourself while you do; we’ll do everything we can to keep all of this bearable.

(Note: Click here to continue to the second installment, on the Enhanced Public Safety executive order.)