The Scope of Trump’s Executive Orders and DACA
May 3rd, 2022
In the past few weeks we have seen many news in terms of immigration. In particular, President Trump has issued 2 controversial executive orders which have had a deep impact, but in order to understand what is happening and what we can expect, first we need to understand what is the definition of an “executive order”:
“An executive order is a rule or an order issued by the President to an executive branch to take a specific action or to change a specific practice. Executive orders do not require Congressional approval to take effect but they may have the same legal weight as laws passed by Congress if issued pursuant to a statutory mandate or delegation of authority from Congress (See Indep. Meat Packers Asso. v. Butz, 526 F.2d 228, 234 (8th Cir. 1975)) Meaning, that they need to be consistent and not contrary to existing law. In general, these orders tend to prioritize the enforcement of the law or specify the way in which the existing law will be carried out. ”
Knowing this, the two executive orders mentioned above are:
- Enhancing public safety in the interior of the United States: this order is an attempt to withhold federal funds from cities and states that refuse to administer federal immigration laws which often contradict the objectives and legal obligations of local and state governments. It also instructs the Secretary of Homeland Security to create a system to issue civil financial penalties against aliens who are unlawfully present in the U.S.
The order also eliminates President Obama’s order that focused the resources of DHS on the detention and removal of dangerous criminals, as well as, aliens posing a serious security risk. In contrast, President Trump’s order directs immigration officials to focus on the detention and removal of virtually all aliens who are unlawfully present or have had any immigration issues, despite the fact that they have not violated any criminal law and do not pose any security risk. This is expected to have a seriously negative impact on immigrant communities throughout the U.S.
- Protecting the nation from foreign terrorist entry into the United States: this order suspends the admission of Syrian refugees to the U.S. for 120 days and bars the entrance to the U.S. for 60 days to all persons from 7 Muslim-majority countries; Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia.
The question is: If these executive orders have been lawfully signed by the President, why have federal judges blocked the order that prevents the entrance to the US of individuals from specific countries for a period of time?
The lawsuits that have challenged the legality of the President’s order have claimed that this executive order is unconstitutional and violates federal law. The Constitution of the United States provides the procedure through which laws are established and the President is prohibited from creating laws. Rather, the role of the President is limited to the enforcement of laws created by Congress. The President’s order violates those provisions of the Constitution as he has effectively created a law without following the required procedures. In addition, this order is a direct violation of the Immigration and Naturalization Act of 1965 (The Hart-Celler Act) that banned all discrimination against immigrants based on national origin.
What is going to happen then? Can the President order the revocation of any kind of Visa or Immigrant Status? The answer is no. There are specific provisions of the law that control which visas or Immigrant Statuses may be revoked and which procedures must be followed to effectuate the revocation.
Deferred Action for Childhood Arrivals: DACA Program
What is the future of the DACA program? What is going to happen to those who are currently under DACA? We do not know if the President´s administration will follow through with his promise to end the DACA program but in the meantime, applications are still being accepted and if the case is approved, the DACA beneficiary may stay lawfully in the US until the expiration of his/her authorized period of stay, even if the President terminates the program before that date.
The President would not likely be able to terminate the period of a DACA recipient’s “deferred action” because the law does not allow the government to “take” money from individuals without a legal basis. If the benefits issued to DACA recipients were removed, or if pending applications were rejected, the individuals would not longer be receiving the benefit that they paid for. It would be essentially the same as if the government issued a passport or driver’s license for a period of years after a filing fee was received, and then reducing the period of time the document was valid and forcing the person to pay for a new document earlier than originally stipulated. (See Barry v. Barchi, 443 U.S. 55, 64, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979) [a person issued a license (or document) has “a property interest in his license sufficient to invoke the protection of the Due Process Clause.”])
Whether or not to pursue DACA benefits depends on a variety of issues and should be carefully reviewed with a qualified immigration lawyer. There are some who fear what the government could do, if it has access to their personal information that could be used to enforce removal orders or to initiate removal/deportation proceedings. Generally, the government has access to information through numerous sources including healthcare records (if government insurance programs are used), school records, birth records, tax records and social security records, even if an individual does not apply for DACA. Therefore, fears related to the release of information should be weighed against the benefits of temporary permission to live and work in the U.S.
If you think that you are eligible for an immigration benefit call today our office and schedule a consultation with one of our attorneys in Boston, MA at (617) 303-2600 (ext. 0) or request an appointment. We can also help you or your family members with any legal problem in the areas of Criminal Defense, Personal Injury in addition to any other Immigration Process.
The FitzGerald Law Company Team