Immigration Court Decision Concerning the Return to Mexico Program Raises More Questions than it Answers

On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program.  The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens."  The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.

The decision, however, raises more questions than it answers.

The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum.  Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings.  In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview. 

President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings.  Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.

Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview.  If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge.  Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.

The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA.  That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings.  This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.

Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court.  Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension. 

Currently, the MPP is subject to litigation in federal court.  Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception.  The Government replies that it has discretion on whether to apply expedited removal.  If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.

The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP.  Indeed, Immigration Courts lack the authority to address such litigation.  Immigration Courts are not part of the Judiciary Branch of Government.  They are instead more akin to administrative courts, and are part of the Executive Branch.  As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.

The Immigration Judge did address a different issue raised by the MPP.  Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien.  An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border.  The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States.  That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory.  This is a separate category of aliens.  The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States.  Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.

However, the Immigration Judge noted that it was a court of limited authority.  The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico.  The only authority it had was to terminate the removal proceedings, without prejudice.  This means that the Government could refile the Notice to Appear and being new removal proceedings.  But the court could not order that the Government do so.

Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers.  It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States.  Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings.  Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights.  The ultimate success of such litigation remains in doubt.

Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals.  The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.

By: William J. Kovatch, Jr.

Trump Emphasizes Enforcement Priorities; Prosecutorial Discretion Remains Intact

U.S. President Donald Trump did not appear to curb the authority of immigration officials to engage in prosecutorial discretion when he signed an executive order on immigration policy and internal security on January 25, 2017.  This observation was supported by morning proceedings before the Arlington Immigration Court on January 26, 2017.  An attorney for U.S. Immigration and Customs Enforcement (“ICE”) stated in open court that her agency had received no instructions not to accept applications for prosecutorial discretion.  Accordingly, in a number of cases, Immigration Judge Thomas Snow granted continuances to permit immigration attorneys to submit prosecutorial discretion requests to ICE on behalf of their clients.

The process of exercising prosecutorial discretion to administratively close removal cases pending in Immigration Court which were not high enforcement priorities was first instituted by President Barrack Obama in 2011.  President Obama noted the limited resources available to enforce U.S. immigration law, and instructed immigration authorities to concentrate those resources on certain priority cases.  Those priorities included aliens with a criminal history, who pose a threat to public safety or national security, and who recently violated immigration law by entering without inspection by a Customs authority. 

In a memorandum dated June 17, 2011, ICE Director John Morton formalized the policy of exercising prosecutorial discretion.  Morton listed numerous factors for immigration authorities to weigh, including the length of the alien’s presence in the United States, the circumstances of the alien’s arrival, the alien’s ties to the United States, such as education, family members and contributions to the community, and other humanitarian concerns such as the health of the alien or the alien’s U.S. relatives.  By exercising prosecutorial discretion in appropriate cases, ICE would agree to administratively close a pending removal case, essentially permitting an alien who was present in the United States in violation of immigration law to remain.

President Trump's executive order is entitled "Enhancing Public Safety in the Interior of the United States."  In the opening paragraph, President Trump emphasizes the importance of enforcing U.S. immigration law in the interior of the country, to safeguard national security and public safety.  The President outlines his enforcement priorities to include alien who: (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved;  (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security. These priorities are similar to those of the Obama Administration.

The President did not specifically mention prosecutorial discretion or the June 17, 2011 memorandum in his executive order.  However, the outlining of enforcement priorities lends credence to the conclusion that the ability of immigration authorities to exercise prosecutorial discretion remains in effect.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832

(571) 551-6069 (ESP)

As Attorney General, Jeff Sessions Can Have Substantial Influence Over the Law of Deporrtation ans emoval

On Friday, President-Elect Donald Trump announced that Alabama Senator Jeff Sessions was his choice to serve as Attorney General.  Sessions has made it clear that he is anti-immigration.  Not anti-illegal immigration.  He is anti-immigration.  Painting with a wide brush, Sessions has made broad statements concerning the desirability of immigrants from the Dominican Republic, for example, claiming Dominicans as a class file fraudulent visa petition and that they have no provable skills that would benefit the United States.  Indeed, he has made statements that immigration -- legal immigration -- has been harmful to the United States.

The question arises as to exactly what influence Sessions would have over immigration policy if he were confirmed as Attorney General.  The answer is that the influence can be considerable, particularly with respect to immigration policy in deportation and removal cases.

The Department of Justice does not have the day to day responsibility for enforcing and administering the immigration law of the United States.  That role belongs to the Department of Homeland Security.  But this doe not mean that the Department of Justice has no say or influence over how immigration law is interpreted and enforced.

First the Department of Justice is responsible for representing the United States in litigation before the U.S. courts.  This means that the Justice Department, through the Office of the U.S. Attorney, assesses litigation risk and advises the agency being sued. 

This can mean that the Justice Department injects a bit of reasonableness when an agency is being sued.  The U.S. Attorney's Office can advise an agency that its action is not likely to convince a judge.  In this way, the Justice Department can subtly influence agency policy.

But the Justice Department can also agree to take a more extreme litigation position, thereby encouraging an agency to push the boundaries of the law.

The more important role that the Department of Justice plays in U.S. immigration law is through the operation of the administrative courts used to enforce the deportation and removal law.

Contrary to what many people believe, the U.S. Government cannot simply pick up a person who is present in the country in violation of the immigration law and deport him or her.  The U.S. Constitution guarantees the right to due process of law.  That is, it has to be proven that a person does not have legal status in the United States or that the person has violated that status by, for example, committing a crime.  Then, even if a person is present in the United States in violation of the immigration law, there may still be legal grounds for relief to allow that person to stay, such as asylum law.  Some entity has to make determination.

The entity that makes that determination is the Executive Office of Immigration Review (EOIR), which is housed by the Department of Justice.  The EOIR consists of the first level trial courts, that is the Immigration Courts, and the appellate body, known as the Board of Immigration Appeals (BIA).

In the first place, the Attorney General influences how immigration law is interpreted and enforced through the power of appointment and supervision.  The Attorney General appoints the Immigration Judges, the Members of the BIA, the Chief Immigration Judge and the Chair of the BIA.  Thus, so long as the people appointed meet the minimum requirements of competency, the Attorney General can be sure to appoint people who will interpret immigration law congruent with his thinking.  The EOIR also ensures of the training of Immigration Judges and BIA Members.  Such training programs can be used to subtly influence how the law is viewed and interpreted.

More importantly, by developing case law, the BIA, and indeed the Attorney General, can issue opinions binding on Immigration Judges in similar cases.  The BIA publishes its case decisions.  The BIA can vote to make a decision precedential, which means it announces an interpretation of the law that is binding on Immigration Judges.  The Attorney General may also decide to take jurisdiction over a case on appeal, and issue a decision announcing an interpretation of the law that is precedential.  Indeed, if the Attorney General takes jurisdiction over the case, he does not need to give the parties to the case an opportunity to brief the issues before him.

This power has been used in the past, for example, to define what constitutes a crime involving moral turpitude.  This can be an issue where a state criminal law defines an offense so broadly that it can include both behavior that is morally reprehensible, and behavior that isn't. 

This is the case with assault and battery.  To be considered a crime involving moral turpitude, assault and battery must be a crime of violence.  But, in many states, assault and battery can include a mere unwanted touching, such as a tap on the shoulder.  Moreover, when a defendant pleads guilty, the plea agreement may be worded so as to avoid admitting to actions that would constitute a crime of violence.  This leaves Immigration Judges in a tough position in determining if the conviction before them is actually a deportable offense or not.

In this situation, the Attorney General took jurisdiction over a case, and announced a rule that Immigration Judges could look beyond the record of conviction to determine if an assault and battery is a crime of violence, and thus a crime involving moral turpitude.  The Attorney General's decision permitted the Immigration Judge to go so far as to make conclusions based on the police report.  This particular rule was then the subject of extensive legislation, and has since been withdrawn by a successive Attorney General decision.

Nonetheless, the Attorney General can have substantial sway over immigration law as it applies to deportation and removal cases.  Given Sessions' history, I would expect that immigration law as it applies to deportation and removal cases will be interpreted more harshly.  Indeed, I would even expect interpretations that are constitutionally questionable for the sole purpose of pushing the envelope and seeing if the courts permit it.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832

What Happens to the Unaccompanied Children Who Cross into the United States?

2014 brought about an unprecedented humanitarian crisis at the border between the United States and Mexico.  Over 60,000 children, mostly from El Salvador, Guatemala and Honduras, crossed the border into the United States without their parents.  Many were escaping violence and abuse in their home countries, especially violence from the illegal drug trade and the street gangs.  In legal terms, they are called "unaccompanied alien children."

The responsibility for caring for unaccompanied minor children falls on the Office of Refugee Resettlement of the U.S. Department of Health and Human Services.  The goal is to find a sponsor in the United States to care for each child while that child awaits a hearing before an Immigration Judge.  Most of the time, that sponsor is a parent, relative or family friend already in the United States.

However, with the number of unaccompanied children crossing the border remaining at shockingly high levels, it often takes time for ORR to find a suitable sponsor.  The average wait is about thirty-two (32) days.  While ORR is looking for a sponsor, children are housed in detention facilities, separate from adult detainees.

Even after ORR finds a sponsor, many of the children remain subject to abuse.  Critics argue that the U.S. Government has created a "pseudo-foster-care system" with no oversight or government follow-up.  Once a sponsor is found, the Government takes it on the honor system that the sponsor will act in the child's best interests.  In reality, some children have been subject to emotional, physical and sexual abuse from their sponsors.

Meanwhile, the children continue to face removal proceedings in Immigration Court.  Because immigration proceedings are civil law proceedings, and not criminal proceedings, the U.S. Government takes the position that it is not required by the Constitution to provide legal counsel, as it would be in criminal court.  One Immigration Judge shocked many by asserting that three and four year old children could learn immigration law well enough to represent themselves in Immigration Court.  Some organizations, like the ACLU, have pressed the Government to accept responsibility for providing attorneys to represent unaccompanied minors in removal proceedings.

What is clear is that the unaccompanied children represent the most vulnerable of those making the dangerous trek to the United States.  Once in the United States, they may qualify for such programs as asylum or Special Immigrant Juvenile Status (SIJS).  The U.S. Constitution requires that the children be provided with due process of law before being shipped back to their home countries.

Here at William J. Kovatch, Jr., Attorney at Law, PLLC, we provide quality legal representation to children who have come into the country without their parents.  While past results cannot be used to guarantee results in future cases, we have obtained asylum for children abused. in their home country, and have successfully petitioned for SIJS for many children.  If you are a sponsor for an unaccompanied child, and looking for legal advice, call us.

By:  William J. Kovatch, Jr.
(703) 837-8832
Se habla espanol: (571) 551-6069.

Judge Makes Special Immigration Juvenile Status (SIJS) Findings

A judge on the Juvenile and Domestic Relations General District Court in Virginia signed an order today making the findings required to permit a juvenile from Central America to apply to U.S. Citizenship and Immigration Services for Special Immigrant Juvenile Status, or SIJS.  SIJS is one of the more unique immigration statuses in that the law authorizes state courts to make the initial findings before the juvenile can apply to USCIS.

In order to qualify, the alien must be under 21, unmarried and apply to a court in the state where he or she resides which has jurisdiction over minors.  The state court must first find that the juvenile is dependent on the state court.  Dependent can mean that the state court places the juvenile with a state agency for care, or with a private individual.  The court must then find that reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, abandonment or a similar ground under state law.  Finally, the state court must find that it is not in the juvenile's best interests to be returned to his or her home country.

In today's proceeding, the juvenile's father was an alcoholic who physically abused the mother.  The father threw the juvenile out of the house with the mother's acquiescence.  The juvenile, who faced harassment at the hand of street gangs at school, fled to the United States where his older sister lived.  Once in the United States, his parents refused to provide any financial support.

The juvenile's sister applied to the court for custody, and requested that the judge make the SIJS findings.  The judge agreed, permitting the juvenile to proceed with his application with USCIS.

Applying for custody is a typical way in which a responsible adult can assist a juvenile in obtaining the required SIJS findings.  Because the law permits a finding that reunification is not viable with one or both parents, often a parent who is present in the United States can apply for custody of his or her own child in order protect that child from the abuse or neglect of the parent who remained in the foreign country.  Once a state juvenile court has jurisdiction through a custody petition, the parent can then ask the court to make the required findings.

If the juvenile is in Immigration Court proceedings, a practitioner can request that the court continue, or delay, the proceedings while the juvenile is applying for the SIJS findings in state court.  Once the state court makes the findings, the practitioner can then request that the Immigration Court case be terminated to allow the juvenile to apply with USCIS.  The end result is the granting of permanent residency to the juvenile, and an opportunity to apply for U.S. citizenship in the future.

By:  William J. Kovatch, Jr.

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

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. 

For an appointment, call (703) 837-8832

Se habla español: (571) 551-6069 

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.
Call now for an appointment:
(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

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

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

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

Even a Deferred Adjudication is a Conviction for Immigration Purposes

Deferred adjudication programs can offer a break to first time criminal offenders.  The idea is that a formal adjudication of guilt is withheld.  If the defendant shows a time of good behavior, often one year, then charges can be dismissed or reduced.

 But, what appears to be a good deal for criminal purposes could land a non-citizen defendant into hot water for immigration purposes.  This is because of the broad definition of "conviction" under U.S. immigration law.  A conviction includes not only a formal adjudication of guilt, but also any admission of guilt or of facts sufficient to find guilt, so long as some form of punishment is given.

In most deferred adjudication programs, the defendant has to admit guilt, or the judge has to find that the prosecutor has alleged sufficient facts to find guilt.  The result is usually some form of a suspended sentence, or some form of probation.  But, this is enough under immigration law to be considered a conviction.

This means that upon acceptance of a deferred adjudication program, immigration authorities can commence removal proceedings.

The defendant in this article from the Oregonian found that out the hard way.  According to the Oregonian, he worked as a cashier and would give his family unauthorized discounts or ring up false returns.  The result was a felony conviction which could be reduced to a misdemeanor.  However, because there is a felony conviction, which was likely considered an aggravated felony for involving a crime of theft for which a sentence of one year or more was imposed, it triggered ICE to commence deportation proceedings.

Given the broad definition of "conviction" under U.S. immigration law, it is advisable that a non-citizen defendant facing criminal proceeding receive accurate immigration advice.  In that way, an informed decision on whether to accept a plea bargain, accept deferred adjudication or push for a trial, can be made.

By:  William J. Kovatch, Jr.
(703) 837-8332
info@kovatchimmigrationlaw.com

Until Naturalization is Complete, Deportation is Possible

A Dominican national discovered the hard way that until you complete the oath ceremony, you are not a citizen and subject to deportation.  In the Third Circuit case of Duran-Pichardo v. Attorney General of the United States, Mr. Duran-Pichardo, a permanent resident, applied for citizenship and passed the tests at the interview in 1998.  But, INS told him that he would have to wait for a decision on his case.  Mr. Duran-Pichardo followed up with numerous telephone calls, but got no decision.  After some time, he gave up.

It was then that Mr. Duran-Pichardo got into trouble.  He pled guilty to a drug trafficking charge, which is an aggravated felony.  He was placed in removal proceedings.  His attempt to restart his naturalization case failed, as USCIS now denied his application based on the aggravated felony.  The Third Circuit, while sympathetic to the long delay in Government action in his naturalization case, upheld his order of deportation.

Had Duran-Pichardo simply taken advantage of a portion of the Immigration and Nationality Act that permitted him to sue the Government over his delayed naturalization application, he could have avoided deportation.  Section 336(b) of the Act provides that if a decision is not made within 120 days of the examination, an applicant can sue in the U.S. District Court, and have the court decide whether to grant naturalization.

I go into more detail in this article.

If your naturalization application is delayed for any reason, contact a knowledgeable immigration lawyer to determine if you should use section 336(b), and sue in U.S. District Court.

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

William J. Kovatch, Jr. is admitted to practice in the U.S. District Court for Eastern Virginia.

What Do You When a Relative is Detained by Immigration Authorities

When Immigrations and Customs Enforcement comes to your door, it can be a harrowing experience.  If ICE is taking away a relative of yours, there are things you need to do.  The main thing is to gather as much information about the situation as possible.  You will need to have this information so you can consult an attorney, and the attorney can tell you if your relative can be helped.

For more detail, see my article:  "My Husband / Brother / Friend Has Been Taken by ICE - What Do I Do?"

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

Homosexual Partners to be Considered "Relatives"

Janet Napolitano, Secretary of Homeland Security, announced that Immigration and Customs Enforcement (ICE) would consider same-sex partners from a homosexual relationship to be "relatives" when the Department of Homeland Security is considering whether to grant some form of discretionary relief from removal or deportation.

What this means is that if an undocumented alien has a same sex partner who is a U.S. citizen or permanent resident, DHS would consider that partner to be a U.S. relative form the purpose of granting prosecutorial discretion.

Prosecutorial discretion refers to the authority that ICE attorneys have in deciding which cases to bring to Immigration Court, and which cases to ignore or close before seeking an order of removal.  In June of 2011, ICE issued a memorandum stating its policy to concentrate its resources on aliens with criminal records or who pose a threat to U.S. security.  In deciding whether to exercise prosecutorial discretion, ICE is to consider a number of factors.  One is whether a person has ties to relatives in the United States.

In a letter responding to Jerrold Nadler of the U.S. House of Representatives, Napolitano states that ICE will be instructed to consider long-term same-sex partners as U.S. "relatives" for the purpose of determining whether to grant prosecutorial discretion.

The new policy may open the door for undocumented aliens who are in a long-term homosexual relationship with a U.S. citizen or lawful permanent resident to other forms of discretionary relief as well.  For example, based on this policy, it may be possible to argue that same-sex partners should be considered as U.S. "relatives" when applying for deferred action.

Deferred action is essentially a promise by the U.S. Government that it will not seek the removal of an alien who is otherwise removable.  When the Government grants deferred action, it has the authority to issue employment authorization as well.  Whether to grant deferred action is a matter of discretion.  Recently, the President announced that he would grant deferred action to certain young people who were brought to the United States before the age of 16.  This is the deferred action for childhood arrivals (DACA) program.

But, the DACA program is not the only basis for granting deferred action.  The Government can decide that there are enough mitigating factors present to permit a person who does not have a valid immigration status to stay in the United States.  One factor that the Government takes into consideration is whether a person has any U.S. relatives, such as a spouse or children.

Napolitano's directive does not go so far as to say that U.S. citizens can file a visa petition to obtain permanent residency, or a green card, for a same sex partner who is also an alien.  The Defense of Marriage Act prohibits the U.S. Government from considering a same sex partner to be a spouse, even if the homosexual couple has married in a state or country where same sex marriage is legal.  To change this policy would take an act of Congress.

The text of the letter can be found at this link:

http://www.kovatchimmigrationlaw.com/12-3384-Nadler-S1-Signed-Response-09.27.12.pdf

Much of what is written in the press on this is confusing.  Here are some links to the best of the articles I've seen so far:

http://www.nytimes.com/2012/09/29/us/homeland-security-puts-it-in-writing-on-immigration-policy-and-gay-couples.html?_r=0

http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/http://latino.foxnews.com/latino/news/2012/09/28/dhs-to-ease-immigration-rules-for-gay-couples/

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

Should I Apply for Deferred Action?

Sure, the President has announced a program to grant deferred action to young people who were brought to the United States before they were 16, are under 30, and have been in the United States for 5 years.  Yes, you can receive work authorization if approved.  But, should you apply?

The big concern is that everyone who affirmatively applies for deferred action will be calling attention to themselves from the Government.  Deferred action is a discretionary program.  That means that the Government is not required to grant it to anyone.  So, if you are denied, there is a chance that the Government will come after you and place you in removal/deportation proceedings.  Is it worth the risk?

First, if you are already in removal/deportation proceedings, or if you have been ordered removed or granted deferred action, then you have nothing to lose.  The worst possible scenario has already happened to you.  You might as well give it a shot and apply.  Just be careful of your time frames, so your time for voluntary departure does not run our before USCIS makes a decision on your case.

There are people who should absolutely not apply.  Do you have any kind of criminal record?  Then do not apply.  You will find that USCIS will deny your application.  Then, on some random morning within a week of the denial, at about 3:30 am, you will find ICE officers, heavily armed, banging on your door to take you into custody.

Do you have an outstanding order of removal or deportation?  Perhaps you crossed the Rio Grande years ago, were placed in proceedings, and released on your own recognizance.  Then, you never made it back to court.  If you have an old order of removal or deportation, then there is a chance that your application will be denied, and like the person with the criminal record, ICE will come banging on your door at 3:30 am to take you in and send you back to your home country.

So, who should apply?  As long as you remember that you are taking a risk, then you might find it beneficial to apply for deferred action.  If it is very important to you that you receive work authorization, then applying for deferred action may make sense.

Also, there is a chance that Congress will eventually pass the DREAM Act, or some other type of immigration reform.  Maybe, just maybe, Congress will give those who applied for deferred action for young people a better place in line if they pass reform.  Of course, this is pure speculation on my part.  But, it is based on some history.  When amnesty last passed, people who had a place in line were given priority over new applicants.  It makes sense to some degree.  When you apply for deferred action, the FBI will do a background check.  If the person passes the background check, then the Government will know already that the person is not a security risk.

But, everyone who applies for deferred action should keep in mind that the program is only as good as the promises of the Administration in power.  If Barrack Obama loses in November, then it is almost a certain thing that the Romney Administration will not renew the program after two years.  In fact, there is no promise that a new administration won't use the information gathered through the deferred action program to round people up and immediately place them in removal proceedings.  Realistically, the chances of that are probably low, as the strain on the Government's resources will be phenomenal.

In sum, if you apply for deferred action, and you are not currently in removal/deportation proceedings, remember that you are taking a risk and that there are no guarantees.

Applying for Deferred Action Under the President’s New Policy

On June 15, 2012, President Obama and Homeland Security Secretary Napolitano announced a new policy to permit certain undocumented young people to remain in the United States and apply for work authorization.  No specific procedures have been adopted yet.  However, if you qualify, there are certain things you can do to prepare.

Do I Qualify?

To qualify, you must meet five criteria:

(1) Been brought to the United States while under the age of 16;

(2) Have continuously resided in the United States since June 15, 2007 or before;

(3) Currently be in school, have graduated from a high school, have earned a general equivalency diploma, or be honorably discharged from the Armed Forces or Coast Guard of the United States;

(4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or does otherwise poses a threat to national security or public safety; and

(5) Is 30 or younger.

What Benefits Can I Get?

Postponement of removal (deportation)

Employment authorization

Can I Become a US Citizen?

No.  This policy does not lead either to permanent residency or citizenship.  It is only temporary protection from being removed (deported) from the United States.

How Do I Apply?

Since I first published this blog entry, new procedures were adopted.  See my later blog entries for a discussion on the procedures.

I am in Removal (Deportation) Proceedings Now.  What Do I Do?

As long as you are not in detention, you can still apply.

I am Not in Removal (Deportation) Proceedings, But I Think I Qualify.  What Should I Do?

If you are not in removal or deportation proceedings, applications should be made to the U.S. Citizenship and Immigration Service (“USCIS”).  There is already a process for applying for deferred action in general.  That is to apply to the District Director of the USCIS District where you live.  You should put together a letter explaining why you qualify for deferred action, and include supporting documentation.  It is expected that USCIS will adopt similar proceedings for this particular policy.

How Long Will the Benefit Last

Under this policy, you can receive deferred action and work authorization for two years.  Then, you can apply for an extension every two years after that.

Note, however, that this is an exercise of discretion of the Obama Administration.  There is no guarantee that this policy will continue.  Plus, it is an election year.  If a new president is elected, there is no guarantee that he will continue with this policy.