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POTUS issues EO 13768, broadly expanding enforcement priorities and mandating enhancements to interior enforcement

  1. Date Announced

    Jan. 25, 2017

    Executive Order 13768 expands enforcement priorities to include noncitizens who have been convicted of any criminal offense, have been charged with a crime where the charge was not resolved, have committed acts that constitute a crime, "abused any program related to receipt of public benefits," have engaged in fraud or willful misrepresentation in connection with an official matter or application before a governmental agency, have not complied with a final order of removal, or "otherwise pose a risk to public safety or national security;" prioritizes for removal noncitizens described in INA sections 212(a)(2), (a)(3), & (a)(6)(C), 235, and 237(a)(2) & (4). EO also reinstates Secure Communities (SComm) and supersedes the Priority Enforcement Program (PEP). EO pledges to expand 287(g) agreements, requires the Attorney General to enforce 8 U.S.C. section 1373 and increase criminal prosecutions of "criminal immigration offenses," and instructs Attorney General and DHS Secretary to deny federal funding to "sanctuary jurisdictions." It also requires DHS to publish lists of counties that do not comply with ICE detainers, pledges to hire "10,000 additional immigration [enforcement] officers" and instructs the State Department to act against recalcitrant countries that do not accept deportations of their nationals. [ID #245]

    See Biden administration action below.

    View Policy Document
  2. Effective Date of Change

    Jan. 25, 2017
  3. Subsequent Action

    May 22, 2017

    DOJ implementing memo for EO 13768: (1) EO will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding; (2) DOJ will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award; (3) the term "sanctuary jurisdiction" will refer only to jurisdictions that willfully refuse to comply with 8 U.S.C. 1373.

    AG Sessions Memorandum on Sanctuary Jurisdictions
  4. Subsequent Action

    August 1, 2018

    On August 1, 2018 a panel of the Ninth Circuit affirmed a federal district court's ruling that section 9(a) of President Trump's Executive Order 13768 is unconstitutional. Section 9(a) would have withheld funding from sanctuary jurisdictions. The majority held that under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, the panel affirmed the district court’s grant of summary judgment to the City and County of San Francisco and the County of Santa Clara. However, given the absence of specific findings underlying the nationwide application of the injunction, the panel vacated the nationwide injunction and remanded for reconsideration and further findings. On August 13, 2019, the district court entered a stipulation and final judgement and order in which plaintiffs withdrew their request for nationwide injunctive relief.

    **Litigation is listed for informational purposes and is not comprehensive.**

    Ninth Circuit held that withholding funds from "sanctuary jurisdictions" was unlawful
  5. Biden Administration Action

    January 20, 2021

    This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.

    On January 20, 2021, President Biden issued an Executive Order revoking Executive Order 13768 of January 25, 2017, and directing the DOS Secretary, the Attorney General, the DHS Secretary, and other government officials to review any agency actions developed pursuant to Executive Order 13768 and to take action, including issuing revised guidance, as appropriate and consistent with applicable law.

    2021.01.20 Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities
  6. Biden Administration Action

    February 18, 2021

    This Biden administration policy implements the revocation of the Trump-era policy identified in this entry.

    On February 18, 2021, ICE issued an interim operating guidance that will temporarily govern its civil immigration enforcement and removal operations. The guidance focuses the agency's enforcement and removal resources on threats to national security, border security and public safety.

    Interim Guidance: Civil Immigration Enforcement and Removal Priorities
Type of Action: Presidential Orders
Agencies Affected: AG DOS ICE

Prior Policies

  • DHS Secretary Jeh Johnson enforcement priorities memo issued November 20, 2014, prioritized enforcement of immigration laws against noncitizens who posed a danger to national security or had been convicted of certain felonies (Priority 1); noncitizens who were convicted of certain misdemeanors and had significantly abused the visa or visa waiver program (Priority 2); noncitizens who had been issued a final order of removal on or after January 1, 2014.(Priority 3). The Obama administration did not impose 1373 as a condition on receipt of federal funds.

    Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014)

Subsequent Actions

Biden Administration Actions

Commentary

Trump Executive Order and DHS Guidance on Interior Enforcement: A Brief Review

Migration Policy Institute summary

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American Immigration Council, Summary of Executive Order “Enhancing Public Safety in the Interior of the United States”

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Revving Up the Deportation Machinery: Enforcement under Trump and the Pushback

The study finds that the engine that fueled ICE’s peak effectiveness—the intersection of federal immigration enforcement with state and local criminal justice systems—is being throttled by state and local policies that limit cooperation with ICE. Nearly 70 percent of ICE arrests in the early Trump months originated with local jails and state prisons, a sizeable share that is nonetheless down from more than 85 percent in fiscal 2008-11. Beyond sanctuary policies, the report finds growing resistance at other levels. Some cities are changing policing practices to reduce noncitizen arrests, such as decriminalizing driving without a license. Immigrant advocates are conducting more “know-your-rights” trainings, teaching people they do not have to open their doors to ICE. And others are mobilizing to monitor ICE operations in the field, or increasing funding for legal representation for those facing removal hearings.

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