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

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

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

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

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

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

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

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

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

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 

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 

Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

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

Will You Qualify for the President's Program?

President Obama has announced a program to assist those who are present in the United States who have either spouses or children who are U.S. citizens or permanent residents.  The President will grant those who are eligible for the program deferred action, meaning that he will promise not to start deportation proceedings against them.  Those who are granted deferred action may also be granted legal authority to work in this country.

If you think you are eligible for the President’s program, call me at (571) 551-6069.  We can sit down and discuss your situation.

If you make an appointment to see me, you will first sit down with my of my bilingual staff members to collect your information.  Once we have collected your information, I will review it and discuss whether you are qualified for the program.

There will be a consultation fee of $200.  If you are eligible for the program, that money will be credited against the legal fee for helping you apply for this program.

The legal fee will depend on how difficult your case is. 

If you have all of the documents that are required to apply, such as your birth certificate, your marriage certificate, your children’s birth certificates, proof that your spouse or children are U.S. citizens or permanent residents, and proof of presence in the United States for the past five years, the legal fee will be $750.

If you do not have all of your documents, the legal fee will be $1,000.

If you have two or more convictions for misdemeanors, or other problems with your eligibility, the fee will depend on how difficult your case will be.

These fees are in addition to any filing fees required by the Government to apply for the program.

If you need your documents translated, we can translate them for you.  The fees for translations are:

·         $50 for birth certificates

·         $75 per page for all other documents that are type-written

·         $100 per page for all documents that are hand-written.

We can translate from Spanish and French.

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

wkovatch@kovatchlegalservices.com