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:

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.

[name of client]


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
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 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
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 Charles Hatley, Esq.
Leigh Snyder, Esq.

Wednesday, July 23, 2014

Jam that bankruptcy! The power of a 523 exception.

When the case you are pursuing get's booted by a bankruptcy -- fight back!

Folks, there are few things more frustrating to civil attorneys than watching a great case get all the way to trial stage...and then poof! Bankruptcy is filed by the defendant and the case flops like a fish on dry land.

Saturday, July 19, 2014

Appropriate conduct at a deposition.

Am I allowed to pummel and yell at an "opponent" in deposition? If I called a Naval officer a liar, am I in trouble?

Depositions are covered by both local rules, and in Federal procedures, Rule 30 of the Federal Rules of Civil Procedure. Specific to this question, Rule 30(d)(3)(A) which reads:

Monday, July 14, 2014

Can support paid to family members count as an IRS deduction?

Does support count as a charitable contribution? A "charitable contribution" must meet the qualifications of the IRS covered under 26 USC §170, specifically 170(c) -- definition of charitable contributions. As a rule of thumb, you need to donate to a corporation that has been qualified as non-profit or tax deductible by IRS regulation. This is not an absolute rule, but rather a good guideline. If you really have nothing to do, feel free to slog through section 170. This section has been known to make seasoned lawyers weep. Or, you can always find a willing tax attorney of CPA who will meet with you to help qualify your contributions.

Thursday, July 10, 2014

Admitting evidence when the authenticator can't come to trial

I have a great document I want to admit at trial, but author of the report is not coming to trial. What should I do?

Rather than try to answer this question under local jurisdiction rules, I'll try to tackle this using the Federal Rules of Evidence. For an excellent, searchable summary of the Federal Rules, see LII Rules of Federal Evidence. That should make this answer applicable to most locations. However, always check your local rules for evidence or procedure.