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

Congress to Increase H-1B Caps?

A bill, called the Immigration Innovation Act or I2, (I-Squared) has been introduced in Congress in an effort to expand the number of foreign workers who can obtain temporary visas to work for U.S. companies.  The bill would expand the number of H-1B visas available each year on a sliding scale, depending on the demand by U.S. empoyers for such workers.

The H-1B visa is open to workers to be employed in specialty occupations.  A specialty occupation is defined as an occupation that requires a bachelor's degree, or its equivalent, or higher as the normal entry requirement for the position.

Each year, there are 65,000 temporary visas available for specialty workers.  Another 20,000 visas are set aside specifically for workers who hold a U.S. master's degree.  The temporary visas can eventually lead to permanent residency.  They are often used for U.S. companies seeking to fill high-tech positions, although any job which requires a bachelor's degree may be able to qualify for the basis of an H-1B visa.

U.S. employers may apply for the H-1B visas up to six months before the visas are to take effect.  The visas become available at the beginning of the fiscal year, or October 1.  This means that an employer may submit an application as early as April 1.  In times of an expanding economy, it is not uncommon for the cap of all 85,000 visas to to be met on the first day of filing.

If passed, I2 would raise the number of H-1B visas available each year from 65,000 to 115,000. More H-1B visas could be made available, depending on the demand.  If the cap is met within the first 45 days of when petitions can be filed, another 20,000 wold be made available.  If the cap is met within the first 60 days, then another 15,000 would be made available.  If the cap is met within the first 90 days, then another 10,000 visas would be made available.  If the cap is met again by the 275th day on which petitions can be filed, another 5,000 visas would be made available.  Under the proposed legislation, the cap on foreign workers holding U.S. master's degrees would be eliminated.

This bill has received bi-partisan support, as it is co-sponsored by such Republicans as Orrin Hatch and Marco Rubio, and such Democrats as Bill Nelson and Mark Warner.

However, passage of the bill is not assured.  Senators Dick Durbin and Charles Grassley, for example, have been critical of the H-1B program, arguing that it permits U.S. employers to bypass hiring available U.S. workers.  U.S. technology companies, by contrast, have been pushing for the expansion of available H-1B visas.

The President has promised to press for comprehensive immigration reform this year.  The Obama Administration's strategy has been to push through a single bill addressing various immigration issues.  By contrast, the Republicans, many of whom believe it critical to press for reform in the aftermath of the 2012 election defeat, wish to press forward with many bills, each addressing a discrete immigration issue.  The goal for Republicans appears to be to avoid a show-down within the party over anything perceived by the far-right to be amnesty.  Whether this bill passes, or is absorbed by a larger, more comprehensive bill, remains to be seen.

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

Is ICE Ginning up the Numbers of "Criminal" Deportations?

The Obama Administration has stated publicly that it's deportation policy is to concentrate enforcement resources on high priority cases, such as criminal aliens.  An article in USA Today suggests that the Administration may have been ginning up the numbers to make it appear as though deportation of criminals has been on the rise.

At issue is what the definition of a "criminal alien" is.  The easy cases are those convicted of crimes such as assault and battery and larceny.  The article suggests, however, that the Administration has included in its definition of a "criminal alien" those who have convictions for minor traffic offenses, such as driving without a license.

To be clear, in Virginia, driving without a license is a misdemeanor, and can carry a jail sentence of no more than one year.  However, undocumented aliens cannot obtain a driver's license in Virginia.  This raises the question of whether driving without a license is on par with other crimes, such as larceny.

In the past, ICE has estimated that up to a quarter of its criminal deportations included aliens who had only traffic violations.  ICE has not released information of how many of the criminal deportations of the most current year were due to minor traffic convictions.

While the article hints that ICE has been trolling DMV records, and deporting aliens who have nothing more than a traffic violation, the article also points out that there have been instances where ICE has refused to initiate deportation proceedings against aliens who were cited for driving without a license.  The article mentions as an example an incident near Asheville, North Carolina where 15 individuals were arrested at a police checkpoint mostly for minor traffic violations, immigration officials ordered many of them released.

The article implies that there are quotas within the agency to maintain high numbers of criminal deportations, and that in orderto meet these goals there is pressure to initiate removal proceedings against those convicted of minor traffic offense.

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

Now Accepting Credit and Debit Cards!

The law firm of William J. Kovatch, Jr., Attorney at Law, PLLC is pleased to announce that we are now accepting credit and debit cards for payment.  A small convenience fee of 3% will be applied to credit and debit card payments.

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

Deferred Action for Childhood Arrivals Update

U.S. Citizenship and Immigration Services published the most recent statistics on the Deferred Action for Childhood Arrivals program.  As of January 17, 2013, USCIS had received 407,899 applications.  Of those applications, 13,366 were initially rejected.  This means that there was a problem with the application itself, such as missing documents or missing fees.  Of the remaining 394,533 applications, 154,404 have been approved.  USCIS does not release statistics on how many applications are denied.  Therefore, it is not known whether the remaining 240,000 applications are still pending or have been denied.

USCIS also does not publish statistics on how long it takes to process the deferred action applications.  From my experience, I can say that I have made applications in October which remain pending.  y advice with respect to visa petitions has been to expect about six to eight months before receiving a decision.  At this point, the applications I have made have not reached the six to eight month mark.

Applications peaked in September and October of 2012, and have steadily dropped off since then.  However, applications for deferred action are still being accepted.  More information about the Deferred Action for Childhood Arrivals can be found on my web page.

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

Driving Without a License: More Likely to Get Jail Time, But the Feds Aren't Necessarily Biting Anymore

Driving without a license is a misdemeanor in Virginia.  It can carry up to one year in jail.  There had been a pattern, particularly in Prince William County.  A Hispanic driver would be pulled over for a minor traffic offense.  If the driver was undocumented, he couldn't get a license, so he'd be charged with driving without a license.  The plan would be to get the undocumented alien in jail, so he could be reported to ICE, and ICE could put a detainer on him to start removal proceedings.  Thus, the job of lawyers like me was to try our hardest to keep people charged with driving without a license out of jail.

Well, now there is good news and bad news on that front.  First, the bad news.  As short as a few months ago, I was able to negotiate a higher fine in lieu of jail time for people charged with their second or more driving without a license.  This was true even in Prince William County.

At least in Prince William County, that is no longer true.  When a person has a prior driving without a license charge, Prince William County Commonwealth Attorneys are now insisting on at least one day in jail.  They're not willing to consider a higher fine, even the maximum of $2,500, in lieu of jail time.

But here's the good news.  About two years ago, I had a client whose only crime on his record was a single driving without a license charge.  For whatever reason, the police officer actually took this fellow into custody pending trial.  In that situation, there was little I could do.  Since he was taken into jail, he was reported to ICE and ICE put a detainer on him to start removal proceedings.  And this was in Fairfax County.

Well, it seems like that may be a thing of the past.  I had a client who was forced to spend a night in jail after a second driving without a license.  I totally expected an ICE detainer, and the start of removal proceedings.  I was pleasantly surprised when I called the Prince William County Jail the next morning, and was told that my client was released as scheduled.  It seems that ICE may not be starting removal proceedings against undocumented aliens where the only convictions are for driving without a license.

This turn of events would seem to flow from the evolution of the Obama Administration's deportation policy.  Back in June of 2011, ICE announced that it would concentrate its enforcement resources on high priority cases, such as violent criminals and gangs.  Then, this year, the Administration announced that it would grant certain undocumented aliens deferred action, effectively allowing them to remain in the United States, and give them work authorization.  In October of 2012, in a move that angered Prince William County officials, ICE announced that it was going to discontinue a program that involved local police and federal cooperation when local police picked up a suspected immigration violator.

It seems that the Federal Government is putting its money where the President's mouth is.  Run-ins with the law for minor offenses no longer seems like a reason for ICE to start removal proceedings.  A person convicted for a second charge of driving without a license may have to face the inconvenience of a night in jail in Prince William County.  But, at least for now, it appears that if all you have are convictions for driving without a license, ICE is not interested in pushing for deportation.

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