Tuesday, October 14, 2014

EEOC and Employment Discrimination Overview

EEO Complaint – tactics for filing.

We have recently had an influx of EEO (Equal Employment Opportunity) complaints at the Firm, so I thought a few minutes spent discussing EEO tactics would be helpful for future would-be filers.

First, the process for filing a complaint requires a thorough analysis of the claim itself. There are two very distinctly different types of employment claims.

  1. A suit filed against an employer for violation of employment discrimination law. These include must Title VII (race, color, creed, national origin, gender), American with Disability Act (illness or disability), Pregnancy Discrimination, sexual orientation, family leave, and Age Discrimination in Employment Act to name a few. To prove this, you must show that the employer did not have a reasonable, non-discriminatory business basis for the adverse employment decision. Retaliation has become a popular vehicle for discrimination suits, but requires some form of underlying protected action before it can apply. Sexual harassment or gender discrimination falls under gender employment discrimination. This grouping of laws carve out a “protected class” that cannot be the basis of employment decisions without seriously compelling business necessity.
  2. A suit filed for wrongful termination in violation of the employment agreement between the parties. This mostly applies to contractors, however, depending on the employment agreement between employee/employer, it may also apply to a regular employee. In this instance, a term of employment was violated by the employer, making the employer’s conduct invalid on the basis of breach of contract or estoppels.

When employment discrimination is alleged, it is important that the employee start taking notes documenting employer misconduct. Overt discrimination is rare, but does happen on occasion. In legal parlance, overt discrimination is called “disparate treatment”. This occurs when the employer states they are taking some action against you on account of your protected class. For example, your boss indicates you cannot be promoted because you are male. This is a form of overt, intentional discrimination that leads directly to a legal argument in front of a judge.

Usually, however, discrimination takes the course of “disparate impact.” In this form of discrimination, the employer does nothing overt. Instead, he engages in a pattern and practice of discriminatory practice designed to “push” the undesirable protected individual out, or interfere with the terms or nature of employment (i.e., promotions, raises, hiring, etc.) of a particularly protected group. An example of this might be a consistent failure to approve any medical sick days when your boss knows you have an illness that requires treatment. The mere denial of leave is well within the purview of the employer. A pattern of denying sick leave when you need to take care of on-going medical issues could give rise to a violation of the FMLA (Family Medical Leave Act) – and show a passive method your employer is using to force you out on account of illness.

It is important to remember that the key to proving disparate impact is note keeping. You must have a good series of records and instances where the employer has acted out against you or against those similarly situated. That having been said, do not presume every negative action of your employer is aimed as discrimination against you. Discrimination is a long and difficult course to prove. Cases can take, quite literally, years.

A discrimination case may be initiated with the State EEO office, or the Federal EEO office. The initial investigation often requires mediation and discovery; in the Federal government, each Federal Agency has an EEO investigation office that conducts investigations of all EEO claims. While mediation can be helpful to learn more of the opposition’s position, it should be avoided as a time wasting exercise whenever possible. The real negotiations begin when either arbitration or a hearing before the EEO administrative judge is had. It is often not advisable to agree to binding arbitration. However, arbitration itself can be very employee friendly given the often significantly relaxed evidentiary standards (although this is not always the case, and research should be done to determine with whom the arbitration will be conducted and under what rules prior to agreeing to binding arbitration).

For more guidelines on how the EEOC (Equal Employment Opportunity Commission) handles federal worker employment discrimination cases, visit the trial manual (rules of court) at: MD110 Guidelines.
For more information about how to file a basic (non-federal employee) complaint with the EEOC: How to file with the EEOC.
Remember -- you have only 180 days to file (in most instances; this can be extended in certain circumstances).

Are you facing an EEO challenge? As either employer or employee, trial and employment matters can be frightening. Let us help you! Give us a call for a free, confidential, case assessment.

Saturday, September 13, 2014

Understanding the term "arriving alien"

Be careful not to get your immigration client "no bond" on result of bogus allegations!


Many DHS attorneys (opposing counsel in immigration cases) do a great job, but you still need to be vigilant against your fella not getting bond or access to certain relief because the government incorrectly classifies him as an arriving alien.

The term "arriving alien" is defined in section 8 CFR 1.1(q). It is a clear definition, and you must not let DHS or ICE mis-categorize the alien:
8 CFR 1.1(q):
(q) The term arriving alien means an applicant for admission coming or at- tempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of trans- port. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted ad- vance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act.

A recent example on a popular listserve we work with should illustrate:

My client entered the USA with a J-1 visa. The TA said that my client is an arriving alien. NTA allegation #3 states that client was admitted as a nonimmigrant exchange visitor for duration of Status. I have been doing research but I can't find it. Would anyone tell me where to find whether or not my client is an "arriving alien".

In this example, the client received a stamp -- "D/S" and entered the country. D/S stands for "duration of status" and indicates that the individual was reviewed by a Customs and Border Patrol officer, and admitted. Per 1 CFR 1.1(q), his is no longer an applicant for admission, and therefore he is not an arriving alien.

Where your client sneaks into the US (entry without inspection or EWI), the rule is that once he has "arrived" and is not detained within 100 miles of the border, he is considered to be within the US and no longer an arriving alien for Court purposes. The 100 miles, by the way, is a rule-of-thumb, not a firm statute.

Do you have a case involving an arriving alien? We'd love to help! Give us a call at 1-800-579-9864. Do not let your case get white washed!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Friday, September 12, 2014

Bruton Doctrine - suppressing co-defendant statements

When a co-defendant squawks – suppressing statements made by the “co-d”.


In criminal defense, it is often the case that more than one person is “nabbed” for the same criminal conduct. In the zeal of the prosecution to charge multiple parties as conspirators and individuals with “constructive” guilt, it is a common problem for the defense to be confronted with statements from one defendant that implicates the other. The proper action is to move to suppress these statements under the Bruton Doctrine.

For example: Frank and Tom are pulled over after being stopped for speeding. The police officer conducting the stop sees one of the two men through an object out the window of the car. It is dark and the windows are tinted. Later, a gun is discovered in the bushes where the car was stopped. The driver, Frank, states that he had the gun, but had given it to Frank when the car was stopped, and it was Frank who throw the weapon from the car. Frank does not make a statement. Both individuals are charged with illegal possession of a firearm, and ammunition. There are no finger prints or DNA evidence recovered on the weapon. Can Tom’s statements be used to convict Frank?

The Bruton Doctrine, named after the Supreme Court case Bruton v. United States, 391 U.S. 123 (1968), was originally aimed at co-conspirators, but subsequently expanded to include co-defendants. The central holding states:
[A]t a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial.

Key elements of the Bruton Doctrine include:
  • There must be at least two defendants.
  • The statements of one defendant must be used against the other.
  • The defendant making the statement must not testify at trial.

The Bruton Doctrine was further refined by subsequent case law limiting the reach of “statements” to testimony by a co-defendant only. See, Johnson v. United States, 17 A.3d 621, 628 (D.C. 2011) where the Court found that statements made by one co-defendant implicating a fellow wrong-doer were not excluded under the Bruton Doctrine because they were not testimony and therefore not subject to the Confrontation Clause.

The next logical question is – what is testimony? If Bruton indicated statements, but current case law limits to testimony, understanding the scope of “testimony” is critical to an effective Bruton argument. In United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004), the Court indicated a statement was testimonial in nature if it “intended to bear testimony against the accused.” Was the statement given for the purposes of convicting the codefendant? In point of fact – the matter is far from clear. While common law has defined testimony, counsel should always file a Bruton motion to suppress co-defendant statements regardless of whether such statements are clearly testimonial in nature or not.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Wednesday, August 27, 2014

Revoke a plea -- how to withdraw a plea and seek a trial

Occasionally, it becomes necessary to withdraw a plea once made. This is usually a messy situation that does not enamor the defense counsel to the prosecutors in the local district. Nevertheless, there is a certain strategy to the process, and I'll cover it here. For ease of discussion, I will refer to the D.C. Code. However, similar provision exist in VA and MD rules, and the general thrust remains the same in most jurisdictions.

The controlling code in D.C. is Superior Court Criminal Rule 32(e) which reads:
(e) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

Only pre-sentence plea withdraw is discussed in this article. Post sentence is almost impossible to obtain and usually requires clear error and is exceptionally difficult to obtain.

The controlling case in this matter is Gooding v. United States, 529 A.2d 301 (D.C.1987). This case lays out the foundation for the three elements which must be proven in order to obtain a pre-sentence plea withdraw. They are:
Element
Whether the defendant has asserted legal innocence.
Length of delay between entry of plea and the desire to withdraw it.
Whether the defendant had the benefit of competent counsel.


As in most motions, you should argue each element and demonstrate that the client has met the requirement. The one exception is the final element - competency of the attorney. If you also represented the client in the plea hearing, obviously you will not argue competency. However, not all three of these need be proven -- in fact, no specific element has more weight, and all must be considered in sum (Id. at 306).

To prove legal innocence, have your client submit an affidavit explaining why she accepted the plea, and why she feels it should be revoked. In her affidavit, have her state she is innocent, and have her deny the charges with particularity. Confusion as to what the prosecutor was offering, confusion in the prosecutor's proffer, or a short time window to accept a plea are all fertile grounds to assert innocence. Binion v. United States, 658 A.2d 187 (1995)

Length of delay should always be short -- no more than a week or two at the most. The longer the delay, the less compelling an argument the defense will have. United States v. Roberts, 570 F.2d 999 (D.C. Cir. 1977)

Be sure to always include new facts that make re-opening the case just and fair. The stronger the new facts, and the less likely the client would be to have known them, the more likely the court will hear the case.

Finally, review your drafts carefully! Effective writing of the motion to withdraw the plea is critical. You have only one bite at the apple. Remember - if this is done before sentencing, a motion to withdraw the plea severely damages any attempt at rehabilitation and remorse. This will cause sentencing to be much less favorable to your client.

Do you need help with a motion to withdraw? Give us a call -- we can review your case and discuss options for post-conviction/plea relief.

Sunday, August 24, 2014

Conviction for immigration purposes

There is some interesting debate on aspects of INA 101(a)(48)(A), and I am actually looking to try a case on the matter. If you have a criminal conviction and are before the immigration court, call us!

If we analyze that section carefully, the wording is quite specific:
(48) (A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where­
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

The mere entry of a plea does not cause an immigrant to fall afoul of the "conviction" statute. INA 101(a)48(A)(ii) requires the judge to enter some form of punishment.

In Superior Court, in DC (as is true in most Federal jurisdictions), one can get a DSA -- deferred sentencing agreement. In this case, the individual pleads guilty (satisfying (48)(A)(i)), but the judge enters no sentence. Instead the prosecutor and the accused enter into an agreement (say -- community service). The judge merely continues the case to a different "status hearing". After six months and completion of the agreement with the prosecutor, the judge accepts a motion to change the plea to not-guilty, and the prosecutor enters a nolle prose. In this case section (48)(A)(ii) has not been satisfied, so despite the plea, there is no conviction. These are common in most states -- SIS in VA and PBJ in MD, for example (although one must be careful in the approach, obviously, as mishandling this in state court could be a problem).

Generally, this means DSA's and DPA's (deferred sentencing agreements and deferred prosecution agreements), as well, are conviction avoidable.

Also, be careful to read the difference between arriving aliens (inadmissibility) and removable offenses.

Post conviction relief is not so cut and dry. In VA, it doesn't really matter what the snorkel the federal holdings are -- the Supreme Court of VA has said no dice to re-opening immigrant cases for lack of notice as to consequences. However, re-opening a case for substantive fault (i.e. procedural or factual defect) is always an option. Removal of the conviction = end of the immigration issue (although, again, you need to be careful as to which type of case this is removal or inadmissibility). I would also be delighted to argue that a case dropped in state court (regardless of the genesis of the convictions removal) ought to be sufficient to end immigration proceedings (it is hard as hell to get post conviction relief in most courts). Let the government prove it was done only for immigration purposes.

Finally, post conviction relief that does not remove the conviction, but changes the sentence, is also effective for changing the consequences in immigration court (I believe your handouts spoke about this). While not directly on point to what was originally brought forth here, it should still be noted that you might be able to get an agg-fel dropped to something...well...less than an agg-fel by get the underlying court to modify the original sentence to less than one year.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Sunday, August 10, 2014

Filing a Continuance -- I can't make it, what do I do?

What to do when you cannot attend a court hearing.


If you do things out of time you're weird.
Robyn Hitchcock

No truer statement was ever uttered when it comes to legal proceedings. Changing the calendar is certainly a problem, but if approached properly, it can be done with a minimum of trouble. Approached poorly, and a calendar change will be denied.

Asking for a continuance falls into two categories.
  • A. Non-substantive hearing (frequently called a "status" hearing)
  • B. Substantive (also called "merits" hearing) court date

Generally, a motion to continue must be submitted at least two weeks prior to the impending date. You should contact opposing counsel and seek consent for the continuance. As a rule, a merits hearing will require consent to move or a substantitve reason (i.e. illness, or the attorney has another trial on that date); a status hearing can usually be altered merely at the request of either party.

As with all motions, be sure to include a certificate of service statement. Additionally, every motion should include certification that you have conferred with opposing counsel in good faith and he/she either agreed or did not agree to the proposed motion.

Finally, where your Court requires a Memorandum on Points and Authorities to be included with every motion, you can usually include the following two points, and it will be found sufficient for your memo:

1. The Rules of Civil Procedure and the Local Rules of this Court.
2. The record as thus far developed in the case.

One interesting variation on this is criminal procedure. Often, the calendar control for criminal court can, with the consent of the prosecutor, be modified through the submission of an email to the clerk of the particular judge hearing your case. Judges appreciate the steamlined nature of working with parties sans paper, and it makes coordination between the prosecutor and the defense much faster. Be sure to check with the prosecutor on your case to see if this is a possible avenue. A sample email might read:

Sir/Madame:
With the consent of the prosecution, I am writing to request the status hearing, scheduled for 12 September 2014, be changed to 25 September 2014.


The body of a sample motion to continue (this appears beneath the caption of the case):

[Defendant’s name], through counsel, moves this Honorable Court to grant [him][her] a continuance and reschedule [his][her] case from [Present trial date] to be reset at the [Date of next] docket call.

The basis for this continuance is that the undersigned will be [whatever prevents the attorney from being there].

Counsel has discussed this with the prosecutor on ______ (date) and [received/did not receive/obtained no answer] consent for this motion.

WE ASK FOR THIS:
[name of client]

THROUGH COUNSEL:
XXXX

Alternative format:

Comes now your [Claimant, Petitioner, Plaintiff, etc.], [client], and through counsel requests this Honorable Tribunal grant a continuance for the hearing scheduled for 13 May 2014, and in support thereof submits as follows:

1. Claimant's counsel is in trial on the 13th. I have provided a copy of the scheduling order with this motion (See, Exhibit A).
2. Counsel sought the consent of the opposing party, namely [opposing counsel]. [Counsel] did not return our contact.
3. Due to the immediate nature of this hearing, and the unavoidable conflict a trial on the 13th creates, [client]requests that the hearing be rescheduled for the first week of June. Preferably 02 - 04 June 2013.



Be sure to always copy the prosecutor on every email you send to the Court.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Monday, August 4, 2014

Get Out of ICE Detention -- When you have credible fear but remain detained.

Among one of the more perplexing aspects of immigration law is the plight of the arriving alien. Bluntly, an arriving alien without proper paperwork is going to experience a considerable amount of trouble. The procedures for an "undoc" arriving alien (aka smuggled, border jumping, etc.) are contained in 8 CFR 235.3. If the alien claims asylum, then a credible fear interview must be held. Regardless of whether the investigating officer determines fear, or if the an immigration judge later finds credible fear despite the investigating officers determination, the individual who entered the US remains in custody as an arriving alien.

There are three key steps to getting bonded out in a credible fear/arriving alien situation:
  • First, there must be a finding of credible fear by an asylum officer. The credible fear checklist is found at 8 CFR 208.30. For a more in-depth step-by-step application of 208.30, see the USCIS field training manual here.
  • Secondly, if the asylum officer declines to find credible fear, the arriving alien must ask to appear before a judge. The judge will then review the notes of the interviewing officer, discuss the case with DHS counsel and with the counsel for the arriving alien. Note -- you absolutely need an attorney here if you are planning to actual fight this. Although technically, an attorney for the alien exists only to advise the alien during a credibility determination (cannot make representations to the Court), as a practical matter, the judge usually does not question the alien further, but instead looks to the alien's attorney to explain the nexus and why, at law if all facts are properly admitted, this alien will be eligible for asylum. How to handle a credible fear hearings is the subject of a different blog.
  • Finally, if either the judge or the asylum officer has determined there is a credible fear, and that a nexus exists tying the credible fear to a protected class, the arriving alien will be eligible for parole.

Recognize that ICE parole/bond is not the same as an Immigration Court bond . An immigration court has no jurisdiction over arriving aliens (on account of the expedited removal order that is already entered upon an illegal entry into the US -- see 235.3 above). This means that an immigration judge is barred from granting bond. By statute, only ICE has jurisdiction over release of arriving aliens, even if they are placed in removal proceedings.

To obtain parole for a detained alien with a positive credible fear determination, the alien is no longer required to complete the deportation parole worksheet; however, as a practical matter, every alien should request parole and affirmatively ask to complete the worksheet once credible fear has been established. The form has no number, but an example can be found here. This should happen automatically. However, having an attorney complete the paperwork is of critical assistance to ensure no loose ends are left undone. Be sure your attorney informs the DO (deportation officer) or the DRO (detention and removal office) in charge of the alien's case that the presumption is release unless there is an overriding need to keep the alien detained (defined as safeguarding the community or national interest). See the ICE Memorandum on parole and release for more specific legal guidance on this. This memorandum has been key on several occasions to get ICE to "move along" on the parole request.

A few pointers to remember. The DO cannot complete a parole worksheet until credible fear has been established. Also remember that the arriving alien will not be paroled until an NTA (Notice to Appear -- subpoena for immigration court) has been issued with a return to court date. The reason is that once the alien is released on parole -- poof. No more alien. Unless ICE has the alien sign the NTA, there is no proof the alien received notice of the immigration court date, and no way to enforce a removal order if the alien does not show to court. Not going to happen -- ergo, no bond/parole until an NTA with a date certain return is issued. This can take a week or so after a hearing, or usually immediately is credible fear is granted by the asylum officer.

DO NOT forget to complete an AR-11 (change of address form) prior to having your arriving alien disappear on bond/parole.

What is the difference between bond and parole? From an absolute standpoint -- nothing. From a practical standpoint, a bond requires the payment of collateral in order to ensure the alien will return to court. Parole requires no payment (hence the term, "parole", which means "word" in the sense of "to give one's word").

Do you have an immigration question about arriving alients? Give us a call! We can help. Do not try to handle immigration court on your own -- this can be disastrous and lead to expedited removal without an appeal. We have specialized experience with gangs and special juvenile immigrant status (SJIS) cases. Let our expertise work for you.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.