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.

Sunday, July 19, 2015

An Offer in Compromise. The trick to filing an IRS-656.

I just finished another 656 [individual #offer_in_compromise where an amount is offered -- there are different types], and I thought I would share a couple of thoughts on what the heck this program (offer in compromise) is, and how to use the damn thing. First, for those code buffs out there, we're talking about 26 USC 7122. If you want to see all the nitty-gritty regarding rules and what the IRS can and cannot do, go there. Be sure to take a 5-hour energy burst, though, as the US Code makes War and Peace look downright exciting (no slight to Tolstoy, mind you).

For the rest of you out there, sit back and read this post. Follow the rules herein, and you should do just fine. Well, actually, depending on the complexity of your case, you could be completely mess things up. Definitely give us a call BEFORE filing anything, lest you find yourself without a house, and #IRS smiling all the way to the bank. Better to spend a few shekels on legal advice BEFORE losing the house, then after. This advice often falls on deaf ears...but hey, I can't blame you. I fancy myself an auto-mechanic, too. Not good, not good!

Alright, humor aside, let's start at the beginning. To complete an offer in compromise, you will need a couple of things. First, you need a computer. As you are reading this, I'll assume you have access to the Internet. Go to: http://irs.treasury.gov/oic_pre_qualifier/. This website is the "pre-qualifier" for an offer in compromise. It won't actually store any privacy information, so have no fear completing the fields. It will, however, allow you to play around with the numbers, and get an idea of what will be required for your "compromise." I suppose now is a good time to explain what a compromise is.

A compromise is an offer, made by the taxpayer, to the Government, for full and final settlement of all tax debts. A #compromise must be actual money and it (or partial payment of the #compromise) must be sent to the IRS when the offer is filed.

Note that the fields you complete on the website are essentially the same as those you will completed on the 433A (individual) and the 656 (individual). A couple of cavaets. We are NOT talking about business debts. That's a different discussion, and you absolutely have to speak to us before swimming into business waters. We are NOT talking about a hardship waiver. This post presumes you have an amount you can, in fact, pay towards the tax debt. There does exist an opportunity to pay nothing, but that is almost never excepted without extreme hardship -- again, you will need an attorney to help with that.

Three areas are critical to a 656 -- and working on the website link above will help you gather this information.
  • First, you need to have your three most recent paystubs.
  • Secondly, you need your three most recent bank statements.
  • Thirdly, you will need an itemized list of your household and personal expenses.

With these items in hand, you have covered 90% of the questions you'll need for all forms (and the website!). Note, that if you have investment accounts, life insurance, 401K or retirement funds, etc., you'll need that information, too. Obviously, if you receive an annuity, or you have some business income (aha! Business items again...run, run!), then you'll need to gather a bit more documentation. For most folks, though -- the three biggies will get you through the vast majority of tax questions on the 433, 656, and website.

Surprisingly, the IRS has made this process relatively pain free. Once you have completed the website entry, you will be presented with a proposed amount for a compromise. Now, if you remember, a #compromise is something you offer the government. However, the #IRS does not need to accept it. To wit, using the number the IRS proposes has an excellent chance of being accepted by the government -- a really handy method of testing the waters prior to filing. No guarantees, of course, but a good chance.

Completing the 433 is a painful process, largely focused on budgets and assets. Be sure to have the three items outlined above. The process of completing a 433, and the considerations attendant to the process, can be found in a separate blog article on this site. There are some confusing aspects regarding adding and subtracting certain values on the form. The only thing to remember is that your primary bank account recevies a $1000 deduction (reducing the asset value of the saved money -- read the form carefully), and your personal vehicle gets $3450 deducted from the value (if any -- can never be less than 0. Read the form carefully).

The 656 form is not difficult and is, in fact, very short. Remember, if you are completing a business filing, you need to get the help of an attorney. However, as an individual filer, just complete the boxes as described on the form. The compromise amount can be split across a 20% deposit and 5 equal payments. Note -- DO NOT exceed five payments, or the amount goes up considerably.

If you are represented by an attorney, be sure to complete a power of attorney form, also. That's form 2848.

One last reminder -- be sure to claim anything over the 20% initial payment as a deposit. Otherwise, if you do not, the IRS will keep the entire amount sent in, even the amount above the 20% initial payment, if the government decides NOT to accept your offer. Be careful!

Do you have a question about an offer in compromise, or other tax matter? Give us a ring! Your first call is free, and we're glad to chat with you about how to settle your tax issues. 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.

Saturday, July 18, 2015

When do I get my Miranda warnings?

A new question on a legal question board caught my attention.

My son was arrested for driving on a suspended license and taken to jail. I would like to know if he should have been read his rights before being arrested.

I haven't had a chance to answer this question before, but we see it a lot in traffic and DUI related incidents. The answer is -- did your son make a statement to the police? The "Miranda warning" (Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny) is the technical term for the "rights" you were speaking about. (Those are the rights you are speaking about -- the right to remain silent -- anything you say can and will be used against you, the right to an attorney before speaking to police, if you cannot afford an attorney one will be appointed...) A mere arrest does not require the reading of any special rights. However, if your son made a statement to the police, and the police had not warned him that a statement could be used against him, then most likely that statement can get suppressed.

The rule of thumb is this -- an arrest without interrogation = no need for special warnings. An arrest + questioning = warnings must be given, and understood, or statements can be suppressed.

Now there is an interesting exception to this that folks involved with petty theft should be aware of. We see this a lot in shoplifting cases. If you make a statement to a store detective or private investigator, no warning is necessary and suppression is not an option. This is because the constitutional protection against self-incrimination and the right to counsel only apply when you are dealing with the State. A private guard (such as a security guard, store guard or mall cop) is not a government employee, and you have no rights as to statements made to them. Rule of thumb -- no matter how bad the crime may appear, keep your mouth shut. Be polite, and courteous, but do NOT admit to anything.

If you have additional questions about criminal procedure, give us a call! We would be glad to discuss your case in more detail.

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.

Tuesday, July 7, 2015

Sentencing Guideline Overview (felony)

Is it possible to get a sentence of 18 months for the crime of armed robbery in DC?
In order to determine a "range" for a specific crime, you need to look at the sentencing guidelines. You can find them online for the District of Columbia at http://scdc.dc.gov/publication/2014-voluntary-sentencing-guidelines-manual. You need to know both the offense being charged, and any enhancements or aggravating elements that could make the crime more serious. The most common form of enhancement is prior offenses.

Like many jurisdictions, DC works on a point system. For example, prior convictions for serious crimes carries a "+ point score" of +3. Misdemeanors are +1. Generally, any conviction AND sentence within 10 years will add points to the score table. In Federal Court, sentence categories are much more varied, but the point score follows the same concept.

Armed robbery itself falls on master group 5 with a range from 36 months to 120 months. Although these are suggestive (voluntary) guidelines, the Court will almost always follow them. Of course, enhancements or aggravating factors will make this much higher.

To deviate from this, you need an excellent and compelling reason. We can help with this, however, downward departure is a tough sell without a compelling cause (illness, cooperation, or single parent with children are examples). Generally, we seek mitigating circumstances that lessen the sentence and keep any time to the lower quartile (25%) of the guidelines. In sentencing hearings, maintaining the lower quartile is a success.

Do you need help with sentencing on a serious felony matter? Contact us at 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.

Monday, July 6, 2015

Child Support in VA

A recent friend of mine asked for help regarding child support in VA. I thought I would share her question and the answer, so that others seeking similar information could use the help!

In Va, do you know what a typical cost for child support is? My ex only pays me $200 per child per month. I can barely feed and cloth my boys. My ex moved out of state and secretly got remarried. She is the one who writes the checks. She owns her own business and they live in a huge house, where I can barely afford to get my boys decent clothes. We did not go to court. It was uncontested at the time 5 years ago, but now that my boys are older they need more stuff. Can you shed some light on this?

If the divorce happened in VA, than you can use the Virginia guideline calculator to see what child support he should be paying (go here: http://www.supportsolver.com/calculators.htm). This can be a little tricky, but if you spend a couple of minutes on Google, you can figure it out. Not really that tough. You do need to know his income, and have your income handy, too.

The income of his current partner is not relevant to these calculations. No matter how unfair it is, his remarrying (or just living with) a rich person is his choice…you can’t make her pay for your lads.

If you wanted to increase your child support, you would need to take him back to Court (every divorce must be done through the Court – even uncontested divorces need a Court order) and demand a recalculation of child support. As a rule, you can only do this if there has been a material change in circumstance (i.e. one or both of your incomes have changed, or the living situation of the child/-ren hae changed). Be advised that when you do that, if he now has money, he will try to get custody of the kids. The more custody he has (generally), the less he will have to pay (and the reverse corollary is equally true).

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.

Saturday, July 4, 2015

Reckless Driving in VA

We answered a recent inquiry about Reckless Driving in VA -- I thought I would share that answer here:

I was driving in VA (I'm a NC driver) on my way home to DC to visit my mom. I thought the speed limit had rose back to 70 mph from 65 but it jumped down to 60. I was going 76 mph. A police officer started to pull me over and put his lights on. He startled me and I jumped (I've never been pulled over before) and lost control of the wheel. I crashed my car into the guard-rail in the middle of the road. I was in the far left hand lane. No one was hurt except for me. The officer charged me with speeding and reckless driving for failure to maintain proper control. I didn't even realize I was going that fast because I was keeping up with traffic. Do I need a lawyer? I have no previous tickets or points on my license.

Why, yes. You need a lawyer, and by the sound of it, rather quickly. A couple of pointers for folks that are new to the legal system. First, it is good news you have no traffic offenses in your past. That will help with negotiations. However, in VA, reckless driving is a first class misdemeanor with a sentence of up to one year in jail. It is also possible that the police officer will argue you were attempting to evade or escape an arrest. While you weren't charged with this, it will also be discussed with the prosecutor (the person who ultimately makes the final decision on how to move forward with the charges). In DC, there is a provision under Federal Law to allow first time offenders a deferred disposition -- attend a safety course, do some community service, and the charges are dropped. That is usually not available in VA -- but some jurisdictions do have diversion programs. It will help to take a safety course and traffic awareness class before the hearing -- and your attorney will explain this in more depth.

Secondly, it is very important to make clear that neither the state (Virginia in this case), nor the prosecutor (called a Commonwealth's Attorney in VA) care one whit about how you feel, or whether you thought you were "just keeping up with traffic." Get that out of your mind. This is about the facts only. Were you speeding? Did you lose control of your vehicle? Was there an accident? These are the factual questions your attorney will help you address, and ensure that the best possible spin is placed on the case.

DO NOT do this without an attorney. If this was just a speeding ticket, you could try to wing it yourself. This charge, however, could include serious consequences, and if the police officer wants to go for your jugular, or the prosecutor feels you were being difficult, you could find yourself with a 10 day jail sentence. If you need further help, call us. 703-402-2723 or 1-800-579-9864. You may also reach us at 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.