Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.

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.

For an appointment, call (703) 837-8832
Se habla espanol (571) 551-6069

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
(571) 551-6069 (ESP)
wkovatch@kovatchlegalservices.com

Immigration Court Computer System Still Causing Problems

In April, the Immigration Court's computer system went down, due to a hardware issue.  It took over a month to get the system fixed.  During that time, the court was unable to enter new data into the system.

The system has been fixed, but the data entry is still somewhat delayed.  I had one client who was released on bond during April.  The fact that he had been released had not been entered into the court system, and as a result, his case was transferred to the detained docket, causing some last minute headaches for both the client and myself.  Fortunately, with some paperwork and some phone calls, I got this solved.

Still, if you have a case pending with the Immigration Court, you will want to be vigilant.  Check the 1-800 number often, and make sure you know when all of your hearings are scheduled.

Washington Post Examines Life in Immigration Court

On Monday, February 2, 2014, the Washington Post published an article describing what Immigration Court is like.  In writing the article, Eli Saslo interviewed Immigration Judge Lawrence O. Burman.  Above is a photo, published by the Washington Post in connection with the article, taken from Judge Burman's perspective in his courtroom.

I have practiced before Judge Burman.  I find him fair, personable and knowledgeable, which is really all you want in any judge.  He also can have a dry sense of humor.  Today, when confirming a woman's address, he noted that she lived on John Marshall Street.  He asked her if she knew who John Marshall was.  When she responded that she didn't, Judge Burman told her that not only was he a Chief Justice of the Supreme Court, but also an officer who served with General Washington in the Colonial Army.  He then commented that under current US law, this would make him a terrorist (which is true).

Much of my practice is before the Arlington Immigration Court, which I enjoy very much.  If you need representation in an immigration matter, call the number below for an appointment.

William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Asylum Law Changes May Be Coming

The U.S. Government may grant a person asylum if that person can show that he or she has a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group.  Reasonable fear has been defined by the Supreme Court as at least a 10% chance of the persecution occurring.  Currently, an asylum application must be filed within one year of the person entering the United States.  If asylum is granted, the asylee can apply for permanent residency, and then citizenship.

If a person has not filed an asylum petition within one year, that person could still be eligible for withholding of removal.  However, the standard is higher.  The person would have to show that he or she is more likely than not to face persecution.  Those granted withholding of removal are not later entitled to apply for permanent residency or citizenship.

If the immigration reform bill currently before the Senate becomes law, a major change to U.S. asylum will take place.  The one year deadline in which to file an asylum petition will be removed.  But that's not all.  All of those people who were granted withholding of removal solely because they did not meet the one year deadline will be eligible to have their status changed to that of an asylee.

Currently, the Government protects the one year deadline zealously in Immigration Court proceedings.  Removing the deadline would open this form of relief to numerous people who would otherwise be ineligible to remain in the safety of the United States.

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

Video Blog: Traffic Court

December 11, 2012.  Today, I was in traffic court.  Traffic charges can have significant consequences for immigrants.

If you hire a lawyer to help you with your traffic case, please remember, get to court early.  Your attorney will need to know that you are present, and to seek out the prosecutor before court. 

Also remember, courts have security.  You need to budget time to pass through the metal detectors.  In many courts, cell phones are prohibited.  In Fairfax, camera phones are banned.  You can leave your camera phone with the security.  But, in other courts, such as Arlington, Loudoun and Prince William, you cannot bring any phone into the courthouse.  Be prepared to store your phone  in these courts.

Taking these steps will help your lawyer provide the best service to you.

If you need help with a traffic case, call me at (703) 837-8832.

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

Video Blog: Preparation is Key for Immigration Court Cases

Today, December 4, 2012, I appeared before the Arlington Immigration Court for a contested hearing.  The key to such hearings is preparation.  Be sure you take the time to discuss the hearing and the testimony with your lawyer in advance of the hearing, so that there are no surprises.

For an attorney who will take your case seriously and take the time to be well-prepared, call me, William J. Kovatch, Jr., for an appointment.

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

Arlington Circuit Court Grants a Writ to Allow Alien Detainee to Testify

The Arlington Circuit Court issued a writ of habeas corpus ad testificandum, instructing U.S. Immigration and Customs Enforcement to transfer the custody of an immigration detainee to the Arlington County Sheriff's Department, temporarily, to allow the alien to testify in an upcoming hearing in state court.

The alien is challenging a sentence entered years ago in a petit larceny conviction. The sentence was for twelve months, with ten months suspended. However, this makes the conviction one for an aggravated felony under U.S. immigration law, and thus renders the alien ineligible for cancellation of removal. The alien argues that his criminal defense lawyer did not discuss the immigration consequences of his plea bargain. If true, then this would be a clear case of ineffective assistance of counsel, as the Supreme Court recently defined it in Padilla v. Kentucky.

There are many different types of writs of habeas corpus. The one that most people are familiar with is a writ where a prisoner seeks to be released, claiming his imprisonment is in violation of law. Usually, this is sought when the prisoner believes that his conviction was the result of a constitutional violation.

A habeas corpus ad testificandum is a writ addressed to the government entity holding the person, to have that person appear before another court in order to give testimony. It is related to a writ of habeas corpus ad prosequendum, which is a writ used when a state court wants to prosecute a prisoner in federal prison.

Where the legal action is pending in a state court, a writ of habeas corpus ad testificandum or habeas corpus ad prosequendum must be issued by that state court. Federal courts have no power to supervise state court proceedings.

This ruling is significant because it is often difficult to get ICE to permit an immigration detainee to appear for a state court proceeding. That is, some aliens have experienced the problem where the alien is arrested for a state criminal action, ICE places a detainer on them, the alien makes bail, only to find himself in ICE custody. Once in ICE custody, the alien often misses his state court hearing. Having the state court issue a habeas corpus writ may permit the alien to attend the state court proceedings, while preserving ICE's custody over the alien for immigration purposes.