How the Diversity Visa (the Lottery) Actually Works

President Donald Trump has expressed his distaste for the diversity visa on numerous occasions.  In the Rose Garden on February 15, 2019, Trump exclaimed, "And then you have the lottery.  It's a horror show, because when countries put people into the lottery, they're not putting you in; they're putting in some very bad people in the lottery.  It's common sense.  If I ran a country, and if I have a lottery system of people going to the United States, I'm not going to put in my stars; I'm going to put in people I don't want."

Trump continued with his criticism in a campaign rally in Cincinnati on August 1, 2019, stating, "And you pick people out of a lottery.  Well let's see, this one is a murderer, this one robbed four banks, this one I better not say, this one another murderer, ladies and gentlemen, another murderer.  Do you think [these countries] are going to put their great citizens . . . into the lottery?  Look at the people they put into these lotteries."

Trump's message has been consistent.  In 2017, Trump told graduates f the FBI National Academy, "They have a lottery. You pick people. Do you think the country is giving us their best people? No. What kind of a system is that? They come in by lottery. They give us their worst people, they put them in a bin, but in his hand, when he’s picking them is, really, the worst of the worst. Congratulations, you’re going to the United States. Okay. What a system — lottery system."

It is actually quite amazing.  Everything Trump says about the diversity visa lottery is completely wrong.  Not one bit of it is true.  The governments of foreign countries play no role in who applies for a diversity visa through the lottery system.  There is no bin.  No names are drawn from a hat.  Those who win the lottery, and thus have a chance to immigrate to the United States, are vetted to ensure they have no criminal record.  Indeed, in order to obtain the visa, a lottery winner must have a certain level of education or skill to ensure they will not be a drain on the U.S. welfare system.

Through the diversity lottery, visas are made available for 50,000 people each year.   The idea is to give people from countries that have traditionally sent fewer immigrants to the United States the chance to immigrate to the United States.

If a country has sent 50,000 or more immigrants to the United States in the last five years, then people from that country may not receive a diversity visa. Based on this criteria, people from Canada, Mexico, the Philippines, the Peoples Republic of China, El Salvador, Haiti and South Korea, to name a few, are not eligible.

The diversity visas are distributed by region, with people from the regions sending the fewest immigrants to the United States in the previous five years receiving the most visas. The regions which currently receive the most visas under the program are Africa and Europe. No one country can receive more than seven percent, or 3,500, of the visas available for that year. The visas are distributed at random.

To apply, a person enters the lottery online during the registration period. Winning the lottery does not guarantee that the applicant will receive the visa. Rather, the applicant must meet certain additional requirements. The applicant must have graduated high school, or have spent two out of the last five years in an occupation requiring at least two years' training or experience.

A person does not need to meet the eligibility requirements in order to apply online. This has led to a number of disappointed lottery winners. That is, a person can win the lottery only to learn that he or she does not have the required education or work experience to receive the visa.

The be able to immigrate to the United States, a person who receives a diversity visa must still be admissible pursuant to U.S. immigration law.  That means the person may not have committed certain crimes, such as murder, theft or sexual assault.  The person cannot have certain communicable diseases, be a habitual drunkard, be likely to become a public charge, or be considered a threat to national security.

To summarize, a person desiring to immigrate to the United States enters the diversity visa lottery.  That person's government has nothing to do with the application.  Foreign countries do not put people's names into a bit, or a hat, or a box.  An individual applies through the internet by going online.  A computer program picks names randomly.  In order to come to the United States, the person just have a minimum level of education or work experience, and cannot have committed certain crimes.

Thus, when Trump describes the diversity visa, he is engaging in nothing more than fear mongering.  This fear mongering fits in with his overall approach to immigration, where he manipulates the fear of his followers to promote more restrictive immigration policies.  He ignores studies which show immigrants as less likely than those born in the United States to commit violent crimes, instead painting all immigrants as potential threats to the public safety.  Education and access to accurate information can prevent Trump from manipulating the ignorance of his followers to pervert immigration law and policy.

By:  William J. Kovatch, Jr.

What Does the New Democratic Majority in the House Mean for Immigration Reform

With Democrats winning a large number of seats to wrestle control of the House of Representatives away from Republicans, what will that mean for immigration reform?

Immigration reform was considered a “second term” issue for the Obama Administration, meaning that while President Obama saw the need for reform, he focused on issues that he saw as a greater priority in his first term, such as health care reform. When serious legislation addressing such topics as the millions of undocumented aliens already present in the United States, it fell victim to the Tea Party, a coalition of radical right-wing Republicans who gained power through gerrymandering, or the creation of congressional districts with strong conservative populations. The Tea Party flexed its muscle by forcing a government shut down over the funding of the Affordable Care Act, and thus discovered that it had the power to influence Republican House leaders to turn against immigration reform, branding any proposal other than enforcing the laws already on the books as amnesty. Hope for a legislative fix for the nation’s immigration problems died in President Obama’s second term. 

But President Obama did not allow legislative gridlock to hamper his desire to pursue immigration reform. Using solely executive action, President Obama reformed the nation’s deportation policy by ordering Immigration and Customs Enforcement (ICE) to prioritize deportation cases involving dangerous criminals. In a policy called “prosecutorial discretion,” the President had ICE agree to the administrative closure of those cases that were not in line with the new priorities. 

Similarly, by executive order, the President created a new program known as Deferred Action for Childhood Arrivals, or DACA.  Deferred action is merely a promise by the Executive Branch not to seek the deportation of an alien present in the country without legal authority. Through DACA, President Obama gave relief to undocumented aliens who were brought to the United States as children, who had a US high school diploma, were working on education or who joined the military, and who did not a significant criminal record. Using his legal authority pursuant to the Immigration and Nationality Act, he then granted those people who qualified for DACA the authority to work legally in the United States. 

The problem with pursuing immigration reform purely by executive action and without congressional action was that President Obama could not grant undocumented aliens a secure legal immigration status. Those who benefitted from prosecutorial discretion and DACA, therefore, were left vulnerable to a change in the presidential administration. 

That change came in 2016, when Republican Donald Trump won the presidency through an Electoral College victory over Democrat Hillary Clinton. Trump had run on a hard-line immigration approach of strict enforcement to be highlighted by building a wall along the southern border to be paid for by Mexico. 

Once in office, the stark contrast between President Obama’s view of immigration reform, and that of President Trump became evident. Emphasizing that even crossing the border without a visa was a criminal act, President Trump changed ICE’s enforcement priorities to include all aliens present in the country without legal authority. ICE began enforcement actions that heretofore had been unthinkable, such as immigration arrests being made in school parking lots, outside hypothermia shelters and in the halls of state courthouses where domestic abuse victims sought protection. 

Other executive action taken by the Trump Administration included the exclusion of aliens from certain countries deemed to be dangerous by the Administration from entering the United States, most of which were Muslim countries, instructing Immigration Judges not to resolve deportation cases through administrative closure, instructing Immigration Judges that in the Attorney General’s view victims of domestic abuse and gang violence did not qualify for the legal protection of asylum, and the rescission of DACA.  

Indeed, legislation proposals demonstrated that the Trump Administration’s definition of immigration reform was far more harsh than that of the Obama Administration. Gone was the idea that reform should provide benefit to those were in the country without authorization.  It was replaced with a drive to contract family based immigration, and to discourage immigration from places the President considered “shit-hole countries.”

The difference between Democratic and Republican priorities in reforming the nation’s immigration laws could not greater. 

President Trump created a crisis for foreign-born young people with his decision to rescind DACA. Although the courts have intervened, preventing the program from ending, DACA recipients find their legal status fragile and their future uncertain. He has insisted that a legislative fix was necessary. Meanwhile, he has bemoaned the efficacy of current immigration law, demonizing groups of Central Americans making the dangerous trek northward in the hopes of applying for asylum as potential gang members and terrorists. He has insisted that any legislative efforts to address the DACA crisis also include greater border security measures (such as the funding of the border wall), the curtailment of family based immigration, and the elimination of a program meant to create greater diversity in those who immigrate to the United States (that is, the annual diversity visa lottery).

Surely, with court action currently protecting DACA recipients, and the vast difference between the parties on immigration issues, it seems highly unlikely that the newly elected Democratic House majority will agree to the Trump Administration’s demands for harsher and more restrictive immigration reforms. Barring intervention on DACA by the Supreme Court, any hope for legislative action to be taken in the next two years on immigration reform would appear to be folly. That is, only if the Supreme Court were to accept a case involving DACA, and side with the President, would there be any pressure on the Democrats to find some common ground on immigration in order to protect a sympathetic group of law abiding young people. Even then, the price may be so high that the Democrats would prefer to have the issue front and center for the 2020 presidential election. 

This continued inaction on addressing the nation’s immigration problems may set-up the issue of immigration reform as an powerful issue going into the next round of federal elections.

By: William J. Kovatch, Jr. 

The Fallacy of Enforcement Only Thinking

"Let's just enforce the laws we have."  "We don't need immigration reform. We already have immigration laws on the books. Just enforce them."

Those are the refrains we hear over and over again from those who oppose any immigration reform.  It is a mindset that assumes that immigration laws are static, and ought to be so. 

But in a democracy, laws are not static and unchanging.  Laws are meant to be changed over time, just as our society changes over time.  This is why the United States has a Congress.  Like all legislatures, Congress' job is to examine the laws, and decide in a deliberative fashion if new laws need to be passed, if old laws need to be adjusted, and if laws need to be eliminated.

Calling for enforcement only, therefore, cuts off a debate that we as a society need to have on a constant basis.  What are the purposes of our immigration laws? Are our immigration laws functioning in a way to achieve those purposes? Are our immigration law functioning in a manner that reflects our values?  Are there unintended consequences of our immigration laws that need to be adjusted?

All too often, opponents to immigration reform simply presume that our laws are functioning the way they are supposed to function.  They treat immigration laws as if they were criminal law, despite the fact that time and time again immigration practitioners are reminded that immigration laws are civil in nature and not criminal.  Defining immigration laws as civil law gives the government the hook it needs to downplay violation of basic constitutional rights.

But equating immigration law violations with criminal law violations gives those who oppose immigration reform the luxury of dehumanizing undocumented aliens. By calling them illegals, opponents can ignore the inhumane and cruel consequences of enforcement, and claim that "those illegals" deserve it for breaking the law in the first place. 

In that way, opponents of reform can ignore how enforcement causes the separation of families. They can ignore that some aliens who qualify for immigration relief are forced to withstand detentions that are longer than their original criminal sentences. 

For tho who don't have someone they know stuck in the system, enforcement only seems like an easy solution; but it's not a compassionate solution. It's a way to ignore the problems of the current system, and hide away in their own personal cocoon, content with the illusion of security. 

By:  William J. Kovatch, Jr. 

For an appointment call (703) 837-8832

(571) 551-6069 (ESP)

I'm Not Dead Yet: How DAPA Has Survived the Supreme Court Decision

Yesterday, in a one sentence decision, the U.S. Supreme Court announced that they were deadlocked in the case of United States v. Texas, and therefore the Circuit Court decision stands. 

The media hailed the decision as a major defeat for President Obama's Deferred Action for Parents of Americans (DAPA) program. The President announced in November of 2014 that parents of U.S. citizens and permanent residents present in the United States could qualify for a promise that the government will not seek their deportation and a chance to apply for work authorization. The President took matters into his own hands when he believed Congress had become deadlocked on the issue of immigration reform. Critics immediately dubbed the move amnesty. 

Texas and other states filed suit over the measure, claiming the President had no authority to implement the program without congressional authorization. Before the District Court could hold a hearing on the main case, the states sought a preliminary injunction to prevent the Administration from implementing the program while the lawsuit was pending. The District Court granted the injunction. The Administration appealed. The Circuit Court upheld the injunction. The Administration sought review before the Supreme Court. 

Meanwhile, the main case continued before the District Court. 

The Supreme Court decision concerned only the preliminary injunction. Because the main case is still pending, this means that the issue could once again reach the Supreme Court. 

What this means is that the 2016 presidential election has now become a critical election for immigration reform. Justice Antonin Scalia died this year, leaving an open Supreme Court seat. With an even number of Supreme Court justices, any case where the vote is tied means that the lower court decision stands. The Republicans in the Senate have refused to hold hearings on President Obama's nominee to take Scalia's seat. 

This means that the new President will have the power to appoint a new justice, and thereby break the deadlock before the main case reaches the Supreme Court.  The fight over DAPA, therefore is not over; its fate rests in the hands of the voters. 

By: William J. Kovatch, Jr. 

For an appointment, call (703) 837-8832

Se habla español (571) 551-6069 

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

President to Make Immigration Announcement

It is being reported the President Obama will make a prime time announcement concerning immigration policy on Thursday, November 20.  The announcement is expected to include a program to shield many undocumented aliens already present in the United States from deportation.

The most likely vehicle for this will be an expansion of the deferred action program.  Deferred action is simply a promise from the U.S. Government that it will not deport a person.  A person granted deferred action can apply for work authorization.

At William J. Kovatch, Jr., Attorney at Law, PLLC, we stand ready to assist those who may benefit from the President's announcement.  To make an appointment to determine if you qualify, call us at (703) 837-8832.

En espanol, llame (571) 551-6069.

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

Harsh Republican Action May Spur Administrative Response on Immigration

In a move largely seen as pandering to Tea Party activists, House Republicans passed a bill Friday that would increase funding for border security and attempt to send the tens of thousands of unaccompanied minors attempting to enter the United States over the southern border back to their home countries expeditiously. House Republicans also took action to undo President Obama's Deferred Action for Childhood Arrivals (DACA) program. 

The move appears to be a purely symbolic one, since the bill has no chance of passing the Democratically controlled Senate. Still, House Republicans have sent a signal that they may not be willing to consider serious immigration reform. 

In a purely political calculation, House Republicans may see a greater threat from more conservative candidates in the primaries than from Democrats in the general election. The stunning primary loss of Eric Cantor has only emphasized this line of thinking. This, House Republivans do not appear to be willing to be seen as supporting anything closer to "amnesty" prior to the November elections. 

The House move, however, may have encouraged the Obama Administration to take drastic measures on its own. Democrats are already facing the prospect of the Republic as maintaining their majority in the House of Representatives. There is a possibility that the Republicans could take the Senate as well. Either way, the chances of legislative action on immigration reform before the end of President Obama's term appear almost non-existent. 

The President may, therefore, take executive action to ease deportations and removals for non-criminal undocumented aliens. One proposal that has been floated has been to grant the parents of DACA recipients deferred action. Another has been to grant deferred action to all undocumented aliens without a criminal record. 

The Administration appears to have anticipated the argument that such a move would be overreaching. Articles have already appeared in the media warning that Republicans may seek to initiate impeacent proceedings if the President takes such action. This could be an attempt to portray Republican resistance as being unreasonable. 

What action may happen is now hard to predict. William J. Kovatch, Jr., Attorney at Law, PLLC will remain on top of decelopments, ready to assist those with immigration issues when any action occurs. 

By:  William J. Kovatch, Jr.

(703) 837-8832

Wkovatch@kovatchlegalservices.com

Imigration Reform Is Dead? How Did That Happen?

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

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

The Process Took Too Long

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

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

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

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

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

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

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

Republicans Don't Trust Obama

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

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

Republicans Are Now Focused on the Mid-Term Elections

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

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

Democrats Couldn't Care Less if Immigration Reform Actually Passes

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

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

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

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

Will Some Kind of Immigration Reform Pass this Year?

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

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

GOP Proposes Immigration Reform; Now What?

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

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

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

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

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

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

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

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

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

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

Immigration Reform Heads to the Republican Controlled House of Representatives

Immigration reform passed the Senate last week with a vote of 68-32.  The issue now heads to the House of Representatives, where it's future is less certain.

While almost 70 Senators voted for the reform bill, the fact remains that only 14, or less than one-third, of Republican Senators voted for it.

Unlike the Senate, the House is controlled by Republicans.  Speaker of the House, John Boehner, is not likely to bring proposed legislation to the floor for a vote unless a majority of the House Republicans are in favor of it.  Although Republicans are in favor of certain reform measures, there is one issue that Republicans may strongly contest.

Namely, the pathway to citizenship for those already present in the country may turn out to be a measure House Republicans won't swallow.  In a way, Republicans may be guided by the politics of self-preservation.  On the one hand, PBS reports that most House Republicans are in safe districts.  This means that if those Republicans vote in favor of a pathway to citizenship, they are more likely to face a primary challenge from a conservative candidate angry over immigration reform than a strong Democratic challenge in the November 2014 elections.

Then, there is the issue of what would happen to the future electoral chances of the Republican Party if millions of Latinos already present in the United States become full citizens with voting rights.  Although it is a mistake to consider Latinos as a single, unified group (Cubans tend to vote differently than Mexicans, for example), in generally Latinos tend to vote Democratic.  In the last election, over two-thirds of the Latino vote went to President Obama.  Republicans will be very reluctant to endanger their future electoral success by voting for a pathway to citizenship.

That is not to say that Republicans oppose immigration reform.  Jeb Bush and Clint Bolick published an op-ed piece in the Wall Street Journal making a Republican case for immigration reform.  Their emphasis was on reducing family based immigration in favor of more employment based immigration.  The two viewed this as the House of Representative's opportunity to make changes to the Senate proposal, more in line with conservative values.  The House, for example, can insist on greater border control measures.  Regarding the path to citizenship, Bush and Bolick would make the civics test for naturalization more challenging.

In the end, Bush and Bolick state that Republicans have more in common with immigrants, such as "beliefs in hard work, enterprise, family, education, patriotism and faith."  Bush and Bolick urge Republicans to stop being an obstacle to reform, "and instead point the way toward the solution."

Of course, there may be a way to push for reform, with providing some political cover for House Republicans.  This is through the use of the discharge petition.  If 218 House members sign a discharge petition, then the legislation would come to the floor of the House for a vote despite opposition of the House leadership.   This is a rare occurrence, as it requires a few members of the majority party to join forces with the minority party in order to bypass House leadership.  In normal circumstances, this would mean reprisals against the those members of the majority party who side with the minority party.

A discharge petition, however, may be exactly what House Republican leaders need to allow immigration reform to come to a vote without making it look like their fingerprints are on it.  That is, if there is pressure from Republican leaders outside of the House to bring the measure to the floor, the House leadership could work behind the scenes to encourage those Republicans in the House who support the measure to sign the discharge petition and force the measure to come to the floor.  Then, the House leadership and the majority of the House Republicans could go back to their districts and claim that they had nothing to do with immigration reform and even voted against it.

This is just one vision of how things could proceed in the House.  As of this moment, it is just speculation.  Steve Benen of MSNBC reports that the House already has a bipartison group working on its own version of immigration reform legislation.  If nothing else, immigration reform may continue to dominate Washington politics for a few months before we know what the outcome will be.

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

Marriage Equality Was Discussed in Crafting Senate Immigration Reform Bill

As I've posted on this blog a few days ago, the Supreme Court's decision in United States v. Windsor removed the last legal impediment to allowing same sex couples to apply for immigration benefits for the foreign born spouse.  The New Yorker reports that this topic was actually discussed during the negotiations of the Senate bill on immigration reform.

According to Ryan Linza, the Democrats in the Gang of Eight wanted to include a provision in the bill which would have given gay and lesbian couples the right to apply for immigration benefits.  The Republican members opposed the measure, with Senators Marco Rubio and Lindsey Graham threatening to withdraw support if the measure were added.

The Supreme Court's decision, however, has apparently made this debate moot.  Because the Federal Government cannot discriminate against those in lawful same sex marriages, that would seem to indicate that immigration benefits must be granted on equal footing.  Indeed, the Washington Blade reports that the Office of Personnel and Management has already laid out a plan to provide Federal benefits for Government employees in same sex marriages.

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

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

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

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

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

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

Asylum Law Changes May Be Coming

The U.S. Government may grant a person asylum if that person can show that he or she has a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group.  Reasonable fear has been defined by the Supreme Court as at least a 10% chance of the persecution occurring.  Currently, an asylum application must be filed within one year of the person entering the United States.  If asylum is granted, the asylee can apply for permanent residency, and then citizenship.

If a person has not filed an asylum petition within one year, that person could still be eligible for withholding of removal.  However, the standard is higher.  The person would have to show that he or she is more likely than not to face persecution.  Those granted withholding of removal are not later entitled to apply for permanent residency or citizenship.

If the immigration reform bill currently before the Senate becomes law, a major change to U.S. asylum will take place.  The one year deadline in which to file an asylum petition will be removed.  But that's not all.  All of those people who were granted withholding of removal solely because they did not meet the one year deadline will be eligible to have their status changed to that of an asylee.

Currently, the Government protects the one year deadline zealously in Immigration Court proceedings.  Removing the deadline would open this form of relief to numerous people who would otherwise be ineligible to remain in the safety of the United States.

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

Drunk Drivers Beware!

Currently, a conviction for driving under the influence of alcohol (DUI), or driving while intoxicated (DWI), is not an automatic ground for inadmissibility or deportation.  But, all of that could change if the Border Security, Economic Opportunity, and Immigration Modernization Act becomes law.

Section 3702 of the Act creates a new ground of inadmissibility and a new ground of deportation: Habitual Drunk Drivers.  A Habitual Drunk Driver is defined as a person who has three or more DUI or DWI convictions.

One key difference between the new ground of inadmissibility and the new ground of deportability is that in order for an alien to be deportable, at least one of the convictions must occur after the passage of the Act (click here for a discussion on the difference between inadmissibility anddeportability).  Because this provision is not in the section of the Act defining inadmissibility, that could lead to the conclusion that Congress intends for this provision to be applied retroactively for those who are present in the country illegally, or who apply for admission in the future.  That is, even though DUI and DWI convictions do not currently render an alien inadmissible, if the Act passes, then those aliens who are present in the country illegally and who currently have three or more DUI or DWI convictions could find themselves in immigration trouble.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimigrationlaw.com