Sunday, November 20, 2016

As Attorney General, Jeff Sessions Can Have Substantial Influence Over the Law of Deporrtation ans emoval

On Friday, President-Elect Donald Trump announced that Alabama Senator Jeff Sessions was his choice to serve as Attorney General.  Sessions has made it clear that he is anti-immigration.  Not anti-illegal immigration.  He is anti-immigration.  Painting with a wide brush, Sessions has made broad statements concerning the desirability of immigrants from the Dominican Republic, for example, claiming Dominicans as a class file fraudulent visa petition and that they have no provable skills that would benefit the United States.  Indeed, he has made statements that immigration -- legal immigration -- has been harmful to the United States.

The question arises as to exactly what influence Sessions would have over immigration policy if he were confirmed as Attorney General.  The answer is that the influence can be considerable, particularly with respect to immigration policy in deportation and removal cases.

The Department of Justice does not have the day to day responsibility for enforcing and administering the immigration law of the United States.  That role belongs to the Department of Homeland Security.  But this doe not mean that the Department of Justice has no say or influence over how immigration law is interpreted and enforced.

First the Department of Justice is responsible for representing the United States in litigation before the U.S. courts.  This means that the Justice Department, through the Office of the U.S. Attorney, assesses litigation risk and advises the agency being sued. 

This can mean that the Justice Department injects a bit of reasonableness when an agency is being sued.  The U.S. Attorney's Office can advise an agency that its action is not likely to convince a judge.  In this way, the Justice Department can subtly influence agency policy.

But the Justice Department can also agree to take a more extreme litigation position, thereby encouraging an agency to push the boundaries of the law.

The more important role that the Department of Justice plays in U.S. immigration law is through the operation of the administrative courts used to enforce the deportation and removal law.

Contrary to what many people believe, the U.S. Government cannot simply pick up a person who is present in the country in violation of the immigration law and deport him or her.  The U.S. Constitution guarantees the right to due process of law.  That is, it has to be proven that a person does not have legal status in the United States or that the person has violated that status by, for example, committing a crime.  Then, even if a person is present in the United States in violation of the immigration law, there may still be legal grounds for relief to allow that person to stay, such as asylum law.  Some entity has to make determination.

The entity that makes that determination is the Executive Office of Immigration Review (EOIR), which is housed by the Department of Justice.  The EOIR consists of the first level trial courts, that is the Immigration Courts, and the appellate body, known as the Board of Immigration Appeals (BIA).

In the first place, the Attorney General influences how immigration law is interpreted and enforced through the power of appointment and supervision.  The Attorney General appoints the Immigration Judges, the Members of the BIA, the Chief Immigration Judge and the Chair of the BIA.  Thus, so long as the people appointed meet the minimum requirements of competency, the Attorney General can be sure to appoint people who will interpret immigration law congruent with his thinking.  The EOIR also ensures of the training of Immigration Judges and BIA Members.  Such training programs can be used to subtly influence how the law is viewed and interpreted.

More importantly, by developing case law, the BIA, and indeed the Attorney General, can issue opinions binding on Immigration Judges in similar cases.  The BIA publishes its case decisions.  The BIA can vote to make a decision precedential, which means it announces an interpretation of the law that is binding on Immigration Judges.  The Attorney General may also decide to take jurisdiction over a case on appeal, and issue a decision announcing an interpretation of the law that is precedential.  Indeed, if the Attorney General takes jurisdiction over the case, he does not need to give the parties to the case an opportunity to brief the issues before him.

This power has been used in the past, for example, to define what constitutes a crime involving moral turpitude.  This can be an issue where a state criminal law defines an offense so broadly that it can include both behavior that is morally reprehensible, and behavior that isn't. 

This is the case with assault and battery.  To be considered a crime involving moral turpitude, assault and battery must be a crime of violence.  But, in many states, assault and battery can include a mere unwanted touching, such as a tap on the shoulder.  Moreover, when a defendant pleads guilty, the plea agreement may be worded so as to avoid admitting to actions that would constitute a crime of violence.  This leaves Immigration Judges in a tough position in determining if the conviction before them is actually a deportable offense or not.

In this situation, the Attorney General took jurisdiction over a case, and announced a rule that Immigration Judges could look beyond the record of conviction to determine if an assault and battery is a crime of violence, and thus a crime involving moral turpitude.  The Attorney General's decision permitted the Immigration Judge to go so far as to make conclusions based on the police report.  This particular rule was then the subject of extensive legislation, and has since been withdrawn by a successive Attorney General decision.

Nonetheless, the Attorney General can have substantial sway over immigration law as it applies to deportation and removal cases.  Given Sessions' history, I would expect that immigration law as it applies to deportation and removal cases will be interpreted more harshly.  Indeed, I would even expect interpretations that are constitutionally questionable for the sole purpose of pushing the envelope and seeing if the courts permit it.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832

Tuesday, July 5, 2016

What Happens to the Unaccompanied Children Who Cross into the United States?

2014 brought about an unprecedented humanitarian crisis at the border between the United States and Mexico.  Over 60,000 children, mostly from El Salvador, Guatemala and Honduras, crossed the border into the United States without their parentsMany were escaping violence and abuse in their home countries, especially violence from the illegal drug trade and the street gangs.  In legal terms, they are called "unaccompanied alien children."

The responsibility for caring for unaccompanied minor children falls on the Office of Refugee Resettlement of the U.S. Department of Health and Human Services.  The goal is to find a sponsor in the United States to care for each child while that child awaits a hearing before an Immigration Judge.  Most of the time, that sponsor is a parent, relative or family friend already in the United States.

However, with the number of unaccompanied children crossing the border remaining at shockingly high levels, it often takes time for ORR to find a suitable sponsor.  The average wait is about thirty-two (32) days.  While ORR is looking for a sponsor, children are housed in detention facilities, separate from adult detainees.

Even after ORR finds a sponsor, many of the children remain subject to abuse.  Critics argue that the U.S. Government has created a "pseudo-foster-care system" with no oversight or government follow-up.  Once a sponsor is found, the Government takes it on the honor system that the sponsor will act in the child's best interests.  In reality, some children have been subject to emotional, physical and sexual abuse from their sponsors.

Meanwhile, the children continue to face removal proceedings in Immigration Court.  Because immigration proceedings are civil law proceedings, and not criminal proceedings, the U.S. Government takes the position that it is not required by the Constitution to provide legal counsel, as it would be in criminal court.  One Immigration Judge shocked many by asserting that three and four year old children could learn immigration law well enough to represent themselves in Immigration Court.  Some organizations, like the ACLU, have pressed the Government to accept responsibility for providing attorneys to represent unaccompanied minors in removal proceedings.

What is clear is that the unaccompanied children represent the most vulnerable of those making the dangerous trek to the United States.  Once in the United States, they may qualify for such programs as asylum or Special Immigrant Juvenile Status (SIJS).  The U.S. Constitution requires that the children be provided with due process of law before being shipped back to their home countries.

Here at William J. Kovatch, Jr., Attorney at Law, PLLC, we provide quality legal representation to children who have come into the country without their parents.  While past results cannot be used to guarantee results in future cases, we have obtained asylum for children abused. in their home country, and have successfully petitioned for SIJS for many children.  If you are a sponsor for an unaccompanied child, and looking for legal advice, call us.

By:  William J. Kovatch, Jr.
(703) 837-8832
Se habla espanol: (571) 551-6069.

Friday, June 24, 2016

I'm Not Dead Yet: How DAPA Has Survived the Supreme Court Decision

Yesterday, in a one sentence decision, the U.S. Supreme Court announced that they were deadlocked in the case of United States v. Texas, and therefore the Circuit Court decision stands. 

The media hailed the decision as a major defeat for President Obama's Deferred Action for Parents of Americans (DAPA) program. The President announced in November of 2014 that parents of U.S. citizens and permanent residents present in the United States could qualify for a promise that the government will not seek their deportation and a chance to apply for work authorization. The President took matters into his own hands when he believed Congress had become deadlocked on the issue of immigration reform. Critics immediately dubbed the move amnesty. 

Texas and other states filed suit over the measure, claiming the President had no authority to implement the program without congressional authorization. Before the District Court could hold a hearing on the main case, the states sought a preliminary injunction to prevent the Administration from implementing the program while the lawsuit was pending. The District Court granted the injunction. The Administration appealed. The Circuit Court upheld the injunction. The Administration sought review before the Supreme Court. 

Meanwhile, the main case continued before the District Court. 

The Supreme Court decision concerned only the preliminary injunction. Because the main case is still pending, this means that the issue could once again reach the Supreme Court. 

What this means is that the 2016 presidential election has now become a critical election for immigration reform. Justice Antonin Scalia died this year, leaving an open Supreme Court seat. With an even number of Supreme Court justices, any case where the vote is tied means that the lower court decision stands. The Republicans in the Senate have refused to hold hearings on President Obama's nominee to take Scalia's seat. 

This means that the new President will have the power to appoint a new justice, and thereby break the deadlock before the main case reaches the Supreme Court.  The fight over DAPA, therefore is not over; its fate rests in the hands of the voters. 

By: William J. Kovatch, Jr. 

For an appointment, call (703) 837-8832
Se habla español (571) 551-6069 

Monday, March 28, 2016

No, Undocumented Aliens are not About to Bankrupt the Federal Government Looking for Hand-Outs

Over the weekend, I saw a Facebook friend link to a video which he believed was the definitive proof that those "illegals" are just coming to the United States to live off the backs of taxpayers.  The video is a Fox News "Special Report" by Steve Harrigan sometime in the Spring of 2013.  Although the video is three years old, it is still making its rounds. A quick Google search revealed that it has been used by conservative causes to demand that politicians do something about these "illegals" living off the public dole. 

As I watched the video with a critical eye, I noted that it was short on facts, accurate information and real analysis, and long on misdirection and scare tactics.

The video focused on a woman.  I hesitate to mention her by name, since she has been made the pariah of the opponents of immigration reform.  Still, I cannot find one article on the Internet that defends her.  And for that reason alone, let me tell you about the story of Marita Nelson.

According to Harrigan, Nelson crossed the Rio Grande to enter this country over twenty years ago.  She has been receiving public assistance for over twenty years. She has seven mouths to feed, and the $240 per month she receives from SNAP (or as he calls it, food stamps) does not last through three weeks.  Harrigan claims that Nelson, who is fifty years olds, receives funds for public housing, government help with medication and $700 per month in Social Security.  There is some talk about her receiving some child support, but no details are given.

Harrigan then expresses complete surprise that there are privately funded organizations out there that actually help people find public assistance programs for which they qualify.  And Nelson has the temerity to urge people who need help to go look for it before it is too late.


Well, let's analyze this piece by piece, with reference to the actual law.  A thoughtful analysis shows why any fears are just unsubstantiated.  We'll start with Nelson's immigration status.  The assumption is that since Nelson crossed the Rio Grande over twenty years ago, she must be illegal!  Some conservative bloggers go so far as to say that she's criminal.

I hate to break it to you, but crossing the border without a visa is not necessarily a crime.  It is illegal, yes.  But, as the Immigration Courts and U.S. Immigration and Customs Enforcement love to point out, immigration law is civil, not criminal (even though people in removal proceedings are put in "detention" which looks an awful lot like jail).  So we cannot conclude that Nelson is a criminal.

More importantly, we cannot even conclude that she is necessarily an illegal alien.  We do not know where she is from.  We do not know why she came to the United States.  We do not know if she is married.  People who crossed the border illegally could still qualify for asylum or temporary protected status, two legal programs under U.S. immigration law.  If she were in removal proceedings, having been in the United States over ten years, she could qualify for cancellation of removal, which would make her a legal permanent resident.  Perhaps she married a U.S. citizen and was grandfathered under an older law that would allow her to become a legal permanent resident.  Without more facts, we just don't know what her immigration status is.

But let's assume that she is undocumented, for the sake of argument.  Does her story give definitive proof that those pesky "illegals" will just pour across our border to step up to the public trough?

The first key to understanding this story is the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.  This act of Congress prohibited undocumented aliens from applying for federal benefits.  The act was passed on August 22, 1996.  This means that it applied only to people receiving public benefits after that date.  If Nelson has been receiving public benefits for over twenty years, then she would have been receiving benefits as of 1993, or before the passage of the act.  She would therefore have been grandfathered in, and thus not prohibited from receiving benefits.  The real point here is that her case does not mean that people who cross the border today or tomorrow or who crossed the border ten years ago can receive federal benefits such as SNAP, public housing or health insurance.

But let's go further.  We'll start with Social Security.  Social Security administers three programs: (1) retirement benefits; (2) insurance for becoming disabled after working; and (3) supplemental income for those who are disabled.  To receive retirement benefits, you have to be at least sixty-five.  At age fifty, Nelson is too young.  To receive disability insurance, you must have worked for 40 quarters paying into the Social Security system.  If Nelson were undocumented, it seems unlikely that she would have been working legally and the would not qualify for that program.  As for the supplemental income, well let's not forget that Nelson has seven mouths to feed.  Some of those mouths are likely her children.  She could very well have children born in the United States and thus U.S. citizens.  If a U.S. citizen child is disabled, then the child may be eligible for supplemental income.  But note that the benefits would belong to the U.S. citizen child, and Nelson might only be serving as the representative payee, who receives the benefits on the child's behalf and is legally obligated to use the benefits for the child.

The problem is that from the report itself, we just don't know.  Nothing is mentioned about her children, other than the fact that Nelson receives child support.

U.S. citizen children could possibly explain other benefits.  The SNAP benefits could belong to the children.  The public housing could belong to the children.  If she did have a U.S. citizen child who was disabled, then that child might qualify for Medicaid, thus explaining the assistance with medication.  But we do not know any of the relevant facts from the report.  Instead, Harrigan purposefully leads the viewer to think that the benefits are for Nelson herself.

The point is that a critical eye, armed with knowledge of the law, demonstrates that Harriman's so-called "Special Report" is nothing but fear mongering meant to stir up xenophobia, racism and hatred of those darned "illegals."  In reality, there is no danger that those who crossed the border recently, or who will cross the border in the future, are about to bankrupt the U.S. treasury looking for government hand-outs.

By:  William J. Kovatch, Jr.
(703) 837-8832
(571) 551-6069 (ESP)

Monday, March 21, 2016

Judge Makes Special Immigration Juvenile Status (SIJS) Findings

A judge on the Juvenile and Domestic Relations General District Court in Virginia signed an order today making the findings required to permit a juvenile from Central America to apply to U.S. Citizenship and Immigration Services for Special Immigrant Juvenile Status, or SIJS.  SIJS is one of the more unique immigration statuses in that the law authorizes state courts to make the initial findings before the juvenile can apply to USCIS.

In order to qualify, the alien must be under 21, unmarried and apply to a court in the state where he or she resides which has jurisdiction over minors.  The state court must first find that the juvenile is dependent on the state court.  Dependent can mean that the state court places the juvenile with a state agency for care, or with a private individual.  The court must then find that reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, abandonment or a similar ground under state law.  Finally, the state court must find that it is not in the juvenile's best interests to be returned to his or her home country.

In today's proceeding, the juvenile's father was an alcoholic who physically abused the mother.  The father threw the juvenile out of the house with the mother's acquiescence.  The juvenile, who faced harassment at the hand of street gangs at school, fled to the United States where his older sister lived.  Once in the United States, his parents refused to provide any financial support.

The juvenile's sister applied to the court for custody, and requested that the judge make the SIJS findings.  The judge agreed, permitting the juvenile to proceed with his application with USCIS.

Applying for custody is a typical way in which a responsible adult can assist a juvenile in obtaining the required SIJS findings.  Because the law permits a finding that reunification is not viable with one or both parents, often a parent who is present in the United States can apply for custody of his or her own child in order protect that child from the abuse or neglect of the parent who remained in the foreign country.  Once a state juvenile court has jurisdiction through a custody petition, the parent can then ask the court to make the required findings.

If the juvenile is in Immigration Court proceedings, a practitioner can request that the court continue, or delay, the proceedings while the juvenile is applying for the SIJS findings in state court.  Once the state court makes the findings, the practitioner can then request that the Immigration Court case be terminated to allow the juvenile to apply with USCIS.  The end result is the granting of permanent residency to the juvenile, and an opportunity to apply for U.S. citizenship in the future.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832.
Se habla espanol (571) 551-6069.

Thursday, March 17, 2016

The Senate Must Vote on Judge Garland's Nomination

While pursuing Facebook yesterday, I came across a post from Michelle Malkin on President Obama's nomination of Judge Merrick Garland to the Supreme Court. The post was a link to an article in the Conservative Review simply entitled, "What Conservatives Need to Know About Merrick Garland."  When I clicked the link, I was shocked to find a one word answer as the first paragraph of the article. It simply said, "Nothing."

Author Brian Darling's analysis didn't get much more informative. The crux of his argument was that because Judge Garland was nominated by President Obama, he is a liberal and will tip the balance on the Supreme Court in favor of the liberals. 

I was shocked because even though I consider myself a Republican with conservative leanings, my reaction to President Obama's pick was far different. I was surprised by how non-controversial the appointment would be. 

Judge Garland has sat on the U.S. Court of Appeals for the DC Circuit since 1997.  He is currently the Chief Judge.  Because of the location of the DC Circuit, it is the court that tends to hear cases involving Federal policy most often. The court is often considered a stepping stone to the Supreme Court. 

In addition, Judge Garland is a former prosecutor who is 63 years old. Not only has he worked in law enforcement, he is not likely to stick around the Supreme Court for a very long time. 

At this point, conservatives point to two cases in which he was involved to ring the alarm bells that he will rob us all of our gun rights. The first is the case that overturned the District of Columbia's gun control law. The case was decided by a three judge panel, and Judge Garland voted for the case to be reheard en banc, which means in front of all of the judges of the DC Circuit. 

The second was a case where Judge Garland agreed that the FBI could retain gun purchase records for six months to ensure that a computerized background check was working. 

Neither case hardly says anything about the Judge's views on the Second Amendment. Yet it is enough that Judge Garland acted in a way displeasing to the NRA for conservatives to mobilize opposition by engaging in the Second Amendment fear mongering. 

Conservatives are mourning the loss of Justice Antonin Scalia. The prospect that his seat on the Supreme Court could be filled by an Obama appointee is just devastating to them. Thus, Senate Majority Leader Mitch McConnell took the unprecedented step of announcing that there would be no hearings on any Obama nomination. Instead, the choice would be left to the new president. President Obama has countered with the nomination of a highly respected jurist, who is not likely to stay around for a very long time. The result is that Senate Republicans look far worse than just merely obstructionists. They look like whiny, petulant children. 

One of the most frightening characteristics of the Tea Party movement, and its influence on the Republican Party, has been the uncompromising willingness to shut down normal government functions in the name of promoting conservatism. Faced with very little on the record to challenge a nominee who appears to be eminently qualified, the conservatives resort to fear mongering. Senate leaders should not play this game. Rather, they should do their constitutional duty of allowing the full Senate to give advice and consent by holding hearings on Judge Garland, and sending his nomination to the floor for a vote. 

Tuesday, March 15, 2016

The Way Things Are Supposed to be, and the Way Things Actually Are

Readers of my blog know that there's no secret that I am really enjoying AMC's "Better Call Saul."  I think it's because being a solo practitioner, while I may strongly disagree with Jimmy McGill's ethics, I understand his struggles. Last night's episode, we saw some of the tension of big firm lawyers, who expect things to be the way they are supposed to be, and the solo practitioner, who understands the way things are. 

Time for my required spoiler alert for those who have recorded it, want to catch an encore showing or will be watching through AMC's app. 


Jimmy got in trouble last week by airing a commercial without the partners' prior approval. He wasn't fired, but warned that he would be under a lot more scrutiny. 

This week, we learn what that scrutiny is. A second year associate has been tasked with reviewing everything Jimmy does, and teaching him the firm's way. Jimmy, not surprisingly, is annoyed that he, who was hired as a fourth year associate, is now being babysat by a second year associate. 

The scene that stuck out the most for me was when Jimmy and his babysitter go to court to file a motion and to get a date for a hearing. Jimmy isn't getting the date he wants. So he pulls out a Beanie Baby to offer to the surly clerk. Suddenly, and better date opens up. 

Shocked, the babysitter pulls Jimmy aside and chides him for offering a bribe. The result? It will now be more than a month until Jimmy gets his hearing. 

Look, all of us have come across that bureaucrat who has their own little fiefdom, and will let you know that they have power over you. The question is how do you deal with that. 

I think the mistake many lawyers make is forgetting that the bureaucrat is a person. Some lawyers will treat the clerk or the bailiff or the security guard as just a means to an end. This person has something I want, and she should just give it to me. 

Jimmy's solution, while shady, at least recognizes the person behind the job. He has taken the time to learn that the clerk loves Beanie Babies, so he makes her feel good by offering what she likes. 

Yeah, the direct quid pro quo is wrong. But I do think Jimmy is on the right track. As the saying goes, you get more flies with honey than vinegar. 

I remember back to my internship days. I was the guy who went to a certain embassy in Washington to turn in the paperwork for visa requests for our consultants. For a long time, the consular officer was surly. Even though I knew the paperwork was correct, she gave me attitude. I didn't get things from her on time. This was her fiefdom. 

I didn't go to Jimmy's extreme. But I did change my attitude. I tried to engage her on conversation. I knew a little of her native language, so I would greet her in it. I'd try to joke with her, ask her how her day was. In general, I treated her like a person and not like a means to an end. Heck, I even fixed her printer once. The result?  I suddenly had the reputation of getting visas approved faster than the other interns. My bosses were impressed that I got the clerk whom everyone thought was cold to thaw. 

But that's the point of being in the trenches. You get to know how things really work. You learn how to manipulate that to your advantage, or you learn to live with it. Jimmy, for all his faults, at least knows people. 

By: William J. Kovatch, Jr. 

Thursday, March 10, 2016

Better Call Saul's Jimmy McGill Has Got Gall

I continue to be impressed with "Better Call Saul."  Like "Breaking Bad," the show is a character study, showing the initial build up and then decline of a flawed character.  The show is all the more interesting to me because the flawed character is a struggling lawyer.

In this past week's episode we got to see more of one of Jimmy McGill's character traits that is both impressive, and disturbing. 

Before I go into detail, let me give a spoiler warning to those who recorded it, or who are going to try to catch an encore performance.


The character trait I am talking about is gall.  Last week, we saw Jimmy get frustrated because strict adherence to ethics rules about in-person solicitation made it difficult for him to find more clients.  On one hand, his bosses loved it when he brought in more and more clients.  On the other hand, his biggest critic, brother Chuck, sneers art the prospect of in-person solicitations.  The rest of Jimmy's bosses seem content to ignore the possibility that Jimmy might be bending ethical rules, so long as they don't actually see it and he keeps bringing in the clients.  But Jimmy's in love.  And we see this season that his main motivation is to impress his girlfriend, fellow lawyer Kim Wexler.  Since Kim won't play footsie with him during the staff meeting, Jimmy makes a bold promise not to engage in further questionable solicitations.

His solution?  A TV commercial.  He approaches one of the partners, Cliff, with the idea.  Cliff is interested.  He tells Jimmy to talk to him more about it when Cliff gets back from a trip.  Cliff even further reinforces that client outreach is Jimmy's bailiwick.

So what does Jimmy do?  He makes a commercial.  He uses an elderly woman who proclaims that after she moved into an assisted living facility, she can't figure out where all of her money went.  Jimmy then does a voice over urging people to call.  Without consulting the partners, he runs the commercial during "Murder She Wrote" in one of the firm's target cities.

This week, we see the partners calling Jimmy to the carpet.  They are furious.  How dare he run a commercial without their approval.  And here's where Jimmy's gall comes out full force.

Jimmy doesn't hang his head, admit that he did wrong, apologize and promise to do better.  No, he expresses no remorse.  He acts like he doesn't understand what he did wrong.  Hey, the commercial was ethical.  It generated calls from potential clients.  And Cliff, you told me client outreach was my department.

Of course, the audience knows that Jimmy knows that he's done wrong.  He knew he had to approach the partners.  He just felt hamstrung.  He went to great lengths to hide the commercial from them.  He figured that one commercial on afternoon TV that no one but the elderly watch would never get the attention of anyone else. 

And to some extent, Jimmy may be right.  I didn't see anything unethical about the commercial.  Personally, I think it was far more tasteful than those lawyer commercials asking if you've taken some drug or had some medical procedure and had side effects.  "You may be entitled to compensation," these ads proclaim.  I shudder for my profession when I see those commercials.

But that's not the point.  The point was doing something controversial, that you know you need approval on, but deliberately fail to seek that approval.  And then getting caught.

Gall.  In Yiddish, it's "chutzpah." You don't back down, even if you think or know you are wrong.  And you defend your case boldly.

The disturbing side is that in life you have to learn how to play well with others.  You can't just go around doing what you want or you feel is best, without considering the interests or feelings of others.  It's an easy way to lose friends and the support of colleagues.

But professionally, lawyers sometimes need that same chutzpah when they have a case where the odds are against them.  I have experienced this.  As part of my practice, I take some court appointed cases.  Sometimes I defend people in cases when a friend or relative is trying to have them committed to a mental health facility against their wishes.  Sometimes, I represent indigent criminal defendants who have exercised their right to appeal.  Often in those cases, I look at my facts, and I know that the law is very likely against my client.  But after explaining the situation to my client, if the client wants me to vigorously contest the case, as long as I believe there is a good faith argument, ethically I am bound to do it.

At times, this is very difficult.  Sure, I may think there is language in some case somewhere that supports my client.  But I know that the judges are not likely going to agree with me.  I still need to go in front of the judges, and present my client's argument.  Zealously.  In times like that, I need the same chutzpah Jimmy showed when he was called to the carpet by his bosses.

Tuesday, March 1, 2016

Is There a Right to Record Police Activity?

A judge on the U.S. District Court for the Eastern District of Pennsylvania has issued a decision holding that there is no First Amendment right to capture video images of police in public if the recording is not connected to some other form of expression.
The decision, Fields v. The City of Philadelphia, involves two cases with similar facts. In one, a pedestrian saw about twenty police officers hosting a party in public and used his smart phone to take video recordings. The pedestrian thought the scene was "pretty cool," and thus took the video.  He was about fifteen feet away from the police. An officer saw the pedestrian and asked him to leave. When the pedestrian refused, the officer detained him, handcuffed him, took the phone and searched his person.

In the second case, a "legal observer," trained in observing interactions between police and civilians in civil disturbances attended a protest wearing a pink identifier. As the police arrested a protester, she attempted to capture video images. An officer restrained her, preventing her from capturing the video images.
Both filed lawsuits pursuant to 42 U.S.C. § 1983. This law gives a cause of action to those who have been deprived of a constitutional right under the color of law. Both claimed constitutional rights under the First Amendment right to freedom of expression and the Fourth Amendment freedom from unreasonable searches and seizures.

The decision was issued in the context of motions for summary judgment. The court addressed only whether there was a First Amendment right to capture video images of police. That is, the court did not address the Fourth Amendment claims.  The District Court reasoned that observation alone was not expressive conduct.
The holding of Fields was actually very limited. The District Court held that in the context of a lawsuit alleging a deprivation of constitutional rights, capturing video images of police officers without some other form of expression connected to it is not a protected right pursuant to the First Amendment. The court did not hold that capturing video images alone is illegal. Nor did the court hold that seizing a device to prevent a person from recording video images of police officers in public was a reasonable search and seizure pursuant to the Fourth Amendment. All that the court held was that a person who had been prevented from capturing video images of police officers in public, who were not otherwise engaged in expressive conduct, could not sue the government or government officials for violating First Amendment rights.
The problem, however, is that the District Court's holding can be misinterpreted too broadly and thus lead to abuse by the police. For example, a police officer, upon seeing a person with a device which could possibly be used to capture images of police could conclude that because there is no First Amendment right simply to capture those images, that the officer is justified in confronting the putative videographer and seizing the device or otherwise preventing the images from being captured.

Another problem is that making the right to capture video images of police in public dependent upon some other form of expression means that the right would only be available to those who are quick-thinking, assertive or otherwise in conflict with the police. That is, in order to enjoy the right, a person must think of some reason why they are capturing the video images and assert that reason to police.

Take, for example, a shy person who has witnessed some form of police conduct they deem worthy of recording. If the police confront that person in an effort to prevent the recording, then whether the person has a First Amendment right would depend on whether that person has the temerity to challenge authority and was quick thinking enough to give the police some reason the police would deem valid.

The most disturbing aspects of the court's holding are the failure of the court to recognize that art itself is worthy of protection as free expression and the minimization of the court of the need to gather information before engaging in more expressive conduct.

Art is free expression. Art can be for the sake of aesthetics or simply stimulating the senses. While the Plaintiff in Fields may not have been the most articulate of witnesses, art can simply exist because it is "cool."  Fixing something a person sees to a visual medium, such as digitally recorded images is, in and of itself, art and therefore protected expression.

In order to enjoy a First Amendment right to capture video images of police, the District Court would require that a person go into the situation with a preconceived intent to publish the images captured in order to engage in criticism. But this would mean that the observer must already be in conflict with police activity before even observing it. It would mean that the observer must be able to express their conflict. It would further mean that the observer must know that the conduct is worthy of criticism. To put simply, the District Court's holding could be construed as a finding that there is no right to investigate police conduct in public absent knowledge that the police are doing something worthy of criticism.

Let's say, for example, that the police have arrested a group of young men who are present in public. While the police were in the process of placing handcuffs on the men, and waiting for back-up to transport them to the police station, a person would not have a First Amendment right to stand at a distance unobtrusive to the police and record the event unless that person knew and was willing to state that the police action was in some way worthy of criticism.

That is not to say that recording the police in this fashion would be illegal. But this type of hair-splitting that the District Court has engaged in could embolden a police officer who did not want to have his or her actions in public captured as video images to take action against the observer even though the observer is doing nothing wrong.
That is, there is a very fine distinction between saying a person does not have a right to engage in certain conduct, and saying that the conduct is illegal. But to the average person, it is very difficult conceptually to make that distinction. Engaging in the conduct, such as capturing video images, may not be illegal. But that does not mean you can sue the government when you are prevented from engaging in that conduct. The average person would believe that if conduct is not illegal, then you have a right to do it.

There is also a very fine distinction between understanding that generally you do not have a right to record the police, but if you go into a situation knowing that you are going to be critical of the police then you do have a right to record them.

Recording police serves an important public service. A person who knows he or she is subject to being recorded is less likely to engage in illegal conduct. Discouraging the public from recording the police, even when not interfering with the police activity, robs the public of this vital check on abuse of authority.

Fields should not be construed as eliminating this check. In the first place, it is only the decision of one judge in one district responsible for Eastern Pennsylvania. It is by no means binding authority.  But the decision can be misconstrued in a dangerous way by the police. 

By: William J. Kovatch, Jr. 
For an appointment, call (703) 837-8832.
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Thursday, February 25, 2016

Ignorance of Immigration Law Abounds, Particularly with GOP Lawmakers

 When I read this article from ABC News on the plight of migrant children who cross the southern border from Central America, I was struck by the quote from Senator Jeff Sessions of Alabama. "It cannot be that every young person from Central America is entitled to asylum or entry into this country," he is quoted as saying. 

The quote, I believe, betrays the true thought process behind many Republican lawmakers and their tea party supporters on immigration issues. Sure, the stylish thing for conservatives to say is that they support immigration, just not illegal immigration. Except that hidden in Sessions' statement is a criticism of the legal programs and processes that exist in U.S. immigration law. 

Let's start with asylum. This is a program to give protection to people who fear persecution, such as the threat of serious violence, in their home country. On one hand, it is difficult to obtain asylum. But on the other, if a foreign born person proves that he or she qualifies for asylum, U.S. law mandates that the Federal Government grant protection and a pathway that could lead to permanent residency and eventually citizenship. 

Yet asylum, despite it being a legal program, is one of the key targets of conservatives' criticism. Indeed, some conservatives complain about the number of green cards the Obama Administration has handed out. Seemingly lost in the criticism is that the green card process is the process to become a legal permanent resident. 

What also seems to escape conservative critics is that there is a legal process for determining eligibility for legal immigration programs. This is a country of laws. Our Constitution requires Due Process. The Government cannot simply pick up a person near the border because they look Hispanic and automatically ship them back to Central America. Let's not forget how many citizens of this country are of Hispanic origin. Fortunately, this isn't like the film caricatures of Nazi German where the Gestapo get to demand to see the "papers" of everyone. Citizens are not required to carry proof of citizenship. 

But the immigration courts of this country are clogged. There are not enough judges and government attorneys to handle the cases already in court. No one seems to be willing to spend the money to create more courts, hire more judges and hire more attorneys. The result is that cases tend to remain pending for years. 

Even then, there are more programs available than simply asylum. I hesitate to list them here, for fear that if GOP lawmakers really did understand the breadth of immigration law would be motivated to repeal those programs. 

Probably most alarming in statements like that of Sessions is the callousness that it betrays. Central American countries such as El Salvador, Honduras, Guatemala and Nicaragua are plagued by gang violence. Yet, many in the United States like to turn a blind eye to that violence and deny the role of this country in creating a situation that the Central Americans governments are unable to manage on their own. 

We as a society are judged by how we protect the vulnerable. An immigration system without compassion erodes our humanity and condemns the helpless to situations they had no role in creating. 

By: William J. Kovatch, Jr.
Call for an appointment (703) 837-8832
Se habla español (571) 551-6069 

Tuesday, February 23, 2016

Be Wary of Voluntary Police Interviews

Last Night's Better Call Saul was brilliant.  It was brilliant in many ways, but I am only going to focus on one for the purposes of this blog.  And that concerns a police tactic that I am all too familiar with, and that I wish many of my clients understood before they spoke with the police.  It's a tactic I'm not particularly thrilled with, since it is an attempt to circumvent the Constitution and hang a person by their own petard under the guise of "consent."

I'm about to talk about the details of the episode, so here is the mandatory SPOILER ALERT.  If you haven't seen the February 22, 2016 episode entitled, "Cobbler," and you've DVRed it or intend to catch one of the encore showings, don't read below.


I love Mike Ehrmantraut. We know from Breaking Bad that he is a former Philadelphia Police Officer who had his own trouble with the law.  He's not above profiting off of criminal activity.  But he's smart, and having been on the inside, he knows police tactics.

Enter Pryce, an employee at a pharmaceutical company who tries to make a little money on the side selling pharmaceutical grade drugs to street criminal Nacho Vargas.  In season one, Pryce hires Ehrmantraut to be his bodyguard for the drug exchanges.

Pryce gets a bargain in Erhmantraut, but doesn't realize it.  When Mike balks at going to a meet in Pryce's new gaudy Range Rover, Pryce fires him.  In his naivety, he then lets Vargas see his car, thereby giving Vargas the information he needs to rip Pryce off.  By the end of episode one, Pryce has reported a break-in at his house to the police because his beloved baseball card collection was stolen.  Of course, the police get suspicious of Pryce's car and the reason for the break-in.  When Pryce is out of the room, they find his hiding spot in the baseboard behind the couch.  But, of course, there is nothing they can do about it right then and there.

In episode two, we meet Pryce again as he comes to the police station for an interview with the police.  Unknowingly, he once again becomes the luckiest stupid criminal alive, as he runs into Mike, who is the parking lot attendant.  When Mike realizes why Pryce is there, he pulls him aside to tell him why he should not speak with the police.

As Mike explains, the police are suspicious.  At this point they have nothing.  So they invite Pryce in to speak with them voluntarily.  They intend to be friendly and lull him into a false sense of security.  Then they will pounce on him and try to get him to confess the illegal activity that made him the victim of the break-in in the first place.  Pryce is reluctant to believe this, but agrees to leave the station when Mike promises to get his baseball card collection back.

And that is the tactic I wish my clients understood.  I have met many people who have been invited to the police station just to talk.  The police promise, "look you're not in trouble.  We only want to understand what happened." They may even say, "If you did nothing wrong, you'd be doing yourself a favor."  If you go in, they proceed to ask questions for hours, wearing you down.  They hope you don't realize you can have a lawyer.  They may even say, "Hey, if you didn't do anything wrong, why do you need a lawyer."  And then the conversation continues . . .  voluntarily they claim.  At no time do they tell you that you can get up and leave.  And if you do, again they ask, "Why are you in a hurry?  We only want to understand what happened.  You're not in trouble now."  So you stay, and worn down, you give the police the confession they want. 

In court, statements from such an interview are difficult to suppress.  The police will claim that no one was under arrest, that the person was free to leave, he just chose to stay and tell us what happened. 

The moral of the story is quite frankly don't trust the police if they ask you to come in for a "voluntary" interview, and claim that you are not trouble.  In truth, they only do this when they suspect criminal activity, but have no proof that they can use in court.  They are looking to trick you into giving a confession without a lawyer present, and then claim that the constitutional rights do not apply because it was voluntary.  While you may believe you have anything to fear, in reality any such contact should only be done in the presence of a lawyer representing you.