David J. Bier
President Trump signed several executive orders on his first day in office that relate to immigration. These orders will backfire and result in a more disorderly, dysfunctional, and expensive immigration system. He is diverting America’s military and all types of law enforcement away from their primary public safety and security missions and toward this economically destructive and socially damaging immigration project that will make America less safe.
Several recent Trump actions also violate US law and the Constitution. The president has explicitly declared the right to suspend all immigration laws that interfere with his anti-immigration agenda. As a result, the country is facing four years of indescribable lawlessness, waste, chaos, and economic uncertainty that will leave America smaller, poorer, and less free. Let’s look at what’s happening.
Targeting Lawful Residents
– Suspending indefinitely all US refugee entries, canceling 10,000 previously scheduled flights, and stranding 22,000 refugees who were approved to travel. A report on a potential limited restart is due in 90 days (Apr. 20).
Suspending all case processing for refugees, which means that no progress will be made toward restarting entries.
Closing Safe Mobility Offices in Latin America that allowed some people to apply for lawful entry to the United States.
Requiring refugees undergo “stringent identification verification beyond that required of any other alien seeking admission,” which may invalidate all prior vetting approvals.
– Removing the ability to schedule appointments for lawful entry at the US-Mexico border using the CBP One phone app, which had permitted 1,450 people per day (529,250 per year) to enter the United States legally. About 270,000 people waiting for appointments are stranded in Mexico.
– Canceling 30,000 scheduled appointments for people stuck in Mexico. There is a lawsuit on behalf of one asylum seeker and her child who “depleted their life savings and survived kidnapping, robbery, and threats of sexual abuse” while waiting for an appointment.
– Ending the parole sponsorship processes for new arrivals from Cuba, Haiti, Nicaragua, Venezuela, and Ukraine.
– Ending the family reunification parole programs for some Cuban, Guatemalan, Haitian, Colombian, and Salvadoran immigrant visa applicants who seek to reunite with their families when green cards are not immediately available under the caps.
– Ending the Central American Minors program, which allowed children from Guatemala, Honduras, and El Salvador to reunite legally with parents in the United States.
– Allowing Immigration and Customs Enforcement (ICE) agents to invalidate anyone’s parole. Trump is reportedly going to strip all Cubans, Haitians, Nicaraguans, and Venezuelans of parole en masse.
– Rescinding the Temporary Protected Status (TPS) redesignation for 600,000 Venezuelans, including many who entered the country legally via the parole processes and CBP One. This means that their status will expire sooner than it would otherwise.
– Terminating TPS completely for 300,000 Venezuelans: These Venezuelans will lose their status in 60 days (April 1).
– Canceling visa interviews for hundreds of Colombians in response to their government’s temporary refusal to accept deportations on military planes.
– Promising to quickly cancel student visas for and deport all “Hamas sympathizers,” which some analysts interpret as a threat to anyone critical of Israel’s government. It is possible this could affect future visa issuances.
– Denying birthright citizenship to American children born in the United States to mothers who are here illegally or in a temporary status, unless the father is a permanent resident or US citizen, starting no later than February 19, 2025. This has been temporarily blocked by a court.
– Increasing ICE harassment and arrests of US citizens.
Targeting Immigrants without Status
– Eliminating enforcement priorities that required agents to target public safety threats. This has resulted in a 15-fold increase in arrests of people without criminal convictions or criminal charges (graph). About half of all arrests are now from people without criminal records. Between January 22 and January 28, ICE arrested 5,537 migrants inside the United States. They have deported 7,300 people, but most of those appear to have been recent border crossers. The pace of deportations, including border crossers, appears to be lower than the pre-Trump average of 12,000 per week, as of November 2024.
– Creating arrest quotas for ICE agents, forcing them to make a minimum number of daily arrests (1,800) even in cases where they do not believe it is warranted.
– Permitting arrests at sensitive locations, like schools, churches, and courthouses. These arrests are already occurring at churches. Quakers have filed a lawsuit challenging these arrests on religious liberty grounds. Separately, ICE will be allowed to make arrests in immigration court, which will intimidate people from appearing and make obtaining cooperation from potential witnesses much more difficult.
– Expanding “expedited removal” to include people who entered as long as two years ago—up from the current 14 days—and anywhere in the country rather than only within 100 miles of the border.
Expedited removal allows a single immigration agent to order and remove a person from the country without proving that they are removable to an immigration judge. This order is in effect already. ICE agents are arresting people who are waiting for immigration court hearings. The ACLU has a lawsuit challenging the expansion of expedited removal.
– Ordering that DHS create a registration process for all noncitizens (potentially including legal residents) to submit their biometrics. Failure to register would be prosecuted as a criminal offense.
– Ordering that the DOJ prioritize illegal entry cases over other criminal prosecutions.
– Ordering that ICE-Homeland Security Investigations (HSI) prioritize civil immigration enforcement over criminal trafficking investigations (as he did before).
– Reassigning FBI, DEA, and other federal law enforcement agencies from investigations to immigration arrests (without any immigration enforcement training). The Organized Crime Drug Enforcement Task Forces are now being told to prioritize prosecution of immigration offenses over drug crimes.
– Restricting transportation funds to cities that refuse to help mass deportation, though no specific cities have been named yet. He is also investigating limiting other law enforcement grants to “sanctuary cities.” This second action is being challenged in court.
– Allowing state police to act as immigration agents by declaring a “mass influx.” Unlike the “invasion” declaration, there is a pre-existing (though unused) actual statutory process for the Border Patrol to request the help of state and local police when DHS determines there is “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border.” But since Border Patrol arrests have dropped more than 90 percent over the last year and have fallen in the last week by over 50 percent, the finding is dubious. These state and local arrests cannot happen immediately because the local governments must enter into an agreement with the federal government, which may take a few weeks.
– Suspending asylum and all other immigration laws for people entering illegally by declaring an invasion under the Constitution. This declaration would permit wars initiated and waged by states and allow for the suspension of habeas corpus, US citizens’ right to be free from arbitrary detention without charge or trial, as George Mason professor Ilya Somin explains.
President Biden had already nearly suspended asylum since June 2024, but his order had a limited exception for people who affirmatively sought out an agent to state that they feared torture. The regulation was supposed to terminate if arrests fell below an average of 1,500 for 28 consecutive days. Border Patrol has already hit a seven-day average below the threshold. There is a separate rule that created a “presumption” against asylum from May 2023, which would come into force if the June 2024 regulation ends. As far as I know, there is no lawsuit challenging this “invasion declaration.” The ACLU has separately sued over the Biden asylum rule, stating that now that all the parole pathways have been eliminated the rule “is now unlawful even under Defendants’ own rationales.”
– Diverting military funding to build border walls and detention facilities by declaring a national emergency. This will include at least one detention center in Colorado. White House immigration czar Tom Homan is pushing for funding for an additional 100,000 detention beds, which would increase detention to 141,000—about the same as all the individuals in US Bureau of Prisons custody.
– Ordering 30,000 immigrants deported to Guantanamo Bay, Cuba, which currently has space for 130. Flights to Guantanamo were supposed to start this weekend. IRAP has an excellent report about the migrant facilities in Cuba in 2024 for the few people arrested at sea. To this point, it has never been used to transfer immigrants from the US mainland, which would likely be illegal if done without due process.
– Ordering the military to have a permanent mission at the US border and sending 1,500 military personnel to the US-Mexico border.
– Using military planes for deportations, which led to refusals to accept those flights from Mexico and Colombia over US military operations in their territories. Four planes have been used so far.
– Imposing a 25 percent tariff on Canada and Mexico and a 10 percent tariff on China, in part, for supposedly not stopping illegal immigration. Only a minimal amount of illegal immigration originates in Canada, and Mexico was making extraordinary efforts under President Biden to stop illegal immigration. In fact, Mexico was already making more arrests of non-Mexican migrants than the United States was throughout 2024 before Trump came into office.
What’s Imminently Coming:
– Banning at least a dozen countries. Within 30 days (by February 19), the Secretary of State must promptly “re-establish the uniform baseline” for vetting that was in place through January 2021. The “uniform baseline” echoes the language used in the president’s prior security-related travel bans. The following 12 countries were affected by his first term’s ban (either fully or partially): Iran, Libya, North Korea, Somalia, Syria, Yemen (since 2017), Nigeria, Kyrgyzstan, Eritrea, Myanmar, Tanzania, and Sudan (since January 2020). Additionally, some Venezuelan officials were affected by the 2017 ban, but I expect a broader ban on Venezuelans this time. Many other countries could be targeted. During the campaign, Trump said he wanted a “bigger” travel ban, specifically calling for a ban on Palestinians. Instead of the February 19 deadline, the travel ban may not come until March 21 (60 days), when a joint report identifying countries that “warrant a partial or full suspension” is due to be submitted to the president.
– Throttling visa processing. The State Department must “vet and screen to the maximum degree possible” all visa applicants who are already facing extremely long delays because of Trump’s consulate closures in 2020. The Biden administration has reduced visa wait times by waiving interviews for about half of all applicants. When Trump signed a similar order in 2017, he eliminated any interview waivers. Whether they go as far this time or not, we can expect more delays.
– Banning ideologies. Trump ordered measures to be taken to “promote a unified American identity and attachment to the Constitution, laws, and founding principles.” He also has ordered actions to prevent harm to the “economic, cultural, or other national interests of the United States.” He writes that all immigrants must “not bear hostile attitudes toward [US] citizens, culture, government, institutions, or founding principles.” During the campaign, Trump said, “We’re going to keep foreign, Christian-hating communists, Marxists, and socialists out of America.”
– Banning low-income immigrants. He has also ordered actions to prevent harm to the “economic” interests of the United States. This could manifest as the public charge rule, which generally required proof of an income of at least 125 percent of the poverty line and would permit the exclusion of legal immigrants who have incomes up to even 250 percent of the poverty line.
– Banning work permits for asylum applicants and other applicants for status: President Trump has ordered that work permits should be provided only to those with lawful status.
– Terminating Temporary Protected Status (TPS) for everyone: Trump ordered a review of all country designations for TPS, which allows immigrants from those countries to receive work authorization and temporary permission to stay for up to 18 months. This status is subject to renewal at the discretion of the Secretary of Homeland Security. On January 29, Secretary of the Department of Homeland Security (DHS) Kristi Noem described TPS as allowing immigrants to “stay here and violate our laws,” which is the opposite of what it means, but that implies she has already determined TPS should end. She has already revoked TPS for 300,000 Venezuelans (effective April 1, 2024). As of March 31, 2024, about 863,880 people had TPS, but after processing the backlog, the full covered population is likely now 1.2 million, according to DHS notices. These are the nationalities currently covered so long as they arrived before the cutoff dates:
Afghanistan, Burma, Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen.
– Banning immigrants extorted by gangs: President Trump has started the process to designate foreign criminal organizations (“cartels”) as foreign terrorist organizations (FTO). Immigration law bans any immigrants from legally immigrating to the United States if they “materially supported” an FTO, even if the support was entirely involuntary. This could affect many legal immigrants in areas where criminal organizations operate as de facto governments.
– Invoking the Alien Enemies Act: President Trump has ordered “operational preparations regarding the implementation of any decision I make to invoke the Alien Enemies Act.” The Alien Enemies Act permits the arrest and removal of any noncitizen—including lawful residents—from a country that has “perpetrated, attempted, or threatened an invasion.” This would eviscerate the due process rights of all noncitizens from those areas. Reuters reported Monday that Trump plans to imminently order it used against alleged gang members, but if okayed, it could be used against any noncitizen.
– Deporting to indefinite imprisonment in Cuba and El Salvador: President Trump plans to deport immigrants from Venezuela and other countries that refuse deportations to prisons in Guantanamo Bay, Cuba and—even more menacingly—El Salvador, where they would be held without charges indefinitely. The Alien Enemies Act could be used to expel even legal immigrants without due process and then place them in the custody of notorious Salvadoran prisons.
– Increasing State and local immigration arrests: By declaring a “mass influx” into the United States is occurring, Trump has already authorized state and local police to enter into agreements with the federal government to conduct immigration arrests. Separately, Trump has required that DHS use a process that allows state and local police to carry out immigration enforcement under section 287(g) of the Immigration and Nationality Act. There were 135 287(g) agreements before Trump came into office, but they did not allow for arrests outside of jails or prisons, and these agreements require costly and time-consuming training. 287(g) agreements also come with federal oversight which has repeatedly found abuses of civil liberties. Under the mass influx declaration, any required training may be waived. We can look forward to four years of untrained state and local cops patrolling America’s streets for people without (what they consider to be) the right papers.
List of Executive Orders:
Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States
Declaring a National Emergency at the U.S. Southern Border
Executive Order Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists
Securing Our Borders
Guaranteeing The States Protection Against Invasion
Protecting the American People Against Invasion
Realigning the United States Refugee Admissions Program (USRAP)
Protecting the United States from Foreign Terrorists