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. 

Suspension of DACA Would Pose Legal Challenges for DREAMers

Add caption

Last Friday, Daniel Ramirez, who had been granted deferred action and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program, was seized by Immigration and Customs Enforcement (ICE) agents, who raided his house to arrest Ramirez's father.  Ramirez's work authorization was still valid.  But this did not deter ICE agents from seizing him, as ICE contends that Ramirez admitted to being associated with a gang.  Ramirez claims he has no gang association, and that he was pressured by ICE to make such statements.

Ramirez has now initiated suit against the Untied States' Government. But his arrest and detention should serve as a warning to the thousands of young people who have applied for, and received, protection pursuant to DACA.

DACA is simply a promise made by President Obama that his Administration would not seek the removal of young people who were brought to the United States by their parents when they were children.  The President did this by granting deferred action.  Once the President grants deferred action, the recipient is entitled to apply for legal authorization to work in the United States.  But deferred action is not a legal status.  It is simply a promise from the Government not to seek removal.

DACA was not authorized by statute.  In fact, President Obama only created DACA when Congress failed to pass the DREAM Act, which would have created a path to legal residency and possibly citizenship for the young people who were brought to this country as children, but grew up knowing America as their home.  The people who would have qualified for status under the DREAM Act are affectionately known as DREAMers.

But because DACA is not a creature of statute, it is a very fragile promise.  The President is under no obligation to extend protection pursuant to DACA once the current protection expires.  Moreover, because it is a matter of executive discretion, an applicant is unable to challenge the denial of DACA protection in U.S. courts.

But once a DREAMer has been granted DACA protection, that person has an expectation to continue to receive protection from removal until the program expires.

This is the expectation that ICE violated when it took Ramirez into custody.  Ramirez, who has no other legal immigrant status, will now face proceedings in Immigration Court where the United States will seek his removal.

In many instances, Immigration Court can grant relief from removal.  There are some programs, such as asylum or cancellation of removal, which the Immigration Court by law can grant after a hearing.  However, because DACA is not a legal program, but an exercise of executive discretion, the Immigration Courts have no power to issue a ruling on whether DACA protection was improperly suspended for any individual.

This does not leave DREAMers without a remedy.  Because DACA recipients have an expectation of a governmental benefit, that benefit cannot be rescinded arbitrarily or capriciously.  That is, DACA recipients have a due process right to have their protection honored until the expiration of the program.  But to enforce this right, DACA recipients may need to go to federal district court.

That is, if ICE arrests a person who has been granted DACA protection, and seeks that person's removal, the DACA recipient will need to file a lawsuit in a U.S. District Court alleging constitutional violations, such as due process.  Such a lawsuit is expensive and can become complicated.  In Ramirez's case, he will have to address ICE's claims that Ramirez admitted to being associated with street gangs.  There will be discover and a hearing.

The availability of such a process may not be comforting news to other DACA recipients.  Many are not in a position to spend thousands of dollars on legal expenses to fight over weak legal promise which will expire anyway in a little more than a year.  Indeed, the current Administration could be counting on that level of vulnerability to pick off DACA recipients one by one, making tenuous claims of gang association, knowing that they are forcing the DACA recipients into an expensive legal battle.  In that way, the Administration can claim that it is merely going after the "bad hombres" and highlighting its argument that President Obama overstepped his authority when he instituted DACA.  This is a position that would play well with many of President Trump's supporters.

DACA recipients need to be prepared to defend their rights.  All immigrants should know that ICE cannot issue warrants to itself that allow entry into a dwelling.  Only a judge can issue such a warrant.  Before letting ICE into your house, make sure everyone knows that they need to ask to see the warrant, and to check whether it is judge-issued.  All residents of your home should also know that they are under no obligation to answer any question posed by ICE agents, except their name.  If asked anything by ICE agents, demand your right to consult a lawyer.  Sign nothing without consulting a lawyer.  Do not be intimidated by ICE.  Spread the word.

By: William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
(571) 551-6069 (español)

ICE Detention System Needs Reform

Having visited a number of "detainees" awaiting a hearing on immigration issues, I highly recommend this article.  The ICE detention system needs major reform.

The number one problem is that immigration law is civil in nature, not criminal.  This appears to be a hard concept to get across to the average person.  It is even harder for the alien who is being detained.

In many instances, aliens are detained in prisons alongside convicted criminals.  They are treated like prisoners.  They are indeed prisoners in all but name.   They are called "detainees."  But the softer language fails to hide the cruel reality that these are largely forgotten segments of our society.  One where pursuing reform is difficult because it is not politically popular to do so.

The detention system is largely ad hoc.  There are a few federally run facilities, such as Farmville in Virginia. But, in many instances, the Federal Government contracts either within a state or local jail for space, or with a private prison company.

One of the issues that led to this problem was the press for enforcement, enforcement, enforcement.  Naively, the public thinks that enforcement means you pick up an illegal alien, and you neatly drop him off over the border.  That is hardly the case.  When a person is here without a valid immigration status, there are provisions of law which may help that person become legal.  It is that person's right to pursue those avenues.  This means you must have due process.  You must have courts to hear the cases.  You must have Government lawyers to present the Government's side.  You must have humane facilities available to house these people until their hearing is scheduled.  That means money. 

When the Government last pursued an enforcement-only policy, it failed to put the money into the effort that was required.  This led to the ad hoc and inhumane system we now have.  One that in many instances even deprives detainees of the health care they need, as many have died in detention over medical conditions that would have been easily treatable if caught early enough.

You add to the complications that it is much easier for politicians to say that they are being tough on crime.  Thus, they pass measures such as mandatory detention.  This means that aliens who are removable or deportable because of criminal convictions must stay detained, with no hope of being released on bond while waiting for a hearing.  The law is mandatory, giving immigration judges absolutely no discretion.

The law leads to intolerable situations, where a person who has a conviction, and has served time for that conviction, now has to be imprisoned yet a second time for the very same crime awaiting his hearing.  This is true, even if the alien can make a good showing that he is entitled to immigration relief.  I had such a client.  He had been convicted of domestic assault.  He served his time.  he was picked up again later for his immigration problems.  But, he was relief available to him.  I ended up securing permanent residency for him.  In the meantime, he was forced to wait for 9 months in detention, with real, hardened criminals.  And there was nothing we could do about that.

More pleasant sounding words, like "detention," and publicly denying that this is a criminal law matter, fail to hide the deplorable condition that exists in the nation's immigration detention system.  This is a condition that must be addressed, out of pure morality and civility.

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

What Do You When a Relative is Detained by Immigration Authorities

When Immigrations and Customs Enforcement comes to your door, it can be a harrowing experience.  If ICE is taking away a relative of yours, there are things you need to do.  The main thing is to gather as much information about the situation as possible.  You will need to have this information so you can consult an attorney, and the attorney can tell you if your relative can be helped.

For more detail, see my article:  "My Husband / Brother / Friend Has Been Taken by ICE - What Do I Do?"

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

Applying for Deferred Action Under the President’s New Policy

On June 15, 2012, President Obama and Homeland Security Secretary Napolitano announced a new policy to permit certain undocumented young people to remain in the United States and apply for work authorization.  No specific procedures have been adopted yet.  However, if you qualify, there are certain things you can do to prepare.

Do I Qualify?

To qualify, you must meet five criteria:

(1) Been brought to the United States while under the age of 16;

(2) Have continuously resided in the United States since June 15, 2007 or before;

(3) Currently be in school, have graduated from a high school, have earned a general equivalency diploma, or be honorably discharged from the Armed Forces or Coast Guard of the United States;

(4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or does otherwise poses a threat to national security or public safety; and

(5) Is 30 or younger.

What Benefits Can I Get?

Postponement of removal (deportation)

Employment authorization

Can I Become a US Citizen?

No.  This policy does not lead either to permanent residency or citizenship.  It is only temporary protection from being removed (deported) from the United States.

How Do I Apply?

Since I first published this blog entry, new procedures were adopted.  See my later blog entries for a discussion on the procedures.

I am in Removal (Deportation) Proceedings Now.  What Do I Do?

As long as you are not in detention, you can still apply.

I am Not in Removal (Deportation) Proceedings, But I Think I Qualify.  What Should I Do?

If you are not in removal or deportation proceedings, applications should be made to the U.S. Citizenship and Immigration Service (“USCIS”).  There is already a process for applying for deferred action in general.  That is to apply to the District Director of the USCIS District where you live.  You should put together a letter explaining why you qualify for deferred action, and include supporting documentation.  It is expected that USCIS will adopt similar proceedings for this particular policy.

How Long Will the Benefit Last

Under this policy, you can receive deferred action and work authorization for two years.  Then, you can apply for an extension every two years after that.

Note, however, that this is an exercise of discretion of the Obama Administration.  There is no guarantee that this policy will continue.  Plus, it is an election year.  If a new president is elected, there is no guarantee that he will continue with this policy.