Are Expedited Removal Orders Reviewable by the Courts?

On Friday, October 18, 2019, the U.S. Supreme Court agreed to hear an appeal to determine whether expedited removal orders are ever reviewable by federal courts.  The case is Thuraissigiam v. U.S. Department of Homeland Security, No 18-55313 (March 17, 2019). 

Decided by the Ninth Circuit Court of Appeals, the case involves a citizen of Sri Lanka who was apprehended in the United States 25 yards from the U.S.-Mexican border.  Undocumented, Thuraissigiam was issued an expedited removal order.  However, he claimed a fear of persecution if returned to his home country.  Accordingly, an asylum officer conducted a credible fear interview, to see if he had a basis to file an asylum application.  The asylum officer found no credible fear.  This was affirmed by a supervisor, and then an Immigration Judge.  Thuraissigiam filed for a habeas corpus review in the U.S. District Court, which was denied on jurisdictional grounds.  The U.S. Court of Appeals heard the case, and found that the law creating expedited removal was unconstitutional, because it violated the Suspension Clause of the U.S. Constitution.

There is a lot there to unpack.  Starting with expedited removal, Congress passed a statute providing that any alien who arrives at a port of entry without proper documentation, or with documentation based on fraud, could be order removed from the United States in an expedited fashion without resorting to the Immigration Courts.  This expedited removal can apply to any alien who is apprehended within 100 miles of the border, who cannot prove that he or she has been in the United States for greater than two weeks.  An officer from Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) may issue the expedited removal order, and summarily remove the alien from the United States, without permitting the alien a hearing before an Immigration Judge.  The law provides that an order of expedited removal is not directly reviewable by any federal court.  Moreover, habeas corpus review is limited by statute to three situations:  (1) where the alien claims he or she is a citizen; (2) whether an expedited removal order was in fact issued covering the alien (that is, only whether the order was issued may be reviewed, and not the substance of the order itself); and (3) whether the alien is a permanent resident or possesses some other legal status that exempts him or her from expedited removal.

When the Government issues an expedited removal order, the alien may still avoid removal if he or she claims that he or she fears persecution if returned to his or her home country.  Under these circumstances, the Government is legally obligated to conduct a credible fear interview.  An asylum officer conducts an interview with the alien to determine whether he or she has a credible basis to file an asylum petition.  If the asylum officer finds that the alien has a credible fear, the alien is then placed in regular removal proceedings, where he or she will have an opportunity to file an asylum application and have it adjudicated before an Immigration Judge.  If the asylum officer finds no credible fear, then the decision is reviewed by a supervisor.  If a supervisor affirms the decision, the alien may have the credible fear determination reviewed by an Immigration Judge.  That review must take place as soon as possible, and efforts must be taken to try to adjudicate whether the alien has a credible fear within twenty-four hours of the asylum officer's decision.  If the Immigration Judge finds a credible fear, the alien is placed in removal proceedings for full adjudication.  If the Immigration Judge finds no credible fear, then the expedited removal order stands, and the alien is removed from the United States.  There is no direct appeal from the Immigration Judge in this situation, and a habeas corpus review, as discussed earlier, is only available in limited circumstances. 

Returning to the case at hand, Thuraissigiam filed for a habeas corpus review after the Immigration Judge found that there was no credible fear.  A habeas corpus review is one where a person challenges the legality of a physical detention by the Government.  It is a type of review that is available in addition to the direct review of a judgment.  Habeas corpus proceedings most often come into play after a criminal conviction, and usually involve a claim that something was wrong with the procedure leading to the conviction.  Although immigration detentions occur pursuant to civil law, and not criminal law, they can also be subject to a habeas corpus review.

The U.S. District Court originally held that it lacked jurisdiction to hear the habeas corpus challenge, because the statute specifically limited such review to three situations, none of which applied to Thuraissigiam.  On appeal before the Ninth Circuit, the Court of Appeals agreed with the District Court that the statute did not permit Thuraissigiam a basis for a habeas corpus review.  However, the court did not stop its analysis there.  Rather, the court went on to determine whether the expedited removal statute provided sufficient judicial relief to pass constitutional muster.

Specifically, Article I, Section 9, Clause 2 of the U.S. Constitution provides, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."  This is called the Suspension Clause.  To address whether the statute violated the Suspension in this case, the Ninth Circuit engaged in a two step analysis.  In step one, the court analyzed whether Thuraissigiam was entitled to a habeas corpus review.  In this regard, the court noted that he was apprehended on U.S. soil, thus the constitutional guarantee of a habeas corpus review applied.

In the next step, the court analyzed whether the statute provided sufficient relief to satisfy the requirements of a habeas corpus review.  In this regard, the court noted that the statute did not provide for a review of whether proper procedures were followed in issuing the expedited removal order, or in making the credible fear determination.  Because this type of review was foreclosed by the statute, the Ninth Circuit concluded that the statute violated the Constitution.

This is now the issue that will be argued before the U.S. Supreme Court.

Congress has gone to great lengths in its attempt to preclude those subject to expedited removal from challenging the removal order in federal court.  The expedited removal process has been met with criticism that it deprives people of constitutional rights, such as Due Process.  The Ninth Circuit decision had opened the door to permit a greater degree of judicial review of some expedited removal cases.  The question now is whether the door will remain open, or whether the Supreme Court will shut that door, again foreclosing habeas corpus relief to those subject to expedited removal.

By:  William J. Kovatch, Jr.

US District Court Enjoins Trump Administration from Enforcing New Public Charge Definition

On Friday, Judge George B. Daniels of the U.S. District Court for the Southern District of New York issued a temporary injunction preventing the Trump Administration from enforcing, at a national level, the new definition of "likely to become a public charge" adopted by U.S. Citizenship and Immigration Services ("USCIS").  USCIS, the arm of the Department of Homeland Security that administers visa applications, published a regulation concerning the public charge grounds of inadmissibility on August 14, 2019 in the Federal Register, which was to become effective on October 15, 2019.  Through this regulation, USCIS redefined how it would weigh whether a potential immigrant would be likely to become a public charge.

The principle that an alien who is likely to become a public charge is not admissible to the United States as an immigrant has been a part of U.S. law since at least 1882.  Currently, public charge is defined as "primarily dependent on government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense."  Congress, through the Immigration and Nationality Act ("INA"), provides that the Government should consider "at a minimum" several factors to determine if an alien is likely to become a public charge:  (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills.

In practice, the public charge grounds of inadmissibility is addressed in every immigrant visa petition a U.S. citizen files on behalf of an alien relative through an "affidavit of support."  The affidavit of support is a sworn statement showing the U.S. petitioner's income and, if necessary, assets, in order to demonstrate that the alien relative will not become dependent on U.S. means-tested social programs.  It is also a contract between the petitioner and the U.S. Government, that if the sponsored alien relative ever required means-tested assistance from the U.S. Government, that the petitioner will reimburse the Government for the expense of that assistance.

To be able to sponsor an alien relative, the petitioner needs to show that he or she earns a level of income that is greater than 125% of the official poverty level for the petitioner's family size plus the alien.  That means, if a petitioner is married and has two children, that petitioner must show that his or her income is greater than 125% of the official poverty level for a family of five.  If the petitioner cannot meet that requirement, then there must be a co-sponsor who can meet the 125% of poverty level requirement on his or her own.

In the vast majority of visa petitions, this has been a sufficient way to show that the alien who intends to immigrate to the United States is not likely to become a public charge.  However, there are some cases which would require more evidence.  If an alien had a serious health problem, for example, it would be prudent for a petitioner to be prepared to show that the alien's healthcare would be covered either by insurance or some other set of funds, and therefore not require governmental programs to treat.

Through the new regulation, USCIS would change the definition of "public charge," to permit the Government to consider the receipt of a number of public benefits which would otherwise be foreclosed by the current definition.  Specifically, the current definition concerns the receipt of "public cash assistance for income maintenance."  USCIS decried that definition excludes the consideration of the receipt of non-cash public benefits in determining whether an alien is likely to become a public charge.  These non-cash benefits include "the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; and housing vouchers and other housing subsidies."  Accordingly, USICS changing its interpretation of "public charge" to mean "an alien who receives one or more designated public benefits for than 12 months in the aggregate within any 36-month period."  "In the aggregate" meant that if an alien received two benefits within the same month, that would count as two months.

In the case of New York, et al. v. U.S. Department of Homeland Security, Judge Daniels analyzed the new definition through the framework of the Administrative Procedures Act and the case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Essentially, Congress has the ability to pass legislation over a broad topic, granting the Executive Branch discretion in how to enforce the law.  At times, Congress may leave a term vague, ambiguous or undefined, choosing instead to adopt a broad rule, allowing the Executive Branch to "fill in the blanks."  However, the Executive Branch does not possess unfettered discretion in defining vague, ambiguous or undefined terms in the legislation.  The Executive Branch cannot adopt an interpretation that is contrary to the language used by Congress, nor can it be contrary to congressional intent.  Once a definition is adopted, the Executive Branch may change the definition.  However, the Executive Branch must supply a reasonable explanation for that change in definition.

Judge Daniels noted that the current definition of public charge has existed for a long period of time, and that Congress has never expressed displeasure with that definition, despite changes to U.S. immigration law.  Indeed, Congress had specifically rejected attempts to change the definition of public charge to include the receipt of non-cash public benefits. Moreover, Judge Daniels found that USCIS failed to provide a reasoned explanation for the change in definition.  The new definition, said the Judge, would change the analysis from one of whether an alien was self-sufficient to a strict benefits issue. Specifically, the Judge found that the Government failed to offer a rational for the standards of 12 months and 36 months in the new definition.  Accordingly, the Judge issued a temporary injunction preventing the enforcement of the new rule nationally, pending the outcome of full litigation.

Critics of the new public charge definition has argued that the enforcement of the rule would lead to a drastic reduction in legal immigration.  Specifically, the new rule would mostly impact visa petitions based on family relationships.  Trump has often called for the reduction of so-called "chain migration," where an immigrant brings family members to join him or her in the United States.  The term "chain migration" is, of course, pejorative.  Moreover, Trump's criticism fails to acknowledge the limited categories of family members for whom a person may file a visa petition.  In addition, with strict annual limits on family visas, which are enforced by country, relatives from some countries, such as Mexico, China, India and the Philippines, face a wait of years before a visa becomes available.  Siblings of U.S. citizens from the Philippines, for example, currently must wait about twenty-one years for a via to become available.  Married sons and daughters of U.S. citizens of Mexican decent must wait twenty-five years.

Although supporters of Trump have argued that they oppose illegal immigration, not legal immigration, the actions of the Trump Administration have aimed to reduce the number of legal immigrants.  A cynic may argue that the Republican Party relies heavily on white males for its support, who are declining as a proportion of the U.S. population.  The GOP has chosen not to widen its appeal beyond white males.  Instead the GOP has chosen to cling to its power through non-democratic means such as gerrymandering, and attempting to limit the growth of non-white citizens in the United States.  A reduction in immigration levels, specifically where based on family relationships, can be seen as one way Republicans aim to limit the growth of non-white citizens.

By: William J. Kovatch, Jr.

Trump Suspends Entry of Aliens Seeking to Immigrate Who Cannot Afford Health Insurance

On Friday, October 4, 2019, President Donald Trump issued the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.”  Trump found that permitting aliens who did not have or could not afford adequate health insurance to immigrate to the United States would be detrimental to the interests of the country.  Accordingly, Trump suspended their entry into the United States. 
 

In doing so, Trump seeks to expand upon the authority that the U.S. Supreme Court recognized he possessed in the case of Trump v. Hawaii, 138 S.Ct. 2392 (2018).  That case involved the travel ban Trump implemented within the first months of his Administration, and revised twice during the course of litigation.  In the first Proclamation, Trump banned the entry of all nationals from seven countries, claiming that the countries were recognized threats to national security and did not provide adequate information to allow U.S. immigration authorities to evaluate whether their nationals were themselves security threats.  All seven countries possessed a population that was overwhelmingly Muslim.  Viewed in light of statements Trump made during his presidential campaign disparaging Muslims, many called the President's action Trump's Muslim ban.  As Trump revised his actions through subsequent Proclamations, certain countries were dropped from the list, and others added, including two countries that did not possession a majority of Muslims in their population, Venezuela and North Korea.
 

The travel ban was challenged by several states in federal court, which resulted in an injunction preventing the travel ban's implementation pending the outcome of full litigation.  The Supreme Court addressed whether the injunction was warranted.  In doing so, the Court considered the likelihood that the defense of the travel ban would succeed on the merits.  The Court found in favor of the President, reversing the opinion of the U.S. Court of Appeals for the Ninth Circuit which implemented the injunction, and remanded the case for further proceedings.
 

Through Trump's latest Proclamation, he creates a whole new class of aliens inadmissible to the United States, namely aliens seeking an immigrant visa who cannot show that they will be covered by an adequate health insurance policy within 30 days of entry into the country.  To support this new policy, Trump cites section 212(f) and 215(a) of the Immigration and Nationality Act (“INA”).  These are the same statutory provisions that Trump used to support his travel ban.
 

In order to understand the legality of Trump's new policy, it is first necessary to take a step back and consider some of the basics of U.S. immigration law.  Congress defined certain certain classes of aliens who are prohibited from entering the United States.  This is the law of inadmissibility.  Section 212(a) of the INA establishes the grounds for inadmissibility, which include the commission of certain crimes, some health related grounds, habitual drunkenness, public safety and national security grounds, and the likelihood that an alien will become a public charge.  In addition to the enumerated grounds of inadmissibility, Congress granted the President broad discretion, through section 212(f) of the Act, to find that the entry of any alien or class of aliens would be detrimental to the interests of the United States.  Upon the issuance of a presidential proclamation, the President may suspend the entry of such aliens, or place restrictions on the entry of such aliens, as he deems appropriate.
 

Through section 215(a) of the INA, Congress granted the President the authority to prescribe reasonable rules, regulations, orders, limitations and exceptions governing the entry of any alien.
 

In Trump v. Hawaii, the Supreme Court addressed the President's authority pursuant to section 212(f), and found it unnecessary to address the authority granted in section 215(a).  Delivering the opinion of the Court, Chief Justice John Roberts found that Congress granted broad authority to the President through section 212(f).  Trump supported his travel ban through detailed findings in the Presidential Proclamation, crafted the travel ban narrowly, and did not contradict any express limitations as set forth in the text of the INA.  In fact, the Chief Justice noted that Trump's travel ban was supported by a more detailed proclamation than any prior proclamation justifying previous president's invocation of section 212(f).  Critics of the Supreme Court decision decried that the Court had given Trump broad discretion to write new restrictions and requirements in the INA, so long as Trump did not directly contradict the text of the statute.
 

The current policy of imposing health insurance requirements on aliens seeking an immigrant visa appears to be a test of how far Trump's authority over immigration law extends.  Trump essentially creates an entirely new ground of inadmissibility, not specifically proscribed by Congress.
 

Trump begins his Proclamation with findings that the uninsured place a heavy burden on the healthcare system of the United States, making the cost of healthcare more expensive for those with insurance.  The findings read like a typical "blame the poor for their situation" approach common to those who oppose government spending on social programs. 

 

 

It should be noted that the findings concerned the uninsured in general, and are not limited to aliens who are uninsured.  The Proclamation begins:

• Healthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance or the ability to pay for their healthcare.  Hospitals and other providers often administer care to the uninsured without any hope of receiving reimbursement from them.  The costs associated with this care are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.  In total, uncompensated care costs — the overall measure of unreimbursed services that hospitals give their patients — have exceeded $35 billion in each of the last 10 years.  These costs amount to approximately $7 million on average for each hospital in the United States, and can drive hospitals into insolvency.  Beyond uncompensated care costs, the uninsured strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers.

Thus, Trump blames the high cost of healthcare in the United States on the uninsured.  It may be true that when people receive healthcare for which they cannot afford to pay, that plays a role in the cost of healthcare for others.  However, Trump ignores that the under-regulated alliance between healthcare providers and health insurance companies play a much greater role in making healthcare in the United States unaffordable in the first place.  That is, health insurance companies demand steep discounts from a healthcare provider's listed prices, in exchange for an increased volume of customers covered by the insurance company.  In return, healthcare providers inflate their prices to exorbitant levels so that they can still realize a profit even with the steep discounts granted to the insurance companies.  Healthcare providers then charge these exorbitant prices on the uninsured.  It is this alliance that drives the majority of the high costs associated with healthcare in the United States.  By ignoring this reality, Trump's Proclamation reads like the argument of an insurance company lobbyist seeking to oppose meaningful healthcare reform.
 

At any rate, Trump's connection between high healthcare costs in the United States and aliens without adequate health insurance is tenuous at best.  Trump claims that aliens seeking to immigrate to the United States are three times more likely to lack health insurance than U.S. citizens.  Thus, these aliens should not be permitted to saddle the healthcare system by seeking care for which healthcare providers would not be compensated.  The problem here, is that while Trump claims that aliens seeking to immigrate are more likely to be uninsured, he does not specifically find the rate at which such aliens seek healthcare coverage in the United States.  In addition, Trump makes no specific findings that when immigrant aliens seek treatment they don't pay for that treatment despite being uninsured.  Moreover, Trump ignores the fact that the alliance between healthcare providers and health insurance companies, as discussed above, results in the United States having the highest cost of healthcare in the world.  Thus, what an immigrant could be expected to pay for treatment in the United States far exceeds what immigrants would pay in their country of origin.

 

 

Nonetheless, it could be argued that Trump's new policy is merely a clarification of the requirement, already contained in the INA, that an immigrant not be likely to become a public charge.  Age, health, family status, financial resources, education and skill are already factors set forth by the statute to consider in determining whether an alien is likely to be a public charge.  Health insurance can be seen as merely an extension of that list of factors.  In this regard, some Immigration Judges have already required that a respondent seeking to adjust to the status of a permanent resident address whether he or she has or can afford health insurance when addressing the public charge ground of inadmissibility.
 

Additionally, the requirement is narrowly crafted to address the problem Trump identifies in his findings.  That is, the requirement only applies to aliens who seek to immigrate to the United States.  That is, it applies to aliens who want to live in the United States legally.  The requirement does not apply to non-immigrant visas, such as tourists.  Moreover, the requirement does not apply to those seeking protection as a refugee or asylee.
 

In sum, it does not appear that the new policy will be very effective in reducing the costs of healthcare in the United States.  Rather, it looks like yet another attempt by the Trump Administration to make immigrants scapegoats in its quest to reduce even the legal immigrant levels of the United States.  As some would argue, this is just a continuation of cruelty to deter aliens from coming to the United States to live.  A cynic could point out that the Republican Party's support comes overwhelmingly from white Americans, who are dwindling as a proportion of the country's population.  Instead of broadening the party's appeal to non-white Americans, Republicans have instead chosen to try to limit the growth of minorities as a percentage of the population.  Trump's new policy aimed at restricting immigration, can be seen as an attempt to further that strategy.  However, given the Supreme Court's decision in Trump v. Hawaii, Trump may ultimately prevail in this restriction on immigrants.
 

By: William J. Kovatch, Jr.

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.

How the Diversity Visa (the Lottery) Actually Works

President Donald Trump has expressed his distaste for the diversity visa on numerous occasions.  In the Rose Garden on February 15, 2019, Trump exclaimed, "And then you have the lottery.  It's a horror show, because when countries put people into the lottery, they're not putting you in; they're putting in some very bad people in the lottery.  It's common sense.  If I ran a country, and if I have a lottery system of people going to the United States, I'm not going to put in my stars; I'm going to put in people I don't want."

Trump continued with his criticism in a campaign rally in Cincinnati on August 1, 2019, stating, "And you pick people out of a lottery.  Well let's see, this one is a murderer, this one robbed four banks, this one I better not say, this one another murderer, ladies and gentlemen, another murderer.  Do you think [these countries] are going to put their great citizens . . . into the lottery?  Look at the people they put into these lotteries."

Trump's message has been consistent.  In 2017, Trump told graduates f the FBI National Academy, "They have a lottery. You pick people. Do you think the country is giving us their best people? No. What kind of a system is that? They come in by lottery. They give us their worst people, they put them in a bin, but in his hand, when he’s picking them is, really, the worst of the worst. Congratulations, you’re going to the United States. Okay. What a system — lottery system."

It is actually quite amazing.  Everything Trump says about the diversity visa lottery is completely wrong.  Not one bit of it is true.  The governments of foreign countries play no role in who applies for a diversity visa through the lottery system.  There is no bin.  No names are drawn from a hat.  Those who win the lottery, and thus have a chance to immigrate to the United States, are vetted to ensure they have no criminal record.  Indeed, in order to obtain the visa, a lottery winner must have a certain level of education or skill to ensure they will not be a drain on the U.S. welfare system.

Through the diversity lottery, visas are made available for 50,000 people each year.   The idea is to give people from countries that have traditionally sent fewer immigrants to the United States the chance to immigrate to the United States.

If a country has sent 50,000 or more immigrants to the United States in the last five years, then people from that country may not receive a diversity visa. Based on this criteria, people from Canada, Mexico, the Philippines, the Peoples Republic of China, El Salvador, Haiti and South Korea, to name a few, are not eligible.

The diversity visas are distributed by region, with people from the regions sending the fewest immigrants to the United States in the previous five years receiving the most visas. The regions which currently receive the most visas under the program are Africa and Europe. No one country can receive more than seven percent, or 3,500, of the visas available for that year. The visas are distributed at random.

To apply, a person enters the lottery online during the registration period. Winning the lottery does not guarantee that the applicant will receive the visa. Rather, the applicant must meet certain additional requirements. The applicant must have graduated high school, or have spent two out of the last five years in an occupation requiring at least two years' training or experience.

A person does not need to meet the eligibility requirements in order to apply online. This has led to a number of disappointed lottery winners. That is, a person can win the lottery only to learn that he or she does not have the required education or work experience to receive the visa.

The be able to immigrate to the United States, a person who receives a diversity visa must still be admissible pursuant to U.S. immigration law.  That means the person may not have committed certain crimes, such as murder, theft or sexual assault.  The person cannot have certain communicable diseases, be a habitual drunkard, be likely to become a public charge, or be considered a threat to national security.

To summarize, a person desiring to immigrate to the United States enters the diversity visa lottery.  That person's government has nothing to do with the application.  Foreign countries do not put people's names into a bit, or a hat, or a box.  An individual applies through the internet by going online.  A computer program picks names randomly.  In order to come to the United States, the person just have a minimum level of education or work experience, and cannot have committed certain crimes.

Thus, when Trump describes the diversity visa, he is engaging in nothing more than fear mongering.  This fear mongering fits in with his overall approach to immigration, where he manipulates the fear of his followers to promote more restrictive immigration policies.  He ignores studies which show immigrants as less likely than those born in the United States to commit violent crimes, instead painting all immigrants as potential threats to the public safety.  Education and access to accurate information can prevent Trump from manipulating the ignorance of his followers to pervert immigration law and policy.

By:  William J. Kovatch, Jr.

Trump's Narcissistic Desire to Use the Border Wall to Cement his Legacy Has Created a Cruel and Unnecessary Government Crisis

Two and a half weeks into the partial government has given Americans yet another opportunity to assess the leadership skills, or lack thereof, of its current President, Donald Trump.  While I am not a psychologist and don’t claim to be making a clinical diagnosis, Trump’s refusal to sign a budget that doesn’t appropriate $5.7 billion for a wall on the US-Mexico border only further shows his dangerously narcissistic tendencies.

 

Like many narcissists, Trump is manipulative.  He has shown his character for taking advantage of people’s weaknesses for his own benefit.  For example, all during the presidential campaign Trump insisted that not only would he build a wall, but that Mexico would pay for it.  Having Mexico pay for the wall was never even a remote possibility.  But the claim won him cheers ad accolades from his supporters.  Now that it is clear that Mexico will not be paying for the wall, Trump is manipulating the ignorance of trade agreements and how tariffs work among his supporters to make the claim that Mexico really will be paying for the wall.

 

Trump argues that by scrapping NAFTA and concluding the United States-Mexico-Canada Agreement (USMCA), Mexico will be paying for the wall through tariffs paid to the United States.  Let’s breakdown the inaccuracies of this claim.  USMCA did not really scrap NAFTA.  Rather, it built upon NAFTA structures to adjust some of the agreed upon tariff rates.  In fact, trade agreements are not really a vehicle for a country to raise revenue.  Government typical enter into trade agreements to try to open more markets for its exporters by having their counterparts lower their tariffs.  The United States attempted to open more markets for US agricultural goods, for example, by getting Canada and Mexico to lower their tariff rates.

 

At any rate, governments do not pay tariffs.  Importers do.  Importers need to make a profit, so they typically pass the tariffs of to the consumer in the form of higher prices.  Even where US tariffs increase, Mexico will not be footing the bill.  US consumers will.

 

Moreover, USMCA is not yet part of US law.  To become US law, Congress will have to act.  Either 2/3 of the Senate must ratify it as a treaty, or both Houses of Congress must approve implementing legislation, just as they did for NAFTA.  Until Congress acts, the USMCA has no effect on US law.

 

However, many Americans lack the very specific knowledge of how trade agreements and tariffs work.  Trump is manipulating that ignorance to make it appear as though he is living up to his campaign promise.

 

Trump is attempting to  manipulate the racially-based fears of his supporters to support his refusal to sign legislation to fund the Government unless he gets his wall.  In defending his desire for a wall, Trump cherry-picks cases where heinous crimes were committed by undocumented aliens.  In doing so, Trump creates the impression that all undocumented aliens are violent criminals.  This is consistent with his claims during the campaign that Mexicans are rapists and murders.  He and his supporters ignore statistics showing aliens, including undocumented aliens, commit fewer crimes than native born US citizens.

 

Trump has demonstrated a complete lack of empathy for those adversely affected by the shutdown.  Indeed, through some of his public statements, Trump appears to be saying that those suffering because of the shutdown are getting what they deserve because of their lack of support for him.  He has tried to change lexicon of the debate, calling the shutdown a “strike” in closed door sessions with congressional leaders, as if to shift the blame on the governmental employees.  He has noted that most of the workers furloughed or working without pay are Democrats, as if to say that they deserve what they get for supporting the opposition party.  He has shown little concern for the 800,000 who may be going without a paycheck.  Moreover, he has given no attention to the government contractors, who will not only be going without a paycheck, but who, unlike government employees, will not receive back pay.

 

This is another example of Trump’s manipulation of the ignorance of his supporters.  Many of his supporters, who do not understand how government works, have been quick to argue that since only non-essential employees are being furloughed, it shows the government is too big and ought to be cut.

 

The fact is, Trump is using an immoral tactic essentially to extort something he wants, but for which there is little support, for the sake of creating his legacy.  A government shutdown is immoral because it adversely affects people who have no role to play in the debate over the border wall.  Government employees risk falling behind in mortgage payments, utility bills and other bills because of a lack of a paycheck.  Some employees risk losing health insurance for dependents.

 

Yet, it is being viewed as simply just another tactic to get something out of Congress despite fierce resistance.  The last government shutdown, for example, was forced upon the United States by the Tea Party, who demanded the showdown over funding the Affordable Care Act.  Because the Tea Party saw that as a successful demonstration of its power, it has become just another arrow in the Republicans’ quiver.

 

It is particularly egregious where polls have shown that a majority of Americans oppose the border wall.  In fact, Trump clearly made tough immigration enforcement a hallmark of his message in the mid-term elections, which resulted in the Democrats taking control of the House of Representatives.  Yet, while Republicans like to point out that elections have consequences, they refuse to accept the consequences of losing the House, which include a lack of political support for the wall.

 

Trump has ignored all of this, just so he can push for the wall to have tangible proof of his legacy in American history.  The shutdown is a very selfish use of an immoral tactic for something that does not have strong public support.

 

Indeed, Trump’s mistake is that he has failed to learn from history.  There is strong and vocal support for the wall among hard core Trump supporters.  Trump has chosen to play to his base by projecting an image of being tough on immigration enforcement.  But, Trump engaged in the same tactic leading up to the mid-terms.  He used news coverage of a large group of Central Americans traveling together through Mexico in an attempt to apply for asylum in the United States to incite fear among his supporters of the caravan.  He labeled Democrats as soft on immigration enforcement and supporters of open borders.  In the end, his party lost the majority in the House, giving Democrats a power base upon which to oppose the President.  There is no reason to believe that playing to his base will be any more successful here.

 

As usual, Trump has made this dispute about him.  While he attempts to avoid responsibility now, claiming Democrats won’t give him what he wants, he can’t escape that the government shut-down has real world adverse consequences on people who have nothing to do with immigration policy.  Because Trump is such a wild card, there is no way of telling whether he will back down and attempt to paint it as a victory, or let the shut-down drag on and continue to cause widespread pain.  One can only hope that Trump can overcome his stubborn streak, agree to legislation to re-open the government, and continue to negotiate immigration reform without holding the welfare of government employees hostage.

 

By:  William J. Kovatch, Jr.