Supreme Court Strikes Down Key Provisions of Arizona's Law

On June 25, 2012, the U.S. Supreme Court struck down three key provisions of Arizona's controversial immigration law.  Specifically, the Supreme Court struck down provisions that: (1) made failing to comply with federal alien registration requirements a state misdemeanor; (2) made it a state misdemeanor in Arizona for an alien without work authorization to seek employment; and (3) authorized state and local police to arrest a person when there was probable cause that the person has committed a public offense that made the person removable.  The Court upheld one provision, which required state and local police to verify a person's immigration status when stopped, detained or arrested.

The Supreme Court's ruling was based on the Supremacy Clause of the US Constitution, which provides that the US Constitution and the laws of Congress in pursuance thereof are the supreme law of the land.  Article I of the Constitution specifically gives Congress the power to regulate immigration.  Because the US Government has a comprehensive scheme for enforcing US immigration laws, the states cannot adopt their own immigration enforcement laws.

To put it in simple terms, the US Government has its own priorities in how it expends its resources in enforcing immigration law.  It's priorities include violent criminals, drug trafficking and repeat offenders.  State Governments cannot trump those priorities by making it a state crime to fail to comply with US immigration law.

On this point, I think it is important to note that being present in the United States without immigration status may be a violation of civil immigration law.  However, it is not a criminal violation.  The Supreme Court essentially said that the states cannot make it a criminal violation.  That is the Federal Government's job.

Indeed, state action to criminalize illegal presence, illegal work, and failing to register with the Federal Government may actually conflict with Federal policies.  Specifically, it would conflict with the policies recently announced by the Obama Administration concerning young people who were brought to this country at an early age.  It would also conflict with Federal law, which essentially forgives illegal work when a person who is out of status is married to a US citizen, and applies to adjust to permanent residency.

All in all, the Supreme Court's decision appears to have gotten the law correct.  A copy of the decision can be found at http://www.supremecourt.gov/opinions/11pdf/11-182.pdf.

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.

New Policy Promises to Help Young Undocumented Aliens

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano, issued instructions to US Customs and Border Patrol (“CBP”), US Citizenship and Immigration Services (“USCIS”) and US Immigration and Customs Enforcement (“ICE”), concerning the exercise of prosecutorial discretion and the granting of deferred action in case involving undocumented aliens who came to the United States before the age of sixteen. Through these instructions, Napolitano aimed to implement a new policy of focusing enforcement resources on high priority cases, and not on lower priority cases of law abiding young people who have been brought to the United States. The text of Napolitano's memorandum can be found here. To qualify for the exercise of prosecutorial discretion under the new policy, an alien has to meet the following criteria: (1) the alien came to the United States before the age of sixteen; (2) the alien continuously resided in the United States for five years before June 16, 2012; (3) the alien is currently in school, has earned a high school diploma, has earned a general equivalency diploma, or was honorably discharged from the Coast Guard or Armed Forces of the United States; (4) the alien has not been convicted of a felony, a significant misdemeanor offense or multiple misdemeanor offenses, or is not a threat to national security or public safety, and (5) is thirty years of age or less. If CBP, USCIS or ICE encounter such a person, Napolitano instructed that the agencies should exercise their discretion, on a case by case basis, not to place that person in removal proceedings. Indeed, the agencies were instructed to develop a process for granting deferred action to such persons who are at least fifteen years old for two years. Deferred action occurs when the immigration authorities choose not to place a person in removal proceedings, despite the violation of immigration law. A person who has been granted deferred action may apply for work authorization in the United States. After the two years, the deferred action would be subject to renewal. If the person is already in removal proceedings, Napolitano instructed that ICE should determine whether to exercise its prosecutorial discretion, on a case by case basis, to terminate the removal proceedings, and grant the person deferred action for two years, subject to renewal. Pursuant to the Immigration and Nationality Act, US immigration authorities already possess the discretion to decide whether to place a person in violation of US immigration laws in removal proceedings, or whether to grant deferred action to such a person. Last year, the President instructed ICE to concentrate its resources on high priority cases, which would include violent criminals and threats to US national security and public safety. President Obama instructed ICE to consider, on a case by case basis, whether ICE should exercise its prosecutorial discretion in low priority cases not to continue with removal proceedings. Napolitano’s instructions represented more specific guidelines in how immigration authorities should exercise its discretion under the law. This specific policy is aimed to help a small class of undocumented individuals. Namely, it is meant to assist those who were brought to this country before the age of sixteen, and thus did not possess the intent to violate immigration law themselves. While this announcement of official Homeland Security policy is focused on a narrow class of people, it does not mean that some form of relief will not be made available to other undocumented aliens. Immigration authorities still possess the discretion under the law not to pursue removal proceedings for people who are technically in violation of immigration law. Indeed, immigration authorities have the discretion to grant deferred action and consider whether to grant a person otherwise in technical violation of immigration law work authorization. ICE has already been instructed to concentrate its resources on high priority cases. Those cases include aliens who: (1) have engaged in, or are suspected to have engaged in, terrorism and/or espionage; (2) have been convicted of violent crimes, or are repeat offenders; (3) have participated in organized criminal gangs; (4) have outstanding criminal warrants; and/or (5) otherwise pose a serious risk to the public safety. An undocumented alien who does not fall into one of these categories may still petition immigration authorities to exercise prosecutorial discretion, and potentially granted deferred action. The new policy does not create a path to permanent residency or citizenship. Indeed, it would only grant a weak form of relief, and that is a promise not to enforce US immigration law. Deferred action can be revoked at any time, for any reason. The instructions created no constitutional right to the exercise of prosecutorial discretion or deferred action. A person granted deferred action can still be removed (or deported) from the United States should the Administration change its policy, or a new Administration disagree with this policy. The new policy does not grant amnesty. That is, it does not forgive the violation of immigration law. It only gives an undocumented alien a promise that for a limited period of time the US Government will not enforce immigration law requirements on an individual. If you believe that you may meet the criteria set forth in Napolitano’s instructions, you should consult with a knowledgeable immigration lawyer to discuss your options.

Why Consult a Lawyer?

Immigration law is form-driven. And since you are answering questions about yourself, it may appear deceptively simple. But, even for an apparently simple case, it is a good idea to consult with a lawyer first. Recent example - as I was sitting waiting with my clients for their interview, I couldn't help overhear a USCIS Officer speak to a woman who applied for citizenship. She just passed her English and Civics tests, but the adjudicator was trying to explain to her that since her parents became citizens when she was under 18, she already was a citizen. Now, she needed to file another form, pay another filing fee, and get a passport. While this was generally good news, it meant that she spent $680 on a filing fee, and attended an interview that was completely unnecessary. If she had consulted with a knowledgeable immigration lawyer before filing the application, she could have saved herself time and money.

Admitted to the Eastern District of Virginia

Now admitted to practice in the U.S. District Court for the Eastern District of Virginia. Do you have a delayed immigration petition? A citizenship application that has been pending for years? I can help you file a suit in the Eastern District to try to force the Government to make a decision on your case.

Christian Family from Pakistan Wins Asylum

Today, the Arlington Asylum Office of the U.S. Citizenship and Immigration Service granted a Pakistani family, who wish to remain anonymous, asylum. The husband and father, a practicing Catholic, found himself the target of a campaign by the Sunni Ittehad Council to kill him, allegedly for desecrating the name of Mohamed. The Sunni Ittehad Council distributed flyers and posters in the family’s neighborhood, calling on true believers of Islam to kill the father for committing blasphemy.

Recent political events in Pakistan concerning that country’s blasphemy law created a dangerous situation for the family, who felt the need to flee to the United States for safety. Pakistan’s blasphemy law imposes the death sentence for anyone who desecrates the name of Allah or Mohamed. The law has been used as a weapon by Muslim extremists to harass and persecute religious minorities in Pakistan. Some Pakistani politicians have expressed their opposition to the law.

In the last year or so, two politicians who opposed Pakistan’s blasphemy were assassinated. In March of 2011, Minister of Minority Affairs Shahbaz Bhatti, the only Christian member of the Pakistani Cabinet, was assassinated for his opposition to the blasphemy law. Another outspoken opponent of the blasphemy law, Salmen Taseer, the Governor of Punjab, was assassinated by his own police bodyguard, Mumtaz Qadri. Adding insult to injury, Taseer’s son, Shahbaz Taseer, was abducted in October of 2011. Qadri stood trial for the murder of Qadri. He was convicted and sentenced to death. Muslim extremists, however, considered Qadri to be a hero of Islam, and engaged in street protests across the country over his sentence. These Muslim extremists were so feared, that the Government of Pakistan sent Syed Pervaiz Ali Shah, the judge who issued the sentence in the Qadri case, to Saudi Arabia in order to protect him and his family from reprisals.

One group of Muslim extremists who organized protests of the Qadri sentence was the Sunni Ittehad Council. Ironically, the United States gave the Sunni Ittehad Council a grant in 2009 to organize a protest against the Taliban. Since that time, however, the group changed leadership, and began vocally supporting the continued existence of Pakistan’s blasphemy law.

On Sunday, October 2, 2011, the husband and wife attended worship service at their church. On that same day, demonstrations were held across Pakistan protesting the Qadri sentence. The husband believes that some of the protestors laid in wait outside of his church, and chose to follow his car. After the husband withdrew money from an ATM, he and his wife went to a gas station, called a petrol station in Pakistan. It was there that two gunmen approached them, and hit the husband in the right hand, causing bruising. The men stole his money and his wallet, which contained his ATM card, his credit cards and a photocopy of his identification card. They grabbed the rosary beads which were hanging from the rear view mirrors, and said that Christians were not welcome here. They warned him not to report this incident to the police, and left.

Having lost his ATM card, credit cards and the photocopy of his identification card, the husband felt he had no choice but to report the incident to the police. He was most concerned with the loss of the photocopy of his identification card, fearing that now Muslim extremists had his personal identification information, which could be used to further target him. But, he also feared reporting the incident to the police. He knew that the Governor of Punjab had been assassinated by a police officer assigned to his security. He believed that Muslim extremists had connections within the police department, and that the police would let the extremists know that he reported the incident.

Less than two weeks later, the wife was driving from her mother’s house to the family’s home, with the couple’s teenage son in the car. The normal route home took her past a Mosque, where young Muslim where were sorting papers and placing them in piles. In Islam, whenever a paper has the name Allah or Mohamed written on it, it becomes holy and cannot be desecrated. Newspapers will often print Quranic verses, which means that they cannot be destroyed. The men were sorting papers with the name of Allah or the Prophet printed on them, so the papers would not be desecrated.

As she drove past the Mosque, the papers became disturbed. Some flew under her wheel. The men became angry, and started chasing the car, yelling that she had desecrated the name of the Prophet on purpose. They yelled that they were going to burn the car, and reached in to grab the teenage boy. Some men were carrying sticks, and smashed the rear passenger’s side window. Frightened, the wife stepped on the gas, and drove back to her mother’s house, where she called her husband. The husband left work and got there as soon as he could. He called the family home, where the couple’s teenage daughter was, and told her not to go outside until he came to pick her up.

The husband believed that the Muslim extremists now had everything they needed to charge him with blasphemy, and seek his death. They had his name and identifying information from the robbery. They had seen his car. Now that same car had driven by a Mosque and ran over papers with the names of Allah and the Prophet written on them. The husband also knew that under the Sharia, or Muslim law, it would only take two male Muslim witnesses to establish that he had committed blasphemy. Because of Pakistan’s blasphemy law, he feared that he and his family faced certain death. The family already had tourist visas to the United States. Using those visas, the family packed up what belongings they could, and came to the United States. The husband’s extended family in Virginia, which is where they went.

Days after arriving in Virginia, the family consulted with attorney William J. Kovatch, Jr. Kovatch specializes in immigration law. Kovatch recommended that the family apply for asylum, and agreed to represent them in the proceedings. The husband remained in contact with his neighbors back in Pakistan, who confirmed that his worst fears had come true. One of his neighbors, who worked as a security guard, stated that members of the Sunni Ittehad Council had come and asked where he was. When the guard said that the family had gone abroad, the men said that the husband was a blasphemer, that they would find him and that he would be killed for desecrating the name of the Prophet. The neighbor also stated that the Sunni Ittehad Council had distributed flyers in the neighborhood, accusing the husband of blasphemy and calling on all true believers to kill him. The flyers were on the letterhead of the Nizam-e-Mustafa Party, which translates into the party of the Law of Mohamed, or the Law of the Chosen One.

Later, the Sunni Ittehad Council hung posters up in the neighborhood, again accusing the husband of blasphemy against the Prophet and calling on true believers to kill him. These posters, however, were attached to a copy of the husband’s identification card, which bore his photograph. This appeared to confirm that the family had been the victim of a concerted effort of Muslim extremists, who shared the photocopy of the husband’s identification card with the Sunni Ittehad Council in order to perpetrate this campaign of terror against him.

“This was not an easy case to present,” said Kovatch. “Although we submitted a large stack of paper showing incidents in Pakistan where Christians faced persecution at the hands of Muslim extremists, it was difficult to get information out of Pakistan. When we submitted the application, we did not have copies of the flyers, and did not know about the posters.” In addition, although the wife and two children came to the Arlington Asylum Office with the husband on the day of his interview, the Asylum Officer declined to interview them.

At first, the Asylum Office issued a Notice of Intent to Deny, or a NOID. Among the reasons given by the NOID were that the first incident appeared to be motivated by an intent to rob, and not an intent to persecute, that the second incident did not involve the husband directly, but only his wife and son, and that there was no evidence that anyone was targeting the husband directly.

The NOID gave the husband additional time to address the concerns raised, and submit more evidence. By this time, the husband had obtained a copy of the flyers circulated in his neighborhood and had it translated. Kovatch submitted the flyer, along with a letter from a pastor from Pakistan testifying to the danger Christians faced in that country. Kovatch also submitted a letter brief, noting that the Asylum Office had applied an incorrect legal standard in the NOID. Among the arguments Kovatch made was that an asylum applicant was not required to show evidence of a direct threat against his life, if he can show a pattern of persecution against similarly situated people. Kovatch highlighted the evidence of persecution against other Christians in Pakistan. This evidence included the stories of the husband’s extended family members who had been granted asylum in the United States because of their religion. Kovatch submitted this package by overnight carrier days before the deadline to respond to the NOID.

A few days later, the husband obtained an affidavit from the security guard who told him how the Sunni Ittehad Council had come looking for him. Kovatch immediately submitted this to the Asylum Office, even though the deadline had passed. Then, the husband obtained photographs of the posters that bore his picture, and had the posters translated. Again, Kovatch immediately submitted this evidence to the Asylum Office.

 Just two weeks after submitting the last of the evidence, the family received a denial letter from the Asylum Office. The only reason given for the denial was that the information submitted “failed to overcome the grounds for denial as stated in the NOID.”

Normally, once an asylum application is denied, the applicant is referred to Immigration Court, where an Immigration Judge hears the evidence and makes an entirely new decision. When the family received the final denial, however, their permission to stay in the United States had not yet expired. Thus, with no reason to place the family in deportation proceedings, the Asylum Office did not refer the case to an Immigration Judge.

After consulting with other attorneys, Kovatch recommended that the family file a motion to reconsider the decision with the Asylum Office. The timing had to be right. It had to be submitted within thirty days of the final denial, and it had to be timed so that if the motion were denied, the family would be out of status, and thus referred to an Immigration Judge.

 Kovatch argued that the family’s due process rights had been violated because the final denial was summary in fashion, and failed to specifically address the new evidence submitted in response to the NOID. Kovatch made sure to attach all of the new evidence to the motion, and personally delivered it to the Asylum Office.

The husband was scheduled for a re-interview. The interview was with the same Asylum Officer who had previously heard the case. This time, the questions concentrated on the new evidence, and why the husband believed this was a coordinated effort among Muslim extremists. The Asylum Officer also heard from the wife, who testified emotionally about how she feared that she was going to lose her only son when her car was attacked.

Two weeks after the re-interview, the family and Kovatch went back to the Asylum Office to pick up the decision, which this time granted the family asylum. After one year, the family may apply to become permanent residents of the United States.

A year earlier, Kovatch won asylum for a woman from Nepal, who had converted from Hindu to Islam, and married a Muslim. Her father, who had beaten her, her mother and her sister in the past without police intervention, had threatened to kill her for what she had done. By winning asylum, Kovatch saved the woman from deportation. Kovatch is currently representing a woman from Western Africa, whose asylum claim is based on her fear that her daughter would face female genital mutilation if the woman were returned to her home country. That case is currently pending before the U.S. Circuit Court of Appeals.

(703) 837-8832

Proposed Regulations May Help Some Relatives of U.S. Citizens

USCIS has published a notice of proposed regulations in the Federal Register which could provide some assistance to certain relatives of U.S. citizens. Click here for a link to the notice. The proposed regulations would allow those relatives who are known under the law as "immediate relatives" to apply for a waiver of unlawful presence in the United States before leaving to process at a consulate abroad. "Immediate relatives" of a U.S. citizen are that citizen's spouse, children or parents (assuming the citizen is over twenty-one years of age). The new procedure is meant to help those immediate relatives who happen to be present in the United States without lawful status. Under the law, when such a person leaves the United States, they are barred from returning for three or ten years, depending on how long they have had illegal presence. The law already provides for a waiver of illegal presence, provided the potential immigrant can show extreme hardship to a U.S. citizen relative. The proposed regulation changes only the application process. In many cases, the immediate relative has entered the United States illegally. If they have, then they are not eligible to adjust status to a permanent resident in the United States, but must instead return to their home country to process at a U.S. consulate. If the immediate relative applies for the waiver of his or her illegal presence at the consulate, the process can take several weeks or even months. The proposed regulations would allow those same relatives to arrive at the consulate with the waiver in hand, and therefore spend less time overseas waiting for the actual visa. The new regulations will not save any person from removal proceedings. The new process would only help a limited category of aliens with illegal presence. Currently, an immediate relative who entered with a visa, but who overstayed the visa can still apply for adjustment of status without leaving the United States. The new regulations would only help those who entered illegally, without a visa. Critics, such as Judicial Watch have branded the proposed regulations "amnesty." Unfortunately, this only demonstrates their ignorance of U.S. immigration law. The law by no means grants amnesty to illegal aliens. Rather, it solely provides a process to apply for a waiver that is already available under U.S. immigration law, albeit in a more streamlined process. Today, I met a woman whom these new regulations could help. Her daughter is an adult U.S. citizen who has already submitted a visa petition for her. Since filing the petition, the U.S. citizen daughter has become disabled due to a brain injury. The woman has been granted custody of her minor grandchildren. Currently, if she were to apply for the actual visa overseas, the grandmother could spend weeks or months abroad. This would create a huge hardship on the U.S. citizen children, as they would have no one to care for them for a long time, while the grandmother is waiting for the waiver to be granted. If she could apply while she is still in the United States, then the time that she would be forced to spend overseas would be cut dramatically. USCIS is accepting comments on the proposed regulations until June 1.