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Thursday, September 22, 2016

How do I expunge a conviction in Washington, DC?

A great question was asked of a potential client today, and I thought I would share the answer:
I have been convicted in Washington, DC of violating a Temporary Protection Order. I am currently appealing this. If I loose this on appeal, can after this process I have this conviction sealed or and expunged?

In DC, code section 16-802,16-803, and 16-804 control the answer to your question. For the complete text, go here: Chapter 8 - sealing records. However, your question is tricky because it may (or may not!) involve a criminal matter (that's what's covered under 16-802 and 16-803). Not all protective orders are criminal, and some end in civil contempt or an agreement between the parties. As to expungment of a criminal finding, see generally 16-803(c):

(c) A person who has been convicted of an eligible misdemeanor or an eligible felony pursuant to the District of Columbia Official Code or the District of Columbia Municipal Regulations may file a motion to seal the publicly available records of the arrest, related court proceedings, and conviction if:
(1) A waiting period of at least 8 years has elapsed since the completion of the movant's sentence; and
(2) The movant does not have a disqualifying arrest or conviction.

The waiting period may be jointly waived by the prosecutor (that means you file a motion and the prosecutor agrees to waive the period of waiting), See 16-803(e). This is important! Often a lawyer can get an agreement with the Attorney General's office to waive the statutory waiting period.

Generally, however, intrafamily violence convictions, and violations of protective orders that relate to family members, cannot be expunged because intrafamily offenses are not eligible misdemeanors. List of ineligible offenses (see 16-801(9)):
  • Intrafamily offense as defined under D.C. Code § 16-1001(8)
  • Driving while intoxicated, driving under the influence, or operating while impaired under D.C. Code § 50-2201.05
  • Any misdemeanor offense for which sex offender registration is required under Chapter 40 of Title 22
  • Criminal abuse of a vulnerable adult under D.C. Code § 22-936(a)
  • Interfering with access to a medical facility under D.C. Code § 22-1314.02
  • Possession of a pistol by a convicted felon under D.C. Code § 22-4503(a)(1)
  • Failure to report child abuse under D.C. Code § 4-1321.07
  • Refusal or neglect of guardian to provide for child under 14 years of age under D.C. Code § 22-1102
  • Disorderly conduct (“peeping tom”) under D.C. Code § 22-1321
  • Misdemeanor sexual abuse under D.C. Code § 22-3006
  • Violating the Sexual Offender Registration Act under D.C. Code § 22-4015
  • .... and many others. Each offense will indicate if it is "expungable"


Because you potentially have an intrafamily offense, it may not be possible to get this conviction expunged. I would suggest you call us and discuss the particulars of your case. Many aspect of expungment can be waived if the prosecutor agrees/consents to the filing. That means a good lawyer can make all the difference! Call us at 1-800-579-9864 or 571-572-8567.

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.
1-800-579-9864
admin@hanoverlawpc.com

Friday, September 16, 2016

Can my family hire me as an immigrant in the United States?

So I was in the office today, and received an email requesting assistance with the following question:
I would like details about a green card. I have family who are citizens here. They own a business, can they sponsor me for a green card? I am in the US now.

I thought I would share the answer - probably not. Most non-immigrant work visas require you to be in status before you can switch to them while you are in the United States. If the person who asked the question was here legally on a visa that permitted changing classifications, then yes, he could apply for several of the visas that permit some kind of work -- F, H, L, EB, E, Q, J, etc. However, if he has no status (as the individual who asked the question did not), then you cannot be "sponsored" while you are in the US. A "visa" means, right to enter. You cannot receive a right to enter if you are already here. With some exceptions (such as a one step application after marriage), the law requires you to be outside of the country in order to obtain a visa -- unless you are changing status between visas, or certain special classifications such as "U" visas, etc. Absent those special circumstances, in order to get a work visa, as previously mentioned, you need to be in status -- i.e. legally here in the US already, under a visa that permits changing classifications.

To petition to change classifications, you would need to file an I-539. This form allows you to switch between visa categories when permitted. Typically, for example, if you were pursuing an H1 visa, your employer would file all the required documentation. Once approved, you would than file the I-539 to "switch" into H visa status.

Do you have a question regarding immigration law? Give us a ring! We have many years of experience handling even the most difficult situation. It is always smarter to speak to an attorney before you make a mistake! Call 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.
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, September 14, 2016

Can my employer fire me for being away on jury duty?

We answered a question about jury duty, and I thought it might be helpful for others:

Must an employer pay the salary of employee who lives in DC, and is required to serve on a jury at DC Superior Court, even if they work in Maryland or Virginia?

In regards to your question about whether Maryland or Virginia law applies to DC as it does to an the respective states, the simple answer is "no." The reach of the MD/VA law only covers hearings that the MD/VA Court can control or enforce. Because DC is outside of Maryland's or Virginia's jurisdiction, it cannot control the behavior of individuals attending, or not attending jury in those jurisdictions. There is no "jury consideration" reciprocity between jurisdictions.

However, if the individual is exempt, neither MD nor VA recognize a legal payroll deduction for jury time, so payment would have to be made (subject to being offset by anything paid to the employee by the Court). Hourly employees are not required to be paid in any jurisdiction, however, neither exempt nor hourly employees can be terminated because of jury service.

If the employer terminates the employee due to jury service, said employer will run afoul of the US Federal Labor Laws. This would potentially give rise to a federal case of employment discrimination. The Department of Labor specifically forbids termination due to jury duty, and reclassifies exempt employees who are "docked" jury time as as non-exempt (this has the potential of costing the employer a considerable amount in unpaid overtime and hourly wages).

A succinct summary is here: Society of Human Resources Summary. See also: 28 USC 1875 which reads in "(a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States."

Have you been threatened with termination or legal action because of jury or court duty (including being a witness)? If so, call us immediately! We can help stop the threats and preserve your job. Contact us at admin@hanoverlawpc.com or 1-800-579-9864.

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.
1-800-579-9864
admin@hanoverlawpc.com

When you are accused of hitting your child -- assault on a family member.

When does hitting your child (intentionally or unintentionally) lead to legal problems? A question was asked on a legal bulletin board yesterday, and we responded with an explanation of DC law. This information is worth sharing on the blog, as it is a topic that has seen an upswing in recent months.

If a child was pushed to direct them in the room in which they were asked to to their chores and they slipped and hit their face on the carpet and caused rug burn, can a parent be charged for assault on a child or possibly lose custody of their child?

This matter is serious. In response to your question -- yes, you can be charged with assault. Assault is the unwanted touching (or imminent threat of touching) of another without privilege and without consent. DC Code 22-404(a)(1) covers the charge, which carries a maximum sentence of 180 days. In your example above, you shoved or pushed the child. That would be sufficient to show a touching. The degree of the injury makes you look bad, but in fact, does not rise to the level of an aggravated assault, so is not entirely relevant to the charge (only the sentence). It is still a simple assault. To rise to the level of 22-404(a)(2), you would have to show serious injury or intent to cause the same.

The assault occurred when you shoved. I would be concerned about a DCPS investigation regarding treatment of the child in the home, as likely this was reported as a result of a teacher or some other individual seeing the rug burns or bruise on the face. Generally, when DCPS gets involved in a case like this, you can expect a safety plan, and the requirement that you attend parenting classes and anger management classes. There is a diversion program that avoids a formal finding of abuse, but still requires a safety plan. However, often you will need a lawyer to ensure that program is triggered.

In terms of custody, it would be entirely likely to see an opposing side (i.e. an ex partner or spouse) use this type of conduct to show the child is unsafe in the home, and move to have custody changed. The DC family law code governing custody determination is at DC Code 16-914. Specifically, the judge can find a "rebuttable" presumption (meaning that the assumption is against you, but you can still argue), if:

There shall be a rebuttable presumption that joint custody is not in the best interest of the child or children if a judicial officer finds by a preponderance of the evidence that an intrafamily offense as defined in § 16-1001(8), an instance of child abuse as defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977...

If DCPS finds there was a violation, and you are not placed in a diversion program, that constitutes child abuse/intrafamily violence, and will be used against you in court. Same effect if you have a criminal conviction for assault on your own child.

If you should be charged, or threatened with this, reach out to us to get help with this quickly. Mistakes made at the initial stage (i.e. you making statements to the investigator, or police) can be a critical problem down the road. Be very careful here.



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.
1-800-579-9864
admin@hanoverlawpc.com

Sunday, September 11, 2016

Naturalization and Crimes Involving Moral Turpitude

I was recently given the following fact pattern, and asked about what, if any effect, it would have on naturalization. This is a good question, and it illustrates the limits of petty exception rule quite well:

Dear Sean: I have a potential client who has a conviction for Theft. He pled guilty and got 1 yr. Deferred Adjudication. The crime has a max sentence of no more than 1 yr. imprisonment. However, his deferred adjudication (i.e. they will drop the charges if he maintains good behavior for one year and performs certain community service obligations) was sentenced in excess of 6 months. The actual term of imprisonment was 100 days in the county jail (i.e time served pending the sentencing of deferred adjudication).

Based on this, is he eligible for petty offense exception? Should he wait to file for naturalization until he has some good equities?


Thanks for the question! The petty exception rule, for naturalization, is triggered by 8 CFR 316.10 (requirements for naturalization), and enumerated under 8 CFR 212(a)(2)(A)(ii)(II). The rule states:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if- ... (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

So, for the petty exception, you need a couple of things.
1. The maximum sentence must be one year or less.
2. The sentence given must be 6 months or less, regardless of time actually served.

For example, if the crime had a maximum sentence of 1 year, and your client was given 1 year with all but thirty days suspended, he would not be eligible.However, if the crime has a maximum sentence of 1 year, and your client was given 30 days, all 30 suspended, he would be eligible. It is for this reason that a sentence of under one year is so important when dealing with petty criminal matters.

I agree with your assessment. He pled and was given what appears to be 1 year jail sentence, all time suspended as part of a deferred sentence. That’s still a conviction for immigration purposes. See, USCIS Policy manual.

Also, your fella may be placed in removal proceedings; this is a heightened risk if he committed the crime during the five year look back period. See paragraph H in the USCIS Policy manual

I am unclear whether this happened more than five years prior. You mention it might – but then give an August 2016 date. If it is more than 5 years prior, you could probably apply if you have really really strong equities to support rehabilitation. However, that a CIMT is a bar to cancellation, too. If he is placed in removal proceedings, he would have serious issues. Make sure you have a defense strategy such as 212(h) or something similar to stop the removal process if he is placed before the judge.

Do you have questions about immigration or criminal law? Call us! We would be glad to review your case and discuss options. Good legal advice is critical in the immigration arena. 1-800-579-9864.

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.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, August 11, 2016

Evidence and opening statements in Immigration Court

A colleague asked me about the rules of court, regarding evidence in immigration proceedings. I thought I would share the answer here:

I have a CAT only IH coming up. I want to introduce a news article that I feel is relevant. Can I refer to the article in my opening statement?

Sure you can! You need to submit the article, and any other evidence you want to use, 15 days in advance -- unless for good cause you can’t do that. At the beginning of the hearing, the judge will review the evidence, and admit/deny as appropriate (almost always admit in CAT – it becomes a question of weight, not admissibility). In a state or federal court, the opening statement is limited to facts. However, if you had a pre-trial exchange of exhibits, you could certainly cite to a “fact” in your exhibits, too. You would do that (and in immigration court, too!) by saying something like this: “Not only will my client testify that giant green elephants are the cause of his fear, the evidence will show that as of 31 February 2016 (date of the article), the citizens of Ubuland are afraid of the government, and believe that they will all be killed by the green elephants with the governments agreement or even assistance.”. In state or federal court, you need to lay a foundation and provide authentication for evidence, before it can be admitted. Usually, you can file a motion in limine regarding certain documents, such as newspaper articles, in order to have the Court recognize the authenticity and foundation of new print prior to trial. That is not required in immigration court.

In an immigration context, you can even bring in hearsay in the opening, closing, and throughout the trial.

Do you have an immigration question? Give us a call! 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.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, August 4, 2016

Criminal Past? How to handle it when sponsoring someone for immigration benefits.

What happens when you have a criminal past, but want to bring your family into the United States? That of course, depends on the crime. Conviction of a crime against minors is a particularly serious form of criminal past that present a serious bar to immigration in the US. I recently answered a question about this on one of our legal boards:
I have an AWA case. The Director denied it, of course, after we responded to an NOID (notice of intent to deny). The denial stated that the only option was an appeal to BIA. Help! Is that right? So happens that the only grounds/reason that they gave for denial is now moot and we have conclusive proof to rebut those grounds that was obtained after filing/deadline. I would like to submit a motion to reopen and reconsider. Can I do that?

In my experience Adam Walsh immigration cases are only every appealable to the BIA, and then only win when the alleged crimes do not constitutes crimes against minors. I have never seen the BIA reverse based on equities or the fact the petitioner is no threat to the intending immigrants. As you also pointed out – after acquired evidence is not reviewed by BIA if it was not submitted timely.

In this case, I would not pay the filing fees for an appeal, given the likelihood of failure. I would re-file with the new information and get approved ab initio. There is nothing barring a new application. Will also most likely be faster.

No harm in an appeal – you can always re-file thereafter. Just not likely to be successful (in my experience).

No, as to your question for a motion to re-open…I don’t believe such a thing exists for Adam Walsh act cases. There is only an appeal to BIA on whether the law was properly applied, as the decision of the Director on the matter of facts/equities is final.

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.
1-800-579-9864
admin@hanoverlawpc.com