The Senate Must Vote on Judge Garland's Nomination

While pursuing Facebook yesterday, I came across a post from Michelle Malkin on President Obama's nomination of Judge Merrick Garland to the Supreme Court. The post was a link to an article in the Conservative Review simply entitled, "What Conservatives Need to Know About Merrick Garland."  When I clicked the link, I was shocked to find a one word answer as the first paragraph of the article. It simply said, "Nothing."

Author Brian Darling's analysis didn't get much more informative. The crux of his argument was that because Judge Garland was nominated by President Obama, he is a liberal and will tip the balance on the Supreme Court in favor of the liberals. 

I was shocked because even though I consider myself a Republican with conservative leanings, my reaction to President Obama's pick was far different. I was surprised by how non-controversial the appointment would be. 

Judge Garland has sat on the U.S. Court of Appeals for the DC Circuit since 1997.  He is currently the Chief Judge.  Because of the location of the DC Circuit, it is the court that tends to hear cases involving Federal policy most often. The court is often considered a stepping stone to the Supreme Court. 

In addition, Judge Garland is a former prosecutor who is 63 years old. Not only has he worked in law enforcement, he is not likely to stick around the Supreme Court for a very long time. 

At this point, conservatives point to two cases in which he was involved to ring the alarm bells that he will rob us all of our gun rights. The first is the case that overturned the District of Columbia's gun control law. The case was decided by a three judge panel, and Judge Garland voted for the case to be reheard en banc, which means in front of all of the judges of the DC Circuit. 

The second was a case where Judge Garland agreed that the FBI could retain gun purchase records for six months to ensure that a computerized background check was working. 

Neither case hardly says anything about the Judge's views on the Second Amendment. Yet it is enough that Judge Garland acted in a way displeasing to the NRA for conservatives to mobilize opposition by engaging in the Second Amendment fear mongering. 

Conservatives are mourning the loss of Justice Antonin Scalia. The prospect that his seat on the Supreme Court could be filled by an Obama appointee is just devastating to them. Thus, Senate Majority Leader Mitch McConnell took the unprecedented step of announcing that there would be no hearings on any Obama nomination. Instead, the choice would be left to the new president. President Obama has countered with the nomination of a highly respected jurist, who is not likely to stay around for a very long time. The result is that Senate Republicans look far worse than just merely obstructionists. They look like whiny, petulant children. 

One of the most frightening characteristics of the Tea Party movement, and its influence on the Republican Party, has been the uncompromising willingness to shut down normal government functions in the name of promoting conservatism. Faced with very little on the record to challenge a nominee who appears to be eminently qualified, the conservatives resort to fear mongering. Senate leaders should not play this game. Rather, they should do their constitutional duty of allowing the full Senate to give advice and consent by holding hearings on Judge Garland, and sending his nomination to the floor for a vote. 

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

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

Deferred Action Recipients May Get Preferential Treatment in Immigration Reform

For those who waited to file an application for the President's Deferred Action for Childhood Arrivals (DACA) program, this may be the time to do it.  Under the current version of the Senate bill, those who received deferred action under the DACA program may automatically qualify for Registered Provisional Immigrant (RPI) status.  The bill gives the Secretary of Homeland Security the discretion to grant RPI status to DACA recipients who have not otherwise engaged in conduct that would render the DACA recipient ineligible for RPI status.  In fact, those who received DACA benefits may be immediately eligible for citizenship upon becoming a permanent resident.

DACA is the program announced by the President last year where certain young people who entered the United States before the age of 16 could be granted a reprieve from deportation and work authorization.  The requirements for DACA eligibility can be found here.

Current estimates are predicting passage of the bill in the Senate with as many as 70 votes.  How the bill will fare in the House, which is controlled by Republicans, remains to be seen.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimigrationlaw.com

Details of the Proposed Immigration Reform

The Gang of Eight introduced its proposal for immigration reform in the Senate today.  The bill is 844 pages long, and will take time to read, digest and analyze.  However, one organization, the Migration Policy Institute, has published a detailed comparison of the proposals introduced in this bill, and the proposals made in 2006 and 2007.

The heart of the proposal appears to be to require the Department of Homeland Security to create strategies to provide greater border security, and to implement those strategies, in exchange for permitting those who are present in the United States without legal status to be given provisional status, which could eventually lead to citizenship.

First, Homeland Security must submit strategies for protecting the southern border within six months of the passage of the bill.  Once the strategies have been submitted to Congress, then a new status, Registered Provisional Immigrant ("RPI"), is created.  The Secretary of Homeland Security must then certify to Congress and the President that the plans have been submitted, implemented and substantially operational or complete.  A mandatory employer verification system (E-Verify) and an electronic exit system at air and sea ports must also be implemented.  Once all of these conditions have been met, then those with RPI status may apply for permanent residency.

RPI status must be renewed every six months.  Eligible aliens must have been continually present in the United States from December 31, 2011.  Those with RPI status must learn English, and pay all taxess before they can adjust to permanent residency.  However, certain deportees who were present before December 31, 2011 may apply for re-entry under RPI status, if they were not deported for criminal reasons and other criteria are met.

To received RPI status, there will be a $500 fee at filing, and a $500 fee upon renewal.  To adjust to permanent residency, there will be a $1,000 fine, plus a processing fee ($400 fine for agricultural workers). 

It should be stressed that this is just a proposal.  It is subject to mark-up and amendment in the Senate.  It must also pass the House of Representatives and be signed by the President before it becomes law.  Thus, changes should be expected.  More details on the proposal shall follow.

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

Want to Help a Brother or Sister Come to the U.S.? You May Need to Act Soon!

The so-called "Gang of Eight" unveiled its immigration reform proposal in the Senate today.  The proposal contained a lot of changes; too many to detail in a blog entry such as this.  It does appear that that in order to account for the undocumented aliens who may be permitted to stay in the United States, other visa categories may be restricted or eliminated altogether.  The full text of the 844 page immigration reform bill, titled the "Border Security, Economic Opportunity, and Immigration Modernization Act," can be found at this link.

One of the more surprising proposals is the elimination of permanent residency visas for brothers and sisters of U.S. citizens.  Currently, a U.S. citizen can petition for a visa for a foreign-born brother or sister.  A very limited number of such visas are available on an annual basis, meaning that there is currently a backlog of approved visa petitions waiting for a visa to become available.  Dubbed category F4, for most countries visas for brothers or sisters of U.S. citizens are just becoming available for petitions which were filed on or before May 1, 2001.  For brothers and sisters from the Philippines, visas are just becoming available where the visa petition was filed on or before October 1, 1989.

The bill will now be introduced in the Senate, and will go through debate and "mark-up."  Mark-up is where amendments to the bill can be considered.  Even if the bill passes the Senate, it must pass the House of Representatives as well.  This means that it is likely that the bill which was introduced today will undergo numerous changes should it become law.

Nonetheless, the proposal to eliminate the brothers and sisters of U.S citizens category should cause some degree of urgency for those who wish to assist their sibling in coming to the United States.  If a citizen wants to help a sibling, that citizen should not delay in filing the visa petition.  Waiting to file could mean that the citizen and the sibling have lost their opportunity to obtain a permanent residency visa.

If you want to consult with an immigration attorney about filing a sibling petition, or for any other immigration matter, call me at (703) 837-8832 for an appointment.

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