President Trump may deport any alien who is a ‘terrorist’ or ‘likely to become a public charge’

President Trump recently signed several Executive Orders dealing with immigration and freezing the flow of refugees from certain countries.

The President has the authority to deny entry to or deport any migrant under the provisions of S.358 – Immigration Act of 1990 sponsored by former Senator Edward M. Kennedy (D-MA). The Immigration Act of 1990 states:

Title V: EnforcementSubtitle A: Criminal Aliens – Revises the definition of aggravated felony to include: (1) any illicit trafficking in any controlled substance; (2) money laundering for which at least five years’ imprisonment has been imposed; (3) any crime of violence (not including a purely political offense) for which at least five years’ imprisonment has been imposed; (4) violations committed outside the United States; and (5) violations of foreign law for which the term of imprisonment was completed within the previous 15 years.

[ … ]

Revises the enforcement authority of INS officers. Authorizes such officers to: (1) make certain warrantless arrests for crimes unrelated to immigration; (2) carry firearms; and (3) execute and serve any order, warrant, summons, or other process issued under Federal authority.

[ … ]

Adds to the list of deportable acts conviction for an attempt to commit a drug offense.

Revises the definition of good moral character to include references to noncommission of an aggravated felony.

Directs the Attorney General to report to the appropriate congressional committees by December 1, 1991, on INS efforts to identify, apprehend, detain, and deport aliens convicted of crimes in the United States. Requires such report to include: (1) a criminal alien census with specified information; and (2) a criminal alien removal plan, including a method for identifying and preventing unlawful reentry.

Limits the waiver of exclusion for returning permanent residents who have been convicted of an aggravated felony and who have served five or more years’ imprisonment.

[ … ]

Extends from ten years to 20 years the bar against reentry of aliens convicted of aggravated felonies.

Prohibits an alien convicted of an aggravated felony from applying for or being granted asylum.

Subtitle D: General Enforcement

Provides for exclusion on security and related grounds of: (1) any alien who will enter the United States to perpetrate espionage, sabotage, or prohibited exporting of goods, technology, or sensitive information, or any other unlawful activity, to oppose, control, or overthrow the U.S. Government by force, violence, or other unlawful means; (2) any alien who has engaged in defined terrorist activities, or is likely to engage in such activities; (3) an alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States (with specified exceptions); (4) an immigrant with membership or affiliation with a totalitarian party (with specified exceptions for involuntary membership, certain past membership, and close family members); and (5) participants in Nazi persecutions or in genocide.

Provides for exclusion of aliens (in terms similar to current law) in the following categories: (1) an alien who is likely to become a public charge; (2) those who do not meet special rules for labor certification of teachers, scientists, and artists or qualifications for foreign medical school graduates; (3) illegal entrants and immigration violators (with revised provisions for aliens previously deported, certain aliens previously removed, aliens seeking benefit from misrepresentation, stowaways, and smugglers of undocumented aliens, as well as aliens subject to specified civil penalties); (4) those who do not meet certain documentation requirements for immigrant or nonimmigrant visas; and (5) those who are ineligible for citizenship. Makes ineligible for citizenship those who are permanently ineligible, and certain draft evaders.

In a 1990 Washington Post article titled “McCarran-Walter Act Reborn?” David Cole wrote:

With a whimper, not a bang, the 1952 McCarran-Walter Act is gone. In one of its last acts, the 101st Congress repealed this embarrassing remnant of the McCarthy era, a law that permitted the exclusion and expulsion of immigrants with politically “incorrect” beliefs and associations. Long criticized, the law appeared especially ludicrous in the wake of the Cold War.

But before we congratulate our representatives for courageously eradicating this 1950s relic, we should ask whether the new law that replaced it is in fact a change for the better. From the perspective of one who has litigated under the McCarran-Walter Act for many years, it looks unfortunately like more of the same. The new law continues to draw ideological lines and may well increase the administration’s ability to exclude and deport aliens for political reasons.

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The 1990 law has been heralded as a long-awaited repudiation of these principles. It is not. For example, immigrants can still be excluded for mere membership in the Communist Party. As a result, we will continue to require all immigrants to answer a question long ago repudiated for citizens: “Are you now or have you ever been a member of the Communist Party?” The new law also bars representatives and officials of the Palestine Liberation Organization, the “Communist” party of the 1990s. Thus, guilt by association remains the operative principle.

Two additional grounds for deportation, concerning “terrorism” and “foreign policy,” raise even broader problems. Just as the 1952 Congress responded to the threat of Communism by outlawing a wide range of legitimate but unpopular political activity, so the 1990 Congress has used the threat of “terrorism” to enact similarly sweeping provisions. The new law defines “terrorism” to include, among other things, the use of a firearm or explosive “with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.”

An organization that has engaged in such conduct is a “terrorist” organization. And, according to the Immigration and Naturalization Service, the law makes deportable anyone who has raised money or recruited members for such an organization.

[Emphasis added]

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In CNN’s article “Key points in Trump’s immigration executive orders” Tal Kopan and Catherine E. Shoichet report:

The [Executive] order says the priority will be removing deportable immigrants who “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”

Based on the wording of the executive order, a criminal could include someone who’s charged with — but not actually convicted — of a crime.

The last provisions apparently include anyone who an immigration official feels endangers “public safety or national security,” even if that person doesn’t face charges — giving wide latitude to officers.

President Trump has the full authority under the provisions of S.358 – Immigration Act of 1990 to make America safe again. He is exercising that authority to protect every American citizen and every American job.

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