Trump Starts Vowed Immigration Crackdown with Border Wall, Possible Limits on Refugees

President Donald Trump will seek to make good on a series of campaign promises this week, starting Wednesday by ordering the construction of a wall on the U.S.-Mexico border, ending so-called “sanctuary cities” that limit cooperation with federal immigration authorities, and restoring the controversial “Secure Communities” program that the Obama administration nixed.

The two executive orders Trump signed Wednesday afternoon at the Department of Homeland Security are part of a flurry of first-week executive actions designed to rapidly erase much of former President Barack Obama’s legacy, especially in the fight against terror.

Other imminent moves will reportedly freeze the entry of refugees from Syria and other “terror prone” countries, at least for a time. Additional draft orders show the president is at least considering adding new detainees to Guantánamo, as well as resuming the CIA’s “black site” detention program and amending the U.S. Army field manual to bring back enhanced interrogation techniques outlawed under the federal ban on torture. The White House did not respond to requests for comment, and has disavowed the documents.  

“For too long your officers and agents haven’t been allowed to properly do their jobs, you know that right? Absolutely,” Trump said at DHS headquarters, pausing for awkward applause. “A nation without borders is not a nation, and today the United States of America gets back control of its borders, it gets back its borders.”

The proposed refugee ban, if not derailed by potential legal challenges, would upend decades of U.S policy on asylum seekers, and threatens to complicate the U.S. fight against extremists in the Middle East and North Africa. The order to build a wall, meanwhile, promises to ratchet up tensions with Mexico, already irate at Trump’s plans to renegotiate the NAFTA trade pact with dire consequences for the Mexican economy.

Mexican Foreign Minister Luis Videgaray and Economy Minister Ildefonso Guajardo traveled to Washington on Wednesday to meet with Trump for talks on on NAFTA, immigration, and security. Mexican media reported that President Enrique Peña Nieto may scrap his planned trip to Washington next week if Trump carries out the order to begin the wall. Videgaray was already sacked once because of Trump — he organized a much-criticized meeting between Peña Nieto and the Republican before the election — but was recently reinstated.

Trump’s orders are intended to beef up federal enforcement of U.S. immigration law, including hiring 5,000 additional Border Patrol officers, and tripling the number of U.S. Immigration and Customs Enforcement officers.

But by directing federal funds toward the construction of a barrier on the United States’ southern border, which also requires congressional appropriation, the executive order belies one of Trump’s biggest campaign promises: that Mexico would pay for the estimated $20 billion wall.

Mexican officials, including current President Peña Nieto and former president Vicente Fox, have repeatedly said that Mexico will not pay for the wall.

Still, White House spokesman Sean Spicer insisted Wednesday: “Mexico will pay for it” — without offering details. The executive order’s text doesn’t make the funding mechanism clear. 

For all the theatrics behind Trump’s tweets and executive orders, any border barrier will be partial and a long time coming. DHS chief John Kelly said in his confirmation hearing that the wall “won’t be built for some time,” and will likely consist of added technology, border patrol, and reinforcements to the existing barrier.

Trump has railed against the Obama administration for what he calls its “illegal executive amnesties” on immigration, even as he promised to deport the some 11 million undocumented immigrants in the United States. On Wednesday, he made unilateral changes on his own, but several aspects aren’t entirely new.

One order will prioritize deporting undocumented immigrants who have committed crimes. It’s still unclear how that will be implemented, given the text of the executive order could reasonably include a range from criminal convictions to the act of entering the country illegally. The directive is also in keeping with the same prosecutorial discretion used by the Obama administration and that many Republicans have long decried, directing finite resources toward prioritizing undocumented immigrants with criminal records. 

Obama ended “Secure Communities,” under which local law enforcement handed over information about or held undocumented immigrants for federal authorities, amid concerns that it discouraged undocumented immigrants from reporting crimes and cooperating with local officials.

And it’s yet to be determined how the Trump administration will force other countries to accept the return of foreign nationals deported by the U.S., though the order stipulates using potential sanctions and diplomatic pressure against “Recalcitrant Countries.”

On the campaign trail, Trump called for a “total and complete shutdown of Muslims entering the United States” — whether as refugees or legal immigrants or visitors  — until authorities “can figure out what’s going on.” But Trump later appeared to soften that stance, with his initial call for a Muslim ban morphing into something he calls “extreme vetting.” He said safe zones should be created within Syria instead, and in the draft order, he calls for a plan to do so, though military experts and Obama administration officials determined it would require immense resources, and potentially U.S. military forces, to enforce. 

Attorney General-designate Jeff Sessions, a hardliner on immigration who as Alabama senator opposed congressional measures to block Trump from trying to enact such a ban, seemed to back off during his confirmation hearing. “I have no belief and do not support the idea that Muslims as a religious group should be denied admission to the United States,” he said. Kelly also said in his hearing that, “The President-elect is not proposing new limits for Muslim travel and immigration to the United States.”

But Sessions reportedly had a close hand in drafting the immigration executive orders explicitly targeting Muslim-majority countries in the Middle East and North Africa, meant to sharply curtail the numbers of asylum seekers who can come to the United States after a grueling, 18- to 24-month screening process.

The drafted ban takes aim at countries the administration labels “terror prone,” a term which has no legal meaning, and includes Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen. But while allegedly aimed at protecting the United States from possible terrorists, the ban will not apply to other countries that have also suffered — and exported — years of Islamist terrorism, including Algeria, Egypt, or Saudi Arabia, nor does it apply to non-Muslim countries that have endured decades of terror. It also reportedly will carve out provisions for persecuted religious minorities, namely Christians, who conservative politicians have claimed do not commit terror.

It represents a sharp break with decades of U.S. policy, and could well make the ongoing refugee crisis in Europe and the Mediterranean even more acute, by throwing would-be asylum seekers back into already jam-packed countries in the region who have taken them in. Turkey holds more than 2.8 million refugees, and much-smaller Lebanon and Jordan, more than 1 million and 650,000, respectively.

“The refugee program in this country has had bipartisan support since 1975,” said Eskinder Negash, who served as director of the U.S. Office of Refugee Resettlement under President Barack Obama from 2009 to 2015. “This is a dramatic departure from what we have been doing for the past 30 years.”

The expected moves will also likely have a chilling effect on the United States’ own efforts to get other countries to accept more refugees as the migrant crisis has ballooned to its largest proportions since World War Two.

“When the U.S. government retreats from this commitment, other countries will follow the U.S. lead,” Negash said. “That will be a disaster for refugees, and for our leadership in the world.”

It could also make the U.S. counterterrorism mission and other diplomatic initiatives tougher to carry out. The U.S. is nominally allied with Iraq and Libya to fight Islamic State right now, and U.S. troops are supporting the Iraqi army’s push into the ISIS-held city of Mosul. Sudan and South Sudan’s concurrent crises stem in part from the U.S.-brokered secession of Juba from Khartoum in 2011. Saudi Arabia, meanwhile, is bombing Yemen using U.S. weapons and refueling tankers.

“Executive actions like these—which are intended to penalize citizens of certain countries—tarnish the U.S. reputation at a time when we need the support of many of these countries in our fight against global terrorism,” said Muzaffar Chishti, director of the Migration Policy Institute’s office at NYU School of Law.

Controversial as the executive orders may be, opponents will likely find them tough to overturn.

“It’s pretty undisputed that is one of the few absolute prerogatives of the president with limited consultation with Congress,” said Chishti.

However, the focus on Muslim countries — as promised during the campaign trail — might provide an opening for an uphill legal challenge, from U.S. citizens or residents, said Jennifer Gordon, an immigration law expert at Fordham University.

“Could there conceivably be a challenge?” she said. “Absolutely, on the basis of discrimination by religion, a First Amendment challenge.”

But under the Refugee Act of 1980, Congress granted the White House and State Department “almost complete authority” over how many refugees to admit and from what countries. Similarly, sections of the Immigration and Nationality Act, which dates to 1952, give the president “very broad power” to permanently or temporarily suspend admission of foreign nationals from any country or category he deems “detrimental” to U.S. interests. Obama used it several times himself, and courts have given the White House a free hand in the past.

After the Sept. 11, 2001 attacks, the George W. Bush administration required special registration for nationals from 25 countries entering, exiting, and living in the United States — all Muslim-majority except North Korea. Legal challenges brought at the time failed, though the Obama administration ended the program in 2011.

“If the president presents any hint of a rational reason or justification — for example, ‘terror prone countries,'” said Gordon, “it’s likely it will be upheld.”

Even if lawyers argue that the bans target religion, rather than terrorism per se, that will likely have little legal traction, Chishti said.

“For non-citizens and especially for people not in this country as yet, issues of discrimination in our immigration laws have very limited application,” he said.

The Trump administration has argued that the refugee bans are needed because of the difficulties in vetting potential asylum seekers to ensure that they aren’t terrorists or have ties to militant groups. But immigration and security experts say the current system, which involves repeated interviews, biometric screening, and input from DHS, the State Department, the FBI, the National National Counterterrorism Center, the Defense Department, and UNHCR, is already thorough. It’s unclear if a workable system including even more screening could be implemented.

While intelligence officials have testified they are concerned about potential loopholes in the vetting process, particularly for refugees from war-torn Syria, they’ve also said that is little chance a terrorist posing as a refugee could get through the vetting process for the United States. DHS has already put extra screening layers in place for Syrians, beginning two years ago.

“Refugees are the most vetted people who come to this country,” Negash said, noting over 3 million refugees have been resettled here.

Of the some 12 million people displaced from Syria alone, the United States only accepted 13,120 by the end of last year. According to the Obama White House, as of late 2015, “not a single one” of those accepted from Syria have ever been arrested under suspicion of terrorism. A total of 38,901 Muslim refugees came to the United States in 2016 according to Pew Research Center — about half of the total of 85,000 refugees the United States accepted.

Most Syrians have fled to neighboring countries, including Jordan and Turkey, though hundreds of thousands have gone to Europe. There are much less stringent screening processes there, and it is easier to cross borders between European Union member states. In the 2015 Paris attacks, one of the assailants was fingerprinted in Greece after arriving from Turkey with the flood of refugees, inspiring Trump’s call for a ban during the campaign and potentially putting in motion his executive actions as president this week.

“We want dignity and equality for everyone,” Trump said Wednesday at DHS. “And I will be president for everyone.”

Kavitha Surana, Emily Tamkin and Robbie Gramer contributed to this report.

This is a developing piece and it has been updated.

Photo credit: Drew Angerer / Staff