President Trump Orders Better Background Checks; Temporarily Suspends Some Immigration Benefits

Through an executive order entitled, "Protecting the Nation From Foreign Terrorist Entry Into the United States," President Donald Trump instructed immigration authorities to devise ways to conduct more thorough investigations into the background of potential visitors, refugees and immigrants to the United States. The measures are aimed at an attempt to prevent aliens with terrorist ties from gaining admission to the United States. While the additional measures are being created, the President also temporarily suspended certain immigration benefits. 

President Trump instructs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine what information is needed to determine whether a person who has applied for an immigration benefit poses a threat to national security. The Secretary of Homeland Security is then to submit a report within thirty days on the information needed, and on which countries do not supply this information.  The Secretary of State is then to request that the countries listed start supplying the information identified by Homeland Security. Sixty days later, the Secretary of Homeland Security is to submit a list of countries recommended to be included in a list from which the President will prohibit entry into the United States. 

To alleviate the burden on the investigating agencies, entries of all aliens from countries that have been determined to be state sponsors of terrorism by the Department of State are being suspended during this ninety day period.  During the ninety day period, the Secretaries of State and Homeland Security may determine on a case-by-case basis if certain individuals should be permitted entry, notwithstanding the suspension. 

Immigration authorities are also instructed to establish a program to identify aliens seeking to entry the United States through fraud, and who have an intention to cause harm or are at risk to cause harm after their admission. This program is to include a database of identity documents to prevent such fraud. 

Finally, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, and  is to review procedures to approve refugee applications to determine what additional measures should be taken to prevent the admission of aliens who pose a threat to U.S. security.  For 120 days, the entire refugee program is suspended. After the instructed review is complete, the Secretary of State, the Secretary of Homeland Security and the Director of National Intelligence will then provide a list of countries for which the addition measures are adequate to protect U.S. security. Only refugees from these countries will be permitted to enter the United States. 

The suspension of immigration benefits is temporary in nature. The suspension is intended to permit U.S. authorities to review security measures, and recommend additional security measures. Contrary to popular media, the measures are not aimed specifically at Muslim countries. The measures are aimed at countries that have been determined to be state sponsors of terrorism. Far from discriminating on religious bases, the President actually condemns all of "those who engage in acts of bigotry or hatred (including 'honor' killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation."

By:  William J. Kovatch, Jr.

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Immigration Judge Finds Theft of Food and Livestock Does Not Trigger Material Support Bar

 

 

In a case that had been pending almost twenty-five years, Arlington Immigration Judge Paul W. Schmidt found that the theft of food and livestock by the FMLN (Farabundo Marti Nation Liberation Front) from the Respondent’s home did not constitute material support of terrorism.  The ruling paved the way for an El Salvadoran man, who had escaped his country’s civil war, to receive permanent residency in the United States.

The Respondent, who fled El Salvador in 1988 when he found a bomb in front of his house, had been attempting to obtain some form of immigration relief since 1990, when he filed his first asylum application.  His most recent attempt was through an application through the Nicaraguan Adjustment and Central American Relief Act (known as NACARA), which permits, among other things, certain Central Americans who have been present in the United States since the early 1990s to adjust to permanent residency, provided they can show good moral character and extreme hardship if returned to their home country.

Eligibility for immigration relief, however, is often not enough.  Rather, those who meet the eligibility requirements must still show that they are admissible under U.S. Immigration law.  One ground of inadmissibility applies to those who have provided material support to a terrorist organization.  This is called the material support bar.

U.S. courts have upheld a broad interpretation of the material support bar made by the Board of Immigration Appeals.  The material support bar can be triggered, for example, merely by providing food and directions to a group that the U.S. Government labels as a terrorist organization.  The text of the statute itself provides for no exception to the material support bar even if the support was given under duress.  Thus, a credible threat of immediate death may not excuse someone who has given food to a group labeled as terrorist.

In the Respondent’s case, he testified that twice the FMLN came to his home and took food and livestock.  The first time, they took about twenty tortillas.  The second time, they took one of his animals.  The Respondent did not stop the FMLN because he feared that he would be killed.  Because the U.S. Government labeled the FMLN a terrorist organization, U.S. Immigration and Customs Enforcement argued that this triggered the material support bar in the Respondent’s case.

In a written opinion, Judge Schmidt ruled that it did not.  Citing an unpublished Board of Immigration Appeals case, the Immigration Judge found that in order to be material the support has to be active.  The fact that the FMLN stole food and livestock from the Respondent, therefore, did not constitute material support.  The Judge granted the Respondent his NACARA application, paving the way for him and his minor daughter to become permanent residents.

By: William J. Kovatch, Jr.
Call now for an appointment:
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Beware of Overreacting to the Boston Attack Based on Fear and Speculation; Justice Shall Prevail

My thoughts and prayers go out to the victims and their families, as well as to all of the people of Boston.  Words cannot describe the sorrow, and even the anger I feel right now.  I can only hope that the full force of justice is brought down on the cowards who perpetrated such an evil and horrific act.

At the same time, I cannot adequately express the admiration I have for the people of Boston and how they have responded; from the police and emergency workers who responded in the face of danger, to the every day people giving a hand to the injured.

But we are now entering a very dangerous time.  I am not talking about the potential for follow-up attacks.  I am talking about the urge to speculate and overreact after such a horrific act of evil has been committed.

As I write these thoughts, there is very little that we know.  We don't know who did this.  We don't know why.  But as in any senseless act, we seek answers.  And at time, when we look for answers and try to make sense of the senseless, our fears lead us to dangerous speculation.

This is a time when yellow journalism flourishes.  Unconfirmed rumors abound, which tend to play upon our biases and our fears.  And sometimes, it is the unconfirmed rumors and the speculation that pushes us to overreact and blame the wrong people.

As an example, one of the headlines on the Drudge Report says, "Young Person Here on Student Visa."  Yet, when you click the link, you see that there is no suspect in custody.  There is just a vague reference to a person in whom the authorities have some interest, stating that he is here on a student visa.  Another link on the Drudge Report highlights an allegation that a "Saudi was acting suspiciously."  Yet, when you click on the link, there is no reference in the article of the nationality of any individual involved.

Likewise, I have been watching Sean Hannity's coverage on Fox News.  Mind you, I am a fan of Hannity and am sympathetic to many of his views.  But, I can describe his coverage of this event as nothing but irresponsible.  Indeed, one of his so-called experts was Mark Furhman, a notorious former Los Angeles police officer who not only was discredited twenty years ago in connection with the Nicole Brown Simpson case, but who has been convicted of perjury.  With no information whatsoever, Furhman continually referred to a "Middle East" style explosive devise, insinuating that this was an act of Middle Eastern terrorism.

Indeed, even former Pennsylvania Governor and Homeland Security Secretary Tom Ridge (a man whom I respect), while noting that much of the information on the explosive devices will be protected by investigators, could not help but speculate publicly about Middle Eastern terrorism.

The danger of such irresponsible speculation at this stage in the development of the story is that it is designed to play on our emotions.  It is designed to manipulate our fears.  You put out there concepts like a suspicious Saudi, Middle Eastern terrorism and a student visa holder, and suddenly you will have people blaming Arabs and the immigration system, all without concrete information.

There is a danger that such a reaction of emotional speculation will derail the push for much needed immigration reform.  There is a danger of blaming an entire group of people, namely Arabs, when we just do not know enough yet.

It is at times like this that we must remember that we are the United States of America.  We built our Constitution on individual freedoms and due process of law.  The Federalist Papers speak of the need to temper the passions of the masses, so that we can approach governance in a deliberative fashion.  We cannot let passions, fear and speculation shape our response to this evil and senseless act now.  We must let justice take its course, based on facts and evidence.

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