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Wednesday, August 9, 2017

Analyzing Prior Removal Orders -- or are they? (immigration law)

by LALO ALCARAZ on JULY 3, 2014 in CARTOONS, EL NOW. See: http://www.pocho.com/la-cucaracha-you-must-be-this-tall-toon/


A fellow practitioner asked a question regarding deportation and future relief. I thought the topic was worth discussing here.

Client came to me because he had received a notice to appear (NTA). Initially, I was pleasantly surprised, base on his equities. He had been in the US since 2002, no criminal record, 4 USC children, filed taxes and requisite hardship for cancellation of removal. Then the other shoe fell – he had been deported in November, 2001 and came back within weeks (early 2002) and hasn’t left since. My initial question was why he had not been given a reinstatement of removal and an expedited removal. Instead he received an NTA in May 2016 with a court date in late May. What is happening here?

Great question – and very frustrating, I know.

The code section you are looking for is 8 CFR 241.8. Other than withholding of removal (under asylum grounds), and CAT, along with a couple of obscure South American/Central American Acts, the alien ain’t eligible for squat!

Now, technically, you have an interesting issue here. DHS lacks authority to reinstate – it has to be done by an immigration officer (i.e. ICE or CBP). Read the code section carefully. Also, said reinstatement is discretionary. If ICE/CBP opt not to apply this section, then…can they later change their mind?

The most telling indication that this section does not apply is the release of the alien on parole or bond. That is not done when reinstatement is in play, and the Court has no authority on bond issues with these folks (for obvious reasons).

Do you have a question about immigration law or deportation defense? Contact us! Initial phone consultations are always free. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, July 26, 2017

FLSA an WAGE/HOUR laws -- what if the check got lost?



This is a common question for small businesses. I recently commented on a nation law board concerning this, and I think the question/answer is worth sharing.

QUESTION: I have an employee that I let go for bad performance. Her pay was mailed to her via USPS money order a few weeks ago. She contacted me claiming to have never received it. I placed an inquiry on the money order to find out of it has been cashed, and if so by whom and when. The inquiry can take up to 60 days. She has been made aware of this.

She contacted my clients claiming to have been defrauded and is threatening to contact the DOL. What can I do to protect myself at this point and my business as she is making false claims against me.


This is a mess! A few reminders -- you never pay an employee with cash (or, in your case, a money order). It is very hard to track, and very easy to steal. Secondly, you never send important documents without tracking -- certified mail.

In answer to your question, the employer is responsible for paying the employee. Period. Under DC law, payment should be made at the time of separation, or the next pay period at the latest. Federal law -- controlled by the FLSA -- requires payment of all hours. Failure to pay results in full pay, plus the amount being doubled, and possibly tripled, if bad faith is shown. Also, you will have to pay all attorney fees associated with the other side. Generally, a bad idea.

How to fix this? You need to provide her payment immediately. Get a signed release from her indicating she was paid. Have her come to the office for a company check and signature sheet. You can track prior money order to see where it went. If the money order was made out to her, and someone else cashed it, you can go after the check cashing location, or bank, for failure to verify signatures or ID. You don't want a legal fight on your hands AND have to pay the amount again.

Information on FLSA can be found at 29 USC 201-219. DC wage and hour laws can be found here: https://does.dc.gov/sites/default/files/dc/sites/does/publication/attachments/DOES_wage_hour_rules.pdf.

Have additional questions or need help? Call us! You can reach my firm at 1-800-579-9864 or 7022-402-2723. Or, send us an email: seanhanover@hanoverlawpc.com. We can help with all business and tax related questions -- including wage and hour issues.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Saturday, July 8, 2017

How to attack an ICE detainer -- a discussion

ICE Attorneys contemplating detainer law...or lack of it.


From a recent question by a fellow practioner -- worth sharing!

FACTS
Client given a 30 sentence in county jail with a 5 consecutive days at beginning and 13 weekends thereafter as per the County Judge's Order. TWO days before his released Martin County Fla Jail notified ICE (they have a detainer agreement) of the client's release. client is now being held him until ICE transfers him to a detention center.

I called the jail and demanded his release but was told by a sgt. that "it is a standing order by all judges" that whenever a detainer is placed by ICE, the detainee's sentence is to be served consecutively (rather than the weekends as per the judge's order) and at the end of it ICE will take him. I asked him where THAT came from and he said they have always done it like that. I asked him again for the law/authority and he told me to check with the judge.

I explained the detainer is good for 48 hrs only. He said they have the detainer and an ICE WARRANT. I asked for a faxed copy and sgt said NO. I called ICE and was told he is not yet processed and no DO has been assigned to case.

QUESTION
Is this true?


First, there are a couple of minor corrections I would point out. The IJ (immigration judge) does not sign a warrant. A warrant has to be signed by a federal or state judge after hearing (or reading) a statement of probable cause to believe a crime has or is occurring, and the warrant address that specific aspect of the crime (different types of warrants, obviously). Because an IJ lacks authority to hold a probable cause determination, they won’t be handing out warrants. It would be great fun if they did…talk about a federal case on its face! It is very rare indeed that any judge issues a warrant to ICE, as a state judge really wouldn’t have standing, and a federal judge rarely has time. It does happen for drug, gang, and trafficking cases, where ICE special units conduct raids. But most practitioners won’t run into this in the normal course of ops, and most of those cases end up in Federal Court anyway. It is more common to see a state police officer, with a state warrant, accompanying ICE officers (joint investigation). But again, that is usually for more severe cases.

Now ICE does issue detainers. A detainer is a demand, based on Federal Law, for a state or local authority to hold an illegal alien until immigration can pick him/her up. It is strictly an internal document, and the Agency jealousy guards them as TOP SECRET. Really, all that is on there is a phone number for a duty ICE agent. Unlike almost every other ICE/EOIR/DHS phone number, they actual answer that line quickly. They get really really mad if you call it. It’s good fun! You should try it sometime (assuming you can get a copy of an ICE detainer doc). The problem with detainers is that a state court has no authority over them (federal admin law), and the jail doesn’t really know what to do with them. BUT..state court does have authority over your fella’s detention. So if the jail holds him beyond 48 hours AFTER his sentence is over, then you have a habeas action and should file it right pronto. That usually makes the jail spit your guy out…but it’s a race between ICE and that hearing. If the jail plays hardball, by the time you’re up in Court, detainee is long gone to ICE hell.

What really got me chuckling was the jail’s unilateral modification of the criminal sentence. While it makes sense (i.e. don’t let a person out of jail who has an ICE detainer), it conflates Federal immigration law (immigration detainer) with speculation (ye olde flight) with a healthy dose of “you can’t change a state judge’s order just because.” Sounds to me like the Warden of the jail has taken immigration consequences into his own hands. Interestin’…

You have a pick of tools to go after the Warden. There’s the ol’ “Show Cause” order which, rarely, has a place in criminal law (outside of probation violations), but is quite tasty in this case. After all, the state is violating the Judge’s order. You can file a writ of mandamus to order the jail to honor the judge’s order. You can file a habeas action (obviously – for detention of your fella outside the bounds of the court order).

You’ll lose on them all, though. It would be great fun to tweek the jail, though! You lose because, ultimately, the jail has authority to modify the nature of the detention, so long as the length of the detention remains unchanged. For example, the jail could put your guy in solitary for violating jail rules. That would not take a court order to effect, even though it changes the nature of the detention. A jail has wide latitude to control the safety and security of its prisoners, and the state. But…you might get lucky!

Do you have a problem with how the Government has treated you? Call us! We're happy to discuss your case, and see if you have a claim. We can be reached at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, July 5, 2017

Check writing, Forgery, Uttering and what comes next (criminal law)

Original image at https://www.thebalance.com/how-to-check-a-check-315428


Recently, a question was asked on a law bulletin board regarding criminal culpability. While I answered the question on the Board, I think the question is a good one to share, given the frequency of client requests that are very similar.

I used my deceased father’s old checks when trying to purchase something at the store. The checks all had his name on them already (i.e. signed), but were blank. The cashier refused the check, and I left. I was stopped at the exit to the store and accused of forgery and uttering. If the checks didn’t actually get processed (i.e. no purchase was made), why am I under investigation/charged? I did it on accident

First, it is important to dispel a couple of common fallacies. Number one – it is almost inconceivable that a person would grab the wrong check, and then try to pay for something with it, when clearly, it was already signed by someone else. It is really important when discussing legal issues that (a) you DO NOT discuss anything with anyone other than a lawyer, and (2) you do NOT make up stories that make no sense. Although the story MAY make sense to you, it makes no sense to anyone in the legal field, and will almost certainly lead to charges.

What should you say when stopped by someone who questions you about an issue that could clearly be illegal? You are (a) very polite, (b) firm that you do not wish to discuss the matter without an attorney, (c) unwilling to allow any search or access to anything in your possession unless arrested or ordered by a judge (warrant). Sounds similar to Miranda warnings? They should! Although at first this may sound like you are being difficult, an could lead to further complication and charges – this is NOT the case. It is never wrong to politely decline to provide information other than your name, address where you live, and basic contact information. You only hurt yourself when you go beyond this. Most cases are lost because of what the client says. Remember this!

In your specific instance, you have three charges. Utterance – that is the attempt to circulate a document bearing false seals or signatures; forgery – that is the application of a seal or signature without the consent or knowledge of the owner; attempted fraud (bad check) – you drafted, or caused to be drafted, a check that you knew, or had reason to know, was not legitimate. You submitted that check for goods or service. All three of these are serious charges, and in the case of forgery and utterance, are felonies.

The most common defense to these types of charges is (a) consent or (b) mistake. Mistake is NOT the type mentioned in the question. “It was an accident” is no defense. However, if the mistake is that you understood you had consent, when in fact you did not, and your reliance on that understanding was reasonable, you may be able to mitigate or even stop the charges. Consent would also be clearly a defense – if the check owner indicated the check was drafted with their approval, and they authenticate the signature, then there is no forgery, utterance, or fraud. However, be careful! If you signed someone’s name, and then after the fact they consent, at the time of the drafting, it was still a forgery. A minor technicality, but important when forming the defense.

Do you need help with a criminal matter? Contact us! We have considerable experience in the VA, DC, MD area. We would be glad to meet with you for a free consult. Talk to us BEFORE you speak to the police.

Hanover Law, PC
Offices in Fairfax, VA, Resiterstown, MD, and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, April 18, 2017

Does your client have a right to see the evidence against him? (Criminal)

Part of the job of a good defense attorney is to fight. Not random gestures aimed at demons and ghosts, but rather concerted efforts to prevent our clients from being trampled by the well intentioned bootheels of the prosecutorial beasties. A recent example of this bears sharing, as others may be faced with the same nonesense, and the case law provided here should help.

Does your client have a right to view the evidence against him/her? The succinct answer is -- yes! In our current case, an individual was charged with child sexual abuse. The child in question gave a video interview. While counsel and our expert were permitted to review the material, the client was expressly excluded from reviewing the interviews; in fact, the defense could not ever discuss the interviews with him!

There is no legal basis for barring access to accusatory material in child sexual assault cases. This, however, is not always true in all cases. Certain national defense cases, and child pornography cases are both examples where the government can, by statute, prevent client access to materials involved in the case. However, these carve outs are rare, and the presumption should be that, under due process considerations, the client may view, discuss, and make notes about any allegations stated against him, and further, may discuss the same freely with his attorney.

A distinction is needed here. Common sense indicates that if the defendant is dangerous, or could pose a threat to the witness making the statement or the evidence being displayed, precautions and safeguards must be used. Generally, the government will produce a "protective order" which limits the use and access to sensitive materials produced under the Brady or Jenks doctrines. This should be narrowly constructed to allow maximum defense access, while ensuring safety and a return of materials at the conclusion of the case. At no time should the defense agree to review materials in the presence of the prosecution unless statutorily required or so ordered by the Court. Always fight this. Allowing the government to view those parts of the materials that the defense finds important, and note what areas you are concentrating on, represents a serious breach in trial preparation confidentiality, and can severely weaken the defense case.

What action do you take when the government will not cooperated? File a motion to compel production of relevant materials. I am including draft language with this post. It is geared towards the District of Columbia rules. However, these rules are largely based on Maryland and Federal procedural rules, so they have considerably broader application.

Example wording:
LEGAL BASIS
a. This motion is brought under Superior Court Rules of Criminal Procedure 16(d)(2) which states:
(2) Failure to Comply. If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.


Superior Court Rules of Juvenile Proceedings 16(d)(2) is identical in scope to the Criminal rule.

b. In this instance, the Government has taken an untenable position, and thereby denied the Defendant a right to see, hear, and understand the evidence presented against him. The case at bar is entirely dependent on the testimony of the alleged victim and her brother. It is alleged to have occurred over a period of time (unspecified), and includes multiple acts which the Defendant has denied, to the extent he is aware of what was said.

c. The witness’ interviews are impeachment evidence challenging the witness’s credibility. Such evidence generally falls within the Brady rule. See, Giglio v. United States, 405 U.S. 154 (1972); Lewis v. United States, 408 A.2d 303, 307 (D.C. 1979). The importance of impeachment evidence was noted in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (plurality opinion), where the Court remanded for the trial court to reexamine Confidential records for materiality.

d. Note that a subpoena cannot be issued for CDC records pursuant to D.C. Code § 4-1301.52; relief in this instance requires a Court order. Disclosure of medical or psychological records, certain juvenile records, and other confidential records will only be ordered by the court if the defendant can make a “proffer adequate to overcome [the] privacy interest” of the subject of those records. See, Hammon v. United States, 695 A.2d 97, 106 (D.C. 1997). The Defense submits the following proffer in regards to CAC records in this case:
• (A) The outcome of the proceeding probably would be different if the requested information and records were not disclosed. Without disclosure of the allegations, a proper defense cannot be had. Further, the witnesses’ statements are absolutely contradicted by the complainant’s father, and the complainant’s uncle, who both state that CLIENT was never left alone with the complaining witness overnight or otherwise. Additionally, no time frames were provided by the Government in its petition, or in the PD-163/Gerstein. Unable to place the timeframe or context of the allegations is a severe restriction to the defense. If the child provide information that would identify alleged events or timeframes, the defense is entitled to know this under the Brady doctrine.
• (B) The CAC is the only source of the requested information and records. The interview were done by Safe Shore’s social workers. These records only exist with the Government, and the CAC is a Government agency not subject to subpoena.
• (C) The requested information and records would be subject to disclosure in the proceeding if they were in the possession of the government. Pursuant to Brady, and Jenks, these documents and interviews are discoverable, and are in the possession of the Government. Arguably, denial of Defense access constitutes a violation of the confrontation clause and the due process clause of the Constitution; this material is testimonial in nature, and it forms the basis of CLIENT arrest and petition.
• (D) Disclosure of the requested information and records would not violate any other applicable law, rule, or regulation. The Defense is unaware of any law that prohibits the disclosure of complaining witness testimony. e. The court has an obligation to ensure that the mandates of the due process protections of the Brady doctrine are followed. In Boyd v. United States, the court held that the trial court had an obligation to assure that the government properly discloses Brady to the defense. 908 A.2d 39 (D.C. 2006).


f. The “prosecution must disclose exculpatory material ‘at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case.’” Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) (quoting United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir 1976)). The Government does not get to dictate to the Defense how or when it will share these interviews. We need these to properly execute the Defense.

g. Additionally, our expert is unable to review the interviews and subsequently discuss and interview CLIENT with the material learned under the Government’s proposed order. This acts to severely restrict the defense and the ability to develop a cogent theory.


Note that you must show a compelling reason that the material is relevant and needed, and you must argue that such material must be provided timely to allow for the defense.

The next secton deals with painting the government in a bad light. You must show that the State has refused to provide the material, despite best efforts to coordinate. Usually this happens when the protective order constrains release of the material to anyone except those enumerated in the protective order itself, and the propsoed order lacks your client as an individual who can see the material.

GOVERNMENT’S RESPONSE
a. When Defense Counsel expressed a desire to review the material outside the presence of the Prosecution, Government’s Counsel responded:
I can agree to the protective order as it is currently written , for the reasons I forwarded to you on Monday. And again, you are welcome to come to our offices to review the video. See, Exhibit 3.

b. This comports with earlier Government statements indicating that the videos could only be reviewed in the Prosecutor’s office. Such coercive measures by the Government impinge on the Defense’s freedom of interference in the development of the case at bar, and are impermissible. See, Khaalis v. United States, 408 A.2d 313 (D.C. 1979) citing to Gregory v. United States, 125 U.S.App.D.C. 140, 143, 369 F.2d 185, 188 (1966) (a prosecutor's actions which "effectively [deny] defense counsel access to the [government] witnesses except in his presence" violate due process), after remand, 133 U.S.App.D.C. 317, 410 F.2d 1016, cert. denied, 396 U.S. 865, 90 S. Ct. 143, 24 L. Ed. 2d 119 (1969).

More specifically in Gregory at 188-189:
The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace.


In further discussing the balance between Government access to information, pre-trial, and the Defense access to the same information, United States v. Shrake characterized Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973), as holding that rules about pretrial discovery in criminal prosecutions must apply to prosecutors as well as to defendants. “Access provided to private experts retained by the prosecution must be provided to private experts retained by the defense.” 515 F.3d 743, 747 (7th Cir. Wis. 2008).

United States v. Hitselberger, 991 F. Supp. 2d 91, 99-100 (D.D.C. 2013) discussed the obligation of the Government in discovery matters. [Referring to] Wardius v. Oregon, the Supreme Court held that liberal systems of discovery generally comported with the protections afforded to defendants under the Due Process Clause because allowing both parties the "maximum possible amount of information with which to prepare their cases...reduce[s]...surprise at trial" and would best serve the "ends of justice." 412 U.S. 470, 472 - 474, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). The Court however places one important limitation on broad discovery rules: criminal defendants must be afforded reciprocal discovery rights. Id. at 472.


Finally, bring home the punch by showing that there is no legally defensible reason to prohibit access. Then...end the motion and get out!

By denying the Defense access to review, deconstruct, develop cross examination questions, and debate the evidence in the possession of the Government (in this case, the interviews), the Government is allowing its experts (the CAC licensed social workers) to freely investigate the case and the facts surrounding the case, without restriction, while prohibiting the defense such freedom.

Unlike a child pornography case, or a classified information case, there are no specific statutes at play, in the case at bar, that would prohibit the Government from providing the requested information. No justification has been given for making the discovery material “attorney eyes-only” or as to why [CLIENT] should be prohibited from viewing the same.

NOW THEREFORE, Your Defendant requests this Honorable Court grant the following relief:
a. Compel the Government to modify the protective order to include the following language (or similar, at the discretion of the Court), and immediately after execution, deliver the materials to the Defense.
“The Defendant (Respondent) will be permitted to view the material in the presence of defense counsel only; further, no copies of the materials, or transcripts of the same, shall be provided to Defendant (Respondent).”

b. Compel the Government to provide all statements made by CLIENT, and to provide a copy of any DVD or recorded medium related to the same.
c. In the alternative to (a) above, permit the Defense expert to interview both children and ask such questions as are appropriate for the full and complete investigation of allegations raised in this case.


Do you need help crafting a proper proposed protective order for criminal information shared with the defense? Need help with a serious criminal case? Let us assist you! We've been handling felony cases for years, and would be glad to chat about your case and the situation you are facing. You can reach us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

The difference between "credible fear" and "reasonable fear" interviews by ICE/DHS

From time to time we run into this question -- what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:
I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?

ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used ("reaosnable fear"), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.

The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).

The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

It should be noted that because a credible fear determination stems from an aliens status as "arriving," immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.

Do you have an immigration question? Call us! We can help. We are experienced in both immigration court defense, and forms based business and family adjustments. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Sunday, April 2, 2017

Drug use and the I-485


Section 3 of the I-485 -- asking about drugs.


I had a chance to help a fellow practitioner the other day, and I thought I would share his question so others might benefit, too!
You do a ton of litigation, and I also know you are helpful to newer practitioners. I'm a newer practitioner, so I hope you don't mind me asking a question about AOS. My question is about the I-485 question in Part 3.C.1.a. "Have you ever, in or outside the United States: a. Knowingly committed...a drug-related offense for which you have not been arrested." I am trying to figure out how it comports with INA 212(a)(2)(i)(II). That section deals with inadmissibility relating to "admits committing acts which constitute the essential elements of" a drug-related offense." Are these two related?

This all comes about because of a client's discussion with me. If a client tells you they used drugs, do you think you are obligated to check "Yes" to Part 3.C.1.a.? Or do you think "Yes" requires something more than just your knowledge the client used drugs?

Your question fits into the general category or “once the cat is out of the bag (to the lawyer), am I obligated to do something about it?” The answer is…sometimes.

Generally, in order for you to take action on what you client says, it needs to be clearly and unequivocally a violation of some rule or law. And even then, you are not obligated to disclose it; rather you cannot sign or submit something that you know contains a material misstatement. The distinction is important. What the client chooses to say at, say a interview, or open Court, is up to the client. However, you cannot submit, under your signature, or as a proffer, something you know to be false.

To bring this back to your question – merely using drugs may or may not be illegal back in this person’s home country. You are not a lawyer (presumably) from his/her home country, so you can’t say for certain whether his/her action rises to the level of requiring a “yes” answer to 3.C.1. By the way, 3.C.1 is absolutely NOT the same as INA 212(a)(2)(i)(II). 3.C.1 has a “knowing” requirement that is absent in 212(a)(2)(i)(II) – and that is a significant difference in the criminal world.

Again, back to your question – unless the individual indicated, “yes, I have knowingly committed a drug offense in my home country” the answer would be – “I can’t say whether that is a drug offense in your home country, as I don’t practice law there. You can answer this question “No” if you believe it is not an offense, or you can contact a lawyer in your home country to get information on whether this is an offense or not.”

As a practical matter, unless he was arrested, or charged, there won’t be a record of anything. The risk here is minimal (in terms of USCIS learning of his prior drug use, absent an arrest or conviction). Now, if you have a dummy for a client who intends to blurt out that they like to smoke weed and do crack back in Fez – well, all bets are off.

Do you have an immigration question? Ask us! We're happy to help. We've handled immigration defense and filing for many years -- and we're glad to bring our expertise to bear for your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com