While Recognizing the Danger the Mexican Cartels Pose to US Citizens, Trump Ignores the Same Danger Posed to Asylum Seekers Forced to Remain in Mexico

A few years ago, my cousin was looking forward to her first trip to Mexico.  I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?”  I told her to look it up.  A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.

I don’t mean to impugn all Mexican people.  But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States.  Their main goal is to profit off of the illicit drug trade with the United States.  But they have their hand in any potentially lucrative criminal enterprise.

As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time.  Anger that such powerful and dangerous forces of evil exist.  Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country.  And admiration that your clients faced this evil, and survived.

A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings.  Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey.  The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border.  But each coyote is associated with one of the Mexican cartels.  The cartels have the territory just south of the border carved out.  If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.

But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety.  Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border.  Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey.  Women who are naive have wound up pregnant as a result of the rape.  Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.

At times, the cartels will kidnap the migrants trying to seek safety in the United States.  They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels.  They may sell the migrants into slavery.

President Trump recently recognized the danger present in northern Mexico because of the cartels.  After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.  

But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court. 

Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP.  Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases.  But the migrants would live in the very area of Mexico dominated by the cartels.

Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing.  Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.

As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy.  By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north. 

Whether such cruelty works as a deterrent to asylum seekers is questionable at best.  When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly.  So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.

By:  William J. Kovatch, Jr.

Promising Asylum Cases from the Fourth Circuit

In 2014, the U.S. Court of Appeals has issued two cases that give some hope to people from Central America filing asylum applications based on gang-related issues.

In Martinez v. Holder, Crt No. 12-2424 (January 24, 2014), the Court held that being a former gang member was an immutable characteristic and may serve as the basis for claiming persecution based on a particular social group.  The case was remanded back to the Board of immigration Appeals.

In Aquino-Cardova v. Holder, Crt No. 13-1597 (July 17, 2014), the Court held that a person who is related to members of rival gangs who in turn are targeted for violence may qualify as a particular social group based on family ties.  This case was also remanded to the BIA.

These opinions appear to signal a shift in the trend in asylum law, wherein the U.S. Government resisted gang-related asylum claims.  The Fourth Circuit is largely considered a conservative jurisdiction, and thus these opinions which have a more liberal holding on asylum law are very significant.  While it may be early to tell, the cases could signal a trend of loosening the restrictions for aliens applying for asylum because they are escaping gang-related violence in Central America.  The cases have come in time to perhaps have some affect on the huge surge of Central Americans fleeing their countries and crossing the U.S. border with Mexico.

If you have a gang-related asylum case, call me for an appointment at (703) 837-8832, or email me at wkovatch@kovatchlegalservices.com.

By:

William J. Kovatch, Jr.

Asylum Granted to Honduran Victim of Domestic Abuse

Today, Arlington Immigration Court Judge Thomas Snow granted asylum to a woman from Honduras who was a victim of domestic abuse.  For a little over two years, the woman suffered physical, mental and economic abuse at the hands of her common law husband, who threatened to find her and kill her if she ever attempted to leave.  The woman was only able to escape when a neighbor intervened to pull the husband off of the woman as the husband was attempting to choke her after an argument over the husband’s mistress.  Taking the neighbor’s advice, the woman made the treacherous journey through Guatemala and Mexico to the United States.  Once in the United States, the woman was taken into custody by Border Patrol, and placed in removal proceedings.

As counsel to the woman, we submitted evidence demonstrating that Honduras is a deeply-rooted patriarchal society, where women get their identities first from their fathers and then from their husbands.  For a single woman living alone, access to credit and good jobs is virtually impossible.  As a result, women become dependent on their husbands, and are often treated like property and abused.  The State Department, in its annual human rights reports on Honduras, reports that rape and domestic abuse are significant problems in Honduras, as is femicide, or the murder of a woman by her significant other.  In 2008, the State Department cited statistics showing that 90% of femicides in Honduras went unpunished.

Victims of domestic abuse receive little help from governmental authorities.  According to Claudia Herrmansdorfer of the Center for Women’s Rights in Tegucigalpa, the police tend to treat domestic violence as an issue that should be resolved by the couple, and do not intervene.  Likewise, prosecutors tend not to bring cases of domestic violence to court.  This means that women in an abusive relationship in Honduras receive little, if any, protection from the government.

Asylum can be granted where an applicant can show that she fears that she will be persecuted if returned to her home country because of one of five protected categories:  (1) political opinion; (2) race; (3) religion; (4) nationality or (5) membership in a particular social group.  For victims of domestic abuse, the difficulty had been to fit the reason for the abuse into one of these five categories.  In 1999, the Board of Immigration Appeals rejected an asylum application where the applicant claimed to be part of a particular social group defined as “Guatemalan women intimately involved with abusive Guatemalan male companions who believe that women are to live under male dominance.”  In 2001, the Attorney General exercised his discretion to reverse the BIA’s decision, and remand it back to Board for reconsideration.  No published opinion has resulted from that remand.

The recent trend, however, has been to grant asylum to victims of domestic abuse.  In this case, both the Immigration Judge and the attorney for the Department with Homeland Security agreed with us that the woman was part of a particular social group defined as “Honduran women who are unable to leave their domestic relationship.”  Indeed, the DHS attorney did not oppose the asylum application, allowing the Immigration Court proceedings to run smoothly.  The woman was not required to recount her emotional tale of abuse in court, but was asked only to affirm the truthfulness of her asylum application under oath.  The DHS attorney also asked questions of the woman to make sure that no statutory bars to asylum, such as criminal and terrorist activities, applied in her case.

Having been granted asylum the woman may now live and work in the United States legally.  In one year, she may apply for permanent residency status, which could eventually lead to U.S. citizenship.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimmigrationlaw.com

Is a Criminal Conviction Necessarily the Death Knell to a Naturalization Application?

Over the past few years, it has been my experience that USCIS has been very thorough in analyzing naturalization applications.  This has been confirmed to me by other experienced immigration lawyers.  USCIS sees the naturalization application as its last chance to uncover any fraud in the immigration process.  So, it will go back and examine the basis for the applicant's permanent residency.  USCIS will also be sure to look into the applicant's criminal history.  USCIS will want to make sure that the applicant meets all of the requirements of citizenship.

One such requirement is that the applicant have five years of good moral character.  By law, if a person has a criminal conviction for a crime involving moral turpitude (such as thefts, fraud and crimes of violence) in the five years preceding the naturalization application, then the applicant will not qualify for having five years of good moral character, and thus will not qualify for citizenship.

But, does that necessarily mean that every conviction for a crime involving moral turpitude in the past five years is the death knell for a citizenship application?  Not necessarily.  There is case law that says that when a person's conviction qualifies for the petty offense exception, then that person is not automatically disqualified for citizenship.

The petty offense exception holds that where the maximum possible sentence for a crime is one year in jail, and where the actual sentence is less than six months, then even if the conviction is for a crime involving moral turpitude, the applicant can still be considered for citizenship.

First, that means that if a permanent resident is charged with a crime involving moral turpitude, one of the goals of the criminal representation should be to reduce the charge to a misdemeanor, and seek an actual jail sentence of less than six months.  For example, if a person were charged with larceny in Virginia, which is a felony, a possible strategy for the criminal defense attorney could be to negotiate a plea for petty larceny, which is a misdemeanor with a maximum possible sentence of one year, and seek less than six months in jail time.  The defense attorney would need to keep in mind that the whole sentence is considered, even if most of it is suspended.  Thus, if a person receives a sentence of 360 days, with 330 suspended, he would not qualify for the petty offense exception.  But, if that same person receives a sentence of 175 days, with 145 suspended, then, even though the actual time spent in jail is the same, he would qualify for the petty offense exception.

Nonetheless, the conventional wisdom among immigration attorneys has been that even if the conviction qualifies for the petty offense exception, and thus does not automatically disqualify a person from having good moral character, the conviction can still be used by an adjudicator in weighing discretionary factors.  Our advice has typically been to wait until five years after the conviction to apply for citizenship.

While past cases cannot predict future results, I have had some success in naturalization applications even when there has been a criminal conviction in the past five years.  When faced with a client who has gone forward with a naturalization application despite the criminal conviction, the first step is to make sure that the conviction qualifies for the petty offense exception.  Under the Supreme Court case of Padilla v. Kentucky, there is some avenue for an applicant to correct mistakes made by well-intentioned criminal defense attorneys who just did not understand immigration law.  If the applicant is in a situation where the full jail sentence was for greater than six months, but most of it was suspended, it could be possible to go back and re-open the case to ask the court to reduce the full jail sentence to less than six months.  To do this, first the conviction must be less than two years old.  Then you have to work hard to convince the Commonwealth's Attorney and the Judge to go ahead with the plan.  This is not always an easy task.

Once you are sure that the conviction qualifies for the petty offense exception, the next step is to build a record of good moral character.  The applicant will need to show that the sentence was served, that all court costs were paid, that any restitution was paid, that any probation time was served, and that any required community service took place.  To be safe, the applicant should do more than this.  Affidavits and letters from friends, family, pastors, employers and community leaders, attesting to the applicant's good moral character will go a long way to convince the adjudicator that despite the mistake that led to the conviction, this is a person deserving of citizenship.

It must be emphasized that this course of action does not guarantee success.  If you have an adjudicator who believes that the conviction itself, even though it is a petty offense, is sufficient in weighing the discretionary factors to deny citizenship, then you will be out of luck.  There is an appeals process.  But, it is extremely difficult, if not next to impossible, to overturn a discretionary call like that.

Citizenship applications should not be treated as simple, run of the mill proceedings.  An applicant would be well-advised to consider how USCIS will analyze the application.  It will likely make sense to consult an attorney first, and go over everything, from conviction records to how the applicant became a permanent resident in the first place, to make sure that the application will go smoothly.

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

Gang-Related Asylum Cases

A few years ago, as I sat in Immigration Court waiting for my case, one of the cases that went before me applied for asylum based on the fear of gang-related violence in Central America.  I listened as the Immigration judge admonished the lawyer to be sure that he read the latest Board of Immigration Appeals case on the subject, In re S-E-G-.  The judge indicated that he would have very little patience for any gang-related asylum claims which did not meet the BIA's new social visibility standard.

With all due respect, the Immigration Judge's attitude on the subject was entirely inappropriate.  To be sure, Immigration Judges are bound by BIA decisions.  But, the BIA is not the final word on interpretations of U.S. immigration law.  Rather, legal interpretations made by the BIA are subject to legal review by the various circuit courts of appeals in the United States.

Since S-E-G, at least two circuits have rejected the BIA's social visibility standard.  Judge Posner of the Seventh Circuit found that the standard "makes no sense," and noted that some groups to which the BIA had extended asylum protection would not meet this new standard.  Specifically, homosexuals in a homophobic society could pass for heterosexuals, and indeed had an incentive to do so to avoid persecution.  Likewise, women who had not undergone female genital mutilation would appear no different from other females in society.  Yet, both social groups had received asylum protection under BIA decisions.

The UN Human Rights Committee has also criticized the BIA's social visibility standard as being inconsistent with UNHRC guidelines.  Such guidelines are often used by the BIA and U.S. courts to interpret U.S. asylum law.

Currently, there is a split among the U.S. circuit courts on the issue of social visibility.  Under these circumstances, it is entirely reasonable for those with gang-related asylum claims to adopt a strategy to press for Supreme Court review.  Although the path would be difficult in some circuits, the possible severity of the consequences of deportation would argue to press for clarity from the highest court on whether this standard should stand.

I go into more detail in this article.

A recent briefing on legal issues surrounding gang-related asylum claims can be found here.

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