January 2025

What is an executive order (EO)?

An executive order is a written directive that assigns actions on specific issues to various federal departments.An executive order uses the President’s executive authority and is outside of legislation approved byCongress. All executive orders must be published in the Federal Register with certain exceptions.

What is interior enforcement?

Interior enforcement is the work of the U.S. government to identify and remove unauthorized individuals from theinterior of the United States (at least 100 miles into the country). This work is primarily done by Immigration andCustoms Enforcement (ICE}, which is part of the Department of Homeland Security (DHS).

Did President Trump issue a new EO that makes policy changes on interior enforcement?

Yes, the Executive Order entitled “Protecting the American People Against Invasion.”

What does the EO entitled UProtecting the American People Against Invasion” do? This EO is primarilyfocused on interior immigration enforcement but is very broad ⁱ  in terms of its changes. To highlight, the EO:

• Rescinds certain EOs from Biden Administration – namely the Family Reunification Taskforce and the Civil Immigration Enforcement Priorities (Section 3).

• Directs DHS to Set New Civil Immigration Enforcement Priorities- focusing on enforcement of final orders of removal (Section 4).

• Directs DOJ and DHS to Set Criminal Enforcement Priorities – namely prioritizing the prosecution ofcriminal offenses related to unauthorized entry or presence (Section 5).

• Reinstates Broad Expedited Removal – the expedited removal process allows DHS to quickly deport noncitizens without a hearing before an immigration judge or review by the Board of Immigration Appeals (BIA) (Section 9).

• Expands Detention Facilities – directs DHS to allocate all legally available resources to build and use facilities and to use detention until an individual’s removal proceeding (Section 10).

• Encourages 287{g) Agreements – instructs DHS to enter into 287{g) agreements and to deputize state and local law enforcement through these agreements (Section 11).

• Recalcitrant Countries – directs Department of State and DHS to work to gain countries’ acceptance of their nationals, but to discontinue granting visas to nationals of countries that deny or delay acceptingreturn of their nationals, per 8 USC 1253(d). Also urges other sanctions to be considered if countries do not comply (Section 13).

• Re-establishes VOICE Office – reinstates the Victims of Immigrant Crimes Engagement Office(VOICE) within ICE (Section 15).

• Directs Review of the Use of Temporary Protected Status, Work Authorization, and Parole (Section 16).

• Directs DOJ and DHS to prohibit use of federal funds for “sanctuary jurisdictions” to the extent practicable (Section 17).

• Requires Information Between HHS and DHS and Encourages Local Law Enforcement Information Sharing – encourages DHS to share information with local law enforcement for the purpose of law enforcement, citizenship, or immigration status verification requirements (Section 18).

• DirectsDHS and DOJ to Review All Funding to NGOs – NGOs include those providing services directly or indirectly to removable or illegal individuals. Directs pausing such programs, terminating agreements, coordinating with OMB to prevent future appropriations requests and initiating claw back or recoupment (Section 19).

• Hiring More DHS Law Enforcement Officers – subject to appropriations, enables DHS to hiremore ICE and CBP officers (Section 21).

Section 10 calls for expansion of detention facilities construction and use. Is this possible? Has funding been allocated for this?

At this time there is no additional funding specified for additional detention facilities. Congress has to appropriate such funds. Additionally, the process for building and finding suitable places to serve as detention facilities can be lengthy.

Section 9 reinstates broad use of Expedited Removal. What does this mean? The expedited removalprocess allows DHS to quickly deport noncitizens without a hearing before an immigration judge or review by theBoard of Immigration Appeals (BIA). The statutory authority for expedited removal is 8 U.S.C. 1225(b)(1).

Noncitizens who are placed in expedited removal proceedings are entitled to a credible fear interview if the individual says they want to apply for asylum or express a fear of returning to their home country. However, under the Proclamation on Guaranteeing the States Protection Against Invasion, issued on January 20, 2025, Section 2 states that “aliens engaged in the invasion across the southern border of the U.S.” on or after the date of the proclamation are restricted from applying for asylum (under Section 208 of the INA) until the President “issues a finding that the invasion at the southern border has ceased.” Reading this EO and the Proclamation together, this means that people arriving at the U.S/Mexico border, cannot apply for asylum and will be subject to expedited removal.

Is there a possibility that provisions about expedited removal could be litigated? Yes. There could belitigation on this and in the first Trump Administration, there was litigation regarding the expansion of expeditedremoval. In July 2019, DHS under President Trump issued a notice on the expansion of expedited removal, whichwas challenged in the courts. Following litigation, the policy took effect on October 16, 2020. On March 2022, DHS under President Biden rescinded the expanded expedited removal policy.

Section 11 talks about increasing 287(g) arrangements. What are they? Why are they important?

287(g) agreements with DHS already existed through the INA and have been used in a bipartisan manner in the past by Presidents, but this executive order directs DHS to increase the number of 287(g) agreements. Through these agreements, state and local authorities are deputized to interview individuals to determine their immigration status, check immigrationdocuments, issue “detainers” to hold someone in custody until they are handed over to ICE, and issue a Notice toAppear (NTA) to begin the removal process.

This Section, as well as Section 6 which directs the establishment of Homeland Security taskforces in every state,and Section 18 which calls for greater sharing of information with state and local law enforcement, indicate the Trump Administration’s future strategy for relying on state and local law enforcement to do extensive enforcement work in the area of immigration.

Section 19 talks about reviewing NGO funding. What will happen to organizations who have contracts,grants or other funding agreements for “providing indirect or direct services to removable or illegal aliens”?

Section 19 calls for immediate review of NGO funding (contracts, grants and other funding) as well as pausing future funds during the review, terminating agreements determined to be in violation of law, and then possibly clawing back or recouping funds. As these funds have been appropriated by Congress, the CongressionalBudget and lmpoundment Control Act of 1974 (ICA) likely applies. Specifically, Title X of the Act -“lmpoundment Control” – established procedures to prevent the President and other government officialsfrom unilaterally substituting their own funding decisions for those of Congress.

The President may decide not to ask for these funds in the future, which Section 19{d) denotes, or he mayask for a recission from Congress, but funds that were lawfully appropriated and disbursed are more difficult to take away after the fact as they were lawfully appropriated.

Section 17 discusses “sanctuary jurisdictions” and says that there will be efforts to prevent them from accessing federal funds. What are sanctuary jurisdictions? Can they be denied federal funds?

There is no official definition of what constitutes a “sanctuary city” or state or jurisdiction. In general, it refers to a policy that limits or defines the extent to which a local/state government will share information with federal immigration law officers. The level of information sharing and cooperation with federal immigration officials varies and as such make it necessary to learn the individual policies and information­ sharing agreements. Additionally, the question of denying federal funds to sanctuary cities was litigated extensively following the previous Trump Executive Order on interior enforcement issued in 2017. Specifically:

• City and County of San Francisco Trump– the City and County of San Francisco filed a civil action that challenged the executive order on the grounds that it violates the Tenth Amendment of the United States Constitution. The United States District Court for the Northern District of California found the executive order unconstitutional as it violates the Fifth and Tenth Amendments, as well as the doctrine on the separation of powers.

• County of Santa Clara v. Trump – lawsuit on the same grounds as the San Francisco case.

• City of Chelsea v. Trump – challenged the validity of the executive order on the grounds that it violates the Fifth  and Tenth Amendments. After the United States District Court for Northern District of California granted a nationwide preliminary injunction against the executive order, this case has been administratively closed.

___

ⁱ The EO on “Protecting the American People Against Invasion” includes many immigration changes, including the following sections notlisted above: Policy (Section 2); Establishes Federal Homeland Security Task Forces (Section 6); Reminds of Registration Requirement for Visa Applicants and Increased Prosecution for Noncompliance (Section 7); Civil Fines and Penalties for Unlawful Presence and For Those Who Facilitate Presence (Section 8); Encouraging Use of Voluntary Departure (Section 12); Visa Bonds (Section 14); Directs Agency Cooperation on Denying Benefits to Undocumented (Section 20); Hiring More Agents and Offices (Section 21); Severability (Section 22)