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Wednesday, April 23, 2014

Divorce and Sponsoring Another Immigrant Spouse

Divorce and remarriage under USCIS -- sponsoring another spouse:

In family processing, with a USC spouse, as long as the immigrant arrived on a valid visa (and can prove this -- inability to prove this is a mess and the subject of much consternation, gnashing of teeth and occasionally litigation), her overstay will not impact filing during the I-130/I-485 process. She is at risk, of course, of getting tossed out on her "behind" PRIOR to the filing of the I-130. However, once the I-130 is floated in the system, she is fine (from a deportation standpoint). Be sure to file the I-130, I-765, and I-131 along with the I-485. That's a work permit (I-765) and advanced parole granting the right to leave the country (and return!) during the pendency of the adjustment process (I-131).

The rule is 90 days. If you client enters the country and get's married within 90 days, you will have problems. Earlier than 30 days, and you're toast. There is a rebuttable presumption (good luck, though) of marriage fraud if you marry before 60 days. 60 - 90 is a red flag. After ninety is generally fine. See: http://www.state.gov/documents/organization/87011.pdf. This is known as the 30/60/90 day rule and should be a lens through which all B2 marriage apps are considered in your office (just sayin'). See also generally http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422.html

Alright, so in a nutshell, dump the current spouse, marry the new chico/chica once you're clear from bigamy laws, and you should be fine. The overstay won't hurt if she arrived as a B2 (because she marries a USC), and the intent is not a problem as she is well outside of 90 anyway.

Need help with I-130/I-485 sponsorship? Questions about family immigration? Give us a ring! We're here to help. 703-402-2723.



Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Wednesday, April 16, 2014

But the child's not mine! What do I do?

We answered a question about a shocking "child is not mine" revelation in a recent forum about custody and family law. It is repeated here:
I have been married for 5 years to my wife. During that time (on 06 Jan 2012) we had a daughter. I just took a dna test and found out she is not mine. What can I do? How can I end this marriage?

The case of the "child that's mine."



Generally, the Courts frown on breaking up a family, even if it later turns out that the child was not the biological offspring of one of the putative parents (that means one of the parents that the law assumes should be the parent, i.e. mom and dad). The key, in cases of DNA showing that one parent is not the actual parent, is how long this has been known, and how long the child has been treated as belonging to the parent.

In your case, the child has been alive for just shy of two years. You would need to motion the court for divorce and termination of custody rights. Your case would be for-cause.

If you would like to discuss this further, feel free to contact us at 703-402-2723. Family cases involving infidelity and children are very sensitive and emotional. We can walk you through the steps and discuss not only your legal rights, but also the moral implication of what steps you are taking.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Monday, April 14, 2014

Stopped by CBP - Deferred Inspection

Deferred Inspection with CBP


In this instance, there are a couple of considerations. You should expect to be placed in removal proceedings. It does not sound like you will be charged with an aggravated felony. First, this does not appear to be a crime of violence, and secondly, as you described it, it sounds like you received straight probation. As such, under sec. 1101(a)(48)(b), this probably wouldn't be an aggravated felony anyway (called "agg-fel" in our parlance).

Now, if this is NOT an aggravated felony, you might qualify for various types of relief when put into removal proceedings. Most importantly, however, you are not disqualified from bond. That's really important -- as nothing is a morale crusher like sitting in the pokie for six months waiting for your immigration court individual calendar hearing (fancy term for trial on the merits). Various places in the country have differing bond amounts (i.e. each immigration court is different). However, for a typical offense of theft, you can probably count on at least a $7500 bond.

Only an immigration judge can take away your LPR status -- so while CBP (custom and border patrol) may hold your card, the judge alone will make the final determination.

What to expect at that 23 April meeting: Well -- a lot of sitting around. These things are reminiscent of a bad 'B' grade horror movie. Dark waiting lobby, lots of unhappy people, most of them confused, a person walking around calling for the next individual to "come back." You will be asked about your status, and you will be told that you are deport-able. Most likely you will get an NTA at that point (Notice to Appear -- that's the summons paper to immigration court). Occasionally, ICE will come take you from the airport. If that happens, you will held until either bond is set (ICE can do that) or you are seen by an immigration judge -- usually within 10 days.

Give us a call if you would like to discuss this further. We have extensive experience representing folks in removal proceedings and we can do a lot to put your mind at ease. Although you may wish to voluntarily depart, doing so is a death sentence to your LPR (legal permanent residency) status. That should be an option of last resort tied to post-hearing voluntary departure. You may have excellent equities arguing for your remaining in the US.

You can reach us at 703-402-2723. A consultation on the phone is free. We practice up and down the East Coast.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Saturday, April 12, 2014

What should I do before my Sentencing Hearing?

So I am going to be sentenced...what should I do?


Often, after a plea, defense (and prosecution) will "reserve allocution" at sentencing. That means that each reserves the right to argue about what sentence you get. The basis for sentencing is the "guideline" -- and there are two types, state sentencing guidelines and federal sentencing guidelines. Generally, you can find these online.

What can you do? Learn your guidelines! Learn the range of "punishment" that can be given for the crime, determine if any is mandatory, and if any prior convictions "enhance" the penalty. Sentencing is based on the number of "points" you have on your record (a lot like driving points from DMV) and the enhancements for the serious nature of the crime (for example, a crime involving firearms). Be sure to read your plea agreement, if you have one. Often enhancement papers are waived, and allocution is capped at a certain part of the sentencing range (say, the lower quartile) -- be sure to ask for this in your plea agreements if you can.

Secondly, the key to convincing the court to work with you (defense) at sentencing is rehabilitation. That's a fancy word for showing that between the time you committed the crime and the time of sentencing, you have not only followed all the orders of the court, but also engaged in two key areas: (a) bettering yourself (such as anger management, alcohol awareness, victim impact classes, domestic violence classes, etc.), and (b) community service (volunteer work at shelters, and other locations that are relevant to your case). The more "good works" you can show at sentencing, the stronger your attorney can argue you should be given the best possible sentence -- even possibly going outside of guidelines...in you favor, of course!

Finally, a document your attorney will receive before sentencing is very important. It's called the "pre-sentencing report" and is usually written by Court Services. In DC and the Federal Circuits, its called "CSOSA" which is short for Court Services Offender Supervision Agency. This document reviews all the guidelines, reviews your performance on parole and probation, and provides a summary of the interview that will be conducted by Court Services prior to your sentencing hearing (although this does not always happen). Now pay attention! Surprisingly, the pre-sentencing report can be dead wrong as to sentencing standards, ranges, and even convictions on your record. You must be ready to argue the facts and the conclusions that CSOSA places on the record. If you do NOT do this, you run the risk of getting a very bad sentence indeed. The government is required to provide this report to you prior to your hearing, and if they do not, it is appropriate to request a continuance to review and possibly challenge the contents of that report.

Sentencing is a CRITICAL component of a criminal process. Do not think that a conviction is the end of representation. Hardly.

Are you facing a sentencing hearing without counsel? Would you like another set of eyes to review what a fair sentence would be in your case? Do you need help rehabilitating yourself prior to your sentencing hearing? Call us -- we have considerable experience with criminal matters. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Saturday, April 5, 2014

Ukraine and Asylum - what if you are already here?

Ah -- the Ukrainian pains of asylum.


A couple of pointers about applying for asylum when you are already in the US. First, affirmative asylum (that's the kind you apply for when you aren't in the hot seat, i.e. in front of the immigration court!) must be done in the first year you are in the country. Sadly, the government does not want nor approve opportunistic "squatting" in the US -- hanging out here in the States until something bad happens at home, and then...poof! Asylum time! So, as for affirmative asylum, you have a great shot if you're in the first year of your presence a la United States. Otherwise...nada. See 8 U.S. Code § 1158 for information on asylum and the process of applying.

What may come open, and is designed for ye olde squatters as mentioned before, is relief called "TPS"-- temporary protected status. From time to time, the President deigns to designate certain places of the world as "particularly nasty and worthy of political consideration" -- i.e., those from that country may apply to stay in the US, even without valid status, for a period of time (usually renewable). Traditionally, this is reserved for South and Central American countries whose political base in the US is strong (wonder why?), but it is occasionally extended to others (say, Syria, where you know -- there is a war happening). The trick with TPS is that you MUST apply when the application period is open. While there are provisions for late filing, it is a tough road to hoe convincing USCIS that you meant to file even though you didn't. As Ukraine is not at war, and there is almost NO political Ukrainian vote in the US...this is not looking good :( See 8 U.S. Code § 1254a for the process of applying for, and information related to, temporary protected status.

Finally, for the wealthy...err...for those that feel up to a game of DHS/ICE/USCIS roulette, there is the concept of humanitarian parole. Usually this happens when someone is dying in your family (who happens to reside in the states) and the only option is to stay in the here. Occasionally, you can argue that is it YOU who is dying and should be allowed to stay in the states. That's an interesting argument, and by the time the damn thing is reviewed, you'll probably be dead. Which makes acceptance of the parole a little difficult. The key to humanitarian parole is that you need a really good brief, and it costs a lot of money to apply. The application to USCIS is free (send it to the local field director), the problem is that its a bear to write (think of this as an asylum on steriods). Don't let folks tell you it is the same as asylum. You can request this anytime when return to the country is nigh impossible. This makes extreme hardship of the 601A look like a regular picnic. You get the idea. See http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Humanitarian%20Parole%20Program.pdf for information on the ICE/DHS/USCIS program on humanitarian parole.

We are experienced immigration attorneys. Let us help! A consultation is cheap (well, mostly, anyway), and we won't fleece you. Actually, we won't lie to you, and that might be worth the entire price of the consultation. Give us a ring at 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Friday, April 4, 2014

I-864 and Form Questions

What is annual income?


While chatting on Avvo, a question was asked about how to complete the I-864 income questions (Part 6).

Our Response

Ah -- the question of the I-864. Look on the bright side -- you are not trying to get multiple sponsors! Or self sponsoring...or any other more complicated fumbles that cause heartache on this form.

I believe a colleague on this board answered correctly -- just provide the annual income (expected) for the year. The real key to the I-864 are tax returns. As for Part 6, Question 6c, the instruction state:
6. Annual Household Income. This section is used to determine the sponsor's household income. Take your annual individual income from Item Number 5 and enter it on Item Number 6.c. If this amount is greater than 125 percent (or 100 percent if you are on active duty in the U.S. military and sponsoring your spouse or child) of the Federal Poverty Guidelines for your household size from Part 5., Item Number 8., you do not need to include any household member's income. See Form I-864P for reference on the Poverty Guidelines.

So you asked if Question 6c should be answered with a monthly income statement...no. You would re-use the answer from question 5. Just test that to ensure you meet minimum poverty levels.

I-864's are usually pretty straight forward, so you probably do not need an attorney to help with this, However, if you have a bizarre, non-normative situation (i.e. poverty limits apply, joint sponsors, the sponsored alien is assisting with support, etc.), then give us a ring! We'd be glad to chat with you and you might need nothing more than a simple consult (a lot cheaper than hiring an attorney for the whole thing). 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Sunday, March 30, 2014

Padilla and Post Conviction Immigration Relief in VA -- WE WANT YOUR CASE!

Padilla and Virginia -- we're looking for a good case! Do you have one?


In immigration related matters, the controlling case is Padilla v. Kentucky. This case indicated that if the judge did not review the immigration consequences of a plea, and further that the defense attorney did not advise the defendant of the impact a plea may have on him immigration status, that the case should be re-opened. This process is collectively known as "post-conviction relief."

However, there are a couple of caveats to this. First, under another case decided shortly after Padilla (Chaidez v. US), the Supreme Court ruled that no criminal conviction BEFORE the holding in Padilla could be challenged for want of informing the defendant of his/he immigration consequences. You did not indicate when your son was convicted.

Finally, the Supreme Court of Virginia basically indicated it would not follow Padilla. In a decision entitled Commonwealth v. Morris from 2011, the Court indicated that the vehicle for reviewing ineffective counsel claims did not exist (in terms of Padilla claims, it could not be coram nobis), so no claim could be made. We think this is bad law, and contrary to the Supreme Court of the United States. My law firm is very interested in challenging this, but has not found a meritorious case to do so, yet.

If you would like to discuss this further, feel free to give us a ring. Note, however, that litigation on matters of this type tends to be expensive and take some time. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006