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.
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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

Lessons from the Surge: Adult Male Migrants

Unless you've been living under a rock, you know that there has been an almost unprecedented surge of migrants making the dangerous trek from Central America and across the Mexican border into the United States.

Make no mistake, those who come to the United Stayes this way are doing so illegally and are immediately removable. But, I'm starting to see a trend in how the Administration is treating these migrants. It is in stark contrast to what Immigration authorities were doing just months ago. 

In this post, I will talk about the trend for adult males. The surge in unaccompanied children is much more complex and deserves its own post. 

Even if an alien has crossed the border illegally and is immediately removable, they still have the right to claim that they have a reasonable fear of persecution. If the claim is made, then an Asylum Officer conducts an interview to see if the fear is credible. If the fear is found credible, then the case gets referred to Immigration Court where the alien gets an opportunity for a full hearing. 

The persecution claims from adult males can roughly fall into a few categories: (1) I'm being recruited by gangs, I don't want to join and now they're threatening to kill me; (2) I used to be part of a gang, I quit and they're threatening to kill me; (3) I witnessed a gang-related crime, and they want to kill me; and (4) the police are corrupt and helping the gangs, they wanted me to sell drugs, I refused and now the police want to kill me. 

Just three months ago, the first three of these stories were being dismissed by the Asylum Officer. 

Things have drastically changed. With the huge surge, the US Government does not have the resources to house all of the migrants who are waiting for the legal process to work itself out. In my opinion, and I have no way of proving this, I believe Asylum Officers have been given instructions to be more liberal with their reasonable fear determinations. This, stories falling in categories 1 through 3, which were summarily denied before are being approved now. 

This means more aliens with reasonable fear stories are being released on bond and placed in full Immigration Court proceedings. The bond amount is almost universally $7,500. 

The trend in immigration law had been for the US Government to fight the granting of any gang-related asylum claims. As hard-line opinions came out, it left immigration lawyers like me somewhat despondent. We had to advice clients whom we knew were going to be murdered the minute that they arrived in their home country that there was nothing we could do for them.

This surge may wind up being the chance to soften the US Government's stance on gang-related asylum cases. In a way, the softening has already started as the Fourth Circuit, no bastion of bleeding hearts, issued a more liberal opinion on gang-related asylum cases this year. 

At any rate, an alien released on bond with a reasonable fear claim should contact a lawyer immediately. Lawyers know how to put together a case with evidence that is more likely to be approved. 

To contact me about your case, call (703) 837-8832 or email wkovatch@kovatchlegalservices.com. 

William Kovatch