Executive Order on the Border Wall


On January 25, 2017, President Trump signed two immigration-related Executive Orders.  One of them, “Border Security and Immigration Enforcement Improvements” includes his plans to build a costly wall at the Mexican border.  According to analysis by the American Immigration Council, “By curtailing due process at the border and increasing detention along the southern border, the order will result in asylum seekers, families, children, and others being turned away and denied access to humanitarian protection guaranteed for decades under U.S. law.  These vulnerable people will almost certainly be sent back to dangerous, possibly life-threatening circumstances, without the opportunity to seek legal protection consistent with due process.

Fund the Construction of a Border Wall:

The executive order directs DHS to allocate available funds to start constructing a wall along the Mexican border and to create a long-term funding plan for the wall.

As of early 2017, approximately 650 miles of border fence already exists: 350 miles of primary pedestrian fencing, 300 miles of vehicle fencing, 36 miles of secondary fencing behind the primary fencing, and 14 miles of tertiary pedestrian fencing behind the secondary fence. The estimated cost of the remaining border wall segments ranges from $15 to $25 billion, at $16 million per mile. The head of the National Border Patrol Council, a union representing 16,000 Border Patrol agents which endorsed President Trump during his campaign, said, “We do not need a wall along the entire 2,000 miles of border.”

Mass Detention at the Border and in the Interior:

The Order announces the new policy of the administration to detain individuals on mere suspicion of violating immigration law pending further proceedings. The order also contemplates the detention of all individuals crossing the Southern border, directing DHS to end “catch and release” and ensure that immigrants in removal proceedings are detained to the maximum extent of the law, whether they are merely awaiting their court hearing or have a final order deportation.  Contrary to President Trump’s campaign rhetoric, DHS ended the widespread use of “catch and release” in 2006.

Per AIC, this indiscriminate national detention policy would “run afoul of federal court decisions ruling that detention cannot be used to deter people from seeking protection. Moreover, DHS does not currently have enough detention capacity to accomplish this and would likely need additional funding from Congress.”

Expand Detention Capacity:

The order further directs DHS to immediately construct detention facilities near the southern border and to assign asylum officers and immigration judges to detention facilities to conduct interviews and removal proceedings.

Construction and maintenance costs for new detention facilities are exorbitant; spending on ICE’s 34,000 detention beds costs taxpayers over $2 billion each year, yet detention is not the only viable option for people in removal proceedings.

Expand Expedited Removal:

While prior federal policies had restricted expedited removal to wide border regions (within 100 miles of any U.S. land or water border) and recent unlawful entrants (within 14 days), the Order would expand application of this procedure throughout the country, to individuals who unlawfully entered the United States and cannot prove to DHS that they have been continuously present for the previous two years.

Expedited removal allows DHS enforcement officers to deport individuals very quickly without ever seeing an immigration judge, with no guarantee of legal counsel and little chance to obtain representation from detention. Expedited removal hampers asylum seekers’ opportunity to present their claim to a judge.

Expand 287(g):

Like the order Executive Order issued on January 25, 2017, the Order also directs the Secretary of Homeland Security to encourage the expansion of the problematic 287(g) program which empowers state and local law enforcement to enforce immigration laws.

Conduct Removal Proceedings Outside U.S.:

The order instructs DHS to ensure that applicants for admission arriving on land from Mexico and Canada are returned to the country from which they came pending a formal removal proceeding. Yet, immigrants who have arrived from Canada or Mexico may not be from there or have authorization to return there.

Limit Humanitarian Protection:

Per the AIC, “the order targets two important statutory mechanisms for protecting vulnerable immigrants: “parole” (by which DHS can allow an individual to enter into or stay in the U.S. or be released from detention for urgent humanitarian reasons or significant public benefit) and “credible fear” determinations for asylum seekers. The order requires DHS to ensure that these protections are not “exploited” to allow individuals to remain in the U.S. who are otherwise removable. DHS’s statutory parole authority is broad, and has been used in the past on a case-by-case basis to keep families together in the U.S., especially military families.”

Criminal Prosecution of Unlawful Entry:

The order directs the Attorney General to prioritize the prosecution of any offense with a nexus to the Mexican border – including nonviolent offenses like unlawful entry.

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