During President Trump’s first hours in the White House, he issued a sweeping series of executive orders, including several regarding immigration policy: Protecting the American People Against Invasion, Securing Our Borders, and Protecting the Meaning and Value of American Citizenship (the “Immigration Orders”). These immigration-related Executive Orders come as no surprise, considering the President’s numerous campaign promises to strictly enforce immigration law and to direct an influx of resources to curb the flow of illegal immigration into the United States.

The first Immigration Order, Protecting the American People Against Invasion, is a revocation of multiple Executive Orders issued by the Biden Administration, which were aimed at initiating immigration reform. These include:

• Executive Order 13993 of January 20, 2021 (Revision of Civil Immigration Enforcement Policies and Priorities), which was itself a revocation of a 2017 Trump Executive Order aimed at increasing immigration enforcement;
• Executive Order 14010 of February 2, 2021 (Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border);
• Executive Order 14011 of February 2, 2021 (Establishment of Interagency Task Force on the Reunification of Families); and
• Executive Order 14012 of February 2, 2021 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans).

The Protecting the American People Against Invasion Executive Order also states that the Attorney General, in coordination with the Secretaries of State and Homeland Security, should act to prioritize the prosecution of criminal offenses related to illegal immigration. Notably, it also includes directives to register illegal aliens, and states that fail to comply with those legal obligations are to be treated as a civil and criminal enforcement priority. The order further states that sanctuary jurisdictions who interfere with federal enforcement operations will be broadly barred from receiving federal funding.

The second immigration-related Executive Order, Securing Our Borders, directs the Secretaries of Defense and Homeland Security to prioritize the construction of physical barriers and the deployment of personnel at the southern border. It also includes the termination of the “catch-and-release” policy and parole programs, including the “Processes for Cubans, Haitians, Nicaraguans, and Venezuelans,” which allowed individuals from those countries who have a sponsor and pass a background check to work and live in the United States for up to two years under a “humanitarian parole” period. 

The third immigration-related Executive Order, Protecting the Meaning and Value of American Citizenship, ends birthright citizenship, a right guaranteed under the Fourteenth Amendment, for those individuals:

(1) born to mothers who were in the U.S. illegally during their birth and whose fathers were not U.S. citizens or lawful permanent residents during their birth; and

(2) whose mother’s presence during their birth was lawful, but temporary, and whose fathers were not U.S. citizens or lawful permanent residents at the time of their birth.

While this order will be subject to challenge (Executive Orders cannot lawfully conflict with the Constitution or its Amendments), such challenges will take time, and the order is set to take effect 30 days from the date of issuance; though it is likely that the first-filed lawsuits will seek an injunction precluding enforcement. This includes a lawsuit filed by the American Civil Liberties Union (ACLU) in New Hampshire federal court on January 20, challenging the constitutionality of such an executive order restricting birthright citizenship. We can expect that other organizations will file lawsuits challenging this and other executive orders issued by President Trump. In addition, these orders are the first of what are likely to be many changes in immigration law and enforcement. As covered by today’s companion article, employers need to stay tuned and be prepared for increased audits and enforcement actions.