Introduction
The first 100 days of the Trump administration are upon us, with all of the hype and freighted expectations usual for the first period of a new presidency, even when accomplishing long-term goals or structural changes is completely unrealistic in such a short time.
Overall, the administration so far has done well. Though there is much yet to be achieved, and in some areas campaign promises have not been met, a significant amount has been done, or at least started down the right path. Viewed against the backdrop of the Obama administration's eight-year history of deliberately ruinous immigration policies, this is impressive. What a difference 100 days can make.
This overview provides no grade or score for the administration's performance. Instead, we consider developments in the following areas:
- Illegal immigration, border control, and crime;
- Legal immigration and foreign workers;
- National security and vetting; and
- The rule of law.
Illegal Immigration, Border Control, and Crime
The administration kicked off with a bang, issuing no fewer than three presidential executive orders (EOs) within weeks of inauguration, serially addressing border control (including construction of the border wall), interior enforcement, and transnational border- and immigration-related crime, including drug and people smuggling. Among other things, the EOs directed the expeditious hiring of 5,000 new Border Patrol agents, hundreds of new air-and-marine officers for Customs and Border Patrol, and 10,000 new interior immigration enforcement agents.
The EOs in turn were followed quickly by policy memoranda from Department of Homeland Security (DHS) Secretary John Kelly (see here and here). Attorney General Jeff Sessions also issued directives and made public pronouncements making clear that the Department of Justice (DOJ) under his leadership was committed to vigorous prosecution of immigration offenses, including alien smuggling and transporting, illegal entry and reentry after deportation, and drug and weapons crimes, plus an emphasis on targeting and dismantling cross-border carters and transnational gangs. (See here, here, and here.)
As many media outlets have noted, illegal border crossings are markedly down since President Trump took office. That is a good sign, and indicates that aliens are taking the rhetoric of the president and his staff seriously. Some have claimed that this signals that a border wall isn't really needed. But we have seen such dips before — for instance, after passage of the Immigration Reform and Control Act of 1986 — and whether the slowdown becomes institutionalized will depend in no small measure on the willingness and ability of the administration to put action to its words. Smuggling organizations and the illegal aliens themselves will at some point begin testing our border enforcement resolve and whether illegal crossers will be detained upon being apprehended or allowed to settle in the United States, as was the norm during the Obama presidency.
The Wall. To this end, it is important that the border barrier proceed expeditiously, so that it becomes one of several layered defenses that render it unnecessary to choose between detaining or releasing tidal waves of humans attempting to cross. While there appears to be some willingness on the part of Congress to consider technology and additional resources, it has balked about funding the wall itself, and Democratic legislators have threatened a shutdown of the government rather than pass a budget that contains funding for the wall. It seems likely (as of this writing) that Republicans will cave on the issue of funding the wall for the moment. We are concerned about throwing good money after bad on other forms of layered border security, though. While the fledging drone program at Customs and Border Protection (CBP), parent agency to the Border Patrol, sounds cutting edge — and may be an excellent pork project for certain senators and representatives, as well as the drone manufacturing industry — there is little evidence that it has worked effectively or cost efficiently.
As to funding the wall itself, Sen. Ted Cruz (R-Texas) has introduced legislation that would permit DOJ and DHS to divert funds seized from drug cartels such as that run by El Chapo (Shorty) Guzman before his arrest and extradition to face U.S. charges, in order to fund the wall. This merits serious consideration.
Rep. Mike Rogers (R-Alabama) has also introduced legislation that would authorize levy of a 2 percent tax on wire transfer remittances sent to certain countries that are the sources of illegal border crossers, with the proceeds to be used to fund the wall. We are generally in favor of such a tax, which was in fact first proposed by one of our fellows several years ago —although if the legislation were amended to permit across-the board taxation of remittances, it would increase revenues and perhaps even permit additional funding to be used for hiring of the enhanced border and interior enforcement agent corps.
The most important improvements in immigration security have been the reversal of the Obama administration's version of "catch and release" at the border and ending the disastrous prioritization scheme that resulted in tens of thousands of deportable aliens (including many criminals and egregious immigration scofflaws) escaping removal each year.
Catch and Release. The most noticeable change was putting a stop to the practice of releasing arriving non-Mexican illegal border crossers with a notice to appear for an immigration court hearing years in the future, which was usually ignored. Now most new arrivals are either turned back right away or held in custody, and if they ask for asylum, their claims are reviewed promptly by a group of asylum officers and immigration judges that were recently deployed to the border areas. Several temporary holding facilities were set up, and a plan to house up to 12,500 people was adopted. Plans were made to conduct deportation proceedings by videoconference. In addition, the administration issued new guidance to asylum officers directing that cases must now be adjudicated according to the law, rather than according to a relaxed standard or review that leaned heavily in favor of approval. As it turned out, the deployment of asylum officers and judges and the new detention space was not needed as much as expected, because following the implementation of the new policies, the number of new illegal arrivals declined dramatically, bringing border apprehensions to a 17-year low.
No Exemptions. Within the country, ICE officers and agents have been directed to exercise their authority under a new enforcement prioritization scheme that does not exempt most illegal aliens from enforcement, as was the case under Obama policies. As has always been the case, the majority of ICE deportation cases are still criminal aliens who come to ICE's attention after an arrest on state or local charges, or after incarceration. The big difference is that now ICE officers can act on any deportable alien as soon as they are encountered, and detain the aliens if appropriate, so that the person is actually removed, held accountable for any local crimes, and does not have the opportunity to flee from deportation. ICE has increased its detention capacity by 1,100 beds, and made plans to acquire 21,000 additional beds if funding is made available. Equally important, ICE officers are no longer told that they must look the other way at deportable aliens who have committed ID theft, been charged with minor crimes, have family members here, or have advocacy groups orchestrating a campaign for leniency on their behalf. Criminals are still the priority, but anyone here illegally is potentially subject to deportation.
287(g). The Trump administration has resurrected a popular and successful enforcement partnership program to enable local law enforcement agencies to supplement ICE and the Border Patrol efforts in their local areas, known as the 287(g) program. ICE fast-tracked the approval of eight new jurisdictions to participate (which had been stalled by the Obama administration) and already has identified 50 more local law enforcement agencies that want to participate.
VOICE. During the election cycle, candidate Trump made clear his strong disapproval of sanctuary states, counties, and cities that have resulted in the murder or injury of so many because they release alien criminals to the street instead of into the hands of federal ICE agents. At many campaign stops, the surviving family members of some of the victims of these crimes.
As evidence of his continuing concern, the president ordered creation of a new Victims of Immigration Crime Engagement Office (VOICE). The office has been launched and will be a welcome relief from the old ICE ombudsman's office, which functioned as a one-stop shop for the private immigration bar to obtain relief (from detention, deportation, whatever) when they could not achieve it through the due process system.
E-Verify. Worksite enforcement has not received the same attention so far as criminal-alien issues, but the president's FY 2018 budget blueprint does request $15 million to begin implementation of nationwide E-Verify. The online system allowing employers to check the work authorization of new hires was used for about half of all hires last year, but is still voluntary. Making it universal for all new hires nationwide would require separate legislation from Congress.
Legal Immigration and Foreign Workers
The administration's actions and approach to amending the current approach to legal immigration, both temporary and permanent, are promising, but mixed. For instance, there have been a number of high-profile appointments made of individuals whose expansive views on the hiring of "temporary" foreign workers by certain industries are well known.
Although the president has issued an EO dealing with the importance of ensuring full employment for American workers, the signal sent by these appointments is in conflict with the emphasis on buying and hiring American. Which direction will prevail in the Trump White House remains to be seen.
Guestworkers. The new administration has so far made few solid accomplishments in these fields, but it has made a number of promising statements, notably as related to the H-1B program (for college grads to work in the U.S.). These are complex programs that have been shaped, for years to meet the needs of employers, who, in turn, have shouldered aside US workers from good jobs they are qualified to do.
The administration has signaled it will roll back two of its predecessor's more egregious decisions: 1) the granting of work permits to the spouses of H-1B workers (who are supposed to be here only on a temporary status); and 2) the extension of OPT (Optional Practical Training) status to some alien college grads working in high tech industries, enabling them to stay to work for as long as 24 months after graduation.
Further, eliminating the purchased, speedier processing for those employers seeking quick decisions on their H-1B applications, a standard feature of previous H-1B programs, was useful both as a symbol of fairness (you should not be able to buy your way to the front of the line), and as a symbol that the administration was not going to leave the H-1B program in its current shape.
H-1B. Much needs to be done to cut back the H-1B program to its original design – to allow employers to hire skilled individuals from abroad to fill certain types of positions – and address one common current abuse, which is to replace American workers with lower-paid guest workers. It was too much to expect that reform could be installed before the annual submission of H-1B applications, during the first week in April, but now there is opportunity to rethink the types of workers that can be imported, the wages paid in those jobs, the number of admissions a year, and the length of the visas. Currently an H-1B gets a three-year job, and then, almost automatically, a three-year-extension, and an infinite time beyond that if his employer had filed for a green card for that worker.
OPT. While H-1B is a rather widely-discussed program, its hidden handmaiden, the Optional Practical Training (OPT) program is rarely mentioned. It allows most alien college grads up to a year of legal employment beyond the degree (earned in the US) and, beyond that, another additional 19 months for those in the STEM (science, technology, engineering and math). The program is often used to bridge the gap between the alien’s college years and an H-1B appointment.
What is scandalous is that U.S. employers are given a bonus for hiring an OPT, rather than an American with the same skills for the same salary. What OPT does is, in effect, touch the alien grads with a magic wand and convert them to students again, so that neither they nor their employers have to pay the usual payroll taxes. This can be as much as a $10,000 bonus to the employer for hiring a former foreign student rather than a citizen. While the Trump administration has often mentioned H-1B as a program needing change, we have seen no similar mentions of OPT.
Permanent Immigration. As to changing the permanent legal immigration system to mitigate, if not eliminate, the present extended-family oriented chain migration system (which works contrary to the national interest): that is a legislative chestnut that must be dealt with by Congress. One sign that some in Congress are willing to address this issue is the introduction of the RAISE Act by Senators Tom Cotton and David Perdue. The White House not yet endorsed the bill, but the senators met with President Trump, who is said to have welcomed the bill as moving toward his goal of a merit-based legal immigration system.
Until Congress enacts changes, the administration will be reduced to nibbling around the edges of that system until the statutory basis behind it is changed, although much could, and should, be done to minimize the rampant fraud now existing throughout the immigration benefits adjudication regimen.
To that end, one area in which the administration has extensive power that it has not yet wielded is in wise and targeted use of the bloated slush fund known as the Examinations Fee Account, which presently holds well over $1 billion in reserve. Much of that money could be used to substantially increase the presence of USCIS fraud detection officers at key field locations, and to support beefed-up post-audits of high-fraud prone applications and petitions.
The administration has taken steps to tackle the rampant fraud in the legal immigration system by detailing fraud officers to the border facilities and increasing the number of fraud officers who work on asylum cases. In addition, ICE has been directed to resurrect the important Document and Benefit Fraud Task Forces throughout the country, which work cooperatively to target document fraud rings, immigration fraud schemes, and identity theft problems, all of which are part of the criminal infrastructure that supports illegal immigration and exploitation of our legal immigration system. Further, ICE has been directed to bring more immigration fraud and human smuggling cases to prosecutors.
National Security and Vetting
Consistent with his campaign promise to ensure "extreme vetting" of visa applicants and refugees wishing to come to the United States, along with the several other immigration-related EOs President Trump issued one titled, "Protecting The Nation From Foreign Terrorist Entry Into The United States". Both the first and second iterations of this EO ran into a buzz saw of lawsuits, several of which were filed by various states.
Various courts issued restraining orders enjoining the executive branch from implementing key provisions, such as a time-out on admitting nationals from certain states identified as high-risk, despite the law and prior court precedents being clearly on the side of the president's authority in the matter (see here, here, here, and here).
Issuance of the EO was criticized as having been poorly planned and announced, and ill-executed by the various immigration agencies. But in truth even a flawless roll-out would not have stopped the inevitable lawsuits strategically planted by opponents in the most liberal courts they could find in the United States, where they were most sure to meet with sympathetic sitting judges both in the district and appellate courts. This was proven when, after the initial EO was withdrawn, recalibrated, and reissued, the successor once again dead-headed at the Ninth Circuit.
Fighting these lawsuits has now gained in importance, because they are a clear affront to the lawful powers of the president (as opposed to Barack Obama's illicit use of executive action), and must be battled all the way through the circuit courts to the Supreme Court in order to address the obstacles that have arisen.
But looked at objectively, the so-called "travel ban" EO was never intended as anything more than a place-holder to give the administration breathing room to consider what needed to be done to shore up its hemorrhaging vetting system for immigrants and refugees (and asylees, too, for that matter), because it has become abundantly clear in recent years that there is no category of visa recipient or entrant that isn't subject to fraud and, more significantly, a risk to public safety and national security. We have seen jihadists enter as fiancees, refugees, students, and family members. We have seen permanent residents and naturalized citizens charged for material support of terrorism. In fact, since the 9/11 attack, 72 individuals from the seven countries subject to the travel restrictions have been convicted of terror or terror-related crimes, and currently there are more than 1,000 open terror investigations involving foreign nationals, according to the Justice Department.
But there is another area in which simple fraud detection efforts won't work, and that has to do with admission of persons with ideological, religious, or cultural views that are antithetical to our constitutional system and values of freedom of speech, freedom of religion, etc. This is what "extreme vetting" was originally intended to address.
While the administration has not yet publicized a plan for such "ideological exclusion", the first iteration of the terrorist entry EO (but not the second one) specifically referred to the need to keep out those who hate America, even if they are not themselves terrorists. The relevant passage read: "In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law."
While the lawsuits work their laborious way through the judicial system, we hope and expect that DOJ, DHS, and the State Department are busy working on reforms to the visa and benefits applications process.
The Rule of Law
DACA. One of candidate Donald Trump's campaign promises was to roll back the unconstitutional and extra-statutory programs granting a renewable two-year amnesty to so-called "Dreamers" — illegal aliens who came before age 16. Far from simply providing "protection from deportation", DACA (Deferred Action for Childhood Arrivals) status enables an illegal alien to get a work permit, a Social Security number, a state driver's license, and access to certain welfare programs.
It appears to have been easier for the candidate than for the elected president to take the matter head-on. So far, nothing has been done to dismantle the program. In fact, USCIS continues not only to renew the status of DACA recipients, but is continuing to approve new applications, actually expanding the number of people covered by this amnesty and giving it the de facto imprimatur of the current president.
Sanctuary. The principle of defunding sanctuaries was also embedded in the president's EOs, and was quickly followed up by announcements from AG Sessions that DOJ would be doing exactly that. The DOJ had already put 10 of the most egregious sanctuaries on notice of possible debarment and clawback of prior grants, and gave several sanctuary jurisdictions until June 30 to comply with federal law (specifically 8 U.S.C. 1373). One of these jurisdictions (Miami-Dade County, Florida) has already reversed its policy.
An April court ruling widely described as halting those efforts at defunding did no such thing and, in fact, specifically acknowledged that the DOJ grants in question could be withheld.
Another part of the administration's struggle to get sanctuary cities to comply with the law is a weekly report listing instances of criminal aliens released by sanctuary cities. This was temporarily suspended due to problems with data collection, but is expected to be restarted, and may well prove a potent tool in building political support for confronting cities, counties, and states that take immigration-enforcement decisions into their own hands by deciding if and when they will cooperate with ICE.
Conclusion
The administration's efforts at implementing its immigration agenda has been, and will continue to be, met at every step with determined resistance, not least by using "lawfare" through the federal court system. It is the equivalent of trench warfare, and the Trump White House will be obliged to show equal determination, and a long-term strategic and tactical commitment to defending itself against the lawsuits with sufficient and well-prepared legal resources in order to prevail. It might also steal a chapter from that playbook, and strategically initiate some of its own in judicial districts and circuits which are likely to support key initiatives, and which will drain the coffers, time, and energy of open borders advocacy groups in defending against the lawsuits, in the same way that they are attempting to do against the government and its resources.
Further gains may well depend on whether congressional Republicans get on board with the administration's immigration priorities and begin promoting a vigorous agenda to get long overdue legislation passed. A public that "hired" Donald Trump as president will have little tolerance for inactivity from our lawmakers if the result is that critical reforms don't take place. A key take-away lesson from the Obama presidency is that, if we value checks and balances in government, not everything in government can, or should, be done by executive order.
This paper has been edited since its original publication.