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

Lessons from the Surge: Adult Male Migrants

Unless you've been living under a rock, you know that there has been an almost unprecedented surge of migrants making the dangerous trek from Central America and across the Mexican border into the United States.

Make no mistake, those who come to the United Stayes this way are doing so illegally and are immediately removable. But, I'm starting to see a trend in how the Administration is treating these migrants. It is in stark contrast to what Immigration authorities were doing just months ago. 

In this post, I will talk about the trend for adult males. The surge in unaccompanied children is much more complex and deserves its own post. 

Even if an alien has crossed the border illegally and is immediately removable, they still have the right to claim that they have a reasonable fear of persecution. If the claim is made, then an Asylum Officer conducts an interview to see if the fear is credible. If the fear is found credible, then the case gets referred to Immigration Court where the alien gets an opportunity for a full hearing. 

The persecution claims from adult males can roughly fall into a few categories: (1) I'm being recruited by gangs, I don't want to join and now they're threatening to kill me; (2) I used to be part of a gang, I quit and they're threatening to kill me; (3) I witnessed a gang-related crime, and they want to kill me; and (4) the police are corrupt and helping the gangs, they wanted me to sell drugs, I refused and now the police want to kill me. 

Just three months ago, the first three of these stories were being dismissed by the Asylum Officer. 

Things have drastically changed. With the huge surge, the US Government does not have the resources to house all of the migrants who are waiting for the legal process to work itself out. In my opinion, and I have no way of proving this, I believe Asylum Officers have been given instructions to be more liberal with their reasonable fear determinations. This, stories falling in categories 1 through 3, which were summarily denied before are being approved now. 

This means more aliens with reasonable fear stories are being released on bond and placed in full Immigration Court proceedings. The bond amount is almost universally $7,500. 

The trend in immigration law had been for the US Government to fight the granting of any gang-related asylum claims. As hard-line opinions came out, it left immigration lawyers like me somewhat despondent. We had to advice clients whom we knew were going to be murdered the minute that they arrived in their home country that there was nothing we could do for them.

This surge may wind up being the chance to soften the US Government's stance on gang-related asylum cases. In a way, the softening has already started as the Fourth Circuit, no bastion of bleeding hearts, issued a more liberal opinion on gang-related asylum cases this year. 

At any rate, an alien released on bond with a reasonable fear claim should contact a lawyer immediately. Lawyers know how to put together a case with evidence that is more likely to be approved. 

To contact me about your case, call (703) 837-8832 or email wkovatch@kovatchlegalservices.com. 

William Kovatch

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