Federal Judge Violates Separation of Powers to Issue an Opinion on Separation of Powers

From The New York Times to The Washington Times to CNN, headlines about the case of United States v. Juarez-Escobar all emphasized that a federal judge had found President Obama's immigration program unconstitutional.  Upon reading the articles, none of the major news outlets asked the question, how could a program that was announced less than a month ago and that not yet been implemented ever come to a point this quickly where a federal judge is issuing an opinion on it?

Keep in mind that Article III of the Constitution provides that the judicial power of the United States extends to cases arising under the Constitution and the laws of the United States.  That is, unlike some other countries, the U.S. federal courts cannot issue an opinion on a law or police ad hoc.  There must be an actual case or controversy before them; a party must actually be aggrieved by some action.

So what is the case or controversy involved in Juarez-Escobar?  The case involved a man who was ordered deported in 2005.  He left the United States, but returned without obtaining a visa to work with his brother, who is a U.S. citizen.  The man has a U.S. citizen child.  He was pulled over in Western Pennsylvania for driving under the influence.  While in state custody, the Federal Government was informed of his incarceration.  He was criminally charged in the U.S. District Court for the Western District of Pennsylvania with re-entering the United States after having been deported without a proper visa.  After first pleading not guilty, the defendant changed his plea to guilty and was in the process of being sentenced by the court.  The court was about to follow its own practice of sentencing the defendant to time served plus one year of supervised probation with an order that the defendant obtain a proper visa before re-entering the United States.  The change of plea hearing took place in October of 2014.  Before the court passed sentence, President Obama made his announcement of the deferred action program for parents of U.S. citizens.  A few days later, on its own motion, the court requested briefing on how the President's program would affect the defendant's case.

It was in this posture that the court issued its opinion that the President's program was unconstitutional because it violated separation of powers.

The problem here is that issues of whether a particular defendant would be deported or whether they qualify for some form of immigration relief never go before a U.S. District Court.  Almost all immigration matters are appealed to the U.S. Circuit Courts directly from the administrative agency in charge of making the decision.  The only exceptions are cases where the Government denies a petition for naturalization (citizenship) or when the Government has taken so long to issue its decision that a party finds it necessary to seek a Writ of Mandamus.  U.S District Courts, in the context of a criminal sentencing, just do not have jurisdiction to consider immigration relief.  Indeed, in this very opinion the judge recognizes that he would have no jurisdiction to pass on issues of whether a defendant would qualify for some sort of immigration relief.

More troubling is that deferred action is a matter of pure discretion by the Executive Branch.  That is, no one has a right to receive deferred action.  It can be denied by the Executive Branch for any reason.  Thus, because no one has a right to deferred action, no one can sue the Government if deferred action is denied.

The fact that President Obama had announced his intention to grant deferred action to a number of parents of U.S. citizens or permanent residents, therefore, had no relevance to the sentencing of the defendant in Juarez-Escobar.  It is not an issue that a U.S. District Judge would have any jurisdiction to address.  Accordingly, the U.S. District Judge in this case, Arthur J. Schwab simply had no power or authority to issue this opinion.  Indeed, the opinion itself will have no legal effect beyond the case before the court.  Indeed, inexplicably, after writing an elaborate opinion finding the deferred action program unconstitutional, Judge Schwab then gives the defendant an opportunity to withdraw his guilty pea in order to consider if he would want to apply for the very program the judge found unconstitutional.

Why them would Judge Schwab, a Bush appointee, issue such an opinion?  The ultimate action by the court could have been accomplished very simply.  The court could simply have ordered that in light of the pending Executive action, the defendant could consider whether to withdraw his guilty plea and leave it at that.  The fourteen pages of the opinion which analyze the President's action in light of the Doctrine of Separation of Powers simply had no bearing on the court's ultimate action.  This leads to the inescapable conclusion that Judge Schwab issued this opinion for purely political reasons.

And thus, we are left with the ultimate irony in this case.  In order to find that the President violated Separation of Powers, the judge himself had to violate Separation of Powers and issue an opinion on a topic over which he had no jurisdiction. 

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

Memorandum Supporting President's Deferred Action Program

The White House released the memorandum written by the Justice Department detailing the legal support for his deferred action program.  Through this memorandum, President Obama's legal counsel provides analysis on whether it is permissions for: (1) the Department of Homeland Security to prioritize its resources to target undocumented aliens who are criminals; (2) the President to issue deferred action to parents of U.S. citizens and permanent residents; and (3) the President to issue deferred action to parents of DACA recipients.

 

Interestingly, the Justice Department concludes that while it is permissible to issue deferred action to the parents of U.S. citizens and permanent residents, it would not be permissible to do so for parents of DACA recipients.  The distinction appears to lie in the fact that U.S. citizens and permanent residents have a legal status, whereas DACA recipients do not.

 

The release of this memorandum would seem to indicate that the President will not expand his deferred action program to cover the parents of DACA recipients later, as some have surmised.  To do so would clearly contradict the advice from his own Justice Department.

 

It is also interesting to note that this memorandum does not cover the spouses of U.S. citizens or permanent residents.  This is not to say that such undocumented aliens would be ineligible to receive deferred action, merely that this memorandum, and presumably the President's program, will not cover such aliens at this time.

 

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

Wkovatch@kovatchlegalservices.comn

Procedures for the President's Immigration Action Not Yet in Place

The President announced that the spouses and parents of U.S. citizens and permanent residents who have been in the United States for five years, pass a background check, and pay their taxes can qualify for deferred action. At this time, USCIS reports that there are no procedures to apply for this program.  We at William J. Kovatch, Jr., Attorney at Law, PLLC expect the application process to be much like the Deferred Action for Childhood Arrivals (DACA) program. Before the procedures are adopted, we will be accepting consultation appointments where we will take the information we believe will be necessary to apply for this deferred action and discussing whether you should apply.  We will use that information to fill out the forms, once they are adopted.

Call for an appointment: (703) 837-8832
(571) 551-6069 (ESP)

Graphic on the President's Immigration Program

Obama, Daring Congress, Acts to Overhaul Immigration

From the New York Times, a report on the President's announcement on immigration.

President Obama's Speech on Immigration, November 20, 2014

President to Make Immigration Announcement

It is being reported the President Obama will make a prime time announcement concerning immigration policy on Thursday, November 20.  The announcement is expected to include a program to shield many undocumented aliens already present in the United States from deportation.

The most likely vehicle for this will be an expansion of the deferred action program.  Deferred action is simply a promise from the U.S. Government that it will not deport a person.  A person granted deferred action can apply for work authorization.

At William J. Kovatch, Jr., Attorney at Law, PLLC, we stand ready to assist those who may benefit from the President's announcement.  To make an appointment to determine if you qualify, call us at (703) 837-8832.

En espanol, llame (571) 551-6069.

By:  William J. Kovatch, Jr.
(703) 837-8832
(571) 551-6069 (esp)
wkovatch@kovatchlegalservices.com

Can the Republicans Derail Administrative Action on Immigration?

The rumors are that President Obama will announce some kind of administrative action to address the large numbers of undocumented aliens already living in the United States.  What will that action be?  While at this point we can only speculate, the best educated guess is that it will be some type of expanded deferred action program, like the one the President adopted for undocumented aliens who were brought to the United States as children.  How broadly the program will cover remains to be seen.

Republicans, emboldened by their victories in the November mid-term elections, are warning that any executive action on the issue of immigration will meet with fierce legislative resistance.  The question, however, is just what can congressional Republicans do to derail any administrative action?

The President's safest bet would be to expand his Deferred Action for Childhood Arrivals, or DACA, program.  Deferred action is not really a legal immigration status.  It is merely a promise by the Government that it will not deport someone.  Deferred action is already built into the law.  The President can grant deferred action on a case-by-case basis.  Once deferred action has been granted, the law permits the alien to apply for work authorization.  Thus, while it is not a real legal status, and cannot lead to permanent residency or citizenship, it can allow an undocumented alien the ability to work and earn money legally.

There has been a lot of talk of impeachment.  That is, if the President were to act alone and announce such a broad-based deferred action program, some Republicans believe that there would be grounds to impeach the President.  The argument is that the President would be acting contrary to law by failing to enforce it.

Impeachment, however, would be a tough sell for Republican law makers.  First, as stated above, the law gives the President the discretion on a case-by-case basis to grant deferred action.  It has traditionally been a vehicle used for humanitarian purposes.  Nothing in the law says that the President cannot define a set of criteria on which he would grant deferred action.  Thus, on a purely legal basis, impeachment is on shaky grounds to begin with.

At any rate, a Republican-led House of Representatives has already impeached the last Democratic president, Bill Clinton.  While the grounds for Clinton's impeachment may have had sounder legal grounding (perjury by the chief executive officer in a sworn deposition of a pending lawsuit), the fact is that Republicans would have an image problem if they were to impeach two Democratic presidents in a row.  That is, it would leave the Republicans open to the charge of being willing to undermine the democratic process, instead of working together towards a solution to the nation's immigration problem.  (To those who would argue that the President is the one ignoring the democratic process by acting alone, it should be noted that the Republican-led House of Representatives has had numerous chances over the course of the past two years to propose and pass a serious immigration reform package.  They have failed to do so.)

The next strategy that appears to be gaining popularity is simply to de-fund the President's program.  This solution, some argue, would not require a shut-down of the Government, because the Republicans can just pass a continuing resolution that contains all of the funds necessary to have the Government operate, minus the funds needed to operate the President's program.

This strategy has two fatal flaws.  First, it fails to recognize how U.S. Citizenship and Immigration Services ("USCIS"), the agency that would be charged with administering any program the President adopts, is funded.  USCIS is not funded as a line item in the budget.  To the contrary, USCIS is funded through user files.  That is, every petition or application for an immigration benefit involves some sort of filing fee.  As it is, those filing fees are pretty high.  To become a permanent resident, for example, involves filings fees of almost $1,500.

All DACA applicants had to pay a filing fee of $465.  That included the cost of processing the DACA application itself, the work authorization application and the background check.  Thus, so long as the Administration sets the filing fee at an appropriate level, what Congress does with the budget will have little impact on the President's program.

The second problem with de-funding the President's program is that it assumes that the President will sit back and let it happen.  In our republic, all legislation, including the budget, has to be passed by both houses of Congress and signed by the President.  Bills concerning spending must originate in the House of Representatives.  But, if the House passes a continuing resolution that funds some, but not all, of the Government, the President could veto it.  The House tried this a year ago in an effort to de-fund Obamacare.  In the end, it didn't work.  Worse yet, the Republicans were politically damaged and had to spend the next few months repairing the damage before the November elections.  (It is important to note  that redistricting played a huge role in the Republican electoral victory.  That is, state legislatures redrew congressional districts in such a way as to create a large number of districts with very conservative majorities.  The result was that many very conservative candidates did well in the primaries and rode the redistricting wave to victory in the general election.  In a presidential election, the Republicans will have to face a national electorate, which will not likely be as conservative as the smaller congressional races.)

In the end, there may be very little the Republicans can do to prevent the President from implementing a carefully constructed program to address the presence of undocumented aliens.  The risks to the Republicans are great, considering the national electorate they will face in the 2016 elections.  A better course may be for the Republicans to offer a constructive counter-solution, one that involves more than simply building bigger walls and a push for indiscriminate deportations.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Harsh Republican Action May Spur Administrative Response on Immigration

In a move largely seen as pandering to Tea Party activists, House Republicans passed a bill Friday that would increase funding for border security and attempt to send the tens of thousands of unaccompanied minors attempting to enter the United States over the southern border back to their home countries expeditiously. House Republicans also took action to undo President Obama's Deferred Action for Childhood Arrivals (DACA) program. 

The move appears to be a purely symbolic one, since the bill has no chance of passing the Democratically controlled Senate. Still, House Republicans have sent a signal that they may not be willing to consider serious immigration reform. 

In a purely political calculation, House Republicans may see a greater threat from more conservative candidates in the primaries than from Democrats in the general election. The stunning primary loss of Eric Cantor has only emphasized this line of thinking. This, House Republivans do not appear to be willing to be seen as supporting anything closer to "amnesty" prior to the November elections. 

The House move, however, may have encouraged the Obama Administration to take drastic measures on its own. Democrats are already facing the prospect of the Republic as maintaining their majority in the House of Representatives. There is a possibility that the Republicans could take the Senate as well. Either way, the chances of legislative action on immigration reform before the end of President Obama's term appear almost non-existent. 

The President may, therefore, take executive action to ease deportations and removals for non-criminal undocumented aliens. One proposal that has been floated has been to grant the parents of DACA recipients deferred action. Another has been to grant deferred action to all undocumented aliens without a criminal record. 

The Administration appears to have anticipated the argument that such a move would be overreaching. Articles have already appeared in the media warning that Republicans may seek to initiate impeacent proceedings if the President takes such action. This could be an attempt to portray Republican resistance as being unreasonable. 

What action may happen is now hard to predict. William J. Kovatch, Jr., Attorney at Law, PLLC will remain on top of decelopments, ready to assist those with immigration issues when any action occurs. 

By:  William J. Kovatch, Jr.

(703) 837-8832

Wkovatch@kovatchlegalservices.com

Deferred Action for Childhood Arrivals Update

U.S. Citizenship and Immigration Services published the most recent statistics on the Deferred Action for Childhood Arrivals program.  As of January 17, 2013, USCIS had received 407,899 applications.  Of those applications, 13,366 were initially rejected.  This means that there was a problem with the application itself, such as missing documents or missing fees.  Of the remaining 394,533 applications, 154,404 have been approved.  USCIS does not release statistics on how many applications are denied.  Therefore, it is not known whether the remaining 240,000 applications are still pending or have been denied.

USCIS also does not publish statistics on how long it takes to process the deferred action applications.  From my experience, I can say that I have made applications in October which remain pending.  y advice with respect to visa petitions has been to expect about six to eight months before receiving a decision.  At this point, the applications I have made have not reached the six to eight month mark.

Applications peaked in September and October of 2012, and have steadily dropped off since then.  However, applications for deferred action are still being accepted.  More information about the Deferred Action for Childhood Arrivals can be found on my web page.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

DREAMers Asking Schools for Transcripts

Schools across the country are experiencing an increase in transcript request.  In this article, one Minnesota school district has even waived the $15 transcript fee so it an help undocumented aliens get the evidence they need to apply for deferred action for childhood arrivals (DREAMers).

http://minnesota.publicradio.org/display/web/2012/09/25/social-issue/deferred-action-young-immigrants-request-school-records/

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

Deferred Action for Childhood Arrivals (DREAMers) Intake Form

Deferred Action for Childhood Arrivals (DREAMers) Intake Form, Click Here

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

DREAMers Not Entitled to Health Insurance Subsidies

According to the New York Times, those who received deferred action for childhood arrivals (DREAMers) will not be eligible for federal subsidies to buy health insurance.

http://www.nytimes.com/2012/09/18/health/policy/limits-placed-on-immigrants-in-health-care-law.html?pagewanted=all&_moc.semityn.www

Updated Information for DREAMers (Deferred Action for Childhood Arrivals)

USCIS recently updated its Frequently Asked Questions on the deferred action for Childhood Arrivals (DREAMers) program.

The highlights:

You cannot travel outside of the United States after August 15, 2012 and still be considered for deferred action.  Once deferred action is granted, travel abroad is not automatic.  You will need to apply for advance parole before leaving.

You do not need to document each and every day of continued presence.  Affidavits can be used to explain any gaps in formal documentation of your presence.  But, you must submit two or more affidavits from people who have direct, personal knowledge of your presence in the United States.

You may need to provide evidence from your employer.  USCIS promises:  "This information will not be shared with ICE for civil immigration enforcement purposes pursuant to INA section 274A unless there is evidence of egregious violations of criminal statutes or widespread abuses."  Two things to note on this one.  First, this is just a promise, and not law.  Second, USCIS says it will share information with ICE in cases showing that the employer engaged in eggregious violations of the law.

Here is the website:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCRD&vgnextchannel=3a4dbc4b04499310VgnVCM100000082ca60aRCRD

Can Facebook Entries Help Applicants for Deferred Action for Childhood Arrivals (DREAMers)?

This Washington Post article hints at a possible creative solution for those who apply for deferred action for childhood arrivals (DREAMers), and who need proof of physical presence: Facebook pages.

Applicants must show five years of physical presence before June 15, 2012, as well as physical presence on June 15, 2012 and at the date of filing.  For some undocumented aliens, there may not be any official records or even mail to prove your physical presence.

Facebook, however, has a function that allows you to "check-in" at certain places.  If you use a mobile device with a GPS locator, Facebook finds where you are, and posts it for you when you check-in.  If you had a habit of "checking-in" over a course of time, and the places where you check-in are in the United States, then perhaps your Facebook account can be proof of physical presence in the United States.

There is no guarantee that the Government will accept such proof. There is an argument that this creates the potential for fraud.  Sure, you could give your cell phone to a friend and have that friend "check-in" for you.  Of course, for this to have been fraud, you would have had to have planned for the Administration to come up with this program years ago, and made a conscious effort to have others "check-in" just to show your physical presence. 

On the other hand, using Facebook as evidence can be a double-edge sword.  First, if you happened to have left the United States and checked in the last five years, the Government will see that.  Also, if you have posted things that you are not proud of, like an urging to violently overthrow some government, or admitting to the elements of some crime even if you were never convicted, then the Government will know that too.  If you are going to use Facebook as evidence, be careful to look through your posts carefully.

Nonetheless, I have been warning people for years that the Government does look at your Facebook accounts.  In marriage visa petitions, for example, if the Government were to see that the intending immigrant actually lists their status as "single," well, that can be a problem.


In the absence of other evidence, though, I have learned that at times you have to be creative.  I have seen Facebook posts used in criminal cases successfully (for example, showing that an injury that is the subject of a criminal charge was actually present in a photo posted on Facebook before the alleged assault happened).  Perhaps it could be used successfully in immigration cases as well.

http://www.washingtonpost.com/local/documentation-for-deferred-action-leads-to-confusion-among-illegal-immigrants/2012/09/13/25faa7ce-fb71-11e1-b153-218509a954e1_story.html

Informational Video on Deferred Action for Childhood Arrivals (DREAMers)

Work Permits to DREAMERS Being Distributed

According to the Los Angeles Times, the first of the work permits to those young persons who applied for deferred action under the President's new program (called deferred action for DREAMERS or deferred action for childhood arrivals) are being mailed to those applicants who filed last month.  This turn around time is less than a month so far.

http://www.latimes.com/news/nation/nationnow/la-na-nn-illegal-immigrants-reprieve-20120912,0,4043540.story

Young DREAMERS Skeptical about Deferred Action

Here's another article, this one from the Wall Street Journal, noting that those who would benefit from the deferred action for DREAMERS program are suspicious. They have concerns about the information they are asked to disclose, and about what will happen after the elections. All are valid concerns I believe. As a result, the number of people applying is much lower than expected.

I do believe that people who are currently in removal proceedings have nothing to lose from applying. After all, the worst has already happened -- they are already in removal/deportation proceedings.

http://online.wsj.com/article/SB10000872396390444100404577641961971678728.html

Deferred Action for DREAMERS: No Guarantees Past November

This article from the Huffington Post makes a good point, and one I've been making since June.  Deferred Action for young people, or DREAMERS, is not law.  It is an exercise of discretion.  As such, there is no guarantee that it would continue if a new administration is elected.  In fact, those who are applying now should be aware that if there is a new administration, there is always the possibility that the program will be immediately terminated along with any employment authorizations issued under the program.

http://www.huffingtonpost.com/2012/08/16/deferred-action-romney-continuation_n_1790997.html

Deferred Action: What About the Parents?

The President's new program promises deferred action and possibly work authorization for certain young people who are in the United States without legal immigration status.  But, the program raises a question.  What about the parents of the young people?

The deferred action program, also known as deferred action for Dreamers, applies to people brought into this country before age 16, who are under 31, and who have been in the United States for five years as of June 15, 2012.  Certainly, among those who qualify will be minor children.  If that is the case, can the Government ignore their parents?

To answer this, it is necessary too understand exactly what this program is.  The deferred action program is not law.  The DREAM Act has not been passed.  The President has no power to grant legal status to the young people who qualify for this program.  This is an exercise of discretion.

One way to think of it is to think of the police officer who observes illegal behavior on his beat.  The police have the authority to arrest anyone they see who commits a crime.  But, quite frankly, if the police were to do that, we would quickly run out of jail space.  Well-trained police also know that sometimes, people break the law for stupid reasons, and they may not be dangerous criminals.  So, the police exercise discretion.  They do not always arrest every single law breaker they come across.

The same concept applies to the immigration system.  Even though there are millions of people who are in violation of immigration law, the Government is not under a duty to enforce the law with respect to everyone.  Quite frankly, if ever undocumented alien were detained and placed in removal/deportation proceedings, we would quickly run of resources.  There are simply not enough immigration judges, ICE attorneys or detention facilities to enforce the immigration laws on every undocumented alien.

So, the Government has to choose against whom it will enforce the law.  That is, it exercises discretion.  Some cases are easy.  Violent criminals, drug dealers and gang bangers are all top priorities for ICE, and well they should be.  But, what about those people who came here simply to try for a better life, and to send money home to their families.  Yes, technically they are breaking the law.  But, if these are peaceful people, who do not break criminal laws, then ICE considers them low priorities.

There are also humanitarian reasons why the Government may not enforce the law.  Think of the mother of a new born baby.  If the baby was born in the United States, the baby is a U.S. citizen.  In my experience, I have found ICE reluctant to institute removal proceedings against the mothers of newborn U.S. citizens.

These concepts all tie back to the current deferred action program.  The President has established a set of criteria to identify people to whom he wants to exercise his discretion not to deport.  But, this does not mean that this is the only set of people who will ever qualify for deferred action.  The Government has the authority to grant deferred action to any person who is in the country without a valid legal status.  Just because you don't meet all of the criteria in this particular program, does not mean that there is no hope.

And that is where the humanitarian reasons come to play.  Let's say you have a child who came to the United States at age three.  Now the child is nine.  That child is enrolled in school, and presently in the United States.  That child can qualify for deferred action.  But, how is that child to be supported?  Who is going to pay for the child's food, housing and medical bills?  The most obvious answer is the child's parents.  It is for this reason, that I believe that the undocumented parents of such children may still qualify for deferred action, but in their own right and not under this particular program.  Quite frankly, if the child is going to apply, the Government will already have the address of the family on file.  Unless we are talking about criminal issues or security problems, I don't see much more of a risk for the parents to request deferred action too.

But how do you apply?  The old guidelines for applying for deferred action held that you applied to the District Director.  And perhaps that is still the right answer.  However, I have made one application for a person ho did not meet all of the qualifications, arguing that the general policy should still protect my client.  I made the application before the new policy procedures were announced.  I got a phone call from USCIS on August 16, telling me that now that the new procedures have been issued, that I should re-apply, but this time using those procedures.  Using that as my guide, I would make the application for the parents through the same procedures, but make sure it is clear that we are not applying under the President's specific guideline.  Rather, we are applying based on the President's inherent authority to grant deferred action to any undocumented alien.  Check in later, and I'll let you know how it works out.