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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Be Wary of Voluntary Police Interviews

Last Night's Better Call Saul was brilliant.  It was brilliant in many ways, but I am only going to focus on one for the purposes of this blog.  And that concerns a police tactic that I am all too familiar with, and that I wish many of my clients understood before they spoke with the police.  It's a tactic I'm not particularly thrilled with, since it is an attempt to circumvent the Constitution and hang a person by their own petard under the guise of "consent."

I'm about to talk about the details of the episode, so here is the mandatory SPOILER ALERT.  If you haven't seen the February 22, 2016 episode entitled, "Cobbler," and you've DVRed it or intend to catch one of the encore showings, don't read below.

***SPOILER ALERT***

I love Mike Ehrmantraut. We know from Breaking Bad that he is a former Philadelphia Police Officer who had his own trouble with the law.  He's not above profiting off of criminal activity.  But he's smart, and having been on the inside, he knows police tactics.

Enter Pryce, an employee at a pharmaceutical company who tries to make a little money on the side selling pharmaceutical grade drugs to street criminal Nacho Vargas.  In season one, Pryce hires Ehrmantraut to be his bodyguard for the drug exchanges.

Pryce gets a bargain in Erhmantraut, but doesn't realize it.  When Mike balks at going to a meet in Pryce's new gaudy Range Rover, Pryce fires him.  In his naivety, he then lets Vargas see his car, thereby giving Vargas the information he needs to rip Pryce off.  By the end of episode one, Pryce has reported a break-in at his house to the police because his beloved baseball card collection was stolen.  Of course, the police get suspicious of Pryce's car and the reason for the break-in.  When Pryce is out of the room, they find his hiding spot in the baseboard behind the couch.  But, of course, there is nothing they can do about it right then and there.

In episode two, we meet Pryce again as he comes to the police station for an interview with the police.  Unknowingly, he once again becomes the luckiest stupid criminal alive, as he runs into Mike, who is the parking lot attendant.  When Mike realizes why Pryce is there, he pulls him aside to tell him why he should not speak with the police.

As Mike explains, the police are suspicious.  At this point they have nothing.  So they invite Pryce in to speak with them voluntarily.  They intend to be friendly and lull him into a false sense of security.  Then they will pounce on him and try to get him to confess the illegal activity that made him the victim of the break-in in the first place.  Pryce is reluctant to believe this, but agrees to leave the station when Mike promises to get his baseball card collection back.

And that is the tactic I wish my clients understood.  I have met many people who have been invited to the police station just to talk.  The police promise, "look you're not in trouble.  We only want to understand what happened." They may even say, "If you did nothing wrong, you'd be doing yourself a favor."  If you go in, they proceed to ask questions for hours, wearing you down.  They hope you don't realize you can have a lawyer.  They may even say, "Hey, if you didn't do anything wrong, why do you need a lawyer."  And then the conversation continues . . .  voluntarily they claim.  At no time do they tell you that you can get up and leave.  And if you do, again they ask, "Why are you in a hurry?  We only want to understand what happened.  You're not in trouble now."  So you stay, and worn down, you give the police the confession they want. 

In court, statements from such an interview are difficult to suppress.  The police will claim that no one was under arrest, that the person was free to leave, he just chose to stay and tell us what happened. 

The moral of the story is quite frankly don't trust the police if they ask you to come in for a "voluntary" interview, and claim that you are not trouble.  In truth, they only do this when they suspect criminal activity, but have no proof that they can use in court.  They are looking to trick you into giving a confession without a lawyer present, and then claim that the constitutional rights do not apply because it was voluntary.  While you may believe you have anything to fear, in reality any such contact should only be done in the presence of a lawyer representing you.

Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

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Asylum Granted to Woman Escaping Abuse

The Arlington Immigration Court granted asylum to a woman from El Salvador escaping from an abusive relationship. The woman had suffered years of physical abuse at the hands of her partner, who even refused to acknowledge the paternity of their daughter. Cries to her family for help were met with responses such as, "you must have done something to deserve it," and "this is the man you chose to be with for life, you can't leave him."  However, once the woman's father saw the scars and bruises left by the abuse, he changed his attitude and found money to help her make the treacherous journey across the United States border. 

The toughest issue in the case was that the woman had waited more than a year to file her asylum application. U.S. immigration law requires that an asylum petition be filed within one year of entry unless there are changed or extraordinary circumstances. The years of abuse and lack of support from her family had caused this woman to suffer depression, which in turn made her avoidant and reluctant to relive her trauma. Only after meeting a caring man in the United States, who encouraged her to seek help did the woman realize that she could overcome her past and seek legal protection in the United States. 

Now that asylum has been granted, the woman will file a petition to have her minor daughter in El Salvador join her.

Victim of Gang Violence Granted Withholding of Removal

The Arlington Immigration Court granted withholding of removal to a young man from El Salvador who had been a victim of gang violence. 

About three years ago, the young man was shot and left for dead when he was unable to pay the quota that members of MS-13 demanded from him for the privilege of living in their territory. The man testified that he was a target for extortion because his father was a former member of the El Salvadoran military. 

U.S. law provides that an alien must be granted withholding of removal if an Immigration Judge finds that it is more probable than not that the alien's life and liberty will be in jeopardy because of race, religion, nationality, political opinion or membership in a particular social group if returned to his or her home country. I this case, the Immigration Judge found that the young man had suffered past persecution because of being an immediate family member of a former military member. 

The young man had presented evidence that the gangs in El Salvador act like a quasi-government, often controlling territory and demanding rent, or a quota, from the people who live there. The gangs have become so dominant, that the El Salvadoran police are unable to provide protection to residents. 

As recipient of withholding of removal, the young man may live and work in the United States.  But withholding of removal does not lead to permanent residency or citizenship. 

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.
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Federal Judge Violates Separation of Powers to Issue an Opinion on Separation of Powers

From The New York Times to The Washington Times to CNN, headlines about the case of United States v. Juarez-Escobar all emphasized that a federal judge had found President Obama's immigration program unconstitutional.  Upon reading the articles, none of the major news outlets asked the question, how could a program that was announced less than a month ago and that not yet been implemented ever come to a point this quickly where a federal judge is issuing an opinion on it?

Keep in mind that Article III of the Constitution provides that the judicial power of the United States extends to cases arising under the Constitution and the laws of the United States.  That is, unlike some other countries, the U.S. federal courts cannot issue an opinion on a law or police ad hoc.  There must be an actual case or controversy before them; a party must actually be aggrieved by some action.

So what is the case or controversy involved in Juarez-Escobar?  The case involved a man who was ordered deported in 2005.  He left the United States, but returned without obtaining a visa to work with his brother, who is a U.S. citizen.  The man has a U.S. citizen child.  He was pulled over in Western Pennsylvania for driving under the influence.  While in state custody, the Federal Government was informed of his incarceration.  He was criminally charged in the U.S. District Court for the Western District of Pennsylvania with re-entering the United States after having been deported without a proper visa.  After first pleading not guilty, the defendant changed his plea to guilty and was in the process of being sentenced by the court.  The court was about to follow its own practice of sentencing the defendant to time served plus one year of supervised probation with an order that the defendant obtain a proper visa before re-entering the United States.  The change of plea hearing took place in October of 2014.  Before the court passed sentence, President Obama made his announcement of the deferred action program for parents of U.S. citizens.  A few days later, on its own motion, the court requested briefing on how the President's program would affect the defendant's case.

It was in this posture that the court issued its opinion that the President's program was unconstitutional because it violated separation of powers.

The problem here is that issues of whether a particular defendant would be deported or whether they qualify for some form of immigration relief never go before a U.S. District Court.  Almost all immigration matters are appealed to the U.S. Circuit Courts directly from the administrative agency in charge of making the decision.  The only exceptions are cases where the Government denies a petition for naturalization (citizenship) or when the Government has taken so long to issue its decision that a party finds it necessary to seek a Writ of Mandamus.  U.S District Courts, in the context of a criminal sentencing, just do not have jurisdiction to consider immigration relief.  Indeed, in this very opinion the judge recognizes that he would have no jurisdiction to pass on issues of whether a defendant would qualify for some sort of immigration relief.

More troubling is that deferred action is a matter of pure discretion by the Executive Branch.  That is, no one has a right to receive deferred action.  It can be denied by the Executive Branch for any reason.  Thus, because no one has a right to deferred action, no one can sue the Government if deferred action is denied.

The fact that President Obama had announced his intention to grant deferred action to a number of parents of U.S. citizens or permanent residents, therefore, had no relevance to the sentencing of the defendant in Juarez-Escobar.  It is not an issue that a U.S. District Judge would have any jurisdiction to address.  Accordingly, the U.S. District Judge in this case, Arthur J. Schwab simply had no power or authority to issue this opinion.  Indeed, the opinion itself will have no legal effect beyond the case before the court.  Indeed, inexplicably, after writing an elaborate opinion finding the deferred action program unconstitutional, Judge Schwab then gives the defendant an opportunity to withdraw his guilty pea in order to consider if he would want to apply for the very program the judge found unconstitutional.

Why them would Judge Schwab, a Bush appointee, issue such an opinion?  The ultimate action by the court could have been accomplished very simply.  The court could simply have ordered that in light of the pending Executive action, the defendant could consider whether to withdraw his guilty plea and leave it at that.  The fourteen pages of the opinion which analyze the President's action in light of the Doctrine of Separation of Powers simply had no bearing on the court's ultimate action.  This leads to the inescapable conclusion that Judge Schwab issued this opinion for purely political reasons.

And thus, we are left with the ultimate irony in this case.  In order to find that the President violated Separation of Powers, the judge himself had to violate Separation of Powers and issue an opinion on a topic over which he had no jurisdiction. 

By:  William J. Kovatch, Jr.
(703) 837-8832
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