The practical implications of these Orders are still in the process of being clarified through the executive agencies and departments involved and/or the judicial system. On February 9th, the U.S. Court of Appeals for the 9th Circuit in San Francisco upheld a Federal District judge’s block of the Executive Order pertaining to restrictions on travel, immigration, and refugees. This could mean the case will be brought to the Supreme Court at a later date or that the Order is rescinded and rewritten with a narrower scope.
CT Strategies will remain in communication with its U.S. Customs and Border Protection (CBP) and Department of Homeland Security (DHS) contacts to continue to gain a better understanding of their implications as the situations develop.
Executive Order: Border Security and Immigration Enforcement Improvements
Southwest Border Wall
This EO directs executive departments and agencies to use all lawful means to secure the Southern Border. It includes, under the direction of DHS, using all legally available funds, the construction of a physical wall along the Southern border supplemented by technology and personnel to monitor the security condition.
5,000 Additional Border Patrol Agents
This EO also calls for the hiring of 5,000 additional U.S. Border Patrol Agents. Finally, President Trump has requested that all executive departments and agencies provide a list of all direct and indirect federal aid provided to Mexico.
What This Means
Funding a Wall
Approximately one-third of the 2,000-mile stretch of U.S.-Mexico border already has some form of wall or fencing, particularly in more densely populated border areas. Obstacles to expanding wall or fencing infrastructure include difficult and very costly terrain to build upon, privately owned land along the border, and considerable environmental risks.
Congress would need to approve funding for expansion of a Southern Border wall, for which estimates have been anywhere from $12-$38 Billion, not including costs of future maintenance. House Speaker, Paul Ryan, has stated he will support funding for a wall in FY2017. President Trump’s Administration continues to assert that the country of Mexico will ultimately bear the costs, potentially through a 20% tariff imposed on imports from Mexico.
Spending for Technology and AgentsHiring, training, and sustaining 5,000 additional U.S. Border Patrol Agents will be costly and challenging considering the background check and pre-screening process applicants must pass to be hired by CBP.
Regardless of the extent of additional wall or fencing that ultimately gets constructed, DHS Secretary, General John Kelly, as stated in his Senate confirmation hearing, recognizes the important role border security and other surveillance technology (cameras, sensors, radar, unmanned aerial vehicles) will play at CBP in the coming years.
Impact on Trade/NAFTA
Assertions by President Trump that Mexico will pay for a wall have already strained the U.S./Mexico relationship while the President has declared he will seek to renegotiate the North American Free Trade Agreement.
With any agreement that has been in place for over 20 years, it is probably worth reviewing to see where any updates might need to be made, given that the trade environment evolves rapidly. However, a complete end or drastic adjustment to free trade within North America (or between the U.S. and the other 18 countries it has free trade with) would not be a net positive for any of the three countries.
Among many problems that would be faced, the U.S. would leave itself open to retaliatory trade measures from other countries and jeopardize millions of U.S. jobs that depend on exports and trade with Mexico. However, the U.S. President does have wide powers to act without Congress in negotiating, renegotiating, or ending trade deals. A withdrawal from NAFTA by President Trump would go into effect six (6) months after written notice is provided to the other parties.
Funding for Cargo Processing Technology and Programs
With over $500 Billion per year in trade crossing the U.S./Mexico border and our respective economies being so intertwined, the overall volume of trade being processed on the U.S. Southwest border will likely remain high for the foreseeable future. This will require continued or new funding for trade processing technology such as non-intrusive inspection equipment, license plate readers, and data processing services and tools to identify high risk shipments.
Trade enforcement initiatives, such as those called for in the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), may also receiving additional funding through CBP. These include increased enforcement against duty evasion (anti-dumping/countervailing duties, intellectual property rights violations), and goods made with forced labor. TFTEA also calls for expanded government-industry partnerships in enhancing trade enforcement.
Executive Order: Protecting the Nation from Foreign Terrorist Entry into the U.S.
President Trump signed an Executive Order (EO) on 27 January 2017 that limits immigration and non-immigration visas and refugee admissions. The EO states that many foreign-born individuals that have entered the U.S. on visitor, student, and employment visas have been implicated in terrorism-related crimes since 9/11 and that deteriorating security conditions in various countries relates to terrorist entry in the U.S.
On February 9th, the U.S. Court of Appeals for the 9th Circuit in San Francisco upheld a Federal District judge’s block of the Order. This could mean the case will be brought to the Supreme Court at a later date or that the Order is rescinded and rewritten with a narrower scope.
The EO’s stated intention is to protect America by preventing the immigration and non-immigration entry of foreign-born nationals that have intent, or are at risk of, committing crimes or terrorist-related activities. The EO has ordered DHS to expedite the development of an Entry-Exit Tracking System that utilizes travelers’ biometrics to better vet foreign-nationals for security risks.
Review of Visa/Immigration Adjudication ProcessThe EO orders DHS to review information requirements of foreign governments during adjudication of a visa, admission, or other immigration benefit and report on countries who do not provide adequate information required under the Immigration and Nationality Act.
The EO seeks to temporarily ban immigrant and nonimmigrant entry in the U.S. of aliens from Iraq, Syria, Sudan, Somalia, Libya, Iran, and Yemen. The EO orders the Department of State (DoS) to inform non-compliant foreign governments that they need to provide adequate information on their nationals within 60 days of being notified. After 60 days, DoS would submit to the President a list of countries to be recommended for prohibited entry.
Suspension of Visa Waiver Program
Additionally, the Visa Interview Waiver Program was to be suspended, which would require all applicants for visa entry to take an in-person interview for admission. To account for increased work, the EO orders DoS to expand its Consular Fellows Program to help reduce wait times for visa-interviews.
Suspension of Refugee Admissions Program
The EO would also suspend the Refugee Admissions Program (USRAP) for 120 days to review its application process and procedures. DoS and DHS would determine whether additional procedures and processes need to be put in place to enhance the vetting process of refugees. Additionally, when the program is reinstated, refugee claims by persons prosecuted due to their religion are prioritized if they are a minority religion of their country of nationality. Syrian refugees would be suspended for an indeterminate amount of time and until the President decides the USRAP process is secure.
Biometric Entry-Exit Tracking System
In additional to the restrictions on refugees, immigrant, and non-immigrant entry, the EO orders the expedited development of the Biometric Entry-Exit Tracking System by DHS. The EO requires DoS, DHS, FBI, and ODNI to conduct extensive vetting of individuals seeking admission to the U.S., including in-person interviews and reviews of existing databases of identity documents to determine the individual’s level of risk.
Finally, the EO asks to make publicly available information regarding foreign nationals who have:
- Been convicted, charged, or removed from the U.S. on terrorism-related charges, affiliation, or material support.
- Been radicalized after entry into the U.S.
- Committed gender-based violence against women
In addition to this information, the public report will contain the immigration status of foreign nationals charged on other major offenses and any information deemed necessary by DHS or the Department of Justice (DoJ).
What This Means
Current Levels of Vetting
A stringent level of vetting has already been in place for refugees from any country and for individuals seeking a visa from one of the seven countries named in the travel ban. DoS along with multiple U.S. security and intelligence agencies are involved in conducting a combination of in-person interviews and biometric and biographic data checks against extensive databases, while utilizing multiple sources of existing intelligence to identify high-risk individuals who should not be allowed entry into the U.S.
Continued Need for Passenger Data Processing Tools and PartnershipsRegardless of what additional levels of vetting are ultimately put in place by the Administration, DHS and CBP will continue to rely upon innovative data sharing and processing tools to identify high risk individuals seeking admission to the U.S. from any country.
CBP is continuously seeking innovation in its passenger targeting processes, which includes not only enhanced technology, but also cooperative partnerships with commercial airlines and intelligence-sharing partnerships with foreign allies, including Mexico and European nations.
Biometric Entry-Exit System
A biometric entry-exit matching system has been in discussion for several years. Such a system would utilize facial recognition or fingerprint capture for outbound travelers (likely not including U.S. citizens) and match them to entry records in an effort to monitor who has already departed or may still be in the U.S. However, this is very challenging to implement as U.S. international airport terminals are not configured for outbound traveler exit processing.
In 2016, U.S. CBP and DHS conducted biometric exit tracking pilots at multiple major airports and one land port near San Diego. While the pilots were generally successful, a larger scale implementation will be costly and will require a carefully considered policy framework to support it. It will also require close cooperation with airlines to ensure it does not significantly disrupt the flow of travel.
Aside from the humanitarian or moral questions being debated on this EO, these actions could jeopardize U.S. efforts in the region to gain intelligence from those sources which have typically been cooperative with the U.S., but may now react adversely to this EO.
Additionally, a deterrence to foreign travel in general, such as restrictions on those traveling from one of the 38 Visa Waiver Countries, could detrimentally impact U.S. tourism, which is estimated to add $200 Billion annually to the U.S. economy. In the week following the EO, the Global Business Travel Association claims $185M were lost in business travel bookings. This issue underscores the need to balance new security measures with beneficial travel facilitation that supports the U.S. economy.
Executive Order: Enhancing Public Safety in the Interior of the United States
Withholding Federal Funds to ‘Sanctuary Cities’
This EO states that ‘Sanctuary Jurisdictions’, which are jurisdictions that do not assist in federal immigration enforcement such as by inquiring about immigration status or holding undocumented immigrants in local jails, are in violation of Federal law. Until these sanctuary jurisdictions comply with the required statute, President Trump has ordered the cessation of federal grants as permitted by law and not congressionally mandated.
Removal of Aliens
Section 5 of this EO sets a priority list of alien removals. Aliens that are priority removals for this administration include those who are: convicted or charged of criminal offenses; posing national security concerns to the U.S. Government; conspiring to act against the U.S. government; conspiring to commit any unlawful activity; are linked to terrorism, pose adverse consequences to foreign policy; have abused federal aid programs; or have misrepresented themselves. President Trump uses the Immigration and National Act (INA) to justify this priority list.
Hiring of 10,000 Additional Immigration & Customs Enforcement (ICE) Officers
Under Section 7 of this EO, President Trump has ordered the Secretary to take all necessary actions to hire 10,000 additional Immigration officers.
Reporting of Criminal Actions by Aliens
Under section 9, President Trump has ordered a weekly Declined Detainer Outcome Report be published in sanctuary jurisdictions that make public a comprehensive list of criminal actions committed by aliens. Additionally, President Trump has ordered under Section 16 of this EO Quarterly Reports on the immigration status of all aliens incarcerated in Federal Bureau prisons, U.S. Marshals Service prisons, and state and local prisons.
What This Means
ICE deported approximately 400,000 individuals annually under the Obama Administration, while stating that their priorities were violent criminals and offenders of more serious crimes. The 400,000 annual deportees were said to be based on those priorities relative to the capabilities of existing resources of agents and bed space at detention centers.
In FY2016, ICE had just under 7,000 Office of Enforcement and Removal (ERO) Officers. The hiring of 10,000 additional ICE Agents would more than double that size, allowing the annual number of deportees to presumably increase, but by how much remains to be seen. Aside from the significant costs that will have to be allocated by Congress, the time it will take to train new agents and pass enough qualified applicants through a background check process will take significant time and resources.
The short and long term effects of President Trump’s Executive Orders will continue to take shape in the coming weeks and months. Funding for the expansion of existing wall and fencing infrastructure on the Southwest Border will be debated. Vetting practices will be revised for those seeking admission to the U.S. as refugees or through immigrant or non-immigrant visas. DHS components, CBP and ICE, will seek to hire 5,000 and 10,000 more Agents respectively.
Continued Need for Technology
However the specifics unfold, it can be expected that border surveillance technology between the ports will play a significant role in supporting the U.S. Border Patrol as part of the Administration’s border security strategy. Vetting those seeking admission to the U.S., from any country, will continue to require sophisticated data services and processing tools to identify high-risk individuals. Implementation of a biometric entry-exit tracking system will require a carefully considered procurement of the right capture technology and/or data processing system(s), along with strategic partnerships with airlines. Similarly, in the cargo environment, enhanced trade enforcement will require innovative data collection and analysis tools.
While this Administration has indicated it is heavily focused on enforcement, CBP’s international travel and trade facilitation mission should not be overlooked. Trade and travel provide massive support to the U.S. economy. Therefore, it is critical that new policies and procedures, and technologies introduced to support them, appropriately balance the security and facilitation missions. CT Strategies will stay engaged with CBP and DHS on the issues surrounding these Executive Orders and will work to keep our clients informed going forward.