Ramifications of White House Green Card Ban

On April 22, 2020, President Donald Trump signed a presidential proclamation suspending the entry of aliens who are outside of the United States, and who either do not currently have a valid immigrant visa, or who do not have an official travel document permitting that alien to travel to the United States.  An immigrant visa is one that permits an alien to live in the United States permanently.  Such immigrants are legal permanent residents, or, colloquially, are said to hold a green card.  The proclamation is effective April 23, 2020 at 11:59pm, eastern daylight savings time.

President issued this proclamation in response to the COVID-19 crisis.  As of April 21, 2020, the Centers for Disease Control and Prevention state that there are currently 802,583 cases of COVID-19 in the United States.  The disease has caused 44,575 U.S. deaths.

To slow the spread of the disease, the vast majority of states have issued stay-at-home orders, closing non-essential businesses.  As a result, over 22 million people have filed for unemployment benefits.  Trump has expressed his desire to begin re-opening the country, and putting people back to work.  He claims that the proclamation banning new green cards is necessary to protect the jobs of those Americans currently out of work.

On one hand, the White House has tailored this proclamation somewhat narrowly.  The green card ban does not affect doctors, nurses, healthcare workers and medical researchers working on combatting the spread of COVID-19, or their spouses and children under age twenty-one.  Certain family-based immigrants also escape Trump's green card ban.  They include: (1) spouses of U.S. citizens; (2) children, under age 21, of U.S. citizens; (3) prospective adoptees of U.S. citizens; (4) members of the U.S. Armed Forces; and (5) spouses and children of U.S. Armed Forces members.

Other immigrants not affected by the ban are: (1) foreign investors (these are foreigners who have either invested $1 million in the United States and employ ten people, or invested $500,000 in a distressed area and employ five people); (2) Iraqi and Afghani translators; (3) Iraqis and Afghanis who provided special services to the U.S. Government; (4) aliens whose entry would be in the national interest of the United States.

The ban does not affect those who already possess an immigrant visa, or those who are in the United States and applying for an immigrant visa.  Thus, an H-1B specialty worker, that is, an alien worker with a temporary employment visa whose job requires a bachelor's degree at a minimum, may still apply for an immigrant visa. There is a question, however, of whether such aliens may leave the United States, have their green card issued at a consulate in a foreign country and return to the United States.  If legally possible, such aliens may want to try to adjust to status while still present in the United States.

The ban also does not affect those currently in removal proceedings in the United States, or people who are seeking asylum, withholding of removal, or protection pursuant to the Convention Against Torture.  Moreover, law enforcement agencies may still request that individuals necessary for their objectives be permitted to enter the United States.

This is due to the limits to the president's immigration power.  In 2018, the Supreme Court held, in the case of Trump v. Hawaii, that the president has broad powers to suspend the entry of aliens who are trying to come into the United States.  With respect to aliens already present in the United States, Article I of the U.S. Constitution gives Congress the power to regulate immigration and nationality.

In the introduction to the proclamation, Trump notes that while the U.S. Department of Labor  is responsible for issuing labor certifications, such certifications take time to adjudicate, and therefore do not reflect the current U.S. labor market.  A labor certification is a determination that there are no U.S. workers who are ready, willing and able to accept a specific job with a U.S. employer.  U.S. employers must obtain a labor certification before petitioning for an alien worker to receive an employment-based visa.  The employer is required to demonstrate, by engaging in certain recruitment methods, that it is not able to fill a needed position with a U.S. worker.  It is a challenging and rigorous process, that can take over a year for the Labor Department to grant.

The proclamation is set to expire sixty days after the effective date.  However, it may be extended as necessary.

The President has further called on the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, other measures that may be appropriate to stimulate the U.S. economy, ensuring that U.S. workers get priority.  This may mean that while temporary employment visas are unaffected by this proclamation, such visas in the future may be subject to restriction.

By: William J. Kovatch, Jr.

References

Proclamation Suspending Entry of Immigrants Who May Present a Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak (April 22, 2020).

Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018).

Centers for Disease Control and Prevention, "Coronavirus Disease 2019."

Chapman, Steve, "Trump's immigration ban won't help fight COVID-19," Chicago Tribune (April 22, 2020).

Chalfant, Morgan and Bernal, Rafael, "Trump signs executive order limiting immigration," The Hill (April 22, 2020).

Kapur, Shahil, "Trump Halts Immigration for 60 Days.  Here's What the President's Order Means," NBC News (April 22, 2020).

Perper, Rosie, "Trumps signs executive order suspending immigration into the U.S. for 60 days," Business Insider (April 22, 2020).

Williams, Pete, "Does Trump have the authority to halt immigration?", NBC News (April 21, 2020).

Immigration Court Decision Concerning the Return to Mexico Program Raises More Questions than it Answers

On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program.  The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens."  The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.

The decision, however, raises more questions than it answers.

The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum.  Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings.  In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview. 

President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings.  Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.

Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview.  If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge.  Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.

The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA.  That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings.  This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.

Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court.  Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension. 

Currently, the MPP is subject to litigation in federal court.  Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception.  The Government replies that it has discretion on whether to apply expedited removal.  If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.

The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP.  Indeed, Immigration Courts lack the authority to address such litigation.  Immigration Courts are not part of the Judiciary Branch of Government.  They are instead more akin to administrative courts, and are part of the Executive Branch.  As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.

The Immigration Judge did address a different issue raised by the MPP.  Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien.  An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border.  The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States.  That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory.  This is a separate category of aliens.  The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States.  Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.

However, the Immigration Judge noted that it was a court of limited authority.  The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico.  The only authority it had was to terminate the removal proceedings, without prejudice.  This means that the Government could refile the Notice to Appear and being new removal proceedings.  But the court could not order that the Government do so.

Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers.  It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States.  Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings.  Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights.  The ultimate success of such litigation remains in doubt.

Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals.  The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.

By: William J. Kovatch, Jr.

Are Expedited Removal Orders Reviewable by the Courts?

On Friday, October 18, 2019, the U.S. Supreme Court agreed to hear an appeal to determine whether expedited removal orders are ever reviewable by federal courts.  The case is Thuraissigiam v. U.S. Department of Homeland Security, No 18-55313 (March 17, 2019). 

Decided by the Ninth Circuit Court of Appeals, the case involves a citizen of Sri Lanka who was apprehended in the United States 25 yards from the U.S.-Mexican border.  Undocumented, Thuraissigiam was issued an expedited removal order.  However, he claimed a fear of persecution if returned to his home country.  Accordingly, an asylum officer conducted a credible fear interview, to see if he had a basis to file an asylum application.  The asylum officer found no credible fear.  This was affirmed by a supervisor, and then an Immigration Judge.  Thuraissigiam filed for a habeas corpus review in the U.S. District Court, which was denied on jurisdictional grounds.  The U.S. Court of Appeals heard the case, and found that the law creating expedited removal was unconstitutional, because it violated the Suspension Clause of the U.S. Constitution.

There is a lot there to unpack.  Starting with expedited removal, Congress passed a statute providing that any alien who arrives at a port of entry without proper documentation, or with documentation based on fraud, could be order removed from the United States in an expedited fashion without resorting to the Immigration Courts.  This expedited removal can apply to any alien who is apprehended within 100 miles of the border, who cannot prove that he or she has been in the United States for greater than two weeks.  An officer from Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) may issue the expedited removal order, and summarily remove the alien from the United States, without permitting the alien a hearing before an Immigration Judge.  The law provides that an order of expedited removal is not directly reviewable by any federal court.  Moreover, habeas corpus review is limited by statute to three situations:  (1) where the alien claims he or she is a citizen; (2) whether an expedited removal order was in fact issued covering the alien (that is, only whether the order was issued may be reviewed, and not the substance of the order itself); and (3) whether the alien is a permanent resident or possesses some other legal status that exempts him or her from expedited removal.

When the Government issues an expedited removal order, the alien may still avoid removal if he or she claims that he or she fears persecution if returned to his or her home country.  Under these circumstances, the Government is legally obligated to conduct a credible fear interview.  An asylum officer conducts an interview with the alien to determine whether he or she has a credible basis to file an asylum petition.  If the asylum officer finds that the alien has a credible fear, the alien is then placed in regular removal proceedings, where he or she will have an opportunity to file an asylum application and have it adjudicated before an Immigration Judge.  If the asylum officer finds no credible fear, then the decision is reviewed by a supervisor.  If a supervisor affirms the decision, the alien may have the credible fear determination reviewed by an Immigration Judge.  That review must take place as soon as possible, and efforts must be taken to try to adjudicate whether the alien has a credible fear within twenty-four hours of the asylum officer's decision.  If the Immigration Judge finds a credible fear, the alien is placed in removal proceedings for full adjudication.  If the Immigration Judge finds no credible fear, then the expedited removal order stands, and the alien is removed from the United States.  There is no direct appeal from the Immigration Judge in this situation, and a habeas corpus review, as discussed earlier, is only available in limited circumstances. 

Returning to the case at hand, Thuraissigiam filed for a habeas corpus review after the Immigration Judge found that there was no credible fear.  A habeas corpus review is one where a person challenges the legality of a physical detention by the Government.  It is a type of review that is available in addition to the direct review of a judgment.  Habeas corpus proceedings most often come into play after a criminal conviction, and usually involve a claim that something was wrong with the procedure leading to the conviction.  Although immigration detentions occur pursuant to civil law, and not criminal law, they can also be subject to a habeas corpus review.

The U.S. District Court originally held that it lacked jurisdiction to hear the habeas corpus challenge, because the statute specifically limited such review to three situations, none of which applied to Thuraissigiam.  On appeal before the Ninth Circuit, the Court of Appeals agreed with the District Court that the statute did not permit Thuraissigiam a basis for a habeas corpus review.  However, the court did not stop its analysis there.  Rather, the court went on to determine whether the expedited removal statute provided sufficient judicial relief to pass constitutional muster.

Specifically, Article I, Section 9, Clause 2 of the U.S. Constitution provides, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."  This is called the Suspension Clause.  To address whether the statute violated the Suspension in this case, the Ninth Circuit engaged in a two step analysis.  In step one, the court analyzed whether Thuraissigiam was entitled to a habeas corpus review.  In this regard, the court noted that he was apprehended on U.S. soil, thus the constitutional guarantee of a habeas corpus review applied.

In the next step, the court analyzed whether the statute provided sufficient relief to satisfy the requirements of a habeas corpus review.  In this regard, the court noted that the statute did not provide for a review of whether proper procedures were followed in issuing the expedited removal order, or in making the credible fear determination.  Because this type of review was foreclosed by the statute, the Ninth Circuit concluded that the statute violated the Constitution.

This is now the issue that will be argued before the U.S. Supreme Court.

Congress has gone to great lengths in its attempt to preclude those subject to expedited removal from challenging the removal order in federal court.  The expedited removal process has been met with criticism that it deprives people of constitutional rights, such as Due Process.  The Ninth Circuit decision had opened the door to permit a greater degree of judicial review of some expedited removal cases.  The question now is whether the door will remain open, or whether the Supreme Court will shut that door, again foreclosing habeas corpus relief to those subject to expedited removal.

By:  William J. Kovatch, Jr.

Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.

Trump’s “Remain in Mexico” Plan is Bad Policy Lacking Legal Authority

Confusion reigned over the weekend, as the Trump Administration announced it had reached a deal with the incoming Mexican Government concerning asylum seekers, only to have the incoming Mexican Government deny it. Under the alleged deal, labeled “Remain in Mexico,” Trump claimed that potential refugees from Central America could apply for asylum in the United States at ports of entry, but would remain Mexico until a final decision had been reached on the asylum application. 

Critics of the alleged deal claimed that it would leave the potential refugees in danger, as the Mexican border states are dominated by the Mexican cartels. The incoming Mexican Government noted that it was reluctant to permit Mexican territory to become a holding grounds for people seeking admission to the United States. 

Whatever the merits of the proposed plan, the question remains whether it is even legal under US law. Reading the US Immigration and Nationality Act as it pertains to asylum applications shows that it isn’t. 

Section 208 of the Act permits an individual to apply for asylum upon arrival to the United States. When an individual expresses an intent to apply for asylum, or a fear of persecution, Section 235(b)(1)(A)(ii) requires  immigration officials to refer the individual to an Asylum Officer for a credible fear interview. Pursuant to section 235(b)(1)(B)(ii), if the Asylum Officer determines that the individual does have a credible fear of persecution, that individual must them be detained by the US Government, for further consideration of the asylum application. Section 236(a) then gives the US Government the option to continue detention, or to release the individual, either on bond or under conditional parole.

Although Section 235(b)(2)(C) permits the Government to return a person arriving by land from a country contiguous to the United States back to that country pending removal proceedings, the language of the statute exempts aliens who are eligible for expedited removal from this provision. An alien without documentation or who attempts to enter based on fraud is eligible to be removed by an immigration official without placing that alien in formal removal proceedings. That is expedited removal. Almost all of the aliens arriving at the U.S.-Mexico border from Central America will be eligible for expedited removal.

This, pursuant to the statute, Congress only gave the Executive Branch two choices when it comes to a person applying for asylum at a port of entry. If the person passes the credible fear interview, the US Government can either detain that person, or release that person into the United States. There is no provision under US law to permit the Government to ship an asylum applicant off to another country while the United States considers the asylum application. Put simply, if a person shows up at a port along the Mexican border and claims fear, the United States cannot force that person to remain in Mexico until the asylum application reaches its conclusion. 

“Remain in Mexico” lacks legal authority. Moreover, it represents an attempt to push off on Mexico the responsibility of hosting Central American asylum seekers looking for protection in the United States. It is bad policy risking a deterioration of US relations with its southern neighbor. 

By: William J. Kovatch, Jr. 

The President Cannot Act Inconsistently with the Asylum Law as Written and Passed by Congress

US District Court Judge Jon S. Tiger issued a nationwide injunction preventing the Trump Administration from implementing a Presidential Proclamation wherein the President attempted to bar aliens who enter the United States through Mexico at a point other than an official port of entry from applying for asylum. “Whatever the scope of the President's authority,” the Judge expressed, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." Specifically, through the Proclamation, Trump directly contradicted the plain language of section 208(a)(1) of the Immigration and Nationality Act, which states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

In response, the Departments of Justice and Homeland Security issued a joint statement, arguing that the Supreme Court had ruled over the summer that the President had the authority to suspend entries of a class of aliens when the President finds that to be in the national interest. Moreover, asylum is a discretionary form of relief, and not an entitlement even if all of the legal requirements are met. 

The Departments of Justice and Homeland Security are being misleading.  It is true that the Supreme Court upheld President Trump’s travel ban finding that the President has broad discretion outside of the borders of the United States to suspend a class of aliens from entering the United States if the President finds it is in the national interest. This was done in the context of an Executive Order wherein the President found that certain countries did not provide sufficient information about their nationals to permit the United States to vet those individuals properly before allowing admission. Nationals from such countries were thus temporarily banned from entering the United States.  That is, the President took action that applied outside the United States, or at a port of entry before an individual became subject to US jurisdiction, to prevent that individual from physically and legally stepping foot on US soil. 

The situation is different with respect to those who enter the United States by crossing the border surreptitiously between official ports of entry. While theoretically, under the Supreme Court’s precedent, the President could suspend the legal entry of Hondurans or other Central Americans, that only prevents an individual from being admitted through of a port of entry after being inspected by a Customs and Border Patrol agent. For a person who is actually on US soil, whether that happened legally or illegally, the protections of the US Constitution and US law apply. At that point, the President’s power is far more restrained.  He cannot then act in direct contravention of a law passed by Congress. Put simply, outside the territory of the United States the President has broad discretion on immigration matters, but inside the United States he does not. 

With respect to the grant of asylum itself, it is true that section 208(b)(1)(A) does state that the Attorney General or Secretary of Homeland Security “may grant asylum” to an individual meeting the legal requirements. The use of the word “may” does make the grant of asylum discretionary. But what exactly does discretionary mean?  For one, the decision cannot be arbitrary and capricious. There has to be reason behind the decision. Discretion involves evaluating all of the facts and circumstances of a case, and fashioning a reasonable outcome. 

Thus, it is possible for an applicant to be denied asylum for breaking the law. But the fact that a person may have broken the law must be weighed against the level and severity of danger from which the applicant was attempting to escape. 

Discretion does not mean applying a blanket rule to all situations. Applying a rule that no one who enters the United States illegally, without weighing all of the circumstances in that person’s case, is an abuse of discretion. It leaves no choice to the decision-maker to craft a reasonable outcome. 

Moreover, the law provides a list of factors that disqualify a person from receiving asylum. These factors range from a conviction of a particularly serious offense to the individual being a danger to the security of the United States. In addition, the Attorney General may impose further restrictions by regulation. But, those limitations must be consistent with the law. Thus, an argument exists that a regulation cannot impose a limitation that is inconsistent with the statute as written, such as prohibiting a person who has entered the country illegally from applying for asylum. 

The President has been consistently attempting to broaden his authority over immigration matters. This stems from his frustration over members of his own party, who have controlled both houses of Congress since the beginning of his term, to pass immigration reform satisfactory to the President. With the Democrats ready to assume power in the House of Representatives, gridlock over immigration is likely to increase. This will only create more incentive for the President to attempt to grab more power through purely executive action. The courts will therefore remain a key institution to limit the President and uphold the doctrine of Separation of Powers. 

By: William J. Kovatch, Jr. 

What Could Happen Now That Migrants from the Latest Caravan are Arriving at the US-Mexico Border?

Some buses with potential refugees from Honduras arrived at the US-Mexican border on Tuesday. This marked the beginning of those from the now infamous caravan to arrive at the border. 

The question that arises now is what will happen to these migrants.

Many of the migrants will be claiming asylum. Asylum would permit the migrants to stay in the United States legally, with the possibility of applying for permanent residency and later citizenship. It is granted to people who show a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group. Many Central Americans are attempting to escape gang violence. Some are afraid of the new Honduran Government. Some women may be seeking protection from abusive domestic partners. 

Asylum is a legal immigration benefit. By law anyone present in the United States may apply for asylum, regardless of whether that person entered legally, or what that person’s immigration status is. 

For people making the dangerous trek northward, through Central America and Mexico to the United States, the Trump Administration wants them to apply for asylum in an orderly fashion, at legal ports of entry. Yet, the Administration has limited access to asylum procedures at ports of entry, reportedly to 100 applicants per port per day. With thousands of potential refugees already waiting in line to start the asylum application process, this could mean a wait of months or longer for those who just arrive at the Mexican side of the border. 

The alternative has been for Central American migrants to cross the border between ports of entry, surrender to an agent from Customs and Border Protection (CBP), and claim that they have a fear of returning to their home country. 

Once a person within the United States makes a claim of fear, CBP is supposed to stop the expedited removal process, and turn the migrants over to Immigration and Customs Enforcement (ICE) for detention and a credible fear interview. At a credible fear interview, an Asylum Officer will interview the migrant to test whether he or she has a credible claim for asylum. 

The Asylum Officer will also consider whether the person qualifies for two other humanitarian relief programs, called withholding of removal and protection pursuant to the Convention Against Torture (CAT). Both programs address aliens who believe their life and liberty may be in jeopardy if they were to return to their home country. Both programs have more stringent burdens of proof than asylum. Neither program leads to permanent residency or citizenship. But both permit the alien to remain in the United States if that alien qualifies. 

If it is determined that an alien does not qualify for asylum, which could be because of prior removals, criminal convictions, US security issues, or failing to apply for asylum within one year of entering the United States, but that alien still claims fear of returning to his or her home country, the Asylum Officer will conduct a reasonable fear interview instead of a credible fear interview. In a reasonable fear interview, the alien will only be considered for withholding of removal and protection pursuant to CAT.

If the Asylum Officer finds in favor of the alien in either a credible fear or reasonable fear interview, that alien will be referred to an Immigration Court to make their case. If the Asylum Officer does not decide in favor of the alien, the alien may request that an Immigration Judge review that decision. That review typically happens in an expedited fashion. 

There is a backlog of thousands of cases in the Immigration Courts. This means that it can take years for a case to be heard by an Immigration Judge. Keeping an alien detained while waiting for a hearing can be costly for the US Government. Often, a person with a favorable credible or reasonable fear interview result is released into the United States upon the posting of a bond. Failure to show up to Immigration Court results in a loss of the bond and an order of removal in absentia. This is what the Trump Administration calls “Catch and Release.”

Trump issued a Proclamation pursuant to newly released regulations that purports to disqualify any alien from applying for asylum if that person entered the United States from Mexico between legal ports of entry on or after November 9, 2018. The ACLU has challenged the regulations and the Proclamation as violating the plain language of the Immigration and Nationality Act, and for violating the Administrative Procedure Act, which sets the rules for how new regulations may be adopted. 

The Trump Administration’s hope was for the Proclamation to compel migrants from the latest caravan to wait at ports of entry, and not cross the border illegally. However, aliens who enter the United States after November 9th, and who express fear, are still entitled to a reasonable fear interview to be considered for withholding of removal and protection pursuant to CAT.  Regardless of the President’s Proclamation, if the alien goes before a judge, he or she can still argue that the Executive Branch cannot contradict the words of the statute. Therefore, the Proclamation and regulations are void, and the alien may still apply for asylum pursuant to section 208(a)(1) of the Immigration and Nationality Act despite entering illegally and not having a currently valid immigration status. 

By: William J. Kovatch, Jr. 

Trump Administration Adopts Asylum Regulation Directly Contrary to the Plain Language of the Statute

The Trump Administration has shown once again its disdain for the legal process of immigration, issuing a regulation directly contrary to the plain language of the Immigration and Nationality Act (INA). 

The specific issue concerns asylum. Asylum is legal protection granted by a country to people who have a reasonable fear of persecution in their home country based on race, religion, nationality, political opinion or membership in a particular social group. A person granted asylum has the legal right to remain the United States, work and obtain a travel document. After one year, an asylee may apply for lawful permanent residence, which can lead to citizenship. 

The Department of Justice issued an interim final rule prohibiting anyone who enters the United States through the southern border with Mexico at anywhere other than an official port of entry from applying for asylum, effective after the President has made a Proclamation to that effect. Put simply, once the President issues his Proclamation, migrants who do not hold a visa must enter through an official port of entry in order to apply for asylum if they cross over from Mexico. Any alien who sneaks across the border will be barred from applying for asylum. 

But this contradicts the statute. The process of applying for asylum is governed by section 208 of the INA.  Section 208(a)(1) states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

The law, as passed by Congress, therefore guarantees the right to apply for asylum to any alien present in the United States, regardless of how that alien entered or what that alien’s legal immigration status is. That is, an alien who entered the United States by crossing the border without a legally valid visa, and at a place other than an official port of entry, may by law apply for asylum even if that alien has no legal immigration status in the United States.

The US law wherein Congress passed this provision was the Refugee Act of 1978. Through this law, Congress implemented US international obligations stemming from the Universal Declaration of Human Rights and the Protocol Relating to the Status of Refugees. The Protocol, in particular, prohibits a country from imposing a penalty on a refugee because that refugee either entered the country illegally or is present in the country illegally. 

A regulation is a rule issued by the Executive Branch implementing a statute passed by Congress. Regulations may interpret ambiguous language in a statute, or adopt policies pursuant to a statute where Congress has authorized the Executive Branch to adopt such policies. A regulation cannot contradict the plain language of the statute. 

In this instance, then, where Congress expressly provided that an alien present in the United States May apply for asylum regardless of whether that alien is present illegally or crossed the border illegally, a regulation cannot restrict the ability of aliens to apply for asylum only if they come through an official port of entry. With the regulation being directly contrary to the plain language of section 208(a)(1) of the INA, the Administration has no legal authority to adopt it. In the end, this restriction on the availability of asylum cannot withstand legal scrutiny. 

By:  William J. Kovatch, Jr. 

Problems with Gang-Related Asylum Cases

Gang related asylum cases present one of the biggest challenges to immigration attorneys. But they also represent one of the largest categories of asylum claims.

Many times, clients and prospective clients come into the office with the expectation that because they were victims of gang violence in their home country, that they should receive protection in the United States. But this is rarely the case.

As many immigration judges are quick to point out, asylum law is not meant to grant protection from general criminality. To receive asylum protection, and applicant must have a reasonable fear of persecution based on one of the five protected reasons. They are: race, religion, nationality, political opinion, or membership in a particular social group.

Often, advocating for a gang related asylum case involves trying to place the applicant in some particular social group. However, this category is not meant to be a catchall category. As recent case law has demonstrated, the group cannot be defined as being too large as to include a broad segment of society. There must be some boundary to the group. There must be something about this group that sets it apart from the rest of society. And the members of this group must see themselves as some kind of social unit.

Add to the complication the fact that there are 12 different federal circuits who review immigration court decisions. The result is great variety and what is an acceptable particular social group.

Young men who have been recruited by the gangs, but who have resisted such recruitment, for example, has been recognized as a viable particular social group in some circuits. But other circuits reject the category. Likewise, witnesses providing testimony against gang violence has been recognized by some circuits, but rejected by others.

This patchwork of decisions addressing what makes up a particular social group when it comes to gang-related violence has created a rather peculiar situation. Family ties are recognized as a valid basis upon which to build a particular social group. Thus, it is possible that family members of a person targeted for gang violence may qualify as a particular social group, while the person who is actually targeted for the gang violence will not qualify for asylum protection.

What is clear however is that the victims of the gang related violence need to establish some reason why the gang has targeted them, that sets them apart from the rest of their society. This can often be difficult for applicants who come from gang ravaged countries, like those of Central America.

One way around this problem is to make the claim that the applicant is being persecuted because of an imputed political opinion. Gangs in Central America at times operate much like governments. They control particular territories, charge taxes or rent for the people who live in their territories or do business in their territories, and protect their territories fiercely. Gangs have also been known to protect their authority, engaging in extreme violence against anyone who questions them. Gangs may also target a person for violence if the gang believes that the person is affiliated with a rival gang. Applicants who have been able to paint their case as one of a struggle against the power and authority of the gangs, and thus a case of an imputed political opinion, have met with some success in progressive federal circuits, such as the Ninth Circuit.

Certainly an argument can be made that United States is in a large way responsible for the uncontrollable gang situation in the northern triangle of El Salvador, Guatemala and Honduras. United States chooses to deport people after they have spent time in prison, where they have picked up their affiliations to American made gangs. Those deported individuals take back with them knowledge of an organizational structure that the Central American governments are simply unready and unable to address effectively.

But the reality is it is not politically popular for the United States to take responsibility for the gang violence in Central America. Instead, politicians push to close the borders, in an attempt to exclude the gang related element from United States. For the practitioner, the challenge is to find creative ways around this situation, and to work with the clients in order to craft the strongest asylum clean possible.

William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
Se habla espanol (703) 298-0502

Links

National Immigrant Justice Center, Particular Social Group Practice Advisory

National Immigrant Justice Center, Resources for Asylum Claims Based on Membership in a Particular Social Group

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 

Asylum Granted to Woman Escaping Abuse

The Arlington Immigration Court granted asylum to a woman from El Salvador escaping from an abusive relationship. The woman had suffered years of physical abuse at the hands of her partner, who even refused to acknowledge the paternity of their daughter. Cries to her family for help were met with responses such as, "you must have done something to deserve it," and "this is the man you chose to be with for life, you can't leave him."  However, once the woman's father saw the scars and bruises left by the abuse, he changed his attitude and found money to help her make the treacherous journey across the United States border. 

The toughest issue in the case was that the woman had waited more than a year to file her asylum application. U.S. immigration law requires that an asylum petition be filed within one year of entry unless there are changed or extraordinary circumstances. The years of abuse and lack of support from her family had caused this woman to suffer depression, which in turn made her avoidant and reluctant to relive her trauma. Only after meeting a caring man in the United States, who encouraged her to seek help did the woman realize that she could overcome her past and seek legal protection in the United States. 

Now that asylum has been granted, the woman will file a petition to have her minor daughter in El Salvador join her.

Victim of Gang Violence Granted Withholding of Removal

The Arlington Immigration Court granted withholding of removal to a young man from El Salvador who had been a victim of gang violence. 

About three years ago, the young man was shot and left for dead when he was unable to pay the quota that members of MS-13 demanded from him for the privilege of living in their territory. The man testified that he was a target for extortion because his father was a former member of the El Salvadoran military. 

U.S. law provides that an alien must be granted withholding of removal if an Immigration Judge finds that it is more probable than not that the alien's life and liberty will be in jeopardy because of race, religion, nationality, political opinion or membership in a particular social group if returned to his or her home country. I this case, the Immigration Judge found that the young man had suffered past persecution because of being an immediate family member of a former military member. 

The young man had presented evidence that the gangs in El Salvador act like a quasi-government, often controlling territory and demanding rent, or a quota, from the people who live there. The gangs have become so dominant, that the El Salvadoran police are unable to provide protection to residents. 

As recipient of withholding of removal, the young man may live and work in the United States.  But withholding of removal does not lead to permanent residency or citizenship. 

By: William J. Kovatch, Jr. 

For an appointment, call (703) 837-8832

Se habla español: (571) 551-6069 

Immigration Judge Finds Theft of Food and Livestock Does Not Trigger Material Support Bar

 

 

In a case that had been pending almost twenty-five years, Arlington Immigration Judge Paul W. Schmidt found that the theft of food and livestock by the FMLN (Farabundo Marti Nation Liberation Front) from the Respondent’s home did not constitute material support of terrorism.  The ruling paved the way for an El Salvadoran man, who had escaped his country’s civil war, to receive permanent residency in the United States.

The Respondent, who fled El Salvador in 1988 when he found a bomb in front of his house, had been attempting to obtain some form of immigration relief since 1990, when he filed his first asylum application.  His most recent attempt was through an application through the Nicaraguan Adjustment and Central American Relief Act (known as NACARA), which permits, among other things, certain Central Americans who have been present in the United States since the early 1990s to adjust to permanent residency, provided they can show good moral character and extreme hardship if returned to their home country.

Eligibility for immigration relief, however, is often not enough.  Rather, those who meet the eligibility requirements must still show that they are admissible under U.S. Immigration law.  One ground of inadmissibility applies to those who have provided material support to a terrorist organization.  This is called the material support bar.

U.S. courts have upheld a broad interpretation of the material support bar made by the Board of Immigration Appeals.  The material support bar can be triggered, for example, merely by providing food and directions to a group that the U.S. Government labels as a terrorist organization.  The text of the statute itself provides for no exception to the material support bar even if the support was given under duress.  Thus, a credible threat of immediate death may not excuse someone who has given food to a group labeled as terrorist.

In the Respondent’s case, he testified that twice the FMLN came to his home and took food and livestock.  The first time, they took about twenty tortillas.  The second time, they took one of his animals.  The Respondent did not stop the FMLN because he feared that he would be killed.  Because the U.S. Government labeled the FMLN a terrorist organization, U.S. Immigration and Customs Enforcement argued that this triggered the material support bar in the Respondent’s case.

In a written opinion, Judge Schmidt ruled that it did not.  Citing an unpublished Board of Immigration Appeals case, the Immigration Judge found that in order to be material the support has to be active.  The fact that the FMLN stole food and livestock from the Respondent, therefore, did not constitute material support.  The Judge granted the Respondent his NACARA application, paving the way for him and his minor daughter to become permanent residents.

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

A Salute to the Bravery of Escaping Domestic Violence

I want to salute the bravery it takes for a woman to take the affirmative steps necessary to escape domestic violence. 

You'll pardon me if I'm a little emotional as I write this today.  I just spent two days helping women who escaped from domestic abuse in Central America present their stories to Asylum Officers in the hope that they can gain the protection of U.S. law.  The stories have gotten me angry, and I need a constructive way to express that anger.

Sure, there's the obvious targets of my anger:  The SOBs who thinks nothing of treating their women like punching bags, or worse yet, like punching bags who had better have food on the table when I walk into the house drunk or stoned at 3:00am.  The men who feel it necessary to hold a machete tho their woman's throat to show them who's boss.  Who feel it necessary to use the most vile and foul language to constantly terrorize and tear down their women.  Who do all of this without regard to the fact that their children are in the room, watching and learning.

I'm also angry at the machismo culture that pervades much of Central America.  The culture that says a woman's identity is tied to that of her man, that says she is nothing without her man, that treats her as nothing more than property.  It's a culture where girls are trapped by decisions they make at 15 or 16, when they choose a man to be with, only later to find out his violent side when it's too late.  Of course, that's assuming the teenage girl hasn't been abducted by some SOB who thinks nothing of stalking and kidnapping in order to find a woman to tend to his needs.  It's a culture where families won't intervene in a "domestic dispute," because, well, this is the man you chose to be with.  It's a culture that adopts laws that say the right things, after all, we don't want to run afoul of the United Nations.  But, when it comes time to enforce those laws, the police are nowhere to be found.  Or, the police listen to a report of domestic abuse, only to do nothing.  Or maybe, they will arrest the guy, only to release him the next morning, angry enough to go back to his woman to teach her a lesson for making him spend a night in jail.  A culture that traps a woman, making it next to impossible for her to strike it out on her own, to make her own living without being dependent on a man.

But I'm also angry at the snot-nosed kid sitting behind the desk, who can't be more than thirty at the most, making my clients live their stories over and over again.  Worse yet, when human memory isn't perfect (as it rarely is), picking apart miniscule little holes, throwing the woman off their tracks as they try to tell their stories.  Using tiny misstatements as reason to doubt credibility.  Picking on those misstatements instead of taking in the clear emotional pain that is clearly being expressed at the mere mention of their ex-partner's name.  Using the fact that the these women do feel trapped, and for that reason did not come forward earlier, as further reason to doubt their stories.  Failing to realize that just as emotionally painful it is to retell the story in front of a total stranger, it is also painful to share that story with loved ones.  failing to understand that their very attitude is one of the reasons victims of domestic abuse don't come forward or try to escape.

I'm angry because someone has trained this snot-nosed kid to be this way.  Someone has trained him to suspect everyone seeking asylum in this country as just being a liar looking to stay in the United States the easy way.  Someone has trained him to be cold-hearted and skeptical.

I'm angry because just as the Board of Immigration Appeals releases a precedential decision that makes it clear that women who are trapped in abusive relationships that they cannot leave can indeed seek the protection of U.S. asylum law, critics, like those at the Daily Caller and Brietbart, who see it as nothing more than a way to open the flood gates to people who would flout our immigration law for the purpose of obtaining federal benefits.  Critics who would probably think nothing of telling me that all I've done is to assist those illegals in an effort to obtain amnesty.

And yet, it is in the face of all this that women like my clients had the courage to leave and seek protection.  They risked their lives leaving violent men, men who often continue to seek them out and threaten harm.  They risked their lives on the trip north, often knowing that the very Coyotes who are helping get into the promised land are going to rape them before leaving them off at the Rio Grande.  They face their fears over and over, telling their stories to their friends, their families, their lawyers, all before reaching the skeptics in the U.S. Government.

So pardon me if today I am a little angry, angry at a system that requires women to be brave in order to flee domestic violent and seek refuge in a place like the Untied States.  A system that likely exacerbates the emotional and psychological damage that has already been done.

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

Promising Asylum Cases from the Fourth Circuit

In 2014, the U.S. Court of Appeals has issued two cases that give some hope to people from Central America filing asylum applications based on gang-related issues.

In Martinez v. Holder, Crt No. 12-2424 (January 24, 2014), the Court held that being a former gang member was an immutable characteristic and may serve as the basis for claiming persecution based on a particular social group.  The case was remanded back to the Board of immigration Appeals.

In Aquino-Cardova v. Holder, Crt No. 13-1597 (July 17, 2014), the Court held that a person who is related to members of rival gangs who in turn are targeted for violence may qualify as a particular social group based on family ties.  This case was also remanded to the BIA.

These opinions appear to signal a shift in the trend in asylum law, wherein the U.S. Government resisted gang-related asylum claims.  The Fourth Circuit is largely considered a conservative jurisdiction, and thus these opinions which have a more liberal holding on asylum law are very significant.  While it may be early to tell, the cases could signal a trend of loosening the restrictions for aliens applying for asylum because they are escaping gang-related violence in Central America.  The cases have come in time to perhaps have some affect on the huge surge of Central Americans fleeing their countries and crossing the U.S. border with Mexico.

If you have a gang-related asylum case, call me for an appointment at (703) 837-8832, or email me at wkovatch@kovatchlegalservices.com.

By:

William J. Kovatch, Jr.

Lessons from the Surge: Adult Male Migrants

Unless you've been living under a rock, you know that there has been an almost unprecedented surge of migrants making the dangerous trek from Central America and across the Mexican border into the United States.

Make no mistake, those who come to the United Stayes this way are doing so illegally and are immediately removable. But, I'm starting to see a trend in how the Administration is treating these migrants. It is in stark contrast to what Immigration authorities were doing just months ago. 

In this post, I will talk about the trend for adult males. The surge in unaccompanied children is much more complex and deserves its own post. 

Even if an alien has crossed the border illegally and is immediately removable, they still have the right to claim that they have a reasonable fear of persecution. If the claim is made, then an Asylum Officer conducts an interview to see if the fear is credible. If the fear is found credible, then the case gets referred to Immigration Court where the alien gets an opportunity for a full hearing. 

The persecution claims from adult males can roughly fall into a few categories: (1) I'm being recruited by gangs, I don't want to join and now they're threatening to kill me; (2) I used to be part of a gang, I quit and they're threatening to kill me; (3) I witnessed a gang-related crime, and they want to kill me; and (4) the police are corrupt and helping the gangs, they wanted me to sell drugs, I refused and now the police want to kill me. 

Just three months ago, the first three of these stories were being dismissed by the Asylum Officer. 

Things have drastically changed. With the huge surge, the US Government does not have the resources to house all of the migrants who are waiting for the legal process to work itself out. In my opinion, and I have no way of proving this, I believe Asylum Officers have been given instructions to be more liberal with their reasonable fear determinations. This, stories falling in categories 1 through 3, which were summarily denied before are being approved now. 

This means more aliens with reasonable fear stories are being released on bond and placed in full Immigration Court proceedings. The bond amount is almost universally $7,500. 

The trend in immigration law had been for the US Government to fight the granting of any gang-related asylum claims. As hard-line opinions came out, it left immigration lawyers like me somewhat despondent. We had to advice clients whom we knew were going to be murdered the minute that they arrived in their home country that there was nothing we could do for them.

This surge may wind up being the chance to soften the US Government's stance on gang-related asylum cases. In a way, the softening has already started as the Fourth Circuit, no bastion of bleeding hearts, issued a more liberal opinion on gang-related asylum cases this year. 

At any rate, an alien released on bond with a reasonable fear claim should contact a lawyer immediately. Lawyers know how to put together a case with evidence that is more likely to be approved. 

To contact me about your case, call (703) 837-8832 or email wkovatch@kovatchlegalservices.com. 

William Kovatch