Trump Administration Adopts Asylum Regulation Directly Contrary to the Plain Language of the Statute

The Trump Administration has shown once again its disdain for the legal process of immigration, issuing a regulation directly contrary to the plain language of the Immigration and Nationality Act (INA). 

The specific issue concerns asylum. Asylum is legal protection granted by a country to people who have a reasonable fear of persecution in their home country based on race, religion, nationality, political opinion or membership in a particular social group. A person granted asylum has the legal right to remain the United States, work and obtain a travel document. After one year, an asylee may apply for lawful permanent residence, which can lead to citizenship. 

The Department of Justice issued an interim final rule prohibiting anyone who enters the United States through the southern border with Mexico at anywhere other than an official port of entry from applying for asylum, effective after the President has made a Proclamation to that effect. Put simply, once the President issues his Proclamation, migrants who do not hold a visa must enter through an official port of entry in order to apply for asylum if they cross over from Mexico. Any alien who sneaks across the border will be barred from applying for asylum. 

But this contradicts the statute. The process of applying for asylum is governed by section 208 of the INA.  Section 208(a)(1) states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

The law, as passed by Congress, therefore guarantees the right to apply for asylum to any alien present in the United States, regardless of how that alien entered or what that alien’s legal immigration status is. That is, an alien who entered the United States by crossing the border without a legally valid visa, and at a place other than an official port of entry, may by law apply for asylum even if that alien has no legal immigration status in the United States.

The US law wherein Congress passed this provision was the Refugee Act of 1978. Through this law, Congress implemented US international obligations stemming from the Universal Declaration of Human Rights and the Protocol Relating to the Status of Refugees. The Protocol, in particular, prohibits a country from imposing a penalty on a refugee because that refugee either entered the country illegally or is present in the country illegally. 

A regulation is a rule issued by the Executive Branch implementing a statute passed by Congress. Regulations may interpret ambiguous language in a statute, or adopt policies pursuant to a statute where Congress has authorized the Executive Branch to adopt such policies. A regulation cannot contradict the plain language of the statute. 

In this instance, then, where Congress expressly provided that an alien present in the United States May apply for asylum regardless of whether that alien is present illegally or crossed the border illegally, a regulation cannot restrict the ability of aliens to apply for asylum only if they come through an official port of entry. With the regulation being directly contrary to the plain language of section 208(a)(1) of the INA, the Administration has no legal authority to adopt it. In the end, this restriction on the availability of asylum cannot withstand legal scrutiny. 

By:  William J. Kovatch, Jr. 

Suspension of DACA Would Pose Legal Challenges for DREAMers

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Last Friday, Daniel Ramirez, who had been granted deferred action and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program, was seized by Immigration and Customs Enforcement (ICE) agents, who raided his house to arrest Ramirez's father.  Ramirez's work authorization was still valid.  But this did not deter ICE agents from seizing him, as ICE contends that Ramirez admitted to being associated with a gang.  Ramirez claims he has no gang association, and that he was pressured by ICE to make such statements.

Ramirez has now initiated suit against the Untied States' Government. But his arrest and detention should serve as a warning to the thousands of young people who have applied for, and received, protection pursuant to DACA.

DACA is simply a promise made by President Obama that his Administration would not seek the removal of young people who were brought to the United States by their parents when they were children.  The President did this by granting deferred action.  Once the President grants deferred action, the recipient is entitled to apply for legal authorization to work in the United States.  But deferred action is not a legal status.  It is simply a promise from the Government not to seek removal.

DACA was not authorized by statute.  In fact, President Obama only created DACA when Congress failed to pass the DREAM Act, which would have created a path to legal residency and possibly citizenship for the young people who were brought to this country as children, but grew up knowing America as their home.  The people who would have qualified for status under the DREAM Act are affectionately known as DREAMers.

But because DACA is not a creature of statute, it is a very fragile promise.  The President is under no obligation to extend protection pursuant to DACA once the current protection expires.  Moreover, because it is a matter of executive discretion, an applicant is unable to challenge the denial of DACA protection in U.S. courts.

But once a DREAMer has been granted DACA protection, that person has an expectation to continue to receive protection from removal until the program expires.

This is the expectation that ICE violated when it took Ramirez into custody.  Ramirez, who has no other legal immigrant status, will now face proceedings in Immigration Court where the United States will seek his removal.

In many instances, Immigration Court can grant relief from removal.  There are some programs, such as asylum or cancellation of removal, which the Immigration Court by law can grant after a hearing.  However, because DACA is not a legal program, but an exercise of executive discretion, the Immigration Courts have no power to issue a ruling on whether DACA protection was improperly suspended for any individual.

This does not leave DREAMers without a remedy.  Because DACA recipients have an expectation of a governmental benefit, that benefit cannot be rescinded arbitrarily or capriciously.  That is, DACA recipients have a due process right to have their protection honored until the expiration of the program.  But to enforce this right, DACA recipients may need to go to federal district court.

That is, if ICE arrests a person who has been granted DACA protection, and seeks that person's removal, the DACA recipient will need to file a lawsuit in a U.S. District Court alleging constitutional violations, such as due process.  Such a lawsuit is expensive and can become complicated.  In Ramirez's case, he will have to address ICE's claims that Ramirez admitted to being associated with street gangs.  There will be discover and a hearing.

The availability of such a process may not be comforting news to other DACA recipients.  Many are not in a position to spend thousands of dollars on legal expenses to fight over weak legal promise which will expire anyway in a little more than a year.  Indeed, the current Administration could be counting on that level of vulnerability to pick off DACA recipients one by one, making tenuous claims of gang association, knowing that they are forcing the DACA recipients into an expensive legal battle.  In that way, the Administration can claim that it is merely going after the "bad hombres" and highlighting its argument that President Obama overstepped his authority when he instituted DACA.  This is a position that would play well with many of President Trump's supporters.

DACA recipients need to be prepared to defend their rights.  All immigrants should know that ICE cannot issue warrants to itself that allow entry into a dwelling.  Only a judge can issue such a warrant.  Before letting ICE into your house, make sure everyone knows that they need to ask to see the warrant, and to check whether it is judge-issued.  All residents of your home should also know that they are under no obligation to answer any question posed by ICE agents, except their name.  If asked anything by ICE agents, demand your right to consult a lawyer.  Sign nothing without consulting a lawyer.  Do not be intimidated by ICE.  Spread the word.

By: William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
(571) 551-6069 (español)

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

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

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

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

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

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

Horrors!

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

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

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

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

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

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

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

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

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

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

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

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

President to Press for Immigration Reform Early in the Next Congress

According to the Los Angeles Times, President Obama is preparing to press for comprehensive immigration early in the next Congress.  The plan calls for an all-out blitz as soon as talks over the country's fiscal problems dies down.  Reportedly, the campaign to press for immigration reform will focus on convincing Americans that reform will provide benefits in such areas as education, health care, business and safety.

The exact details of the President's proposal are still evolving.  Reportedly, the proposal will include a pathway to citizenship for those undocumented aliens already present in the United States, increased border security, increased penalties for employers who hire aliens unauthorized to work in the United States, and increased opportunities to hire foreign workers.

According to the Times, some Democrats believe that there is a narrow window to press for reform.  The closer it gets to the next congressional elections, the more likely members of Congress will be reluctant to vote in favor of a bill that has political risks.

Republicans, however, appear to be in favor of slower approach, tackling one issue at a time before addressing whether there should be a pathway to citizenship.  Florida Senator Marco Rubio has stated, "Portions of immigration reform can be dealt with quicker than others."  Congress, for example, could first approach expanding opportunities for science and technology workers and addressing undocumented aliens who were brought here as children before the more controversial subjects.

Recently, however, a bill to expand the number of visas available to science, technology, engineering and math (STEM) workers stalled in the Senate after being passed by the House.  The fight over the bill highlighted a key difference of opinions between Republicans and Democrats over the shape of reform.  Specifically, Republicans appear to believe that in order for there to be more visas available for STEM workers, over visa categories have to be eliminated.  Democrats, by contrast, do not view reform as a zero-sum game, seeing no need to eliminate some visas in order to expand the availability of others.

One key concern for Republicans is whether they would be sacrificing their political future by supporting immigration reform now.  Specifically, conservatives, such as Rush Limbaugh, have argued that if Republicans support a pathway to citizenship, they would simply be expanding the number of Democratic voters in the future.  This is a fear that can be seen by careful analysis of the Achieve Act currently pending  in the Senate.

The Achieve Act, sponsored by Republicans Kaye Bailey Hutchison, John Kyl and John McCain, is the Republicans' response to the DREAM Act.  It would create a way for some undocumented aliens brought to this country as children to have legal status.  However, the bill would create a non-immigrant visa for such aliens, which would not itself lead to citizenship.  Thus, beneficiaries under the Achieve Act would not automatically be on the path to obtain the right to vote.

While this appears to be the most positive atmosphere for immigration reform since President Bush attempted to press for a guest worker program, the battle will not be easy.  Competing interests will need to be addressed, and in some instances overcome, if the press for immigration reform is to be successful.

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

President Promises to Press for Comprehensive Immigration Reform

In his first press conference since the November 6th election, President Obama promised to press for comprehensive immigration reform in early 2013.  According to the President, immigration reform will include strengthening the borders, greater penalties for employers who hire undocumented aliens, and a pathway to citizenship for those already present in the United States illegally.

The last attempt at comprehensive immigration reform took place during the Bush Administration.  The Bush proposal also included a pathway to citizenship.  However, the legislative package failed to pass Congress.

In 2010, Congress came close to passing the DREAM Act, which would have given legal status to young people who were brought the United States as children and who have attended school in the United States or were honorably discharged from the U.S. military.  The DREAM Act died in a Senate filibuster.  However, the President announced a program to grant some form of relief to those who would have qualified for benefits under the DREAM Act through his Deferred Action for Childhood Arrivals program.  The deferred action program, however, does not lead to permanent residency.

Click here to read more on the President's statements concerning immigration reform.

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