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Trump’s executive orders on immigration enforcement

In case you missed Davorin Odrcic’s post regarding immigration enforcement on to WACDL’s listserv yesterday, he has authorized On Point to republish it here:

Here is President Trump’s new executive order on immigration enforcement:

The following brief summary and analysis should be of interest to WACDL members:

1. Enforcement priorities have been greatly expanded to include noncitizens: (1) convicted of *any* offense; (2) simply charged with an offense; and (3) have committed acts that constitute a chargeable criminal offense (meaning no arrest or charge will be necessary). Under Obama, enforcement priority was limited to felonies, 3 or more misdemeanors, or “significant” misdemeanors. Trump’s order would include such criminal offenses like driving without a license or OAR.

2. The Priority Enforcement Program (PEP) under Obama has been revoked and the Secure Communities program preceding it has been reinstated. That will mean a significant uptick in ICE detainers—note the 7th Circuit will be deciding in 2017 whether ICE detainers are even statutorily valid (my bet is the 7th will find that they are invalid. More to come on that).

3. The order is also going after “sanctuary cities.” Anecdotally, I believe the Dane County Jail was not honoring ICE detainers. This ought to be interesting.

4. The order wants to encourage local police to enter into “287(g)” contracts with ICE to essentially deputize local cops to enforce immigration law. If this happens in Wisconsin, I suspect you will have a lot of police ethnically profile ‘Hispanic-looking’ drivers. US citizens will be falsely accused of being here “illegally” by ignorant and untrained local police officers.

5. Trump is creating an ‘Office for Victims of Crimes by Removable Aliens’ to support victims of crimes purportedly committed by noncitizens and to provide “quarterly reports studying the effects of the victimization by criminal aliens present in the United States.”

For defense attorneys who represent noncitizens Trump’s order will present new challenges, especially with dealing with ICE detainers and whether the detainer should be triggered or not (i.e. posting a cash bond). The chapter in my book on ICE detainers gives practical tips on that.

For defense attorneys who do not (or rarely) represent noncitizens, this order should nonetheless be disturbing. Getting local police officers involved in immigration enforcement will likely increase pretextual stops even for US citizens. The office for crime victims will be the propaganda to justify these measures. And expanding enforcement to folks merely charged with an offense certainly sounds like ‘guilty until proven innocent’ to me. And I suspect Trump will be coming out with more EOs targeting people (US citizens or not) charged with a criminal offense.

At any rate, there other numerous immigration lawyers in this state will to provide help for defense attorneys who represent noncitizens. A new era has begun under President Trump.

From On Point: Readers might also be interested in yesterday’s post on The Volokh Conspiracy: “Why Trump’s executive order on sanctuary cities is unconstitutional.”

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