Legislative Update: 1/31/2017 
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Legislative Update: 1/31/2017

Trump’s National Security Executive Order is NOT a ‘Muslim Ban’

By: Robert Law

On Friday, President Donald Trump signed the “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order that takes important steps to ensure the proper vetting of foreign nationals before they gain entry to the country. The order notes that “[n]umerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.” (President Trump's National Security Executive Order, Jan. 27, 2017) The order emphasizes that the “United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” (Id.)

The first thing the executive order does is impose a temporary ban on entry by individuals from countries that are hotbeds for terrorism. Section 3 suspends the “immigrant and nonimmigrant” entry into the U.S. for 90 days for aliens from countries referenced in Immigration and Nationality Act (INA) Section 217(a)(12). (Id.) Specifically, this temporary ban applies to the following countries: Iraq, Iran, Syria, Libya, Somalia, Yemen, and Sudan. Importantly, this list of countries was established by the Obama administration on the basis of national security concerns. Additionally, the word “Muslim” does not appear once in the executive order and it does not apply to the majority of the world’s Muslim population, including countries like Indonesia, Pakistan, Bangladesh, India, Egypt, and Nigeria. During this temporary ban, the Secretary of Homeland Security, Secretary of State, and Director of National Intelligence will conduct a review to determine the information needed from any country to adjudicate any visa or admission and confidently determine they do not pose a security threat. (Id.) Foreign countries deemed to not have reliable documentation for sufficient vetting will be given 60 days’ notice to comply before being added to the list for temporary ban. (Id.) The executive order grants the Secretaries of State and DHS discretion to admit nationals from the list of countries, despite the ban, on a case-by-case basis when deemed in the national interest. (Id.) After some confusion and misreporting over the weekend, DHS Secretary John Kelly clarified that the temporary ban does not apply to individuals with Legal Permanent Resident (greed card) status. (BGov., Jan. 28, 2017)

The executive order also takes several steps to undo President Obama’s reckless policies on refugee settlement. First, Section 5 temporary suspends the U.S. Refugee Admissions Program (USRAP) for 120 days but grants discretion to the Secretaries of State and DHS to jointly agree to admit refugees during that time on a case-by-case basis when in the national interest. (President Trump's National Security Executive Order, Jan. 27, 2017) During the refugee suspension the USRAP will undergo review to ensure sufficient vetting procedures are in place to root out national security threats. Consistent with President Obama’s FBI Director and Director of National Intelligence that the U.S. cannot properly vet Syrians, the executive order indefinitely suspends the admission of Syrians as refugees. (Id.) The executive order also caps Fiscal Year 2017 refugee resettlement at 50,000, compared to the 110,000 cap President Obama had set at the beginning of the fiscal year. (Id.; see FAIR Legislative Update, Sept. 20, 2016) Section 5 prioritizes, “to the extent permitted by law,” the processing of refugee claims based on religious persecution and gives State and local communities “a role” in the resettlement process. (President Trump's National Security Executive Order, Jan. 27, 2017)

The executive order also makes two additional long-overdue national security changes. First, Section 7 directs the DHS Secretary to “expedite the completion and implementation of a biometric entry-exit tracking system.” (Id.) Congress has repeatedly passed legislation since 1996 mandating entry-exit (and biometric since 9/11) but the program has inexplicitly never been finalized. Section 8 immediately suspends the visa waiver program, which allows nationals from 38 countries to enter the U.S. without applying for a visa or facing in-person screening. (Id.) Instead, the executive order calls for establishing uniform vetting procedures for all aliens. (Id.)

Over the weekend several federal judges (in New York, Boston, Virginia, and Washington State) issued temporary rulings blocking part of the order. The hastily drafted orders, which the ACLU and other open borders groups sought, prevent the deportation of individuals from the 7 listed countries who were detained at airports. The judicial orders do not rule on the legality of the executive action and further litigation is forthcoming. The Trump administration said it is fully complying with any and all court orders while defending its authority to temporary restrict admissions by foreign nationals for security reasons.

Stay tuned to FAIR as details emerge…

President Trump Fulfills Campaign Promise To Build The Wall

By: Shari Rendall

Last Wednesday, President Donald Trump signed the “Border Security and Immigration Enforcement Improvements” executive order authorizing the immediate construction of a border wall on America’s southern border. The executive order uses the power vested in the President to “deploy all lawful means to secure the Nation’s southern border, prevent further illegal immigration into the United States, and repatriate illegal aliens swiftly, consistently and humanely.” (See President Trump’s Border Security and Immigration Enforcement Improvements Executive Order, Jan. 25, 2017)  It orders the completion of border security measures promised by Congress in the Secure Fence Act of 2006 but never fulfilled.

In a speech at the Department of Homeland Security announcing the signing of this executive order (and one on interior enforcement), President Trump said, “A nation without borders is not a nation. Beginning today, the U.S. gets back control of its borders.” (Fox News, Jan. 25, 2017)

The Border Security and Immigration Enforcement Improvements executive order follows through with the main campaign promise President Trump made to the American people. It calls for the immediate construction of a physical wall to obtain “operational control of the border” that prevents all unlawful entries in the United States including terrorists, narcotics and other contraband.  (See President Trump’s Border Security and Immigration Enforcement Improvements Executive Order, Jan. 25, 2017) The executive order defines “wall” to mean a contiguous, physical wall or other similarly secure contiguous and impassable physical barrier. (Id.) To implement the building of the wall, funds currently available for the wall will be used and then a long-term budget will be developed for Congressional approval. (Id.) To fulfill his campaign promise to have Mexico pay for the wall, President Trump directed the head of each executive department and federal agency to identity all the sources or direct and indirect foreign aid to Mexico for the past five years. (Id.)

Another crucial component of the order prevents illegal aliens from crossing the border and disappearing into the interior of the United States. President Trump’s order calls for hiring 5,000 additional Border Patrol Agents and the construction of more detention centers on the southern border. (Id.) His order also assigns additional asylum officers, to conduct “credible fear” determinations and additional judges to these southern border detention centers. (Id.) Unlike Obama’s “catch and release” policy which gave aliens apprehended at the border summons to appear in court (often years in the future), President Trump’s order mandates detention for all aliens pending the outcome of their removal proceedings or removal from the country. (Id.; see FAIR Legislative Update, Sept. 20, 2016) Predictably, over 80 percent of aliens that received notices failed to show up for their hearings. (FAIR Legislative Update, Sept. 20, 2016)

Further, the Border Security and Immigration Enforcement Improvements executive order ends the Obama-era non-enforcement policies as it pertains to asylum, parole, and trafficking under the William Wilberforce Trafficking Victims Protection Act (TVPRA). No longer will aliens be permitted to stay simply by using catch phrases like “credible fear” to do an end-around our immigration laws. The executive order requires “credible fear” determinations for asylum to be conducted in a manner consistent with the plain language of those provisions. (See President Trump’s Border Security and Immigration Enforcement Improvements Executive Order, Jan. 25, 2017) Under the Immigration and Nationality Act, fear of generalized violence was not sufficient for granting asylum. However, under the Obama administration, many illegal aliens realized that if they uttered the phrase that they had “credible fear” of persecution (the initial threshold for an asylum claim) they would be released after posting a bond. (See FAIR Legislative Update, June 14, 2016)

The executive order also puts an end to an Obama administration policy to thwart our immigration laws and put certain illegal aliens on a path to citizenship. Specifically, the Obama administration utilized advance parole, an administratively created tool, that allows an illegal alien to leave the U.S. with a promise of being "paroled" back into the U.S. upon return. (See FAIR Legislative Update, Feb. 23, 2016) Advanced parole, which has no statutory backing, is ostensibly based on the humanitarian parole statute. (Immigration and Nationality Act § 212(d)(5)) Granting parole is significant, because it allows aliens to circumvent provisions in the law that would normally bar their admission. (See INA § 201(b)(2)(A)(i); § 245(a)) Generally, aliens who have been residing in the country illegally long term cannot simply return to the country if they leave. INA Section 212(a)(9)(B) bars the admission of aliens who have been illegally present in the U.S. between six months and a year for three years; it also bars the admission of aliens who have been illegally present in the U.S. for over a year for ten years. (INA § 212(a)(9)(B)) But, by paroling them instead of admitting them into the country, the 3- and 10-year bars do not apply. (Id.) Trump’s executive order restores the parole authority to the plain language of the statute. Now, parole will only be granted on a case-by-case basis and only in circumstances where the individual demonstrates urgent humanitarian reasons or significant public benefit. (See President Trump’s Border Security and Immigration Enforcement Improvements Executive Order, Jan. 25, 2017)

President Trump’s executive order also closes the William Wilberforce TVPRA loophole which prevents Unaccompanied Alien Minors from Central America from being promptly returned to their home countries. (P. Law 110-457) The executive order calls for the proper application of the William Wilberforce TVPRA and ensures that the TVPRA will no longer be a pretext to allow the “settlement” of thousands of Central American minors who were neither unaccompanied nor trafficked as it was used in the Obama administration.

In a press release, FAIR President Dan Stein applauded President Trump’s executive order saying, “Restarting construction of the border wall and fencing, which Congress committed to in 2006, and boosting the number of immigration enforcement personnel, in conjunction with policies that end incentives to illegal immigration, will go a long way in making effective border control a reality.” (FAIR Press Release, Jan. 25, 2017)  “Clearly, a border that offers easy entry for hundreds of thousands of illegal aliens each year is a public safety and national security concern.” (Id.)

Trump Signs Executive Order to Restore Interior Immigration Enforcement

By: RJ Hauman

Last Wednesday, President Trump signed “Enhancing Public Safety in the Interior of the United States,” an executive order directing executive departments and agencies to employ all lawful means to enforce Federal immigration laws. (Executive Order, Jan. 25, 2017) With this order, President Trump effectively put an end to Obama-era policies that gutted immigration enforcement, punished State and local governments that attempted to enforce immigration laws, and stretched the concept of “prosecutorial discretion” to a point where it rendered many immigration laws meaningless. (See FAIR’s Obama Timeline)

The signing of the order – and another on border security – was announced during a visit to the Department of Homeland Security’s headquarters in Washington. (Washington Times, Jan. 25, 2017) “From here on out, I’m asking all of you to enforce the laws of the United States of America — they will be enforced, and enforced strongly,” President Trump told the assembled ICE agents, Border Patrol officers, and other law enforcement personnel. (Id.) “We do not need new laws. We will work within the existing system and framework.” (Id.)

FAIR President Dan Stein lauded the executive order as a historic course correction in U.S. immigration policy. (FAIR Press Release, Jan. 25, 2017) “By taking meaningful steps to enhance interior immigration enforcement, the administration is underscoring the primacy of the national interest,” Stein said. (Id.)  “These long overdue policy steps will protect public safety and American jobs.” (Id.)

Below are several of the critical provisions in the executive order:

Sanctuary Cities

The order recognizes that “sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” (Executive Order, Jan. 25, 2017) It goes on to say that “it is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.” (Id.) This statute explicitly prohibits sanctuary policies that impede cooperation between federal, state, and local officials when it comes to the sending, requesting, maintaining, or exchanging of information regarding a person's immigration status. The order also gives the Attorney General and DHS Secretary the authority to ensure "that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes.” (Executive Order, Jan. 25, 2017)

FAIR’s new sanctuary cities report breaks out by state some 300 known sanctuary jurisdictions that stand to lose Federal grant funding if they maintain their current policies.

Enforcement Priorities

"We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement," the order says. (Executive Order, Jan. 25, 2017) It establishes new enforcement priorities that prioritize the enforcement of immigration law against criminal aliens (subject to certain grounds of inadmissibility), aliens who commit crimes, aliens who abuse public taxpayer benefits, or are otherwise a national security concern. (Id.) These enforcement priorities are a proper use of “prosecutorial discretion” compared to the Obama administration policies that exempted from enforcement all illegal aliens who did not meet their very narrow “enforcement priorities.” To enforce the law in line with the aforementioned priorities, the order also calls for ICE to hire 10,000 additional enforcement and removal officers. (Executive Order, Jan. 25, 2017)

Reinstitution of Secure Communities

In November 2014, the Obama administration announced it was scrapping the ICE Secure Communities program and replacing it with a new initiative called the Priority Enforcement Program (PEP). (FAIR Fact Sheet, April 2016) The Obama administration claimed that PEP was an improvement that would enable law enforcement to more effectively target criminal aliens, even though it did the opposite. (Id.) The new administration clearly recognizes this, as the order directs the DHS Secretary to immediately take action to terminate PEP and reinstitute Secure Communities. (Executive Order, Jan. 25, 2017)

Secure Communities is effective because it compares fingerprints of all individuals booked into state and local jails to DHS databases in order to flag immigration violations and deportable aliens. (FAIR Fact Sheet, Apr. 2016) The program ensures that illegal aliens will be identified and removed from the country after serving time for their crime, not put back onto the street. (Id.) PEP, however, only flagged a small subset of criminal aliens in law enforcement custody who met the Obama administration’s narrow enforcement priorities. (Id.)

Federal-State Cooperation

According to the order, it is executive branch policy “to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.” (Executive Order, Jan. 25, 2017) To accomplish this, the DHS Secretary “shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).” (Id.) The 287(g) program, one of ICE's top partnership initiatives, allows a state or local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions. (ICE 287(g) Fact Sheet)

Recalcitrant Countries

Last October, the Senate Judiciary Subcommittee on Immigration and the National Interest revealed that nearly one million aliens with final orders of removal still roam free in American communities. (FAIR Legislative Update, Oct. 25, 2016) Approximately 250,000 of these aliens – including some 60,000 with criminal convictions – are from “recalcitrant” countries that either refuse or delay repatriation of their nationals after they have been ordered removed from the United States. (Id.) Under section 243(d) of the INA (8 U.S.C. 1253(d)), officials are supposed to retaliate against these countries by withholding visas until they are cooperative. (Id.) However, this powerful tool has only been used twice. (Id.) Now, pursuant to this order, the DHS Secretary and Secretary of State are directed to “effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate.” (Executive Order, Jan. 25, 2017)


To better inform the public about threats associated with illegal alien crime and sanctuary jurisdictions, “the [DHS] Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” (Id.) The order also calls for the establishment of an office for victims of crimes committed by removable aliens to provide support for victims and “quarterly reports studying the effects of the victimization by criminal aliens present in the United States.” (Id.) Finally, the DHS Secretary and Attorney General are directed to collect incarceration data pertaining to aliens and provide quarterly reports on their findings. (Id.)

Senate Judiciary Committee Votes on Sessions Nomination TODAY

By: Government Relations

The first step in true immigration reformer Sen. Jeff Sessions’s (R-AL) confirmation process as Attorney General is happening this morning. The Senate Judiciary Committee is voting on whether to advance Sessions’s nomination to go before the full Senate. Republicans control the committee 11-9 so Sessions can pass this first hurdle without the support of any of his Democratic colleagues because a majority vote is needed. If the committee advances his nomination, Sessions then must secure a majority vote of the entire Senate to be confirmed as Attorney General. You can watch the committee vote here. A summary of Sessions’s confirmation hearing before the committee can be viewed here

FAIR Releases 114th Congress Voting Report

By: Government Relations

FAIR's Government Relations team has just released the latest Congressional Voting Report. The Voting Report is designed to help you understand how your lawmakers voted on immigration measures during the 114th Congress in furtherance of a rational immigration system.

Despite having complete control of Congress and the majority of Americans behind them, Republican leaders showed little desire to pursue true immigration reforms or rein in the Obama administration's flagrant abuse of executive power. However, both chambers did consider several important immigration-related amendments, nominations, and bills in the 114th Congress. Specifically, this report includes votes on:

  • Defunding President Obama's unlawful executive amnesty programs
  • Nominating pro-amnesty U.S. District Attorney Loretta Lynch to become Attorney General
  • Defunding State and local jurisdictions with dangerous "sanctuary city" policies

The Voting Report includes a brief summary of each vote and indicates whether FAIR supported or opposed the measure. If your Senators and Representative voted with FAIR's position, you will see a green plus sign (+). If your Senators and Representative voted against FAIR's position, you will see a red minus sign (-).

We encourage all of our members to review the Congressional Voting Report and learn more about how their lawmakers are representing them. You can access the report here.

ICYMI: FAIR Released Updated Sanctuary City Report

By: State & Local Government Relations

Last week, FAIR's State and Local team released the latest Sanctuary Policies Across America report, cataloging 300 sanctuary policies around the country. Sanctuary Policies Across America demonstrates how many state and local leaders are shielding criminal aliens from enforcement by enacting laws or policies designed to restrict cooperation with federal officials and impede federal immigration enforcement efforts.

While some of the sanctuary policies noted in this report were enacted decades ago – such as the policies in New York City, Los Angeles, and San Francisco – the vast majority have been instituted since President Obama took office in 2009. Of the 300 jurisdictions cited in this report:

  • 239 jurisdictions have sanctuary policies or practices instituted by law enforcement agencies;
  • 23 jurisdictions have sanctuary resolutions;
  • 15 jurisdictions have sanctuary laws or ordinances, including statewide laws in California, Connecticut, and Oregon;
  • 5 jurisdictions have sanctuary executive orders; and
  • 18 jurisdictions either have multiple forms of sanctuary policies or practices in place, or have a policy or practice that simply fit no other classification.

We encourage all of our members to review Sanctuary Policies Across America and learn more about how many state and local leaders are prioritizing the interests of criminal aliens over their constituents.