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Monday, February 6, 2017

President Trump's Executive Orders - Some Guidance

The recent Executive Orders are evidence that you need a strong and dedicated attorney fighting for you, every step of the way.

The Executive Orders:

On January 25, 2017, President Trump signed two executive orders (EOs) on immigration policy. These orders directed the Department of Homeland Security (DHS) to enlarge the deportation dragnet and further militarize the southern border of the U.S. The administration expanded the group of people who will be priorities for deportation, specifically noting “removable” immigrants who have been accused or convicted of committing criminal offenses. The EOs also reflected a focus on having local law enforcement agencies perform the functions of immigration officers through formal agreements and by denying federal funds to “sanctuary jurisdictions” like New York City that do not comply with requests to help Immigration and Customs Enforcement (ICE) detain and deport immigrants.

Do the Executive Orders change who is legally subject to deportation (i.e. “removable”)?

No. The existing immigration laws dictate who is legally “removable.” Current law allows the federal government to deport people who lack lawful immigration status (i.e. undocumented people) as well as those with status (e.g. green card holders, refugees, visa holders) who have certain criminal convictions. The president cannot redefine who is legally “removable” without an act of Congress. However, for people who are “removable” under existing law, the policies announced can and do expand whom immigration authorities will target for deportation.

Do the Executive Orders change which of my clients ICE will seek to detain and deport?

Yes. Some clients who would not have been ICE enforcement priorities before may now be high priorities for removal, even pre-conviction. Of note, any “removable” person who has been accused or convicted of a crime is now a priority for deportation. Immigration authorities will prioritize deporting the following categories of “removable” people:

• Those with any criminal conviction(s);

• Those with pending criminal charges – even if such charges have not been resolved;

• Those who have “committed acts that constitute a chargeable criminal offense;”

• Those believed by immigration officers to pose a threat to public safety or national security;

• Those who have a final order of removal; and

• Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.

For clients currently in the criminal legal system, it is important to note the EO makes no distinction between the types of crime or level of offenses that will make a person a target for deportation. Also, it is likely ICE will prioritize people with prior convictions regardless of how long ago the conviction occurred or the level of the prior conviction. Many of the terms used in the EOs are subject to interpretation and appear without definition; advocates will seek clarification and we will update you as we get information.The EO targets people accused or convicted of crimes.

If my client pleads guilty to a non-criminal disposition, is s/he safe?

No. Dispositions considered to be minor or even “non-criminal” can make your client a priority for deportation. For example, DHS considers New York violations to be misdemeanor convictions. Whether any disposition will be a “safe” resolution depends on your client’s individual history and an analysis of the immigration consequences of the criminal laws of your jurisdiction. If you represent a non-citizen in a criminal matter, consult an immigration attorney, even if the offer is a minor violation, infraction, or another non-criminal outcome, and then advise your client accordingly.

Will these executive orders change how NYPD or NYC DOC responds to detainers?

Not necessarily. Detainer laws and policies adopted by local and state governments remain in effect unless rescinded. The EO threatens to use financial and other pressure to persuade localities to rescind these laws. Several localities, including New York City, have responded that they will resist this pressure. The New York State Attorney General has issued legal guidance to assist local jurisdictions in shaping local laws and policies to protect immigrants from jail roundups. IDP is working to support New York City and advocates in other places in their efforts to protect immigrants.

Additional resources

• The full text of the January 25, 2017 Executive Orders can be found at whitehouse.gov/briefing-room/presidential-actions/executive-orders. They are entitled, “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States.”

• For resources on emergency planning for immigrants at risk of deportation, visit http://www.immdefense.org/emergency-preparedness/.

• For guidance on New York City’s detainer law and policies, visit http://bit.ly/2jenF2k.

 

For an experienced and strong Criminal Defense Attorney, call the Law Office of Jacob Z. Weinstein, PLLC at 646-450-3484.


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As a former prosecutor, I fully understand the power law enforcement has. As a trial attorney, I know the law seems very scary.