Saturday, August 22, 2015

When Non-Practitioners Make Interesting Observations -- OR don't critique if you aren't swimming in the pond.

From time-to-time, I read a post or blog article by a so called "expert" in the field of legal business. The article, entitled, Going Solo Does Not Automatically Make You An Entrepreneur, by Susan Cartier Liebel was a recent example, and it just rubbed me wrong.

Now, for those of you that read my blog, you may recognize that I usually limit my posts to technical aspects of the law...a list of "how-to's" from immigration law to first degree murder. This article is a little different, as it hits the core of our practice. How do you run a legal business?

Ms. Liebel did get it right when she extolled law schools to teach more about entrepreneurship. However, she got it wrong when she indicated that:
Solo and small firm practitioners for the most part are not entrepreneurs. They are self-employed.

[Wrong!]

What Ms. Liebel has missed is that to survive in the current "service industry" environment, you must be an entrepreneur. There are few if any solo-practitioners (a term she uses to mean a non-entrepreneur luddite) that survive even a year in private law. This does not include feeding from the breast of the government (i.e. lawyers who are paid by the government to provide services to indigent clients -- a steady and constant payment stream). Either you learn to find clients and push the envelope of "employment strategy", or you perish.

Interestingly, though, that's okay! The field is bloated with lawyers who are looking for clients to just appear. A good culling process is welcome. Remember -- your lawyer should be good interfacing with clients and developing business just as aggressively as defending you.

It would be great to have more training in law schools about running a business -- that is absolutely true. But to say most solo-practitioners are just self-employed...that's nonsense. Spend a day in the trenches, Ms. Liebel! If you think that any law firm (solo or otherwise) can survive for more than a "minute" without being entrepreneurial, you are exceptionally wrong.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

What happens at a credible fear hearing before an immigration judge?

Credible fear hearings refer to the process of an immigration officer or judge reviewing the statements of an individual who is seeking asylum in the United States. Generally, these hearings are first conducted at the port of entry by a custom and border protection (CBP) agent, or an immigration and custom enforcement officer (ICE). Based on the determination of the CBP/ICE officer, an initial credible fear determination is made. If a credible fear of return to the asylum seekers who country is established with the officers, generally the individual is permitted to enter the United States and remain at large until their hearing is conducted before a judge on the merits of the asylum application.

However, if the CBP/ICE officer determines that there is no credible fear of returning to the asylum seekers who country, the asylum seeker is detained. At this point he/she may request a judge to review the CBP/ICS determination. This review process is called a "credible fear hearing" and is conducting before an immigration judge. A couple of pointers to remember:

  • A credible fear hearing must be requested, it is not automatic.
  • Your client will be detained for the entire pendency of the credible fear hearing process, and likely thereafter.
  • Only ICE has jurisdiction to release your client during or after a credible fear hearing, not the immigration court or judge.


The law on the matter is contained in 8 CFR:
Credible fear standard: A Credible fear of persecution means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (restriction on removal) under INA § 241(b)(3). The credibility of the alien statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

Credible fear of torture: means there is a significant possibility that the alien is eligible for withholding of removal (restriction on removal) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

[taken from the "EOIR Immigration Judges Handbook"]

How does a credible fear hearing work?

First, you don’t submit evidence at a credible fear hearing – in fact, the judge may not even speak to you as the attorney on the case. You are an observer of the process only – this is a conversation between the judge and your client. On a practical note, usually the judge will speak to you and ask you what is going on. It’s faster and easier that way. But don’t be alarmed if the judge completely ignores you. Take good notes!

Representation: Prior to the credible fear review, the alien may consult with a person or persons of the alien's choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien's behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

[taken from the "EOIR Immigration Judges Handbook"; See generally INA 235(b)(1)(B), 8 CFR 1003.42]


You need to prepare your client thoroughly. The client will be able to speak to the judge and will be able to testify. The discussion will be about the credible fear interview itself. The judge will ask things like: why are there inconsistent answers, etc. He/She will be using all the CBP/ICE forms, so be sure that you have a copy of the credible fear interview and each step of what your client did and said. Your client should have been given a copy of that. If there are translation issues (as there often are; most translation for the initial credible fear at the port of entry is done over the phone), be sure to brief your client on bringing that up to the judge.

Conduct of hearing: A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer's decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.

[taken from the "EOIR Immigration Judges Handbook"]


If the judge finds credible fear, that he/she will set a next status date (called a master calendar hearing) at which point you will turn in the I-589 and supporting initial docs. Thereafter, it proceeds according to a regular defensive asylum process.

Technically, the judge cannot release your client, as she is deemed an arriving alien, not subject to parole from the court. There are two general rules here… in some jurisdictions, such as York, and sometimes Arlington, the judge will give bond anyway, and DHS rarely objects. That is technically a violation of the code. If the judge does not (and do not be alarmed if that happens…he/she should NOT do so), you can file to have ICE give a bond. In many jurisdictions, ICE will release your client once a credible fear determination I positive. Bond usually runs about $5K. Be sure to submit a bond package, showing where your client will live and with whom, when asking ICE for a bond. It is entirely up to the DO (deportation officer) in charge of your client.

No jurisdiction by regulation: By regulation, an Immigration Judge does not have jurisdiction to conduct bond hearings involving:
  • aliens in exclusion proceedings
  • arriving aliens in removal proceedings
  • aliens ineligible for release on security or related grounds
  • aliens ineligible for release on certain criminal grounds


An asylum seeker who requests asylum at a port of entry is an arriving alien.

See: 8 CFR 1003.19(h)(2)(i)


Is there an appeal if the credible fear is denied by the judge?

No right to appeal, however, generally, you can bring a request for DHS to give one final review before deporting your client. See 8 CFR 1208.30(g)(2)(iv)(A).

Do you have a question regarding immigration law or detention hearings? Give us a call! We can help --- 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Monday, August 17, 2015

IMMIGRATION LAW - What defines a brief, casual, and innocent departure from the US? Or, how to avoid being deported for breaking continuous residency.

We just filed a response brief for a client that had left the country when he was under TPS (temporary protected status). His original country of origin was El Salvador. The problem, of course, is that when you are in the US under TPS, you are not permitted to depart without first completing an I-131 (advanced parole). The term of art in immigration parlance is, "continuous residency." Like many "specialty status" situations, departure without prior permission results in termination of status and deportation. However, there is an out. Those absences that are, "brief", "casual", and "innocent" may be excluded from consideration of a break in continuous residency.

Definitions: (from 8 CFR §244.1)

Continually Physically Present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section.

Continuously Resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

What constitutes a defense to a violation of the continuous residency requirement? This is true of both TPS and other residency requirements for various applications through USCIS (for example, citizenship applications, etc.). Under a ruling by the AAO (Administrative Appeals Office - the office responsible for adjudicating appeals related to most forms and USCIS based decisions), the following definition is the answer:

[T]he phrase brief, casual, and innocent absence, as defined in 8 C.F.R. 3 244.1, means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

(AAO Decision, December 14, 2005, EAC-03-30-51246)

When writing a brief in support of an individual who has traveled outside of the United States during a period of required "continuous residency," be sure to cite to the AAO's factors, one-by-one, and how they relate to your client. Additionally, provide evidence of the short duration of the trip, the nature of the trip, and individuals who can confirm that the travel was indeed, brief, casual, and innocent. Mere testimony or sworn statements of your client will not be enough.

Do you have an immigration question? Let us help! Call us at 703-402-2723 or email admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Sunday, August 2, 2015

How to beat a government setup!

I was asked a question about bows and felons, recently, and posted the question and answer in different blog article. However, I started thinking about the extent of what, if any weapon, a felon is permitted to own. I came across a very interesting court case I wanted to highlight in this blog. This case covers a variety of topics -- including malum per se, and the requisite knowledge required for a crime. These topics are rarely covered, and almost always lost by the defense when brought forth. In this instance, the defendant won. Read on!

Case: http://www.courts.state.va.us/opinions/opncavtx/2040964.txt

This was decided in our backyard -- Alexandria. It dealt with a felon owning first a bow, and then a muzzle loading rifle. The facts:
Wanting to pursue his sport, [ed: the defendant] Miller sought to determine whether he, as a convicted felon, could possess a muzzle-loading rifle. Miller knew that Virginia law distinguished muzzle-loading rifles from other guns. Specifically, he knew that Virginia did not require a criminal background check to be performed on individuals seeking to purchase muzzle-loading rifles. He also knew that Virginia defined different hunting seasons for and issued different licenses to hunters using muzzle-loading rifles.

Miller testified that he "talked to everyone who [he] thought might know the answer." He spoke with his probation officer, who told him he could have a muzzle-loading rifle. He also inquired of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) and the Virginia Department of Game and Inland Fisheries (VDGIF), and representatives from each, who knew Miller was a convicted felon, told him he could have a muzzle loader. Miller acknowledged that no one told him he could possess a "firearm" and that a muzzle loader was "in a sense" a firearm because "it fires." Relying on the interpretation provided by the government officials contacted, Miller purchased a muzzle loader and obtained a license to hunt with it. In short, Miller, a convicted felon, knowingly and intentionally possessed a muzzle-loading rifle.

Interestingly, despite having received assurances from three government officials regarding whether he was permitted to have a muzzle loader as a felon, and being assured he was, the police later arrested him, and he was later convicted of being a felon in possession. That's a very serious offense with a multi-year jail sentence. Folks, VA and DC do not play when it comes to guns and convictions. He was looking at a mandatory sentence of between 2 and 5 years. See https://vacode.org/18.2-308.2. Most states have similar laws. By the way, the argument in this case is absolutely applicable in most jurisdictions.

Miller's possession of the muzzle loader was discovered by police officers during an unrelated search of the house in which Miller was living. [He was] Charged with possession of the gun as a convicted felon under Code 18.2-308.2...Miller argued at trial that his "good faith reliance" on the advice he received regarding the propriety of his possession of the muzzle loader, regardless of the accuracy of that advice, precludes his conviction. His argument is grounded in the due process clause of the Fourteenth Amendment. The trial court believed Miller's testimony concerning the content of the information he received but concluded that the sources of Miller's information were not sufficient to preclude his conviction on due process grounds.

A few comments about this last part. First, this argument is recognized by the Federal government under the 5th amendment to the Constitution (passed in 1791) -- no individual shall be deprived of life, liberty or property without due process of law (see: https://www.law.cornell.edu/constitution/fifth_amendment). However, the States are not the Federal government, so they were not initially beholden to the 5th amendment. In 1868, following the civil war, the government passed the 14th amendment which made due process and equal protection (among others) applicable to the individual States in the Union (see: https://www.law.cornell.edu/constitution/amendmentxiv; generally this means the 4th, 5th and 6th amendments are applied to the States for criminal defense purposes). So both the State and the Federal government are bound by due process. But what does that mean?

Due process means that you have to be given a chance to be heard. Before something can be "taken" from you (say, your freedom through being detained), you need to have a chance to challenge the right of the State to act against you. In Miller's case, he argued that the government deprived him of his chance to defend himself or make a decision on his own when, on the advice of the government employees he bought a muzzle-loader. In layman's terms, essentially, he was setup.

Secondly, as we'll see below, arguing that, "you thought it was okay to do something because someone said so" is a very bad argument. Almost never wins -- but, sometimes, you're right!

Reflecting the axiom that everyone is "presumed to know the law," the common law rule that "ignorance of the law is no excuse" admitted of few exceptions. See People v. Studifin, 504 N.Y.S.2d 608, 609 (N.Y. Sup. Ct. 1986); Wimbish v. Commonwealth, 75 Va. 839, 844 (1880). The common law position was based on the fact that most common law crimes were malum in se. Studifin, 504 N.Y.S.2d at 609. Seen as "inherently and essentially evil . . . without any regard to the fact of [their] being noticed or punished by the law of the state," Black's Law Dictionary 959 (6th ed. 1990), ignorance of the prohibition of such crimes was simply untenable.

The rationale underlying the rule is less compelling for crimes that are malum prohibitum, viz., acts that are "wrong because prohibited," not by virtue of their inherent character. Black's Law Dictionary 960 (6th ed. 1990); see generally Studifin, 504 N.Y.S.2d at 609-10. Yet, the proposition that ignorance of the law is no excuse generally maintains with respect to crimes malum prohibitum, largely for pragmatic purposes.

A couple of technical terms here: malum per se and malum prohibitum. You will rarely ever hear these terms in Court...unless you bring up the crazy defense of "I didn't know!" "Malum per se" means "evil [bad acts] in and of it self" and refers to crimes that, on their surface, a reasonable person would understand is bad. Examples include murder, rape or theft. The very crimes are anti-social and tend to destroy the order of people living together.

However, "malum prohibitum" is a different kettle of fish. The term means, "evil [bad acts], prohibited" and refers to crimes that don't have an obvious evil intent or socially destructive element, making inherent knowledge much more difficult. A classic example is sale of alcohol after 12AM on Sundays. Uh...why is selling alcohol at 11:59PM any different then selling alcohol at 12AM? Because there is no inherent difference, no obvious "wrong" to the act, people make this mistake all the time.

The Court here, however, is saying that is anyone could simply state, "I didn't know that was the rule!", there would be no ability to pass laws others then those that stop obvious wrongs. There would be a complete breakdown in law enforcement for anything but felonies. Chaos. The Court explains this:

Although leading at times to seemingly "unfair" results, rigid application of the rule promotes the policy it serves: "to encourage people to learn and know the law." E.g., Clark v. State, 739 P.2d 777, 779 (Ak. 1987); see also Wimbish, 75 Va. at 845; Oliver W. Holmes, The Common Law 48 (1881) ("It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey . . . .").

But what happens when the government tells you can do something, and then arrests you anyway? Is that fair? The Federal government has exceptions for just this type of event. For example, if you call the IRS and receive advice on filing your taxes...and it turns out the advice was wrong, you will have to pay the correct tax, but you will not be penalized. Why? Because you reasonably relied on a government actor, who had a authority to advise you on this matter, and it was the government actor that was wrong, and not you. Of course, if you provide the wrong information, or purposefully mislead, then all bets are off. However, in Miller's case, he relied on three government employees before he purchased a muzzle loader.

The defense derived from the Raley, Cox, PICCO [Supreme Court cases on] trilogy applies where a defendant has reasonably relied upon affirmative assurances that certain conduct is lawful, when those assurances are given by a public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue. The defense is a due process defense, Raley, 360 U.S. at 437; Cox, 379 U.S. at 571, grounded in "traditional notions of fairness inherent in our system of criminal justice." PICCO, 411 U.S. at 674; United States v. Caron, 64 F.3d 713, 715 (1st Cir. 1995) (applying standard of fundamental fairness)....

[In this case] The due process argument is, in essence, "that the criminal statute under which the defendant is being prosecuted cannot constitutionally be applied to the defendant without violating due process of law, where government officials have misled the defendant into believing that his conduct was not prohibited." Ghent, supra, at 1031; see also Studifin, 504 N.Y.S.2d at 610 ("[F]or the state to prosecute someone for innocently acting upon such mistaken advice is akin to throwing water on a man and arresting him because he's wet.").

The application of the defense then requires a factual determination whether the defendant's reliance upon the information received was reasonable and in good faith.... The defendant bears the burden of establishing the affirmative defense. See [PICCO] at 675; Howell, 37 F.2d at 1205. With respect to content, the defense is available only where the information upon which the defendant has relied is an affirmative assurance that the conduct giving rise to the conviction is lawful. In the absence of such an affirmative assurance, the due process concerns that the defense is designed to protect are not implicated, and the defense fails.

The question then -- did Miller ask the right people and if so, was the advice he received reasonable? Ultiimately, the Court said it was.

However, a government official's status as "state actor" has not alone been sufficient to invoke the defense in cases recognizing its availability. The issue is not whether an "agent" of the state has bound the government by his or her word. The issue is whether convicting an individual who has reasonably relied on the advice of a state actor is so fundamentally unfair as to raise due process concerns. Such concerns are implicated only when the source of the information is a public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue....

Moreover, there can be no doubt that the sources upon which appellant relied--a federal ATF agent, a VDGIF [Virginia Department of Game and Inland Fisheries] agent, and his probation officer--were "state actors."...

We hold that Miller's case fails as a matter of law with respect to the ATF agent and the VDGIF agent. Neither of those agents was charged by law with responsibility for defining permissible conduct under Code 18.2-308.2. The ATF agent, although arguably charged with such responsibility under federal firearms laws, has no such duty with respect to Virginia law... See Etheridge, 932 F.2d at 321; Bruscantini, 761 F.2d at 642; Brady, 710 F. Supp. at 295. Likewise, the Commonwealth of Virginia has not charged the VDGIF with the duty of defining permissible conduct under Code 18.2-308.2. The VDGIF exists to provide public, informational and educational services related to Title 29.1, which concerns Game, Inland Fisheries and Boating....

By contrast, however, Miller's probation officer was charged by the Commonwealth with responsibility for defining Miller's permissible conduct with respect to Code 18.2-308.2. The legislature granted the probation officer supervisory responsibility for Miller's conduct and treatment during the course of his probation...including the responsibility for arresting him for a violation of his probation. Violation of the law regarding the possession of a firearm by a convicted felon was surely one. It follows that a probation officer, statutorily required to supervise, assist, and provide a probationer with a statement of the conditions of his release from confinement, as well as to arrest a probationer for a violation of the terms of his release, is, a fortiori, charged by law with defining a probationer's permissible or impermissible conduct.


Miller's conviction for being a felon in possession of a firearm was dismissed. The lesson here is this:

  • You can't say, "I didn't know the law."
  • If you intend to rely on a government officer for instructing you on what you may or may not do, be sure to verify that the officer to whom you are speaking is qualified to give you an opinion. The officer must be authorized by the State or the Federal government to give you the advice you are seeking.
  • If you intend to rely on a government officer, your reliance must also be reasonable.


Do you have questions about criminal law? Call us! The consultation is free, and we can help! 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

General Questions about Family, bankruptcy, and criminal law.

I recently provided a variety of answers to various legal questions in VA and DC -- although these apply in concept to every state. I provide them here in my blog to help any others with similar concerns.

QUESTION: My wife and I are separated....if she gives me money that she owes me from the sale of the home she brought into our marriage will I incur any tax liability.

ANSWER: Yes. You will incur tax liability equal to your share of the sale of the house. If you re-invest the money in another property, or you meet the tax liability exemption for income from the sale of property, then you may avoid tax implications. Your best bet is to meet with an attorney and discuss the property settlement agreement, and your obligations/assets thereunder. If you need help with this, give us a ring!

QUESTION: My husband filed bankruptcy chapter 13 on his bills I did not I'm co on the house and he will not make payments and I do not make enough money to pay the loa what should I do?

ANSWER: Chapter 13 requires a restructuring of the debt under a bankruptcy plan. Until the plan is approved, there is a “stay” in place – you don’t need to pay anything. Once the plan is approved, your husband will have to pay under the terms of the plan. However, you need to make sure that you are not ALSO named in that chapter 13 plan. Now is NOT the time to play dumb. You need to review the paperwork he is filing and UNDERSTAND what is happening. This effects your life. Additionally, in VA, tenants by the entirety (i.e. property owned jointly by you and your spouse under the “entirety doctrine”) have special rules under bankruptcy provisions. You need to meet with a lawyer to discuss this. You can probably call his bankruptcy attorney to get some of these answers, but if the lawyer does not know, call us.

QUESTION: Hi I am getting out of an abusive relationship. I have two children with him. Recently, I pressed criminal charges against him for domestic abuse and will appear in court as a witness at the end of the summer. He has never held a job regularly, I have been the main breadwinner and have been head of household claiming our two children on taxes. My parents live in VA but don't have the resources or space in their house to house me and my two children until I can get on my feet, get a place/find a job and my daughter goes to kindergarten this upcoming fall. His parents who live all the way across the country have offered for us to come live with them and that they would help with everything until I get a job or further my education. What is the problem with starting over somewhere new? It's not like I am trying to take them away from him, I'm moving in with his parents across the country. Is there anything preventing me from taking my children to Oregon after fulfilling my duty as a witness in the criminal trial?

ANSWER: Nothing. As long as you don’t have any order from VA, you are free to take the children and go wherever you like. Parental kidnapping is only a problem when there is a court order. However, you run the risk of him filing in VA BEFORE you have six months at your new location. Under the UCCJEA (Uniform Child Custody and Jurisdiction Enforcement Act), you have to live in your new location, with the children, for six months before the Court there may entertain a motion or hearing on custody. If he files in VA before that time, you will have to return to VA to fight the case. That could be very expensive. We currently have a client who did what you are proposing – she moved to PA. However, the spouse did file, she ignored it, and the spouse got a custody order in VA (in her absence). She is now facing FBI kidnapping charges. Be very careful. If you would like to discuss UCCJEA or other provisions of child custody in VA/DC/MD – give us a ring at 703-402-2723 or admin@hanoverlawpc.com.

QUESTION: I was convicted of marijuana possession of less than an ounce in Washington D.C. about four years ago. I have yet to get the charge expunged, but I was wondering if I should still get it expunged or will it be dropped from my record since marijuana is legal in D.C. now?

ANSWER: No, it will not be dropped. Further, the laws in DC make expungement much more difficult for convictions. Generally, it is seven years, and only covers specific types of crimes. Drugs are not usually expunged. If you would like to discuss expungement further, give us a ring at 703-402-2723 or admin@hanoverlawpc.com.

QUESTION: Is it lawful for a felon in Virginia to own and/or possess a compound bow?

ANSWER: There is no provision preventing a felon from owning a bow. However, if you are convicted of any crime while in possession of the bow, it will be treated as an aggravated offense, and given your prior record, would carry severe penalties. I would avoid porting any type of weapon. However, a bow alone will not cause a problem for a felon – only a fire-arm. If you have questions about weapons or restrictions on felony convictions, give us a ring! 703-402-2723 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Friday, July 31, 2015

Post Immigration Court -- what happens if I lose?

A colleague of mine asked for information on what happens after an adverse decision by the Immigration Court. The Judge ruled against her client, and she sought guidance on how to proceed.
I just received word that my client's CAT and Withholding claims were denied. I am worried that I may not be able to reach him before he is transferred, and the family is in a panic.

I would like to know:
1. What happens next
2. If he exercises right to appeal, could he be eligible for interim bond/release from custody (Alien AF - conspiracy/100 kilos of marijuana is what landed him in Removal proceedings in the first place) during the wait time?
3. How do we determine where he will be taken, and how can we track his movement so that the family can try to get him some clothing, his I.D's and some money?


Any insight from those of you who have gone through this, and had to deal with the anxiety the family members are suffering, would be extremely helpful!

In answer, this is a rather complex compound question. Your client will be placed on the “depart roster.” For security reasons, DHS will not release the time or place they will fly your client out from – it largely depends on what country he is going to. If you ask nicely (and it is that random!), you are technically permitted to bring him a single suitcase before he departs. You are right to coordinate this through his D.O. (deportation officer). However, that’s about as much information and access as you will get.

If appeal rights were not waived, he’ll wait 30 days before anything happens. If he waived appeal, or 30 days elapse, then he’ll be on the next available flight. Generally, flights leave for Mexico regularly, but say, to Nepal, quite rarely indeed.

There is no bond for a detainee who is awaiting deportation. If ever there was a flight risk, that would be your fella! However, if the BIA appeal is successful, and a remand is had, you should be able to avail yourself of the six month rule (primarily in the 9th circuit, but arguable everywhere). Ping me if you need more information on this.

You can file an appeal and ask for a stay of removal pending appeal. You need to ALWAYS ask. Although, technically this should be automatic…trust nothing. I’ve actually had folks deported during their appeal and then subsequently win the appeal…and they are in yonder land. ALWAYS ask.

Do you have a question about deportation relief AFTER an immigration court hearing? Call us immediately as time is of the essence. Oh, and never waive appeal rights. 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Wednesday, July 29, 2015

When can I subpoena a corporate officer?

I was recently asked a good question regarding corporate law. I thought I would share my answer here:

In Virginia I have a case where the named defendant is a corporation. We would like to depose the president of that company. My first thought was since he is not a named defendant we should subpoena him to the deposition. The opposing corporation said they would have him (president) there without the need of a subpoena, but only if we filed a "corporate" Notice to take his deposition? Has anyone heard of a "corporate" Notice? My thoughts are let's subpoena him and do a regular Notice. Please advise.

Alright -- I understand your confusion! Let me clarify a couple of points for you, and I think it will make sense. We handle quite a few civil litigation cases involving companies, and it is not uncommon to face what you are just now attempting to grasp.

Generally, when you want information about what and how a corporation acts, or what the corporation has done, you serve notice on the corporation for a deposition. Because the corporation itself is not an individual (obviously!), the company must send a representative, of the company's choosing, to be present at the deposition and answer your questions. The corporation has the right to select their own person, however, the individual sent must be able to answer the questions you are seeking. For this reason, it is common to outline the thrust of your inquiry when serving the corporation so they can send the right person (again, obviously). If you don't let them know what the nature (in general terms is fine) of your inquiry, they can't send the right person...and you usually waste a lot of time.

If you want a specific person to answer questions, then you must serve that person with a subpoena individually. However, if the person is protected behind the corporate veil, they have may present a valid motion to object to the subpoena, and you'll have to demonstrate why this person, and no other, is the right person to question in regards to the corporate matter. Remember, corporations can select their own person to send to a deposition -- they are not bound by what you want (so long as that person can answer the questions). Often, for this reason, the CEO, or other officers involved with the suit, are named in the actual filing. This ensures that they have to respond as party opponents and cannot hide behind the corporation. For the same reason, you will often find that corporations seek to remove named officers from suits ASAP to avoid just this problem (usually through some form of judgment on the pleadings prior to discovery being had).

You can beat a motion to quash your subpoena...sometimes. That's an entirely different kettle of fish -- and takes a bit of work. But don't be surprised to see such a motion if you try to get someone who lives behind the corporate veil.

If you need help with a civil case, give us a call! Glad to discuss the details and see what assistance we can provide. 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.