Within the first few hours of the second Trump Administration, the American people saw multiple Executive Orders come into effect. These Executive Orders fulfilled many of the campaign promises made by the Administration. But what exactly did these Executive Orders say, and how could they be affecting our clients and community?
Before we can understand President Trump’s most recent Executive Orders, it’s helpful to first familiarize ourselves with the Executive Orders of former President Biden, as both administrations frequently found themselves in a tug of war over the fate of American immigration policies and enforcement.
In 2021, President Biden released Executive Order 13993, also known as ‘Revision of Civil Immigration Enforcement Policies and Priorities’. Order 13993 directed immigration agencies to reset Trump era immigration priorities to better align with the then current Biden administration, i.e. to protect national and border security, address humanitarian challenges, and ensure public health and safety. More simply, President Biden was asking government bodies to shift their focus from immigrants already settled in the nation and focus in rather on national security at the border.
In response to this shift in agenda, Prosecutorial Discretion was born from two separate memorandums issued to the Department of Homeland Security (DHS). Any non-citizen that had entered prior to November 1, 2020, and did not pose a threat to public safety was not to be considered as a priority to DHS. Those same memorandums reminded DHS officials that government officials have historically had broad discretionary powers when it comes to arrests, detainers, and removal orders. Under Order 13993, government officials were encouraged to administratively close or even dismiss removal proceedings against non-citizens if they were not priority for enforcement.
This was an effective tool for those who had been stuck in removal proceedings despite possible remedies outside of the court system, or significant ties to the United States, like U.S. citizen children, paying taxes, owning property and businesses. This allowed immigration prosecutors to focus on those in removal proceedings who posed a danger to national security, or who did not have sufficient ties to the U.S.
However, on January 20, 2025, that same Order 13993 was overturned by President Trump’s Executive Order named ‘Protecting the American People Against Invasion’ (“PAPAI”). By the enactment of PAPAI, Prosecutorial Discretion is no longer an avenue for prosecutors to use in prioritizing their massive caseload. Everyone in removal proceedings is now a priority.
For example, let’s say you are in removal proceedings and are married to a U.S. Citizen. You entered without a visa and your spouse petitioned for you and you have an I-130 approval. Under Biden, you would be able to request Prosecutorial Discretion to the Office of Chief Counsel /DHS and they had the discretion to jointly motion the immigration judge (IJ) to either administratively close or dismiss the case. This allowed both the immigrant to pursue their relief with other immigration agencies such as USCIS and the Department of State to acquire their immigrant visa, i.e. their permanent resident status, and the Office of the Chief Counsel to focus their dockets on more serious offenders who do not have viable relief.
However, under PAPAI this scenario may be unavailable to those in removal proceedings. It is important to meet with an attorney as soon as possible to discuss what alternatives may exist, including Motions to Dismiss directly to the IJ, attacking the validity of the NTA, denying charges and not conceding removability, or applying for benefits directly to the IJ, such as waivers and Cancellation of Removal. Additionally, for those non-citizens not in removal, there likely will be much less flexibility to not be placed in removal if they are encountered by ICE.
Finally, and in particular, for those that already have a final Order of Removal and are under an Order of Supervision with ICE, it is imperative that they speak with their immigration counsel before their next check-in date. It may be necessary to file a Stay of Removal with ICE to demonstrate any pending relief with USCIS and other equities and ties to the U.S. to allow them more time before a final removal or deportation order is executed. There may be other motions that can be filed either with EOIR or the Department of Justice to protect oneself from removal at a check-in with ICE.
For more information and to schedule a consultation with the attorney, please contact us at (239) 800-0580 or visit us at www.hurtadolawfirm.com
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