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 

No, Undocumented Aliens are not About to Bankrupt the Federal Government Looking for Hand-Outs

Over the weekend, I saw a Facebook friend link to a video which he believed was the definitive proof that those "illegals" are just coming to the United States to live off the backs of taxpayers.  The video is a Fox News "Special Report" by Steve Harrigan sometime in the Spring of 2013.  Although the video is three years old, it is still making its rounds. A quick Google search revealed that it has been used by conservative causes to demand that politicians do something about these "illegals" living off the public dole. 

As I watched the video with a critical eye, I noted that it was short on facts, accurate information and real analysis, and long on misdirection and scare tactics.

The video focused on a woman.  I hesitate to mention her by name, since she has been made the pariah of the opponents of immigration reform.  Still, I cannot find one article on the Internet that defends her.  And for that reason alone, let me tell you about the story of Marita Nelson.

According to Harrigan, Nelson crossed the Rio Grande to enter this country over twenty years ago.  She has been receiving public assistance for over twenty years. She has seven mouths to feed, and the $240 per month she receives from SNAP (or as he calls it, food stamps) does not last through three weeks.  Harrigan claims that Nelson, who is fifty years olds, receives funds for public housing, government help with medication and $700 per month in Social Security.  There is some talk about her receiving some child support, but no details are given.

Harrigan then expresses complete surprise that there are privately funded organizations out there that actually help people find public assistance programs for which they qualify.  And Nelson has the temerity to urge people who need help to go look for it before it is too late.

Horrors!

Well, let's analyze this piece by piece, with reference to the actual law.  A thoughtful analysis shows why any fears are just unsubstantiated.  We'll start with Nelson's immigration status.  The assumption is that since Nelson crossed the Rio Grande over twenty years ago, she must be illegal!  Some conservative bloggers go so far as to say that she's criminal.

I hate to break it to you, but crossing the border without a visa is not necessarily a crime.  It is illegal, yes.  But, as the Immigration Courts and U.S. Immigration and Customs Enforcement love to point out, immigration law is civil, not criminal (even though people in removal proceedings are put in "detention" which looks an awful lot like jail).  So we cannot conclude that Nelson is a criminal.

More importantly, we cannot even conclude that she is necessarily an illegal alien.  We do not know where she is from.  We do not know why she came to the United States.  We do not know if she is married.  People who crossed the border illegally could still qualify for asylum or temporary protected status, two legal programs under U.S. immigration law.  If she were in removal proceedings, having been in the United States over ten years, she could qualify for cancellation of removal, which would make her a legal permanent resident.  Perhaps she married a U.S. citizen and was grandfathered under an older law that would allow her to become a legal permanent resident.  Without more facts, we just don't know what her immigration status is.

But let's assume that she is undocumented, for the sake of argument.  Does her story give definitive proof that those pesky "illegals" will just pour across our border to step up to the public trough?

The first key to understanding this story is the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.  This act of Congress prohibited undocumented aliens from applying for federal benefits.  The act was passed on August 22, 1996.  This means that it applied only to people receiving public benefits after that date.  If Nelson has been receiving public benefits for over twenty years, then she would have been receiving benefits as of 1993, or before the passage of the act.  She would therefore have been grandfathered in, and thus not prohibited from receiving benefits.  The real point here is that her case does not mean that people who cross the border today or tomorrow or who crossed the border ten years ago can receive federal benefits such as SNAP, public housing or health insurance.

But let's go further.  We'll start with Social Security.  Social Security administers three programs: (1) retirement benefits; (2) insurance for becoming disabled after working; and (3) supplemental income for those who are disabled.  To receive retirement benefits, you have to be at least sixty-five.  At age fifty, Nelson is too young.  To receive disability insurance, you must have worked for 40 quarters paying into the Social Security system.  If Nelson were undocumented, it seems unlikely that she would have been working legally and the would not qualify for that program.  As for the supplemental income, well let's not forget that Nelson has seven mouths to feed.  Some of those mouths are likely her children.  She could very well have children born in the United States and thus U.S. citizens.  If a U.S. citizen child is disabled, then the child may be eligible for supplemental income.  But note that the benefits would belong to the U.S. citizen child, and Nelson might only be serving as the representative payee, who receives the benefits on the child's behalf and is legally obligated to use the benefits for the child.

The problem is that from the report itself, we just don't know.  Nothing is mentioned about her children, other than the fact that Nelson receives child support.

U.S. citizen children could possibly explain other benefits.  The SNAP benefits could belong to the children.  The public housing could belong to the children.  If she did have a U.S. citizen child who was disabled, then that child might qualify for Medicaid, thus explaining the assistance with medication.  But we do not know any of the relevant facts from the report.  Instead, Harrigan purposefully leads the viewer to think that the benefits are for Nelson herself.

The point is that a critical eye, armed with knowledge of the law, demonstrates that Harriman's so-called "Special Report" is nothing but fear mongering meant to stir up xenophobia, racism and hatred of those darned "illegals."  In reality, there is no danger that those who crossed the border recently, or who will cross the border in the future, are about to bankrupt the U.S. treasury looking for government hand-outs.

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

Judge Makes Special Immigration Juvenile Status (SIJS) Findings

A judge on the Juvenile and Domestic Relations General District Court in Virginia signed an order today making the findings required to permit a juvenile from Central America to apply to U.S. Citizenship and Immigration Services for Special Immigrant Juvenile Status, or SIJS.  SIJS is one of the more unique immigration statuses in that the law authorizes state courts to make the initial findings before the juvenile can apply to USCIS.

In order to qualify, the alien must be under 21, unmarried and apply to a court in the state where he or she resides which has jurisdiction over minors.  The state court must first find that the juvenile is dependent on the state court.  Dependent can mean that the state court places the juvenile with a state agency for care, or with a private individual.  The court must then find that reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, abandonment or a similar ground under state law.  Finally, the state court must find that it is not in the juvenile's best interests to be returned to his or her home country.

In today's proceeding, the juvenile's father was an alcoholic who physically abused the mother.  The father threw the juvenile out of the house with the mother's acquiescence.  The juvenile, who faced harassment at the hand of street gangs at school, fled to the United States where his older sister lived.  Once in the United States, his parents refused to provide any financial support.

The juvenile's sister applied to the court for custody, and requested that the judge make the SIJS findings.  The judge agreed, permitting the juvenile to proceed with his application with USCIS.

Applying for custody is a typical way in which a responsible adult can assist a juvenile in obtaining the required SIJS findings.  Because the law permits a finding that reunification is not viable with one or both parents, often a parent who is present in the United States can apply for custody of his or her own child in order protect that child from the abuse or neglect of the parent who remained in the foreign country.  Once a state juvenile court has jurisdiction through a custody petition, the parent can then ask the court to make the required findings.

If the juvenile is in Immigration Court proceedings, a practitioner can request that the court continue, or delay, the proceedings while the juvenile is applying for the SIJS findings in state court.  Once the state court makes the findings, the practitioner can then request that the Immigration Court case be terminated to allow the juvenile to apply with USCIS.  The end result is the granting of permanent residency to the juvenile, and an opportunity to apply for U.S. citizenship in the future.

By:  William J. Kovatch, Jr.

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

The Way Things Are Supposed to be, and the Way Things Actually Are

Readers of my blog know that there's no secret that I am really enjoying AMC's "Better Call Saul."  I think it's because being a solo practitioner, while I may strongly disagree with Jimmy McGill's ethics, I understand his struggles. Last night's episode, we saw some of the tension of big firm lawyers, who expect things to be the way they are supposed to be, and the solo practitioner, who understands the way things are. 

Time for my required spoiler alert for those who have recorded it, want to catch an encore showing or will be watching through AMC's app. 

***SPOILER ALERT***

Jimmy got in trouble last week by airing a commercial without the partners' prior approval. He wasn't fired, but warned that he would be under a lot more scrutiny. 

This week, we learn what that scrutiny is. A second year associate has been tasked with reviewing everything Jimmy does, and teaching him the firm's way. Jimmy, not surprisingly, is annoyed that he, who was hired as a fourth year associate, is now being babysat by a second year associate. 

The scene that stuck out the most for me was when Jimmy and his babysitter go to court to file a motion and to get a date for a hearing. Jimmy isn't getting the date he wants. So he pulls out a Beanie Baby to offer to the surly clerk. Suddenly, and better date opens up. 

Shocked, the babysitter pulls Jimmy aside and chides him for offering a bribe. The result? It will now be more than a month until Jimmy gets his hearing. 

Look, all of us have come across that bureaucrat who has their own little fiefdom, and will let you know that they have power over you. The question is how do you deal with that. 

I think the mistake many lawyers make is forgetting that the bureaucrat is a person. Some lawyers will treat the clerk or the bailiff or the security guard as just a means to an end. This person has something I want, and she should just give it to me. 

Jimmy's solution, while shady, at least recognizes the person behind the job. He has taken the time to learn that the clerk loves Beanie Babies, so he makes her feel good by offering what she likes. 

Yeah, the direct quid pro quo is wrong. But I do think Jimmy is on the right track. As the saying goes, you get more flies with honey than vinegar. 

I remember back to my internship days. I was the guy who went to a certain embassy in Washington to turn in the paperwork for visa requests for our consultants. For a long time, the consular officer was surly. Even though I knew the paperwork was correct, she gave me attitude. I didn't get things from her on time. This was her fiefdom. 

I didn't go to Jimmy's extreme. But I did change my attitude. I tried to engage her on conversation. I knew a little of her native language, so I would greet her in it. I'd try to joke with her, ask her how her day was. In general, I treated her like a person and not like a means to an end. Heck, I even fixed her printer once. The result?  I suddenly had the reputation of getting visas approved faster than the other interns. My bosses were impressed that I got the clerk whom everyone thought was cold to thaw. 

But that's the point of being in the trenches. You get to know how things really work. You learn how to manipulate that to your advantage, or you learn to live with it. Jimmy, for all his faults, at least knows people. 

By: William J. Kovatch, Jr. 

Better Call Saul's Jimmy McGill Has Got Gall

I continue to be impressed with "Better Call Saul."  Like "Breaking Bad," the show is a character study, showing the initial build up and then decline of a flawed character.  The show is all the more interesting to me because the flawed character is a struggling lawyer.

In this past week's episode we got to see more of one of Jimmy McGill's character traits that is both impressive, and disturbing. 

Before I go into detail, let me give a spoiler warning to those who recorded it, or who are going to try to catch an encore performance.

*** SPOILER ALERT ***

The character trait I am talking about is gall.  Last week, we saw Jimmy get frustrated because strict adherence to ethics rules about in-person solicitation made it difficult for him to find more clients.  On one hand, his bosses loved it when he brought in more and more clients.  On the other hand, his biggest critic, brother Chuck, sneers art the prospect of in-person solicitations.  The rest of Jimmy's bosses seem content to ignore the possibility that Jimmy might be bending ethical rules, so long as they don't actually see it and he keeps bringing in the clients.  But Jimmy's in love.  And we see this season that his main motivation is to impress his girlfriend, fellow lawyer Kim Wexler.  Since Kim won't play footsie with him during the staff meeting, Jimmy makes a bold promise not to engage in further questionable solicitations.

His solution?  A TV commercial.  He approaches one of the partners, Cliff, with the idea.  Cliff is interested.  He tells Jimmy to talk to him more about it when Cliff gets back from a trip.  Cliff even further reinforces that client outreach is Jimmy's bailiwick.

So what does Jimmy do?  He makes a commercial.  He uses an elderly woman who proclaims that after she moved into an assisted living facility, she can't figure out where all of her money went.  Jimmy then does a voice over urging people to call.  Without consulting the partners, he runs the commercial during "Murder She Wrote" in one of the firm's target cities.

This week, we see the partners calling Jimmy to the carpet.  They are furious.  How dare he run a commercial without their approval.  And here's where Jimmy's gall comes out full force.

Jimmy doesn't hang his head, admit that he did wrong, apologize and promise to do better.  No, he expresses no remorse.  He acts like he doesn't understand what he did wrong.  Hey, the commercial was ethical.  It generated calls from potential clients.  And Cliff, you told me client outreach was my department.

Of course, the audience knows that Jimmy knows that he's done wrong.  He knew he had to approach the partners.  He just felt hamstrung.  He went to great lengths to hide the commercial from them.  He figured that one commercial on afternoon TV that no one but the elderly watch would never get the attention of anyone else. 

And to some extent, Jimmy may be right.  I didn't see anything unethical about the commercial.  Personally, I think it was far more tasteful than those lawyer commercials asking if you've taken some drug or had some medical procedure and had side effects.  "You may be entitled to compensation," these ads proclaim.  I shudder for my profession when I see those commercials.

But that's not the point.  The point was doing something controversial, that you know you need approval on, but deliberately fail to seek that approval.  And then getting caught.

Gall.  In Yiddish, it's "chutzpah." You don't back down, even if you think or know you are wrong.  And you defend your case boldly.

The disturbing side is that in life you have to learn how to play well with others.  You can't just go around doing what you want or you feel is best, without considering the interests or feelings of others.  It's an easy way to lose friends and the support of colleagues.

But professionally, lawyers sometimes need that same chutzpah when they have a case where the odds are against them.  I have experienced this.  As part of my practice, I take some court appointed cases.  Sometimes I defend people in cases when a friend or relative is trying to have them committed to a mental health facility against their wishes.  Sometimes, I represent indigent criminal defendants who have exercised their right to appeal.  Often in those cases, I look at my facts, and I know that the law is very likely against my client.  But after explaining the situation to my client, if the client wants me to vigorously contest the case, as long as I believe there is a good faith argument, ethically I am bound to do it.

At times, this is very difficult.  Sure, I may think there is language in some case somewhere that supports my client.  But I know that the judges are not likely going to agree with me.  I still need to go in front of the judges, and present my client's argument.  Zealously.  In times like that, I need the same chutzpah Jimmy showed when he was called to the carpet by his bosses.

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 

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 

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

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

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

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

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

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

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

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

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

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

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

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

Memorandum Supporting President's Deferred Action Program

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

 

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

 

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

 

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

 

By:  William J. Kovatch, Jr.

(703) 837-8832

(571) 551-6069 (ESP)

Wkovatch@kovatchlegalservices.comn

Temporary Protected Status (TPS) Granted to Liberia, Guinea and Sierra Leone

Almost lost in the media attention given to the President's announcement on immigration yesterday was an announcement by the Department of Homeland Security extending Temporary Protected Status, or TPS, to Liberia, Guinea and Sierra Leone.  The move is meant to permit people who are present in the United States as of November 20, 214 to remain here for eighteen months while the Ebola outbreak continues in their home countries.

Those who qualify for the protection have until May 20, 2015 to apply.

TPS is a status designated by the U.S. Government to countries when it would be inhumane to require nationals from that country to return home.  Is permits people who are present in the United States to remain here without fear of deportation.  Aliens granted TPS may be given work authorization.

TPS does not lead to permanent residency or citizenship.  It is merely a temporary status, that expires once the U.S. Government determines that the conditions in the home country have improved.

TPS has been extended in the past due to such humanitarian reason as war and natural disasters.

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

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

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

Can the Republicans Derail Administrative Action on Immigration?

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

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

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

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

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

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

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

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

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

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

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

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

Immigration Court Computer System Still Causing Problems

In April, the Immigration Court's computer system went down, due to a hardware issue.  It took over a month to get the system fixed.  During that time, the court was unable to enter new data into the system.

The system has been fixed, but the data entry is still somewhat delayed.  I had one client who was released on bond during April.  The fact that he had been released had not been entered into the court system, and as a result, his case was transferred to the detained docket, causing some last minute headaches for both the client and myself.  Fortunately, with some paperwork and some phone calls, I got this solved.

Still, if you have a case pending with the Immigration Court, you will want to be vigilant.  Check the 1-800 number often, and make sure you know when all of your hearings are scheduled.