Border Security and Immigration: Initial Executive Order Actions and Resource Implications
Released: 2018-07-12T00:00:00

Letter

Background

Executive Order Summaries

The President issued two executive orders addressing border security and immigration enforcement on January 25, 2017. These orders direct executive branch agencies to implement a series of reporting, policy, and programmatic provisions to carry out the administration’s border security and immigration policies and priorities.

Executive Order 13767 lays out key policies of the executive branch with regard to securing the southern border, preventing further unlawful entry into the United States, and repatriating removable foreign nationals. To support these purposes, the order directs DHS to, among other actions, produce a comprehensive study of the security of the southern border; issue new policy guidance regarding the appropriate and consistent use of detention of foreign nationals for violations of immigration law; plan, design, and construct a wall or other physical barriers along the southern border; and hire and on- board, as soon as practicable, 5,000 additional Border Patrol agents.

Executive Order 13767 also directs DOJ to assign immigration judges to immigration detention facilities in order to conduct removal and other related proceedings.

Executive Order 13768 focuses on immigration enforcement within the United States. Among other things, the order lays out the administration’s immigration enforcement priorities for removable foreign nationals; directs ICE to hire 10,000 additional immigration officers; states that, as permitted by law, it is the policy of the executive branch to empower state and local law enforcement officials to perform the functions of immigration officers; calls for weekly public reports on criminal actions committed by foreign nationals and any jurisdictions that do not honor ICE detainers with respect to such individuals; and terminates the Priority Enforcement Program while reinstituting Secure Communities. The order also directs DHS and DOJ to ensure that jurisdictions that willfully prohibit or otherwise restrict communication with DHS regarding immigration status information are not eligible to receive federal grants, except as determined necessary for law enforcement purposes.

On March 6, 2017, the President issued Executive Order 13780. This order directed agencies to take various actions to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the U.S. Refugee Admissions Program. Specifically, the order directed agencies to conduct a worldwide review to identify any additional information needed from each foreign country to adjudicate visas and other immigration benefits to ensure that individuals applying for such benefits are not a security or public-safety threat. The order also instituted visa entry restrictions for nationals from certain listed countries for a 90-day period; directed agencies to develop a uniform baseline for screening and vetting standards and procedures; and suspended the U.S. Refugee Admissions Program for 120 days in order to review refugee application and adjudication procedures. The order further directed DHS to expedite the completion and implementation of a biometric entry-exit tracking system for travelers to the United States. Implementation of Executive Order 13780 entry restrictions for visa travelers and refugees commenced on June 29, 2017, subject to a June 26 ruling of the U.S. Supreme Court prohibiting enforcement of such restrictions against foreign nationals with a credible claim of a bona fide relationship to a person or entity in the United States.

Federal Budget Process and Status Since Executive Order Issuance

The federal budget process provides the means for the President and Congress to make informed decisions between competing national needs and policies, allocate resources among federal agencies, and ensure laws are executed according to established priorities. The President generally submits the budget request for the upcoming fiscal year to Congress no later than the first Monday of February (e.g. the fiscal year 2019 budget request was submitted in February 2018). To ensure there is not a lapse in appropriations for one or more federal departments or agencies, regular appropriations bills must be enacted to fund the government before the expiration of the prior appropriations, which would typically be in effect through September 30 in a regular appropriations cycle. If these regular full-year appropriations bills are not enacted by the deadline, Congress must pass a continuing appropriation (or resolution) to temporarily fund government operations into the next fiscal year. For fiscal year 2017, multiple continuing appropriations were enacted to extend funding until the Consolidated Appropriations Act, 2017, was enacted in May 2017.

At the time the President issued the executive orders in January and March of 2017, agencies were operating under a continuing appropriation which did not incorporate any funding explicitly for the administration’s immigration and border security priorities, such as hiring 5,000 additional Border Patrol agents. The administration sought additional funds to implement the executive orders through an out-of-cycle March 2017 budget amendment and supplemental appropriations request for the remainder of fiscal year 2017. In May 2017, Congress provided funding for selected priorities through the Consolidated Appropriations Act, 2017. The administration submitted additional funding requests related to the executive orders through the President’s fiscal year 2018 and 2019 budget requests. A number of continuing appropriations acts were enacted from September 2017 through February 2018, providing fiscal year 2018 funding at fiscal year 2017 levels through March 23, 2018. The Consolidated Appropriations Act, 2018, was signed into law on March 23, 2018, providing funding for government operations for the remainder of fiscal year 2018. Figure 1 below provides a timeline of executive order issuance and key milestones in the budget process from December 2016 through March 2018.

Agency Roles and Responsibilities

DHS, DOJ, and State each play key roles in enforcing U.S. immigration law and securing U.S. borders. Key components and bureaus at the three agencies, and their general roles and responsibilities with regard to border security and immigration enforcement, are described in table 1.

DHS, DOJ, and State Took Initial Planning and Programming Actions to Implement Provisions of the Executive Orders

DHS, DOJ, and State issued reports, developed or revised policies, and took initial planning and programmatic actions in response to the executive orders. Each agency took a distinct approach to implementing the orders based on its organizational structure and the scope of its responsibilities. Each executive order established near-term reporting requirements for agencies, including updates on the status of their efforts, studies to inform planning and implementation, and reports for the public. According to officials, agencies focused part of their initial implementation efforts on meeting these reporting requirements. In addition, agencies developed and revised policies, initiated planning efforts, and made initial program changes (such as expanding or expediting programs) to reflect the administration’s priorities.

DHS: DHS established an Executive Order Task Force (EOTF), which was responsible for coordinating and tracking initial component actions to implement the executive orders. The EOTF assembled an operational planning team with representatives from key DHS components, such as U.S. Customs and Border Protection (CBP) and ICE. The EOTF and the planning team inventoried tasks in the orders, assigned component responsibilities for tasks, and monitored the status of the tasks through an online tracking mechanism and weekly coordination meetings. Additionally, the EOTF coordinated and moved reports required by the orders through DHS. For example, Section 4 of Executive Order 13767 directed DHS to produce a comprehensive study of the security of the southern border. DHS completed and submitted this report to the White House on November 22, 2017, according to EOTF officials. DHS also publicly issued three Declined Detainer Outcome Reports pursuant to Section 9 of Executive Order 13768. Additionally, EOTF officials stated that, in 2017, DHS produced and submitted to the White House 90-day and 180-day reports on the progress of implementing Executive Orders 13767 and 13768.

The Secretary of Homeland Security issued two memoranda establishing policy and providing guidance related to Executive Orders 13767 and 13768 in February 2017. One memorandum implemented Executive Order 13767 by outlining new policies designed to stem illegal entry into the United States and to facilitate the detection, apprehension, detention, and removal of foreign nationals seeking to unlawfully enter or remain in the United States. For example, the memorandum directed U.S. Citizenship and Immigration Services (USCIS), CBP, and ICE to ensure that appropriate guidance and training is provided to agency officials to ensure proper exercise of parole in accordance with existing statue. The other memorandum implemented Executive Order 13768 and provided additional guidance with respect to the enforcement of immigration laws. For example, it terminated the Priority Enforcement Program, under which ICE prioritized the apprehension, detention, and removal of foreign nationals who posed threats to national security, public safety, or border security, including convicted felons; and restored the Secure Communities Program, pursuant to which ICE may also target for removal those charged, but not yet convicted, of criminal offenses, among others. Additionally, the memorandum reiterated DHS’s general enforcement priorities. ICE, CBP, and USCIS may allocate resources to prioritize enforcement activities as they deem appropriate, such as by prioritizing enforcement against convicted felons or gang members.

DHS components subsequently issued additional guidance further directing efforts to implement the executive orders and apply the guidance from the memoranda. For example, ICE issued guidance to its legal program to review all cases previously administratively closed based on prosecutorial discretion. ICE’s new guidance requested its attorneys to determine whether the basis for closure remains appropriate under DHS’s new enforcement priorities. USCIS also reviewed its guidance for credible and reasonable fear determinations—the initial step for certain removable individuals to demonstrate they are eligible to be considered for particular forms of relief or protection from removal in immigration court. As a result, USCIS made select modifications pursuant to Executive Order 13767, including adding language related to evaluating an applicant’s credibility based on prior statements made to other DHS officials, such as CBP and ICE officers.

DHS also initiated a number of planning and programmatic actions to implement the executive orders. In some cases DHS components expanded or enhanced existing regular, ongoing agency activities and programs in response to the orders. For example, in response to Executive Order 13768, ICE officials reported that they expanded the use of the existing Criminal Alien Program. In other instances, DHS components altered their activities consistent with the administration’s immigration priorities. For instance, in response to Executive Order 13768, the Secretary of Homeland Security directed ICE to terminate outreach or advocacy services to potentially removable foreign nationals, and reallocate all resources currently used for such purposes to a new office to assist victims of crimes allegedly perpetrated by removable foreign nationals (the Victims of Immigration Crime Engagement, or VOICE, office, established in April 2017). Additional examples of planning and programmatic actions that DHS took, or officials reported taking, in response to the executive orders are described in table 2.

DOJ: Within DOJ, the Office of the Deputy Attorney General coordinated and oversaw DOJ’s initial implementation of key provisions in the executive orders, according to DOJ officials. Specifically, DOJ officials said that the Office of the Deputy Attorney General coordinated and collected information for executive order reporting requirements and participated in an interagency working group related to Executive Order 13780, and interagency meetings related to Executive Order 13767. However, DOJ components were responsible for implementing the provisions and ensuring that they met executive order requirements. In addition, DOJ assisted in the creation and issuance of various reports. For example, officials told us that DOJ provided data to State for a report on foreign assistance to the Mexican government, as required by Section 9 of Executive Order 13767. DOJ also jointly issued three reports with DHS in response to Executive Order 13768 Section 16, which included information regarding the immigration status of foreign-born individuals incarcerated under the supervision of the Federal Bureau of Prisons and in pre-trial detention in U.S. Marshals Service (USMS) custody.

The Attorney General issued two memoranda providing policy and guidance related to Executive Orders 13767 and 13768 in April and May of 2017. The April 2017 memorandum contains guidance for federal prosecutors on prioritizing certain immigration-related criminal offenses. For example, the memorandum requires that federal prosecutors consider prosecution of foreign nationals who illegally re-enter the United States after prior removal, and prioritize defendants with criminal histories. The May 2017 memorandum addresses Executive Order 13768’s provision directing DOJ and DHS to ensure that jurisdictions willfully prohibiting immigration status-related communication with the federal government (referred to as “sanctuary jurisdictions”) are not eligible for federal grants. It requires jurisdictions to certify their compliance with 8 U.S.C §1373, under which a federal, state, or local government entity or official may not prohibit, or in any way restrict the exchange of citizenship or immigration status information with DHS.

Additionally, DOJ took a number of initial planning and programmatic steps to implement the executive orders. DOJ officials stated that some provisions outlined in the executive orders represent regular, ongoing agency activities and did not require any major changes to be implemented. For example, DOJ detailed Assistant United States Attorneys (AUSAs) and immigration judges to southern border districts and detention centers to assist in prosecutions and to conduct removal proceedings in response to the executive orders. However, while they expanded their efforts, DOJ officials said that detailing immigration judges and AUSAs to the border districts is a regular practice, and not a new function created by the executive orders. Examples of actions that DOJ took, or officials reported taking, in response to the executive orders are described in table 3.

State: State’s Bureaus of Population, Refugees, and Migration and Consular Affairs led efforts to implement key provisions in Executive Order 13780. Several legal challenges and resulting federal court injunctions affected State’s implementation of Executive Order 13780 and at times curtailed specific provisions. Initial State actions included conducting reviews and contributing to reports required by the order. For instance, while State generally suspended refugee travel for 120 days, the department, in conjunction with DHS and the Office of the Director of National Intelligence, conducted a review to determine what, if any, additional procedures should be implemented in the U.S. Refugee Admissions Program. According to State officials, the agencies provided a joint memorandum to the President in October 2017 that contained recommendations regarding resumption of the program, specific changes to refugee processing, and further reviews and steps that the interagency group should take. Additionally, State worked with DHS and the Office of the Director of National Intelligence to conduct a worldwide review. This review identified any additional information that the United States may need from each foreign country to adjudicate visas and other immigration benefit applications and ensure that individuals seeking to enter the United States do not pose a threat to public safety or national security. In July 2017, upon completion of this review, DHS, in consultation with State and other interagency partners, issued a report to the President cataloguing information needed from each country and listing countries not providing adequate information.

State also issued a number of policies and guidance in response to the executive orders; however, guidance on how to implement certain provisions often changed due to legal challenges. For example, the Bureau of Population, Refugees, and Migration issued 23 iterations of refugee travel restrictions guidance to overseas refugee processing centers in response to federal litigation and budgetary uncertainties. Similarly, the Secretary of State issued a number of cables to visa-issuing foreign posts on implementing travel restrictions for nationals of selected countries following court orders limiting the implementation of such restrictions.

Executive Order 13780 contained several time-sensitive provisions directed to the Secretary of State. State focused on first addressing these provisions while working towards longer-term priorities outlined in the order. For instance, Executive Order 13780 Sections 2 and 6 established visa and refugee entry restrictions, which contained near-term timelines. State implemented these provisions, consistent with judicial decisions. Examples of planning and programmatic actions that State took, or officials reported taking, to implement Executive Order 13780 are described in table 4.

For more information on specific planning or programmatic actions DHS, DOJ, and State have taken to implement the executive orders, see appendix I.

The examples we provided for DHS, DOJ, and State represent initial actions and do not constitute an exhaustive list of actions that agencies have taken, or may take in the future, to fully implement the executive orders. Agency officials anticipate that implementation of the executive orders will be a multi-year endeavor comprising present and future reporting, planning, and other actions. For example, DOJ officials noted that many of the actions that they took to implement the orders will be ongoing and responsive to additional DHS actions. Specifically, DOJ bases the number of immigration judges and AUSAs detailed to the southern border districts on court caseloads driven by ICE. If ICE hires additional officers and attorneys and arrests and files charges of removability against more foreign nationals, then DOJ may need to staff additional judges and AUSAs to meet caseload needs.

DHS, DOJ, and State Used Existing Fiscal Year 2017 Resources to Support Initial Executive Order Actions; DHS also Received and Expended Supplemental Funds

Existing Fiscal Year 2017 Resources: Many of the initial actions agencies and components took in response to the executive orders fit within their existing fiscal year 2017 budget framework and aligned with their established missions. At the time the executive orders were issued in January and March of 2017, federal agencies were operating under existing continuing appropriations pending enactment of fiscal year 2017 appropriations; therefore the new administration’s border security and immigration priorities and policies had not yet been incorporated into the budget process. As a result, it is not always possible to disaggregate which fiscal year 2017 funds were used for implementation of the executive orders versus other agency activities. For example, while the orders call for a surge in hiring at CBP and ICE, these agencies regularly hire additional personnel to offset attrition or to meet budget hiring targets as part of their normal operations.

We asked agencies to identify budgetary resources they used specifically to address the executive orders. In some cases agencies were able to quantify their expenditures; however in other cases they could not. For example, according to DOJ officials, the Executive Office for Immigration Review, which conducts immigration court proceedings, spent close to $2.4 million in existing funds to surge approximately 40 immigration judge positions to detention centers and the southwest border from March through October 2017 in response to Executive Order 13768. DHS’s USCIS reported expending approximately $4.2 million detailing asylum officers to immigration detention facilities along the southern border from February 2017 through February 2018. Additionally, as a result of the 120-day suspension of refugee admissions, State cancelled airline tickets for previously approved refugee applicants, which resulted in a cost of nearly $2.4 million in cancellation and unused ticket fees. State officials noted that, aside from the ticket costs, other budgetary costs associated with implementing the order are difficult to disaggregate from other processing activities. For example, any budgetary costs associated with refugees who were admitted on a case-by-case basis were absorbed into overseas processing budgets. In some cases, agencies also identified cost savings or avoidances. For example, State reported a total cost avoidance of over $160 million in fiscal year 2017, partially as a result of admitting fewer refugees than originally planned under the prior administration.

While the costs above were part of agencies’ normal operations, we identified one case where Congress approved a DHS request to reprogram $20 million from existing programs to fund the planning and design of new physical barriers along the border, including prototype design and construction. Specifically, CBP reprogrammed $15 million from funds originally requested for Mobile Video Surveillance System deployments and $5 million from a border fence replacement project in Naco, Arizona. Additionally, we identified another case where DHS shifted funds and notified Congress, but determined Congressional approval for reprogramming was not required. Specifically, in response to Executive Order 13768, the Secretary of Homeland Security directed ICE to reallocate any and all resources used to advocate on behalf of potentially removable foreign nationals (except as necessary to comply with a judicial order) to the new VOICE office. As part of this effort, ICE’s Office of the Principal Legal Advisor determined that the creation of the VOICE office fell within ICE’s authority to carry out routine or small reallocations of personnel or functions. According to officials at DHS, DOJ, and State, there were no additional requests to reprogram or transfer funds to implement the executive orders. DHS budget officials stated that any future requests from DHS components to reprogram or transfer funds would typically be considered at the midway point in the budget cycle.

All three agencies indicated that they used existing personnel to implement the executive orders and, in some cases, a substantial amount of time was spent preparing reports, planning to implement provisions, and responding to changes or new developments in the executive orders. For example, USCIS officials noted that the agency devoted a significant number of manpower hours to aligning USCIS priorities to the executive orders. ICE’s Office of Human Capital established a dedicated executive order hiring team to plan for the hiring surge directed by Executive Order 13768. Additionally, officials at State told us that personnel were diverted from normal operations in order to implement executive order policy actions and that there were overtime costs associated with some provisions. In most cases, agencies did not specifically track or quantify the amount of time spent on these efforts; however, ICE’s Office of Human Capital tracked the amount of time spent on planning for the potential surge in ICE hiring in its human resource data system. According to ICE information, ICE personnel charged approximately 14,000 regular hours (the equivalent of 1,750 8-hour days) and 2,400 overtime hours to this effort from January 2017 through January 2018.

Fiscal Year 2017 Request for Supplemental Appropriations: In March 2017, the President submitted a budget amendment along with a request for $3 billion in supplemental appropriations for DHS to implement the executive orders and address border protection activities. In May 2017, an additional appropriation of approximately $1.1 billion was provided in response to this request, some of which DHS used to fund actions to implement the orders. For example, CBP received $65.4 million for hiring and, according to CBP officials, used these funds to plan and prepare for the surge in Border Patrol agents directed by Executive Order 13767. As of January 2018, CBP had obligated $18.8 million and expended $14.1 million of the $65.4 million it received. Additionally, ICE received $147.9 million for custody operations. At the end of fiscal year 2017, ICE had obligated and expended nearly all—over 99.9 percent—of the funds it received.

Fiscal Years 2018 and 2019 Budget Requests and Fiscal Year 2018 Appropriations: Agency officials anticipate additional costs to further implement the executive orders and expect that certain provisions will require a multi-year effort. According to DHS officials, the agency expects to incorporate executive order implementation into its annual strategic and budgetary planning processes. DHS officials also noted that additional future planning and funds will be needed to fully implement actions in the orders. Agencies plan to continue to use their base budgets as well as request additional funds as needed to carry out their mission. Examples of DHS and DOJ fiscal year 2018 budget requests and appropriations to implement executive order provisions are listed below.

CBP requested $1.6 billion and in the Consolidated Appropriations Act, 2018, received approximately $1.3 billion to build new and replace existing sections of physical barriers along the southern border. CBP also projected out-year funding for construction along certain segments of the border through 2024.

ICE requested $185.9 million for approximately 1,000 new immigration officers and 606 support staff. ICE’s fiscal year 2018 appropriation included $15.6 million to support the hiring of 65 additional investigative agents, as well as 70 attorneys and support staff.

DOJ requested approximately $7.2 million to hire additional attorneys in support of the orders. According to DOJ officials, DOJ received sufficient funds in the fiscal year 2018 budget to meet the hiring goal for attorneys.

DHS and DOJ also requested funds for fiscal year 2019 to implement executive order provisions, examples of which are listed below.

ICE requested $571 million to hire 2,000 immigration officers (including 1,700 deportation officers and 300 criminal investigators) and 1,312 support staff (including attorneys).

DOJ requested $1.1 million for 17 paralegal support positions to support the additional attorneys requested in the fiscal year 2018 request. DOJ also requested approximately $40 million to hire new immigration judges and their supporting staff, citing an over 25 percent increase in new cases brought forward by DHS over the course of fiscal year 2017.

DHS and DOJ components that were not directly tasked with responsibilities in the executive orders have also begun to plan for potential effects as agencies implement the orders. For example, as CBP and ICE work to meet the hiring surge in the orders, USMS anticipates a likely increase in the number of individuals who are charged with criminal immigration offenses and detained pending trial, resulting in a corresponding increase in its workload. USMS developed a multi-year impact statement which projected possible effects on USMS prisoner operations, judicial security, and investigative operations. According to DOJ officials, these efforts may inform USMS’s budget requests and future year planning. For example, for fiscal year 2018 USMS requested approximately $9 million to hire 40 USMS deputies to support the executive orders. For fiscal year 2019, USMS projected that the administration’s policies to increase immigration enforcement and immigration-related prosecutions could result in an increase of nearly 19,000 prisoners between fiscal year 2017 and fiscal year 2019 and a corresponding budget increase of approximately $105 million for immigration expenses. In addition, officials at the Federal Law Enforcement Training Centers stated that they coordinated with Border Patrol and ICE to assess future training needs and project future resource requirements based on the hiring assumptions in the executive orders. For example, the Federal Law Enforcement Training Centers requested an increase of $29 million in fiscal year 2018 and $25.7 million in fiscal year 2019 for tuition and training requirements to implement the executive orders, among other funding requested.

Appendix I includes additional information on funds DHS, DOJ, and State have obligated, expended, or shifted, to implement provisions of the executive orders.

Agency Comments

We provided a draft of this report to DHS, DOJ, and State for review and comment. DHS provided written comments, which are reproduced in appendix III; DOJ and State did not provide written comments. In its written comments, DHS discussed resources and legislative authorities the department believes it needs to carry out executive order requirements. All three agencies provided technical comments, which we incorporated as appropriate.

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Appendix I: Key Actions and Budgetary Costs Related to Implementing Executive Order 13767, 13768, and 13780 Provisions

Purpose

This appendix contains summaries of initial actions that the Department of Homeland Security (DHS), Department of Justice (DOJ), and Department of State (State) took to implement selected programmatic provisions of the President’s executive orders on border security and immigration. These orders include Executive Order 13767, Border Security and Immigration Enforcement Improvements; Executive Order 13768, Enhancing Public Safety in the Interior of the United States; and Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States. These summaries also contain overviews of budget information related to implementing the executive orders, including obligations, expenditures, and budget requests where available, among other things. Table 5 lists the summaries and the executive order provisions on which they focus.

Methodology for Selecting Executive Order Provisions

We reviewed the executive orders and placed each provision directed at DHS, DOJ, and State into one of three categories: (1) analyses and reports, (2) policies, and (3) programs. We defined the analyses and reports category as executive order provisions that direct agencies to review and analyze data, policies, processes, and operational mission areas and produce reports. We defined the policies category as executive order provisions that establish new or modify existing policies, guidance, or processes related to border security or immigration. We defined the programs category as tangible, measurable, and quantifiable executive order provisions that implement policies. We confirmed our categorization with each agency, particularly for the programs category, since it was sometimes ambiguous whether provisions would lead to actions that were tangible, measurable, and quantifiable. Specifically, we reviewed agency documentation, such as a DHS inventory of tasks related to the executive orders, and interviewed agency officials. In some cases, we moved policy provisions to the programs category if agency efforts to implement the policy were underway.

We prepared summaries for each executive order provision(s) we categorized as a program. For each program, we identified actions planned, completed, or underway at DHS, DOJ, and State as of March 2018 through reviewing documentation, interviewing agency officials, and submitting data collection instruments. For each program we also collected available budgetary costs—specifically, any funds requested, appropriated, obligated, and expended for executive order implementation from January 2017 through March 2018. We reviewed publicly available budget requests, congressional budget justifications, public laws, and budgetary data from agencies’ internal data systems. While we were able to identify certain funds directly attributed to the executive order provisions from these documents, it was not always possible to extract funds specifically meant for implementing the executive order provisions from more general budget increase requests, appropriations, or expenditures. To specifically identify funds used for the executive order provisions, we reviewed agency documentation, interviewed agency budget and program officials, and submitted written questions as necessary. In instances where we were unable to differentiate executive order provision funds from regular operating funds, we identified the larger account used for executive order funds and noted this distinction. We analyzed agency documentation on the policies, procedures, and processes for maintaining budgetary data and interviewed agency officials about their data collection practices to assess the reliability of these data. We determined that the data were sufficiently reliable for our purposes.

Executive Order: 13767

Provision Summary:

Key Agency(ies) Responsible:

Program Context:

Statutes enacted from 1996 through 2007 authorize DHS, subject to certain criteria, to take necessary actions to construct physical barriers and roads to deter illegal crossings in border areas experiencing high levels of illegal entry. As we previously reported in 2017, from fiscal years 2005 through 2015, CBP increased the total miles of primary border fencing on the southwest border from 119 miles to 654 miles.

Action Overview CBP has taken initial steps to plan, design, and construct new and replacement physical barriers on the southern border.

For instance, CBP began the acquisition process for a Border Wall System Program, including developing plans to construct barrier segments and awarding eight task orders with a total value of over $3 million to design and construct barrier prototypes (four made from concrete and four made from non-concrete materials).

CBP selected San Diego, California as the first segment and plans to replace an existing 14 miles of primary and secondary barriers. DHS plans to use fiscal year 2017 funding for the replacement of the primary barrier which it plans to rebuild to existing—as opposed to prototype—design standards.

In January 2018, DHS leadership also approved cost, schedule, and performance goals for a second segment in the Rio Grande Valley in Texas, which will extend an existing barrier with 60 miles of new fencing.

The Consolidated Appropriations Act, 2018, stated that fiscal year 2018 funds for primary pedestrian fencing are only available for “operationally effective designs deployed as of ,” such as steel bollard fencing currently deployed in areas of the border. As of April 2018, CBP and DHS were evaluating what, if any, impact this direction will have on the department’s plans, according to DHS officials.

Additionally, DHS waived specific legal restrictions, such as environmental restrictions, in order to begin construction of barriers in the El Centro and San Diego Border Patrol sectors in California; and the Santa Teresa, New Mexico segment of the El Paso Border Patrol Sector. DHS also completed a categorical exclusion for replacement of a segment of existing barriers in El Paso, Texas.

Budget Overview To fund the barrier prototypes, Congress approved a DHS request to reprogram $20 million in fiscal year 2017. Specifically:

CBP reprogrammed $15 million from funds originally requested for Mobile Video Surveillance System deployments. The funds were originally part of the fiscal year 2015/2017 Border Security Fencing, Infrastructure, and Technology (BSFIT) Development and Deployment funding and were available due to a contract bid protest and delays associated with the Mobile Video Surveillance System Program.

CBP also reprogrammed $5 million from funds originally intended for a fence replacement project in Naco, Arizona. The funds were part of fiscal year 2016 BSFIT Operations and Maintenance funding and were available as a result of unanticipated contract savings. The Naco Fence Replacement project will be completed within its original scope, according to CBP documentation.

DHS also received an appropriation in fiscal year 2017 to replace existing fencing and to install new gates; and an appropriation in fiscal year 2018 for border barrier planning and design, and to replace existing fencing and build new barriers. As previously discussed, the Consolidated Appropriations Act, 2018, limited the use of funds provided for construction of new and replacement primary pedestrian fencing to previously deployed fencing designs. DHS has requested, but has not received, fiscal year 2019 funds for building new barriers. For more information regarding funding for future barrier construction projects along the southern border, see table 6.

According to CBP documentation, the total cost to construct the Border Wall System Program over approximately 10 years is $18 billion. DHS headquarters conducted an independent cost estimate for the San Diego and Rio Grande Valley segments of the program, which CBP adopted as the program’s life cycle cost estimate. Acquisition and operations and maintenance costs for the Rio Grande Valley segment were separately described in other DHS documents and are shown in table 7 below.

Provision: Sections 5 and 6 Sections 5 and 6 pertain to detention facilities and detention of foreign nationals for violations of immigration law, pending the outcome of their proceedings or to facilitate removal. The order directs the Department of Homeland Security (DHS) to take immediate actions to construct, operate, or control facilities to detain foreign nationals at or near the southern border, and assign asylum officers to immigration detention facilities, among other things. Additionally, the order directs the Department of Justice (DOJ) to immediately assign immigration judges to immigration detention facilities.

DHS: U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS)

DOJ: Executive Office for Immigration Review (EOIR)

ICE and U.S. Border Patrol officials stated they consider custody determinations on a case by case basis. Additionally, officials from CBP’s Office of Field Operations stated they inspect all applicants for admission in accordance with the Immigration and Nationality Act, as prescribed by the executive order and a February 2017 memorandum the Secretary of Homeland Security issued.

ICE, through its Enforcement and Removal Operations directorate, manages the nation’s immigration detention system, which houses foreign nationals detained while their immigration cases are pending or after being ordered removed from the country. DOJ’s EOIR is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings, pursuant to U.S. immigration law and regulation.

ICE initially intended to increase bed capacity at detention facilities in order to accommodate potential surges in apprehensions that could result from implementation of the executive order. According to ICE officials, ICE identified 1,100 additional beds available at detention facilities already in use. However, officials also stated that, as of February 2018, ICE has not needed to use these additional beds due to a decrease in the number of apprehensions.

Additionally, ICE officials indicated no acquisition actions were needed because contracts and agreements are in place at existing detention facilities and additional beds are available for excess capacity. CBP and ICE are continuously monitoring bed space requirements based on migration volume. According to ICE officials, as of February 2018, ICE had no additional actions planned to increase bed capacity.

DHS’s Office of Strategy, Policy and Plans convened a cross-component meeting to discuss detention standards, which govern the conditions of detainee confinement, according to DHS officials. ICE officials reported that ICE is currently re-writing its national detention standards (the standards applicable at most county jails housing immigration detainees). According to officials, the new standards are intended to make it easier for local jurisdictions to comply with standards without completely re-writing their existing policies to conform to ICE’s requirements.

USCIS officials told us they began working with ICE to identify where additional asylum officers were needed based on workload needs and space availability as soon as the executive order was issued in January 2017. From February 2017 through February 2018, USCIS deployed between 30 and 64 asylum officers during any given week along the southern border and continues to do so in response to caseload needs. USCIS continues to monitor and periodically adjust asylum officer staffing requirements, according to USCIS officials.

DOJ officials stated that DOJ components coordinated with ICE to identify removal caseloads along the southern border that were large enough to warrant additional immigration judges. According to DOJ officials, from March 2017 through October 2017, EOIR detailed approximately 40 immigration judge positions, both in person and by video teleconference, to 19 DHS detention facilities, including many along the southern border, in response to the executive order. DOJ officials further explained that as caseloads fluctuated, some of the details ended, some in- person details were converted to video teleconference, and some details were converted to permanent immigration judge positions. EOIR often details immigration judges for operational reasons; however officials noted that the scale of this detail mobilization was larger because of the executive order.

Fiscal Year 2017: Because Executive Orders 13767 and 13768 were issued during fiscal year 2017, DHS submitted a budget amendment and requested supplemental appropriations to address the needs of the department in support of executive order implementation. The request proposed funding to increase daily immigration detention capacity to 45,700 detention beds by the end of fiscal year 2017. The request stated that the detention capacity was necessary to implement the administration’s immigration enforcement policies for removing foreign nationals illegally entering or residing in the United States.

ICE: On May 5, 2017, ICE received a supplemental appropriation of $236.9 million for enforcement and removal operations, including $147.9 million for custody operations, $57.4 million for alternatives to detention, and $31.6 million for transportation and removal operations. According to ICE documentation, almost all of the funds from that additional appropriation were obligated and expended at the conclusion of fiscal year 2017, as shown in table 8.

USCIS: USCIS documentation estimated that it expended at least $4.2 million detailing asylum officers to immigration detention facilities along the southern border from February 2017 through February 2018.

Fiscal Year 2018: The President’s budget requested an additional $1.5 billion above the 2017 annualized continuing appropriations level, for expanded detention, transportation, and removal of foreign nationals who enter, or remain in, the United States, in violation of U.S. immigration law. As part of the $1.5 billion requested, the ICE congressional budget justification requested $1.2 billion in additional funds to support an average daily population (ADP) of detainees of 51,379—a 49 percent increase over fiscal year 2016 ADP (34,376). The request stated that Executive Order 13768 and subsequent department guidance were expected to drive increases in the ADP due to the increase in ICE law enforcement officers and an expected increase in the average length of stay at detention facilities. ICE also requested funds for transportation and alternatives to detention. In fiscal year 2018, ICE was appropriated $4.1 billion to support enforcement and removal operations. According to DHS officials, the Consolidated Appropriations Act, 2018, provides funds for an ADP of 40,520 total beds, 10,859 lower than requested.

Fiscal Year 2019: The President’s budget requested $2.5 billion for detention and removal capacity. As part of the $2.5 billion requested, ICE’s congressional budget justification states $2.3 billion will support an ADP of 47,000. According to the ICE congressional budget justification, the number of beds will sustain the fiscal year 2017 ADP level (38,106) and provide additional detention capacity stemming from the continued implementation of Executive Order 13768. ICE also requested funds for transportation and alternatives to detention.

Prior GAO Work: Our prior work on immigration detention examined ICE’s formulation of its budget request and cost estimate for detention resources. In April 2018, we found errors and inconsistencies in ICE’s calculations for its congressional budget justifications and bed rate model. Specifically, we found that ICE made errors in its budget justifications, underestimated the actual bed rate, and its methods for estimating detention costs did not meet the characteristics of a reliable cost estimate. We also found ICE did not document its methodology for its projected ADP. We recommended that ICE assess and update its adult bed rate and ADP methodology and take steps to ensure that its budget estimating process fully addresses cost estimating best practices. DHS concurred with our recommendations and plans to take actions in response to them.

Fiscal Year 2017: DOJ documentation showed it expended approximately $2.4 million detailing immigration judge positions to immigration detention facilities from March 2017 through October 2017, either through video teleconferencing, or in-person, to adjudicate removal proceedings. EOIR officials explained the funds used were unobligated balances carried over from a prior fiscal year.

Fiscal Year 2018: For fiscal year 2018, DOJ requested an increase of $75 million to hire 75 additional immigration judge teams to enhance public safety and law enforcement. According to DOJ officials, the agency received sufficient funds in the fiscal year 2018 budget to meet this hiring goal.

Fiscal Year 2019: The fiscal year 2019 President’s budget also requests an increase of $40 million for 75 new immigration judge teams at EOIR and nearly $40 million for 338 new prosecuting attorneys at ICE to ensure immigration cases are heard expeditiously. According to the President’s budget, these investments are critical to the prompt resolution of newly-brought immigration charges and to reduce the 650,000 backlog of cases currently pending in the immigration courts. EOIR’s fiscal year 2019 congressional budget justification includes a program increase totaling almost $65 million to provide funding for immigration judges and support staff, as well as information technology efforts. This increase supports initiatives that implement Presidential and Attorney General priority areas, among other things.

Provision Summary:

Section 11 directs the Department of Homeland Security (DHS) to ensure that parole is exercised on a case- by-case basis in accordance with existing statutory criteria, and that asylum referrals and credible and reasonable fear determinations are conducted in a manner consistent with relevant statute and regulation.

Key Agency(ies) Responsible:

Program Context:

USCIS has discretion to authorize parole for urgent humanitarian reasons or significant public benefit, which it uses to allow an individual, who may be inadmissible or otherwise ineligible for admission to come to the United States for a temporary period. USCIS asylum officers adjudicate asylum applications filed with USCIS, and conduct credible and reasonable fear screenings to determine if certain removable foreign nationals may be eligible to seek particular forms of relief or protection in immigration court.

In fiscal year 2019, USCIS requested a total increase of $287.5 million for all programs, projects, and activities to support changes in operational requirements driven by changes to benefit request receipt volumes and complexity of work, including implementing the executive orders.

Additional Funds Saved and Expended:

According to USCIS officials, USCIS saved approximately $274,000 from not renewing contracts to administer the Central American Minors Parole Program.

According to USCIS documentation, USCIS expended approximately $70,300 to deploy FDNS officers along the southern border from March 2017 to February 2018.

Executive Order: 13767 and 13768

Provision Summary:

Key Agency(ies) Responsible:

Program Context:

CBP and ICE hiring demands are driven by various factors, such as national security objectives, executive-level policies, legislative mandates, and component-specific operational requirements. Border Patrol agents are to respond to, and interdict, cross-border threats and ICE officers are responsible for apprehending individuals within the United States who may be removable for various reasons, including entering the country illegally or being convicted of certain crimes.

Action Overview DHS has taken a number of actions to implement the executive order hiring provisions. Specifically, DHS requested and the Office of Personnel Management approved a number of changes to assist DHS and its components with the executive order hiring directives. These changes include granting CBP and ICE direct hire authority and a special salary rate for polygraphers, among others. DHS’s Office of the Chief Human Capital Officer and DHS components’ human capital offices also began additional hiring planning, such as refining component-level hiring plans, coordinating on potential joint hiring events, and targeting specific recruitment efforts, such as military veterans. CBP and ICE have also taken the following additional actions:

CBP: In November 2017, CBP awarded a contract not to exceed $297 million to Accenture Federal Service LLC to help with law enforcement hiring for all CBP components. The contract is structured so the contractor receives a set dollar amount for each law enforcement officer hired—80 percent for each final offer letter and 20 percent for each law enforcement officer who enters on duty. The contractor is to assist CBP in hiring 7,500 qualified agents and officers, including 5,000 Border Patrol agents, 2,000 CBP officers, and 500 Air and Marine Interdiction agents over 5 years. CBP expects Accenture to be fully operational and effectively provide surge hiring capacity by June 2018, according to CBP officials.

ICE: According to ICE Office of Human Capital (OHC) officials, OHC is ensuring policies and procedures are in place so that ICE is ready to begin hiring additional immigration officers and support staff if funds are appropriated. In January 2018, ICE OHC also issued a contract solicitation for recruitment, market research, data analytics, marketing, hiring, and onboarding activities. ICE OHC sought to procure comprehensive hiring and recruitment services to assist ICE OHC in meeting the demands required to achieve the executive order’s hiring goals and develop efficiencies to current OHC processes. ICE aimed to have a similar pricing structure as CBP’s Accenture contract, according to the solicitation. Specifically, according to the solicitation, the yet to be selected contractor would receive a set dollar amount for each frontline officer hired–80 percent for each preliminary offer letter and 20 percent for each frontline officer who enters on duty. The contractor would assist ICE in hiring 10,000 law enforcement agents, including 8,500 deportation officers and 1,500 criminal investigators. It would also assist in the hiring of approximately 6,500 support personnel positions. In May 2018, the contract solicitation was cancelled; however, the government anticipates re-soliciting the requirement in fiscal year 2019. According to the contract cancellation notice and an ICE OHC official, DHS cancelled the contract due to delays associated with the fiscal year 2018 budget and hiring timelines, as well as the limited number of additional ICE positions funded in the fiscal year 2018 budget. In the interim, ICE is partnering with the Office of Personnel Management to meet the executive order’s hiring goals and develop efficiencies to current OHC processes, according to ICE officials.

Because Executive Orders 13767 and 13768 were issued during fiscal year 2017, DHS submitted a budget amendment and requested supplemental appropriations to help address the needs of the department in support of executive order implementation. The request included funding for DHS agencies to begin building the administrative capacity necessary to recruit, hire, train and equip the additional 5,000 Border Patrol agents and 10,000 ICE officers. The Federal Law Enforcement Training Centers (FLETC), which provides training to law enforcement professionals who protect the homeland, including any new ICE and CBP personnel hired as result of the executive orders, also requested funds to support these efforts.

On May 5, 2017, CBP received an additional appropriation of $65.4 million to improve hiring processes for Border Patrol agents, CBP officers, and Air and Marine Operations personnel, and for officer relocation enhancements. Of the $65.4 million appropriated in fiscal year 2017, CBP obligated $18.8 million and expended $14.1 million as of January 2018. While ICE also received additional funding for custody operations, alternatives to detention, and transportation and removal, it did not receive supplemental funds in fiscal year 2017 specifically for hiring. DHS also requested funds for CBP, ICE, and FLETC hiring and training in fiscal year 2018 and fiscal year 2019. For additional details, see table 9.

According to FLETC officials, the total average cost to provide basic law enforcement training varies by agencies and position, as shown in table 10. FLETC officials noted their partners also provide additional training unique to their missions, which is not included in the costs below.

Action Overview ICE officials reported expediting review of pending 287(g) requests and approved 46 additional state and local jurisdictions for the program from February 2017 through March 2018, bringing the total to 76 law enforcement agencies in 20 states. See figure 2 for a map of additional jurisdictions approved.

Section 10 and Section 8 of Executive Orders 13767 and 13768, respectively, direct the Department of Homeland Security (DHS) to engage with state and local entities to enter into agreements under Section 287(g) of the Immigration and Nationality Act.

DHS: U.S. Immigration and Customs Enforcement (ICE)

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added Section 287(g) to the Immigration and Nationality Act, which authorizes ICE to enter into agreements with state and local law enforcement agencies, permitting designated state and local officers to perform immigration law enforcement functions.

According to ICE officials, ICE also conducted outreach with state and local officials and identified potential law enforcement partners with whom to enter into possible future 287(g) agreements. U.S. Customs and Border Protection (CBP) officials stated that they agreed to support ICE’s program expansion efforts and provided hundreds of viable state and local law enforcement referrals to ICE to assist with this effort. For example, CBP reviewed data and conducted a gap analysis, to include a survey, to identify potential law enforcement partners for future 287(g) memorandums of agreement.

CBP officials further noted that they introduced new language into Operation Stonegarden grant guidance that allows the use of grant funding to support CBP-identified, 287(g) law enforcement operational activities. According to CBP and ICE officials, efforts to develop a 287(g) enforcement model that can be used for this purpose are pending.

According to ICE officials, the agency is considering developing a program under which designated local law enforcement officers would be trained and authorized to serve and execute administrative warrants for individuals who are in violation of U.S. immigration laws at the time they are released from state criminal custody. ICE officials indicated that program participants would have limited authority under 287(g). For example, they would not interview individuals regarding nationality and removability, lodge detainers, or process individuals for removal. ICE has not yet finalized the program and it may evolve as ICE further develops the program, according to ICE officials.

ICE is also leveraging an existing Basic Ordering Agreement, a procurement tool to expedite acquisition of a substantial, but presently unknown, quantity of supplies or services, according to ICE officials. A Basic Ordering Agreement is not a contract, but rather, is a written instrument of understanding, negotiated between ICE and state and local jurisdictions, to house detainees upon ICE’s issuance and their acceptance of an Immigration Detainer and either a Warrant for Arrest of Alien or Warrant of Removal. For any order placed under the agreement, ICE will reimburse the provider, such as a state or local jurisdiction, for up to 48 hours of detention, under applicable regulations. The rate will be fixed at $50.00 for up to 48 hours of detention. No payment will be made for any detention beyond 48 hours.

The Secretary of Homeland Security vested authority in CBP to accept state services to carry out certain immigration enforcement functions pursuant to Title 8, United States Code Section 1357(g). According to CBP officials, CBP also joined a 287(g) Program Advisory Board, which reviews and assesses ICE field office recommendations about pending 287(g) applications.

Participation in the 287(g) program is expected to expand further in fiscal years 2018 and 2019, according to ICE. Additionally, ICE anticipates further increase in the number of 287(g) memorandums of agreement in fiscal years 2018 and 2019.

In fiscal year 2018, ICE requested $24.3 million for ICE 287(g) program funding. According to the explanatory statement accompanying the Consolidated Appropriations Act, 2018, the 287(g) program was fully funded at the requested level.

In fiscal year 2019, ICE requested $75.5 million for ICE 287(g) program funding.

Executive Order: 13767 and 13768

Provision: Sections 13 and 11

Provision Summary:

Section 13 of Executive Order 13767 directs the Department of Justice (DOJ) to establish prosecution guidelines and allocate appropriate resources to ensure that federal prosecutors prioritize offenses with a nexus to the southern border.

Section 11 of Executive Order 13768 directs DOJ and the Department of Homeland Security (DHS) to develop and implement a program to ensure that adequate resources are devoted to prosecuting criminal immigration offenses, and to develop cooperative strategies to reduce the reach of transnational criminal organizations and violent crime.

Key Agency(ies) Responsible:

border districts developed guidelines for prioritizing misdemeanor cases involving individuals illegally entering the United States for the first time. However, according to these officials, southern border districts developed these guidelines based on an initial high volume of apprehensions, and when apprehensions decreased the guidelines were no longer necessary and never published.

DOJ: Executive Office for United States Attorneys (EOUSA)

DHS: Immigration and Customs Enforcement (ICE)

EOUSA provides executive and administrative support for United States Attorneys and Assistant United States Attorneys (AUSAs). AUSAs conduct trial work, as prosecutors, in which the United States is a party, including prosecution of criminal immigration offenses.

Western District of Texas and Arizona, and two AUSAs each to the Southern District of California, the District of New Mexico, and the Southern District of Texas, for a total of 12 details according to DOJ officials. The first round of details lasted for 6 months, and EOUSA extended the details of one AUSA at each southern border district for an additional 6 months. DOJ officials told us that EOUSA will continue to evaluate the need for additional details along the southern border based on the needs of the districts, as determined by the number of DHS apprehensions. According to DOJ officials, implementation of these provisions is ongoing and will depend largely upon DHS executive order actions—for instance, as DHS hires more enforcement personnel, criminal immigration cases may increase which could spur a need for more AUSAs.

ICE litigates charges of removability against foreign nationals and conducts criminal investigations, including investigations of immigration fraud.

The Secretary of Homeland Security released a memorandum with guidance on the enforcement of immigration laws in the United States on February 20, 2017. In response to this memorandum, ICE’s Office of the Principal Legal Advisor sent guidance to its attorneys directing them to prioritize legal services supporting the timely removal of foreign nationals in accordance with Executive Order 13768. The guidance directed ICE to review all cases previously administratively closed based on prosecutorial discretion to determine whether the basis for closure remains appropriate under DHS’s enforcement priorities. The guidance also directed ICE to coordinate with the Executive Office for Immigration Review to ensure that foreign nationals charged as removable and who meet the enforcement priorities remain on active immigration court dockets and that their cases are completed as expeditiously as possible.

In response to the executive orders, ICE Homeland Security Investigations officials stated that the agency began to focus more of its resources on the investigation and criminal prosecution of immigration fraud. ICE Homeland Security Investigations added five new Document and Benefit Fraud Task Forces throughout the nation and directed field offices to increase staffing of task forces. Additionally, ICE is in the process of combining five Benefit Fraud Units into an immigration fraud center—the National Lead Development Center— that will serve as a new centralized entity that will refer cases to the task forces for enforcement action.

A summary of DOJ budget increase requests, appropriations, and expenditures related to prosecution priorities in the executive orders that we identified can be found in table 11.

The fiscal year 2018 President’s budget request included $19.3 million for 195 attorney positions in ICE’s Office of the Principal Legal Advisor. According to ICE officials, while the Consolidated Appropriations Act, 2018, included funds for 70 positions for the Homeland Security Investigations Law Division, it did not include funds for additional attorney positions for immigration litigation within the Office of the Principal Legal Advisor.

The fiscal year 2019 President’s budget request included $39.7 million for additional attorney resources in ICE’s Office of the Principal Legal Advisor.

Provision: Sections 5 and 10 Sections 5 and 10 direct the Department of Homeland Security (DHS) to take action related to immigration enforcement. Specifically, Section 5 directs DHS to prioritize the removal of certain categories of removable foreign nationals. Section 10 directs DHS to terminate the Priority Enforcement Program (PEP) and reinstitute Secure Communities, among other things.

DHS: U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP)

Under PEP (from 2015 to 2017), ICE issued a request for detainer (with probable cause of removability) or information or transfer, for a priority removable individual, such as one posing a threat to national security or public safety, including a foreign national convicted of a felony, among others, under DHS’s former tiered civil enforcement categories. Under Secure Communities, ICE may issue detainers for removable individuals charged, but not yet convicted, of criminal offenses, in addition to individuals subject to a final order of removal whether or not they have a criminal history.

Pursuant to Executive Order 13768, the Secretary of Homeland Security terminated PEP and reinstituted the Secure Communities program. As such, DHS is no longer required to utilize a tiered approach to civil immigration enforcement with direction to dedicate resources to those deemed of highest priority. Instead, under Section 5 of the executive order, various categories of removable individuals are general priorities for removal, and DHS personnel may initiate enforcement actions against all removable persons they encounter. Further, the DHS memorandum implementing this executive order allows ICE, CBP, and USCIS to allocate resources to prioritize enforcement activities within these categories, such as by prioritizing enforcement against convicted felons or gang members.

As part of this effort, ICE reported it reviewed policies, regulations, and forms relevant to enforcement priorities. ICE subsequently rescinded prior enforcement priority guidance and issued new guidance directing application of the new approach to immigration enforcement prioritization. Additionally, ICE eliminated existing forms and created a new form to place detainers on foreign nationals who have been arrested on local criminal charges and for whom ICE possesses probable cause to believe that they are removable from the United States, so that ICE can take custody of such individuals upon release.

According to ICE officials, more than 43,300 convicted criminal aliens have been identified and removed through Secure Communities from January 25, 2017 through the end of fiscal year 2017.

Pursuant to Executive Order 13768 and in accordance with the Secretary of Homeland Security’s memorandum entitled, Enforcement of the Immigration Laws to Serve the National Interest, ICE’s Enforcement and Removal Operations (ERO) expanded the use of the Criminal Alien Program (CAP) by increasing the use of Criminal Alien Program Surge Enforcement Team (CAPSET) operations, traditional CAP Surge operations, and the Institutional Hearing Program. Specifically, ICE took the following actions: ICE ERO conducted four CAPSET operations in Louisiana, Georgia, and California in fiscal year 2017, resulting in a total of 386 encounters, 275 detainers, and 261 charging documents issued, according to ICE documentation.

ICE ERO field offices conducted CAP Surge operations, which concluded in March 2017. According to ICE documentation, the operations collectively resulted in 2,061 encounters, 668 arrests, 1,307 detainers issued, and 614 charging documents issued.

ICE, along with the Department of Justice’s Executive Office for Immigration Review and the Federal Bureau of Prisons, expanded the number of Institutional Hearing Program sites by nine, from 12 to 21. As of January 22, 2018, five of the nine Institutional Hearing Program expansion sites were operational.

ICE officials reported that ICE also detailed over 30 percent more officers (79 officers) to support Community Shield efforts, an international law enforcement initiative to combat the growth and proliferation of transnational criminal street gangs, prison gangs, and outlaw motorcycle gangs throughout the United States.

According to ICE officials, CAP used existing resources in fiscal year 2017 to support the efforts required by Executive Order 13768.

ICE also requested funds in fiscal years 2018 and 2019 for CAP. Specifically, ICE stated in its fiscal year 2018 and 2019 congressional budget justifications that CAP performs its duties in accordance with immigration enforcement priorities defined by Executive Order 13768.

In fiscal year 2018, ICE requested $412.1 million for CAP. The Consolidated Appropriations Act, 2018, funded $319.4 million for CAP, $92.6 million less than requested.

Section 9 directs the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to ensure that jurisdictions in willful noncompliance with 8 U.S.C. § 1373 (section 1373) are ineligible to receive federal grants. The section also directs DOJ to take appropriate enforcement action against any entity that violates section 1373, or which has in effect a policy, statute, or practice that prevents or hinders the enforcement of federal law.

Key Agency(ies) Responsible:

Program Context:

conducted a compliance review of certain jurisdictions relative to 8 U.S.C. § 1373, and issued a report in May 2016 finding that 10 jurisdictions raised compliance concerns. In response, DOJ placed a special condition on certain fiscal year 2016 grant awards, requiring recipients to submit an assessment of their compliance with section 1373. In November 2017, as part of the section 1373 compliance effort predating Executive Order 13768, DOJ sent letters to 29 jurisdictions expressing concern that they may not be in compliance with section 1373, and requesting responses regarding compliance. In January 2018, DOJ sent 23 follow-up demand letters to jurisdictions seeking further documents to determine whether they are unlawfully restricting information sharing by their law enforcement officers with federal immigration authorities, and stating that failure to respond will result in records being subpoenaed.

The Attorney General determined that Section 9 will be applied solely to DOJ or DHS federal grants for jurisdictions willfully refusing to comply with section 1373. Under section 1373, a federal, state, or local government entity or official may not prohibit, or in any way restrict the exchange of information regarding citizenship or immigration status with DHS.

ICE developed weekly Declined Detainer Outcome Reports detailing jurisdictions with the highest volume of declined detainers and a list of sample crimes suspected or determined to have been committed by released individuals. According to ICE officials, ICE identified data processing errors and incorrect detainer information and is working to correct these issues. ICE officials noted that they temporarily suspended the reports, and have not yet determined a specific time frame for future publications.

DHS reviewed all DHS grant programs to determine which programs could be conditioned to require compliance with section 1373 and plans to provide this information to the Office of Management and Budget, according to DHS officials.

DOJ has not obligated, expended, or requested any additional funds to implement Executive Order 13768, section 9(a).

The fiscal year 2019 President’s budget proposed to amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to condition DHS and DOJ grants and cooperative agreements on state and local governments’ cooperation with immigration enforcement.

Section 2 directed multiple agencies, including the Department of State (State) and Department of Homeland Security (DHS), to conduct a worldwide review to identify any additional information needed from each foreign country to adjudicate immigration benefit applications and ensure that individuals applying for a visa or other immigration benefit are not a security or public safety threat. It also directed the agencies to send a report of the findings of the worldwide review to the President. This section further established visa entry restrictions applicable to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for a 90-day period. It also stated that agencies, including State and DHS, could continue to submit additional countries for inclusion in visa entry restrictions.

Section 5 required agencies, including State, DHS, and the Department of Justice (DOJ), to develop a uniform baseline for screening and vetting to identify individuals seeking to enter the United States on a fraudulent basis or who support terrorism or otherwise pose a danger to national security or public safety. practices based on the criteria identified above. In July 2017, State directed its posts to inform their respective host governments of the new information-sharing criteria and request that host governments provide the required information or develop a plan to do so. CA directed posts to engage more intensively with countries whose information-sharing and identity-management practices were preliminarily deemed “inadequate” or “at risk” and submit an assessment of mitigating factors or specific interests that should be considered in the deliberations regarding any travel restrictions. According to officials, State and its posts will continue to engage with foreign countries to address information-sharing and identify management deficiencies.

Key Agency(ies) Responsible:

State: Bureau of Consular Affairs (CA), DHS, and DOJ CA provides consular services in reviewing and adjudicating visa applications for those seeking to enter the United States. DHS adjudicates visa petitions, and DHS and DOJ also play roles in screening and vetting applicants. DHS and DOJ, along with State, are responsible for implementing the enhanced screening and vetting protocols established under the executive order.

June 29, 2017 through September 24, 2017. During the implementation period, if an applicant was found ineligible for a visa on other grounds unrelated to the executive order, such as prior criminal activity or immigration violations, the applicant would be refused the visa on those grounds, according to State officials. If the applicant was found to be otherwise eligible for the visa and did not qualify for an exemption or a waiver under the executive order, he or she would be refused on the basis of the executive order. CA sent several cables to posts with guidance on implementing the 90-day travel restriction, including operational guidance and updated guidance following court decisions. CA also offered trainings to consular posts on implementation of the order.

A series of legal challenges ultimately led to the June 26, 2017 Supreme Court decision prohibiting enforcement of entry restrictions against foreign nationals who could credibly claim a bona fide relationship with a person or entity in the United States.

On September 24, 2017, pursuant to section 2(e) of Executive Order 13780, the President issued Presidential Proclamation 9645, which established conditional restrictions on U.S. entry for certain categories of nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia, for an indefinite period.

According to State officials, State, DHS, DOJ, and other agencies formed a working group and developed a uniform baseline for screening and vetting standards and procedures to ensure ineligible individuals are not permitted to enter the United States, and are implementing the new requirements. The working group conducted a review of the visa screening and vetting process and established uniform standards for (1) applications, (2) interviews, and (3) system security checks, including biographic and biometric checks. According to State officials, for applications, the group identified data elements against which applicants are to be screened and vetted. For interviews, the working group established a requirement for all applicants to undergo a baseline uniform national security and public safety interview. The working group modeled its interview baseline on elements of the refugee screening interview.

As of June 2017, State collected most of the data elements online for immigrant and nonimmigrant visas, according to State officials.

The President issued a memorandum on February 6, 2018, directing DHS, in coordination with State, DOJ, and the Office of the Director of National Intelligence to establish a national vetting center to coordinate agency vetting efforts to identify individuals who pose a threat to national security, border security, homeland security, and public safety. The National Vetting Center will be housed in DHS, and will leverage the capabilities of the U.S. intelligence community to identify, and prevent entry of, individuals that may pose a threat to national security. On February 14, 2018, the Secretary of Homeland Security appointed a director for the National Vetting Center. The Secretary also delegated authorities of the National Vetting Center to the Commissioner of U.S. Customs and Border Protection.

State officials said that personnel worked overtime to implement Section 2 and the following Presidential Proclamation, but did not identify monetary costs or budget increases associated with implementation. DHS also dedicated several full-time staff positions to developing and implementing enhanced screening and vetting protocols, and DHS employees worked overtime to implement these provisions, according to officials.

Section 6 directed the Department of State (State) to suspend travel of refugees seeking to enter the United States, and the Department of Homeland Security (DHS) to suspend adjudications on refugee applications, for 120 days. Section 6 further ordered that during the 120- day period, State, together with DHS, and the Office of the Director of National Intelligence review the refugee application and adjudication process to identify and implement additional procedures to ensure that refugees seeking entry into the United States under the United States Refugee Admissions Program (USRAP) do not pose a threat to U.S. security and welfare. This section also capped annual refugee admission at 50,000 in fiscal year 2017.

State generally suspended travel of refugees into the United States from June 29, 2017 through October 24, 2017.

State coordinated with DHS, the Office of the Director of National Intelligence, and other security vetting agencies on the 120-day review of the USRAP application and adjudication process to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, according to State officials. Upon completion of the review, the agencies submitted a joint memorandum to the President.

The United States admitted 53,716 refugees in fiscal year 2017, according to State officials. Throughout fiscal year 2017, State issued guidance that steered the refugee admissions program to different refugee arrival goals during different periods of time due to court decisions and budget considerations. Prior to the issuance of Executive Order 13769, which, after largely being blocked nationwide by a federal court injunction was revoked and replaced by Executive Order 13780, PRM operated at the rate of 110,000 refugees per year. After the issuance of Executive Orders 13769 and 13780, PRM officials noted that at times, State made no bookings for refugee arrivals, and also made bookings based on 50,000 arrivals, as well as 110,000 arrivals.

Key Agency(ies) Responsible:

Program Context:

A series of legal challenges and resulting court injunctions culminated in the June 26, 2017, Supreme Court order limiting State’s implementation of this section to prospective refugees without bona fide ties to the United States. Together with budget uncertainties, State could not enact the refugee travel suspension or 50,000-person admissions cap based on the timeline set in the executive order. Figure 3 below shows key milestones related to this section of the order.

The USRAP resettles refugees to the United States in accordance with a refugee admission ceiling set by the President each year. PRM is responsible for coordinating and managing the USRAP. USCIS is responsible for adjudicating refugee applications.

According to USCIS officials, USCIS is implementing new requirements and vetting procedures for refugees. For example, these officials stated that USCIS is accessing more detailed biographical information earlier in the vetting process. Additionally, these officials noted that USCIS’s Fraud Detection and National Security unit is conducting additional reviews of applicants, including social media and other information against various databases. USCIS officials further noted that USCIS’s International Operations office sent guidance to the field that established the logistical requirements of the new procedures. As of April 2018, USCIS was finalizing further guidance and training officers for the enhanced review and vetting procedures, according to USCIS officials.

State officials said that State and DHS executed four categories of exemptions during the 120-day USRAP suspension: a Congolese woman with a life-threatening illness and her family; 29 unaccompanied refugee minors; 17 Yezidis and other religious minorities in northern Iraq who had been victims of ISIS; and 53 individuals on Nauru and Manus Islands.

Provision Summary:

Section 9 directs the Department of State (State) to suspend the Visa Interview Waiver Program, subject to certain exceptions. To support this, the provision also directs State to expand the Consular Fellows program so that visa wait times are not unduly affected. The provision also directs State to make language training available to Consular Fellows outside of their core linguistic abilities.

Key Agency(ies) Responsible:

Program Context:

appointments by 12 months. In October 2017, State approved extending offers for follow-on 60-month Limited Non-Career Appointments to Consular Fellows who complete a successful initial 60-month appointment. State officials noted the first officer to accept a follow-on appointment was sworn in during April 2018. CA and State’s Bureau of Human Resources updated the CA Limited Non-Career Appointments handbook to include an implementation plan for extending such appointments, and according to officials, providing language training outside of the applicant’s area of core linguistic ability.

Consular Fellows serve in U.S. embassies and consulates overseas and primarily adjudicate visa applications for foreign nationals. The Visa Interview Waiver Program formerly waived in-person interviews for certain categories of visa applicants.

In early 2017, State streamlined the application process for Consular Fellows and realigned resources to expedite their security clearance process, according to CA officials. From February 2017 through February 2018, State hired 134 new Consular Fellows, according to CA officials. Additionally, State officials said that they expect to hire 120 more Consular Fellows for the remainder of fiscal year 2018.

In August 2017, the Foreign Service Institute created a 12-week Spanish Language program for Consular Fellows who received certain scores on the Spanish language exam, according to CA officials. Eleven Consular Fellows completed the program in January 2018 and 20 more are expected to complete the program in July 2018, according to CA officials. As of January 2018, five Consular fellows were being trained in a language outside their core linguistic ability, according to CA officials.

While these actions were taken to support implementation of the executive order, CA officials also told us that hiring Consular Fellows has been a State priority for some time. CA officials said that the bureau has hired an increasing number of Consular Fellows to meet worldwide visa demand since 2012, and that providing consular services is one of State’s highest priorities, as well as a national security imperative.

According to CA officials, because the Consular Fellows program is entirely funded by non-appropriated consular fees, subject to fluctuating demand for passports and visas, the expansion of the program did not have appropriations impacts. However, officials did provide per unit costs associated with aspects of expanding the Consular Fellows program. For example, Consular Fellows salaries range from approximately $48,000 to approximately $98,000 and Foreign Service Institute language courses last from 24 to 36 weeks, at a cost of $1,700 per week, per student.

Appendix II: Executive Order Reports

Executive orders 13767 (Border Security and Immigration Enforcement Improvements), 13768 (Enhancing Public Safety in the Interior of the United States), and 13780 (Protecting the Nation from Foreign Terrorist Entry into the United States) include reporting requirements for the Department of Homeland Security (DHS), the Department of State (State), and the Department of Justice (DOJ). Table 13 lists completed reports as of April 2018, according to DHS, State, and DOJ officials.

Appendix III: Comments from the Department of Homeland Security

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Taylor Matheson (Assistant Director), Sarah Turpin (Analyst-in-Charge), Isabel Band, and Kelsey Hawley made key contributions to this report, along with David Alexander, Eric Hauswirth, Sasan J. “Jon” Najmi, Kevin Reeves, and Adam Vogt.