The President’s Executive Order suspending the U.S. refugee relocation program and prohibiting the admission of nationals from seven countries has received a tremendous amount of national and international media attention. But it is another immigration related order that will most certainly have the greatest impact on the day to day practice of criminal and immigration attorneys representing non citizens with criminal backgrounds. On January 25, 2017, President Trump signed the “Enhancing Public Safety in the Interior of the United States” Executive Order, which reshapes the enforcement guidelines utilized by Immigration Officers in apprehending removable non citizens. The order moves away from a tier based priority system in favor of one that, in essence, makes any individual subject to removal from the United States a top priority. Therefore, those living in the country as lawful permanent residents or here in temporary legal status, but convicted of minor removable offenses will be treated with the same level of priority as those convicted of the most serious violent felonies. Additionally, any individual without legal status, whether they entered unlawfully or overstayed the terms of a visa, will also be an enforcement priority as long as the government believes they have engaged in conduct that constitutes a crime, regardless of whether they have been charged.
The order also revives the Secured Communities Program, which enabled ICE to learn of the arrest of noncitizens by any state and local law enforcement agency through instantaneous sharing of fingerprint data. The data was used to lodge detainers that temporarily prevented the release of a noncitizen from a criminal jail once bail was posted or upon completion of their case and sentence. A few years after its implementation many jurisdictions refused to comply with the program due to questions over its legality and constitutionality, as well as local law enforcement concerns over the effect it had on immigrant community policing relations. Some cities, including New York, went so far as to enact legislation that prohibited its law enforcement groups and correctional facilities from complying. In 2014, the program was cancelled and replaced by the Priority Enforcement Program (“PEP”), which significantly reduced the amount of immigration apprehensions at local jails. The revival of the program, along with the Presidents’ threat to pull federal funding from so called “sanctuary cities”, will likely result in a resumption of immigration enforcement through local law enforcement cooperation, as well as increased ICE activity at local jails throughout the country.
Criminal and immigration lawyers will have to revise some aspects of their practices with the ramifications of the Presidents order in mind. For instance, prior to advising a non citizen client to post bail, criminal lawyers will need to reconsider whether it is now more likely that a local criminal holding facility would continue to detain the individual after bail was posted for ICE to take custody; and, if so, whether the individual is a candidate to gain release from immigration custody. Meanwhile, immigration attorneys will have to reconsider prior advice to criminal attorneys concerning criminal conduct likely to gain ICE’s attention, which would result in immediate apprehension and detention.
President Trump campaigned strong on law & order and immigration enforcement. The “Enhancing Public Safety in the Interior of the United States” Executive Order affirms his intent to see his campaign rhetoric become policy. For criminal attorneys representing noncitizens and immigration attorneys representing those with criminal histories the impact this policy will have on their day to day practices will be significant. Never has a strong foundation in understanding the intersection between these areas of law- referred to as “Crimmigration”- been more essential.