Monday, November 26, 2012

Do Democrats Have an Incentive to Sabotage Immigration Reform?

In the wake of the November presidential election, there has been much discussion of whether it is time for the Republican party to embrace immigration reform.  The conventional wisdom has been that since President Obama won over 70% of the Latino vote, the GOP has to make some changes in its platform and image in order to attract Latino voters.

This conversation, however, is built on the assumption that both major political parties, Democrats and Republicans alike, approach comprehensive immigration reform in good faith.  In this article, Ruben Navarette, Jr. argues that the Democrats have every incentive to sabotage the move to adopt comprehensive immigration reform.

Navarette's argues that the Democrats really do not want to be known as the part of amnesty or open borders in later elections.  In particular, he notes that this would not enhance the party's stance with Caucasians and African Americans.

So long as immigration reform is not passed, the Democrats will continue to have an issue to use against the Republicans.  Thus, there is no incentive to actually settle the issue.  Rather, by sabotaging the issue, the Democrats can continue to make Republicans look like the bad guys to the Latino voters.

One main constituency of the Democrats is the labor movement.  Labor unions do not want the added competition of a guest worker program.  Therefore, passing immigration reform runs the risk of alienating a key constituency.

Having worked in the Federal Government myself, I must admit to a certain degree of cynicism when it comes to national politics.  There is merit, particularly in Navarette's argument that reaching a compromise would rob the Democrats of an issue to use against the Republicans.  Also, it is a mistake to think of the Democrats as a single party joined together by a unified ideology.  Quite the contrary, the modern Democratic Party is more of a collection of minority interests who find it mutually convenient to ally themselves in pursuit of their own agendas.  Thus, there is a precarious balancing act among the party leaders to try to keep such diverse constituencies as labor unions and liberal activists satisfied.  In this regard, if labor unions were to find their members' jobs threatened by a guest worker program, then it would make sense that the party leaders would develop a strategy to make it appear as though they are serious about immigration reform, but never agree to a compromise, instead blaming Republicans as obstructionists, in order to keep some of their constituents happy while having a bad guy to campaign against.

This, and the fact that the Republicans are not themselves unified on the issue of immigration reform, must be taken into consideration in analyzing whether immigration reform will indeed pass the next Congress.  Those expecting fast movement may find themselves disappointed.

By: William J. Kovatch, Jr.
(703) 837-8832

Wednesday, November 21, 2012

Happy Thanksgiving!

Happy Thanksgiving! Enjoy your time with you family.  But please, be responsible.  Don't drink and drive.

If you find yourself with traffic problems, give me a call at (703) 837-8832.

Dream to Achieve: Comparison of Proposals to Address Young Undocumented Aliens

In the wake of the presidential elections, many in the Republican Party have shown a greater willingness to consider comprehensive immigration reform. In particular, many have seen a softening of the GOP's stance on immigration reform necessary in light of the overwhelming majority of Latino voters who supported President Obama.

Nonetheless, the Republicans may not be in complete uniformity on what shape comprehensive immigration reform should take.  One issue that may prove to be the most difficult to address could be what to do about the many undocumented aliens already in the country.  The issue of creating a guest worker program, with some pathway to citizenship, may complicate the drive for comprehensive reform.

In the meantime, there appears to be some agreement that young people, brought to this country as children and who have grown up as if they were Americans, deserve some form of relief.  This is on the heals of the President's Deferred Action for Childhood Arrivals program, which could grant a promise not to deport such young people who meet certain qualifications.  The program has its roots in the DREAM Act, which failed in 2010 when a Senate filibuster prevented the bill from coming up for a vote.

At least two Republicans have been working on a similar bill over the past year.  Senators Kay Bailey Hutchison and Jon Kyl, both of whom will retire in January, have been working on the Achieve Act as an alternative to the DREAM Act.  There appears to be a movement to try to bring the Achieve Act up for a vote before January.

The Achieve Act, however, has some major differences in qualifications when compared to the President's deferred action program.  If the Achieve Act were to pass, it could cause a number of people, who have applied for and already received deferred action, out in the cold as far as permanent relief is concerned.

The requirements for relief under the Achieve Act are:  (1) the applicant must have completed high-school and be admitted to college or earned a college degree, or completed high school and be enlisted in or have completed four years of military service; (2) the applicant must have entered the country before the age of 14; (3) the applicant must have lived in the U.S. continuously for five years; (4) the applicant must have not committed a felony, two misdemeanors with a jail term of over 30 days, or a crime of moral turpitude; (5) the applicant must not be subject to a final order of removal; (6) the applicant must pay a $525 fee; and (7) the applicant must be under the age of 28 (or 32 if they have a bachelor's degree from a U.S. university).

The major differences are:  (1) the deferred action program only requires that the applicant be enrolled in a U.S school, have a high school diploma, have a GED or be enrolled in classes to work toward a GED; (2) the deferred action program only requires that the applicant enter the United State before age 16; and (3) the deferred action program only requires that the applicant be under age 31 as of June 15, 2012.

With these key differences, there are several young people who would qualify under the deferred action program,  who would not qualify under the Achieve Act.  People who entered the United States after age 14, but before age 16, for example, would be out of luck under the Achieve Act.  Likewise, people who have a high school diploma, but who chose not to go on to higher education would be left out.  Finally, the cut-off age is lower for the Achieve Act.

It is unclear why the Republican proposal has stricter qualification requirements than the current deferred action program.  It may be explained by the fact that the bill was drafted before the President announced the program.  Nonetheless, equity would argue that the bill be modified to cover all of those covered by the deferred action program.  Whether that will happen, or the Republicans stick to their guns remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832

Tuesday, November 20, 2012

Video Blog: Arlington Immigration Court

Today, my practice takes me to the Arlington Immigration Court, located at 1901 S. Bell Street, Suite 200, Arlington, VA 22202.  This is in Crystal City, near Ronald Reagan Washington National Airport.  Conveniently located about a block south of the Crystal City Metro stop on the Blue and yellow lines.  Parking, however, is difficult and can be expensive.  The best lot is on 20th Street.  Today, for two hours I paid $10 in parking.

In my video blog, I wanted to give you a little bit of a tour of what the outside of the building looks like, and the closest landmark, which is the Marriott across the street.

By:  William J. Kovatch, Jr.
(703) 837-8832

Saturday, November 17, 2012

ICE Detention System Needs Reform

Having visited a number of "detainees" awaiting a hearing on immigration issues, I highly recommend this article.  The ICE detention system needs major reform.

The number one problem is that immigration law is civil in nature, not criminal.  This appears to be a hard concept to get across to the average person.  It is even harder for the alien who is being detained.

In many instances, aliens are detained in prisons alongside convicted criminals.  They are treated like prisoners.  They are indeed prisoners in all but name.   They are called "detainees."  But the softer language fails to hide the cruel reality that these are largely forgotten segments of our society.  One where pursuing reform is difficult because it is not politically popular to do so.

The detention system is largely ad hoc.  There are a few federally run facilities, such as Farmville in Virginia. But, in many instances, the Federal Government contracts either within a state or local jail for space, or with a private prison company.

One of the issues that led to this problem was the press for enforcement, enforcement, enforcement.  Naively, the public thinks that enforcement means you pick up an illegal alien, and you neatly drop him off over the border.  That is hardly the case.  When a person is here without a valid immigration status, there are provisions of law which may help that person become legal.  It is that person's right to pursue those avenues.  This means you must have due process.  You must have courts to hear the cases.  You must have Government lawyers to present the Government's side.  You must have humane facilities available to house these people until their hearing is scheduled.  That means money. 

When the Government last pursued an enforcement-only policy, it failed to put the money into the effort that was required.  This led to the ad hoc and inhumane system we now have.  One that in many instances even deprives detainees of the health care they need, as many have died in detention over medical conditions that would have been easily treatable if caught early enough.

You add to the complications that it is much easier for politicians to say that they are being tough on crime.  Thus, they pass measures such as mandatory detention.  This means that aliens who are removable or deportable because of criminal convictions must stay detained, with no hope of being released on bond while waiting for a hearing.  The law is mandatory, giving immigration judges absolutely no discretion.

The law leads to intolerable situations, where a person who has a conviction, and has served time for that conviction, now has to be imprisoned yet a second time for the very same crime awaiting his hearing.  This is true, even if the alien can make a good showing that he is entitled to immigration relief.  I had such a client.  He had been convicted of domestic assault.  He served his time.  he was picked up again later for his immigration problems.  But, he was relief available to him.  I ended up securing permanent residency for him.  In the meantime, he was forced to wait for 9 months in detention, with real, hardened criminals.  And there was nothing we could do about that.

More pleasant sounding words, like "detention," and publicly denying that this is a criminal law matter, fail to hide the deplorable condition that exists in the nation's immigration detention system.  This is a condition that must be addressed, out of pure morality and civility.

By:  William J. Kovatch, Jr.
(703) 837-8832

Friday, November 16, 2012

Updated Deferred Action for Childhood Arrivals Statistics

USCIS has released updated statistics on the Deferred Action for Childhood Arrivals program.  Through November 15th, a total of about 309,000 applications have been received.  About 53,000 have been approved.

There was a slight increase in the number of applications between September, where almost 105,000 aliens applied, and October, where about 113,000 applied.  In November, where data for only half the month is available, a little less that 44,000 applications were submitted.  November is therefore on track for around 90,000 applications.

It has been estimated that 1.4 million people present in the United States meet the qualifications of the President's program.  This would mean that to date, a little more than 20% of those believed to be eligible have applied.

The New York Times notes that the agency has not released how many applications, if any, have been denied.

USCIS Statistics can be found at this link.

By:  William J. Kovatch, Jr.
(703) 837-8832

Video Blog: USCIS Field Office in Fairfax for a Marriage Visa Interview

I was at the Fairfax Field Office of USCIS this morning to attend a marriage visa interview.

Thursday, November 15, 2012

Video Blog: Let Me Assist You with Your Immigration Needs

Adoptions of Foreign Born Children Present Tricky Issues

I have often been asked whether adopting a niece or nephew can serve as an easy way to allow that child to immigrate to the United States.  While it seems like a simple proposition, in reality, the legal issues are quite difficult.

This is not the same as when a couple goes to an adoption agency and adopts an orphan from someplace overseas, like China or Russia.  In that situation, if you use a reputable agency, they will be quite familiar with the immigration rules, and will usually help you address them.

What I am talking about are intra-family adoptions.  You want to adopt a nephew or a cousin.  In those situations, the immigration rules make it virtually impossible for a permanent resident to adopt a family member and bring that family member to the United States.

The reason is that if a person is adopting a non-orphan, then the parents must do so before age 16, and must live with the child for 2 years before the child can come to the United States.  For a permanent resident, any trip overseas for greater than six month is considered to be an abandonment of permanent residency.

Consider very carefully whether adopting a foreign-born relative makes sense for you.  Consult with an attorney, and make sure you know the rules before you invest your time and emotions.  Hasty moves could end in great disappointment.

I discuss the immigration rules as they apply to adoptions here.

By: William J. Kovatch, Jr.
(703) 837-8832

Video Blog: Criminal Issues and Immigration Law

Wednesday, November 14, 2012

President Promises to Press for Comprehensive Immigration Reform

In his first press conference since the November 6th election, President Obama promised to press for comprehensive immigration reform in early 2013.  According to the President, immigration reform will include strengthening the borders, greater penalties for employers who hire undocumented aliens, and a pathway to citizenship for those already present in the United States illegally.

The last attempt at comprehensive immigration reform took place during the Bush Administration.  The Bush proposal also included a pathway to citizenship.  However, the legislative package failed to pass Congress.

In 2010, Congress came close to passing the DREAM Act, which would have given legal status to young people who were brought the United States as children and who have attended school in the United States or were honorably discharged from the U.S. military.  The DREAM Act died in a Senate filibuster.  However, the President announced a program to grant some form of relief to those who would have qualified for benefits under the DREAM Act through his Deferred Action for Childhood Arrivals program.  The deferred action program, however, does not lead to permanent residency.

Click here to read more on the President's statements concerning immigration reform.

By: William J. Kovatch, Jr.
(703) 837-8832

What is the Diversity Visa Lottery?

You may have heard people talking about "winning the lottery" when they explain how they came to the United States.  What exactly does "winning the lottery" mean?  Can just anyone get a visa by winning a lottery?

It is true that U.S. law provides for a lottery to make visas available for 50,000 people each year.  But, that is a deceptively simple way of explaining it.  The program is called the diversity visa lottery.  The idea is to give countries that have traditionally sent fewer immigrants to the United States the chance to have their nationals come to the United States.

Visas through the lottery are made available to countries that have sent the fewest immigrants to the United States in the last five years.  No on country can account for more than 7% of the total of visas available for that year.  Plus, there are qualifications that the immigrant must meet.  The immigrant must have a high school education, or have been working in an occupation that requires two years of training for two of the past five years.

The qualification requirement is where many applicants get tripped up.  There is no requirement that a person meet the qualifications to enter the lottery.  A foreigner simply registers for the lottery online when the registration is open.  This means that a person can win the lottery, think they have a visa, and then become greatly disappointed when the Consulate inform them that they don't have the required education or occupation.

At any rate, the lottery may be on its way out.  In all of the talk of immigration reform, some Republicans are proposing the elimination of the diversity visa lottery, and expanding the number of immigrant visas available to graduates with advanced degrees in science and engineering by 50,000.  Whether this happens remains to be seen.  A bill that would have eliminated the lottery almost passed the House of Representatives in September.

Click here and you can read more about the diversity visa lottery in another article I wrote on the subject.

By:  William J. Kovatch, Jr.
(703) 837-8832

Immigration Law Provides Opportunities to Bring Foreign-Born Relatives to the United States

U.S. citizens and lawful permanent residents can petition for visas to bring certain foreign-born relatives to live in the United States.  How fast the process works depends on whether the petitioner is a citizen and which relative is involved.

Spouses, minor children, and in some cases parents of U.S. citizens are defined as "immediate relatives."  The process for immediate relatives tends to be much quicker than other relatives.  Immediate relatives, for example, do not have to wait for a visa number to become available to immigrate.  Immediate relatives also have more liberal rules to allow them to adjust to status if they are present in the Untied States after being inspected and admitted.

Adult children and siblings of U.S. citizens, and spouses and children of permanent residents can also immigrate. But, the numbers are limited by Congress to 400,000 per year.  This is called the preference system.  Visas become available based on the date that the visa petition is filed.  For some countries, it is not unusual to have to wait years for a visa to become available.  In most cases, these relatives must process their visa applications at their local U.S. Consulate before being admitted as a permanent resident.

For more information on the availability of family-based visas, and the process, please click here to see my article.

By:  William J. Kovatch, Jr.
(703) 837-8832

Tuesday, November 13, 2012

No Republican Uniformity on Immigration Reform

After Romney's presidential election defeat last week, many prominent Republicans began advocating for a change in the party's stand on immigration reform.  Pointing to the overwhelming majority of Latino voters who sided with President Obama, these Republicans saw a softening on the party's stance on immigration as one way that the party could appeal to this demographic group.

However, there does not appear to be uniformity within the Republican ranks on this issue.  Some have argued that changing the party's stance on immigration would amount to nothing more than pandering, and would not guarantee that Latinos would be more attracted to Republican candidates.

A strategy that hoisted all hope on immigration reform may not work to attract more Latino voters to the Republican party.  Such a strategy assumes that Latinos are single-issue voters, leaning heavily on immigration policy to guide their choice.  This, however, appears to be a false assumption.  Indeed, to consider the Latino vote to be a homogenous group itself is something of a fallacy.  Cuban Americans living in Florida, for example, are not the same as Mexican Americans living in California.

 The argument has been made that changing the party's stand on immigration reform could be the first step to changing the GOP's image on diversity in general. Business Insider has pointed out that Romney lost among Asian voters in a slightly larger margin than he did among Latino voters.  This is despite the fact that Romney generally won the vote among Americans with incomes of greater than $100,000 per year, and that on average Asians earn more than caucasians.  The argument here is that the Republicans' stand on immigration issues gives the appearance that the party is not so very tolerant of ethnic minorities.  But, immigration reform alone would not be enough to sway minority voters.

Francis Wilkinson of Bloomberg argues that Republicans place too much emphasis on Christian values, which can alienate Buddhists and HindusJennifer Rubin in the Washington Post wrote that among the thing Republicans need to consider is running ads in languages other than English, and Democrats do.  A similar thing can be said about campaigns aimed at legislating English as the official language, either of the federal or state governments.  Such actions are insensitive to the diverse population of the United States, and communicate a lack of tolerance to minority groups.

Immigration reform itself may not be a panacea for the Republican party.  But, it can be the first step to changing the party's image provided that harsh-toned rhetoric that appears intolerant of anyone who isn't an English-speaker of European descent is also eliminated.

By:  William J. Kovatch, Jr.
(703) 837-8832

Friday, November 9, 2012

Is Immigration Reform Around the Corner?

One of the emerging themes from the aftermath of the 2012 presidential election is the notion that the Republican Party must evolve to appeal to demographics other than caucasians.  More specifically, analysts say that Romney lost the Latino vote by a margin of 70% to 30%.  This is the widest margin since Bob Dole lost the White House in 1996.  Latinos are the largest growing ethnic group.  With the changing American electorate, many are saying that the Republicans must attract more Latino voters to be competitive in future elections.

The first step, according to conservative talk show host Sean Hannity, is "to get rid of the immigration issue altogether."Hannity surprised many in his audience by announcing that he has "evolved" on the issue of immigration reform.  Hannity urged that securing the borders had to be the top priority, but that there ought to be a "pathway to citizenship" for those who are already here and who do not have a criminal record.

Hannity is not the only conservative voicing a willingness to address immigration reform.  Speaker of the House of Representatives , John Boehner, stated, "A comprehensive approach is long overdue, and I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all."

On the campaign trail, Republican Florida Senator, Marco Rubio, addressing the issue of young people brought to this country as children, stated that the United States need to find a solution, more permanent than the President's Deferred Action for Childhood Arrivals program, that was "humanitarian," and "that solves their problem but that doesn’t encourage illegal immigration in the future."

Given these statements by leading conservatives, there appears to be a possibility that immigration reform will be on the agenda for the next Congress.  The big question is what that reform will look like.

In one of the rare instances where Republican candidate Mitt Romney addressed immigration during the Fall campaign, he stated that graduates with degrees in math and science should "get a green card stapled to their diploma."  In September, a bill written by the Chairman of the House Judiciary Committee Lamar Smith, came up for a vote.  The bill would have increased the number of visas made available for graduates with advanced degrees in science and technology, but would have also eliminated the diversity visa program.  Representative Michael McCaul from Texas likewise mentions ending the diversity lottery while increasing the number of visas for graduates with advanced math and science degrees when discussing immigration reform.

The time may very well be right for comprehensive immigration reform.  But exactly what shape that reform will take, and whether it will include a pathway to citizenship for the undocumented aliens currently in the United States remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832

Thursday, November 8, 2012

Election Results Bring Greater Certainty to Deferred Action Program

The re-election of President Obama may spark a greater number of applications for deferred action.  The Deferred Action for Childhood Arrivals program offered a promise to certain young aliens present in the United States illegally that the Government would not seek their removal or deportation.  The program also offered an opportunity to receive the legal authorization to work in the United States.

The President's program would provide this promise for two years.  At the end of the two years, deferred action could be renewed.  However, the program was the result of an exercise of executive discretion, and not law.  This meant that the program could be rescinded at any time.  Indeed, the grants of deferred action themselves could be rescinded.

President Obama's opponent, Mitt Romney, had expressed that he would terminate the program if he were elected.  However, he promised that any grants of deferred action under the program before his presidency would be honored.

Romney's campaign statements, and the close presidential race, left many uncertain as to the future of the deferred action program.  Would the information disclosed through the application process be used for enforcement purposes once the program had been terminated?  Would something else replace the program, or would the Federal Government pursue enforcement more vigorously?

The election should allay some fears.  Already, thousands of applicants have been granted deferred action.  However, only a small fraction of the estimated number of those aliens who could potentially benefit have actually applied.  With a greater certainty that the program will likely be around for a few years longer, this may prompt those who were hesitant to apply.

Of course, before applying, it is a good idea to consult with a legal professional knowledgeable of the program and of the risks and benefits of applying.

Here is an article discussing the greater certainty some feel about the deferred action program.

Guidelines on the deferred action program can be found on the USCIS website.

More information on deferred action can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832

Wednesday, November 7, 2012

Gang-Related Asylum Cases

A few years ago, as I sat in Immigration Court waiting for my case, one of the cases that went before me applied for asylum based on the fear of gang-related violence in Central America.  I listened as the Immigration judge admonished the lawyer to be sure that he read the latest Board of Immigration Appeals case on the subject, In re S-E-G-.  The judge indicated that he would have very little patience for any gang-related asylum claims which did not meet the BIA's new social visibility standard.

With all due respect, the Immigration Judge's attitude on the subject was entirely inappropriate.  To be sure, Immigration Judges are bound by BIA decisions.  But, the BIA is not the final word on interpretations of U.S. immigration law.  Rather, legal interpretations made by the BIA are subject to legal review by the various circuit courts of appeals in the United States.

Since S-E-G, at least two circuits have rejected the BIA's social visibility standard.  Judge Posner of the Seventh Circuit found that the standard "makes no sense," and noted that some groups to which the BIA had extended asylum protection would not meet this new standard.  Specifically, homosexuals in a homophobic society could pass for heterosexuals, and indeed had an incentive to do so to avoid persecution.  Likewise, women who had not undergone female genital mutilation would appear no different from other females in society.  Yet, both social groups had received asylum protection under BIA decisions.

The UN Human Rights Committee has also criticized the BIA's social visibility standard as being inconsistent with UNHRC guidelines.  Such guidelines are often used by the BIA and U.S. courts to interpret U.S. asylum law.

Currently, there is a split among the U.S. circuit courts on the issue of social visibility.  Under these circumstances, it is entirely reasonable for those with gang-related asylum claims to adopt a strategy to press for Supreme Court review.  Although the path would be difficult in some circuits, the possible severity of the consequences of deportation would argue to press for clarity from the highest court on whether this standard should stand.

I go into more detail in this article.

A recent briefing on legal issues surrounding gang-related asylum claims can be found here.

By: Willliam J. Kovatch, Jr.
(703) 837-8832