Trump Emphasizes Enforcement Priorities; Prosecutorial Discretion Remains Intact

U.S. President Donald Trump did not appear to curb the authority of immigration officials to engage in prosecutorial discretion when he signed an executive order on immigration policy and internal security on January 25, 2017.  This observation was supported by morning proceedings before the Arlington Immigration Court on January 26, 2017.  An attorney for U.S. Immigration and Customs Enforcement (“ICE”) stated in open court that her agency had received no instructions not to accept applications for prosecutorial discretion.  Accordingly, in a number of cases, Immigration Judge Thomas Snow granted continuances to permit immigration attorneys to submit prosecutorial discretion requests to ICE on behalf of their clients.

The process of exercising prosecutorial discretion to administratively close removal cases pending in Immigration Court which were not high enforcement priorities was first instituted by President Barrack Obama in 2011.  President Obama noted the limited resources available to enforce U.S. immigration law, and instructed immigration authorities to concentrate those resources on certain priority cases.  Those priorities included aliens with a criminal history, who pose a threat to public safety or national security, and who recently violated immigration law by entering without inspection by a Customs authority. 

In a memorandum dated June 17, 2011, ICE Director John Morton formalized the policy of exercising prosecutorial discretion.  Morton listed numerous factors for immigration authorities to weigh, including the length of the alien’s presence in the United States, the circumstances of the alien’s arrival, the alien’s ties to the United States, such as education, family members and contributions to the community, and other humanitarian concerns such as the health of the alien or the alien’s U.S. relatives.  By exercising prosecutorial discretion in appropriate cases, ICE would agree to administratively close a pending removal case, essentially permitting an alien who was present in the United States in violation of immigration law to remain.

President Trump's executive order is entitled "Enhancing Public Safety in the Interior of the United States."  In the opening paragraph, President Trump emphasizes the importance of enforcing U.S. immigration law in the interior of the country, to safeguard national security and public safety.  The President outlines his enforcement priorities to include alien who: (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved;  (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security. These priorities are similar to those of the Obama Administration.

The President did not specifically mention prosecutorial discretion or the June 17, 2011 memorandum in his executive order.  However, the outlining of enforcement priorities lends credence to the conclusion that the ability of immigration authorities to exercise prosecutorial discretion remains in effect.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832

(571) 551-6069 (ESP)

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 

Imigration Reform Is Dead? How Did That Happen?

In less than a week, Republican House leadership went from revealing their principles for immigration reform to acknowledging that there was very little chance of passing reform this year.  Indeed, a few days after the proposal was revealed at a GOP legislative retreat, reform proponent Paul Ryan stated that the passage of reform was "clearly in doubt."  This was followed by House Speaker John Boehner declaring that passage of reform legislation would be "difficult" days later.

So what happened?  How did the fortunes of immigration reform legislation change so rapidly in sch a short period of time?

The Process Took Too Long

Strike while the iron is hot.  That's the conventional wisdom.  Use the momentum and advantage while you have it.

After the 2012 presidential election, the passage of immigration reform looked all but certain.  Even conservative talk show hosts, like Sean Hannity, stated that they had rethought immigration reform and supported a pathway to citizenship.

But, immigration reform was not the top priority either for the Administration or Congress.  Rather, the nation first had to face the crisis created by the so-called "fiscal cliff."

Once the crisis was settled, it became a race between a bipartisan committee from the House, which had been working on immigration reform behind the scenes since 2009, and the Senate "Gang of Eight."  According to The Hill, President Obama and Senator Chuck Schumer were not happy with concessions that House Democrats had made, and intervened with House Democrat Luis Gutierrez to slow the progress of the House bill in order to allow the Gang of Eight's bill to pass the Senate first, and thus shape the immigration debate.Once the Senate bill passed, momentum for the House bill died over the summer.

The Hill continues, reporting that two Texas Republicans, John Carter and Sam Johnson, were ready to introduce a bill in the House.  However, they received no commitment from Speaker Boehner.  Washington was then bogged down in the autumn, first by the situation in Syria, and then with the Government shut-down orchestrated by GOP tea party members.

By time Congress passed a new budget, opponents of immigration reform began to strengthen.  Tea party supporters were boosted within GOP ranks by their ability to shut down the Government.  By mid-November, Boehner was saying that there were not enough legislative days left in 2013 to address immigration reform.  Boehner ruled out going into a Conference Committee where the Senate bill would set the agenda.  Indeed, there was a fear among House Republicans that even if the House passed smaller bills on immigration reform that the Senate would use that as an opportunity to inject principles from the Senate bill into the resulting legislation.

When it appeared that the wheels were coming off of the Obamacare band wagon, House Republicans saw no reason to push for immigration reform in 2013.  Indeed, the momentum had shifted in Washington, placing Democrats on the defensive.

Republicans Don't Trust Obama

One theme that emerged from the demise of immigration reform last week was that House Republicans just don't trust President Obama.  The main issue is that of border security.  GOP leader had tried to sell reform to rank and file party members by promising that any pathway to legal status for undocumented aliens already present in the country would be tied to greater border security.  When conservative House Republicans voiced resistance to the leadership's principles, it prompted Boehner to say, "Listen, there’s widespread doubt about whether this administration can be trusted to enforce our laws."

If the President was trying to earn such trust, he had done himself no favors in the State of the Union Address.  There, he was seen as throwing the down the gauntlet, threatening unilateral executive action if Congress would not bend to his will in passing certain legislation in the remainder of the President's term.  Indeed, the President's reputation for acting unilaterally, and in the eyes of any conservatives unconstitutionally, on immigration issues is well-earned.  When Congress did not pass the DREAM Act, for example, the President responded by implementing his Deferred Action for Childhood Arrivals program unilaterally.  House Republicans fear that even if reform legislation included border security requirements, this President will simply refuse to enforce them.

Republicans Are Now Focused on the Mid-Term Elections

As I wrote last week, the Republicans are now very optimistic of winning control of both houses of Congress in the mid-term elections.  Democratic control of the Senate is in jeopardy, in part due to the continued unpopularity of Obamacare.  In the House, many GOP members are from "safe" districts, where the real electoral threat comes not from a Democratic challenger in the general election, but from a more conservative challenger in the primary election.

Many conservatives see supporting any immigration reform that includes any type of "amnesty" as political suicide.  Not only will it alienate more conservative voters, but it would only eventually add to the number of voters who support Democrats, as the undocumented aliens are overwhelmingly Latino.  Should the undocumented eventually become citizens, then the number of Latino voters will rise.  Given the huge majorities which Latinos gave the President in 2012, conservatives believe that adding so many Latino voters to the rolls will relegate the Republicans to a permanent minority party.

Democrats Couldn't Care Less if Immigration Reform Actually Passes

Meanwhile, Democrats are in no hurry to have immigration reform actually become law.  The reason is that it continues to give Democrats a political issue to bash Republicans over the head with in national elections.  Democrats can easily be seen as supporting immigration reform by pushing for legislation.  But, if the Republicans continue to oppose reform, Democrats can point the finger at the GOP and continue to use the issue to garner Latino and Asian support.

So Long as Republicans Have Legislative Power, Immigration Reform Remains in Doubt

The last time that immigration reform came close to passage, it was in 2006, when Republican George Bush was president, and the Republicans controlled both houses of Congress.  The Comprehensive Immigration Reform Act of 2006 included a guest worker program and a pathway to citizenship.  If Republicans really intended to pass reform, they had the political power to do so.  However, reform died in December of 2006, in the lame duck session, as many Republicans who has previously supported reform turned on the bill, in the wake of the Republicans 2006 electoral defeat.

Similar to the current political climate, conservatives who opposed reform gained momentum and worked to block passage.

Will Some Kind of Immigration Reform Pass this Year?

 There are certainly some optimists left in Washington on immigration reform.  Chuck Schumer has proposed, for example, enacting the legislation now, but delaying implementation until 2017.  The conventional wisdom, however, is that the prospects of passage is less than 50-50.  Considering that the 2016 presidential elections are on the horizon, if reform does not pass this year, it may be doubtful that it will pass until a new person is sworn in as Commander-in-Chief.  At this point, neither party appears eager to push for a quick resolution.

William J. Kovatch, Jr.
for an appointment, call (703) 837-8832
wkovatch@kovatchlegalservices.com

GOP Proposes Immigration Reform; Now What?

Last week, Republican leaders from the House of Representatives circulated a one page set of principles on immigration reform among rank and file members at a retreat in Cambridge, Massachusetts.  According to Time Magazine, the proposal included a pathway to legalization for undocumented aliens already present in the United States, provided border protection measures are taken and the undocumented meet certain criteria.

Time quotes that GOP leaders proposed that undocumented aliens "could live here legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families."  The Republicans principles did not include a pathway to citizenship, which the Washington Post reports may be an area where immigration reform advocates are willing to compromise.

Despite the support from Republican House leaders, whether immigration reform will even happen is "in doubt," according to Representative Paul Ryan.  Ryan has been the target of the ire of conservative talk show hosts for his support of immigration reform.  Ryan appeared on ABC's "This Week" on Sunday, stating, "Security first, no amnesty, then we might be able to get somewhere."  When asked specifically if Congress would pass an immigration reform bill this year, Ryan responded, "I really don't know the answer to that question. That's clearly in doubt."

After Mitt Romney's loss in the 2012 Presidential elections, the conventional wisdom was that the Republicans had to support some degree of immigration reform that included the granting of legal status to the undocumented aliens already present in the country if they were to remain competitive in national elections.  This was due to the overwhelming majorities that Latino and Asian voters gave the President.  What happened since then?

In truth, House Republicans are focused on the 2014 mid-term Congressional elections.  Most House Republicans come from "safe" districts, where the election of a Republican is almost certain.  Support for any immigration reform that can be seen as amnesty would more likely result in a credible challenge in the primaries, and not in the election of a Democrat.

Add to this situation the President's recent troubles with the cornerstone of his Administration: Obamacare.  With the program becoming increasingly unpopular, there is a real possibility that the Republicans may be able to take the Senate in the mid-term elections too.

Last week, talk show host Rush Limbaugh questioned why the Republicans would push for any immigration reform that includes so-called "amnesty."  Citing an article from the Politico, Limbaugh noted that Democrat may even be conceding control of the House to the Republicans in order to concentrate electoral resources on saving the Senate.  Limbaugh speculated that if the Republicans were poised to have such electoral success in 2014, the only way to derail that success now is if the party pushed for immigration reform.  Specifically, Limbaugh claimed that if Republicans supported "amnesty," that would likely cause faithful Republican voters to stay home on election day.

With this political climate, then, the passage of immigration reform, which seemed to be a sure thing in late 2012, early 2013, is not a sure thing.  Those who may have been waiting to see if reform would pass instead of acting on legal possibilities now may be well advised to re-think that strategy.

To discuss what possibilities may be available under the law, call now for an appointment.

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

Immigration Reform Passes Senate; What Will Happen in the House?

On June 27, 2013, immigration reform passed the Senate by an overwhelming 68-32 vote.  The bill which passed the Senate was broad set of reforms, from asylum law changes to the creation of immigration benefits for a broad set of people currently present in the country without status.  The most controversial portion of the bill appears to be the creation of the Registered Provisional Immigrant status, which provides legal status to alien present in the country since on or before December 31, 2011.

Reform now faces a tough test in the House of Representatives, which is controlled by the Republicans.  The Chairman of the Republican National Committee, Reince Priebus, has stated that the country needs comprehensive immigration reform. Speaker of the House, John Boehner, however, has made it clear that the House will not simply take up the Senate bill and vote on it.  Instead, the House will craft its own bill, based on the leanings of Republican majority.  Some analysts believe the House will pass a series of smaller bills, each addressing a discrete topic of immigration reform.  Other believe that the House will pass a comprehensive bill, and will send the issue to a joint committee with the Senate to negotiate a compromise.

One of the biggest sticking points for House Republicans could be the Registered Provisional Immigrant status, which some view as amnesty for illegal actions.  Of course, Republicans may pressure to find a way to appeal to Latino voters, who voted for President Obama in the last election at a ratio of 3 to 1.

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

What is Registered Provisional Immigrant Status?

With a vote coming up in the Senate, one of the hot topics in Washington is immigration reform.  While passage of immigration reform is by no means guaranteed, even critics of current reform bill, such as Rush Limbaugh, believe that passage in the Senate is likely.  It is prudent, therefore, to prepare for the passage of immigration reform, and in particular the creation of a new immigration benefit, Registered Provisional Immigrant.

Under the current bill (click here for the text of the Senate bill, S. 744), Registered Provisional Immigrant, or RPI, status can be granted to those who are already present in the country illegally.   

The current qualificationsfor RPI status are that the applicant:

• have been present on or before December 31, 2011;
• have continuous physical presence in the United States since December 31, 2011;
• pay a $500 fine along with the filing fee for the application;
• pay all taxes due;
• not have been convicted of an aggravated felon as defined by U.S. immigration law, any other felony, three of more misdemeanors, an offense in a foreign country that would otherwise render the applicant inadmissible under U.S. immigration law, or unlawful voting;
• is not a threat to national security;
• does not have a communicable disease such as tuberculosis;
• is of good moral character.

Dependent spouses and children of the applicant may also be eligible.

While the bill has not passed, potential applicants would be prudent to start collecting documentation necessary to prove eligibility.  This is of particular importance because the bill contains a deadline of one year from the date of the publication of the application procedures in the Federal Register in order to make the application.

What documents are you likely to need?  At this time, there is no definitive list.  However, using other programs as a guide, certain requirements can be expected:

•  Proof of identity:  birth certificates, passports, documento unico de indentidad (DUI)
• Proof of physical presence:  official mail such as utility bills, tax records, school records, church records, leases, marriage certificates (if married in the United States), birth certificates of children born in the United States
• Proof of taxes paid: tax returns, W-2 forms, 1099 forms, employment records
• Criminal issues: criminal background reports from your local police, criminal background reports from the FBI, criminal background reports from your home country, certified copies of all judgments and proof of completion of sentence (including any proof of payment of fines, fees or restitution)
• Good moral character:  letters from friends, relatives, employers, religious leaders

Those who qualify for RPI status will be eligible to apply for full permanent residency after 10 years.

By:  William J. Kovatch, Jr.

info@kovatchimmigrationlaw.com

(703) 837-8832