Total Pageviews

Sunday, November 20, 2016

I want to get money from my abuser -- can I make him pay if I get a protective order against him?

We don't usually get questions about prosecuting domestic abuse issues -- most people hire us to defend them against accusations! However, I did receive a question recently from a potential client who wanted to know more about what could be awarded at a DC (or Federal) protective order hearing. So I thought I would share the information and answer her question!
My friend was physically and verbally assaulted by her boyfriend. She had the cops remove him from her apartment (he was not on the lease in the first place). She is interested in filing a protective order, but wants to know whether it can go beyond just preventing him from further contact with her.

First, get better taste in men. Those that punch you are probably not good boyfriend material. Just sayin'. That aside, let's talk about how protective orders work.

D.C. Code §16-1004 - 16-1005 govern CPO - Civil Protective Orders (which is the more formal term for "protective order").

When you file in DC for a protective order, you ask what relief you are seeking and provide evidence of harm by the abuser. You must show how the abuser has committed some act of violence against you (or criminal act: including threats, assault, harassment, etc.). You must show EACH element of the alleged harm. When you go to Court, the judge will complete (or you will settle with the opposing side) an order regarding your motion for a protective order. A section on that "order" includes payment of home expenses, attorney fees, etc. Note, however, generally, a person cannot be forced to pay rent unless they are on the lease and have been paying already.

This is the third page of a petition for a civil protection order. Note the section where you can ask for money, rent, attorney fees, and damages. Download the full CPO petition


When going to Court, it is important to provide evidence of the abuse, and why it would be fair to have the "abuser" pay anything. There is a difference between an order to "stay away" and making the individual pay on going rent payments. That will require a compelling reason. Generally, the Court won't cover your attorney fees unless the abuse was particularly bad.

The ticket to success in protective custody hearings (held on the first floor of the Courthouse on 500 Indiana Avenue) is settlement. Most folks don't want a protective order on their record. To avoid that, they will consent to a settlement that could well include rent payments. However, make sure you chat with an attorney before agreeing to anything. Settlement heaven -- but it can be very dangerous if the individual you are dealing with is genuinely dangerous. Work through your attorney, and let us handle the negotiations. At the Courthouse, if you can't afford an attorney, there is an attorney negotiator that will meet with the parties, individually, for free.

Do you have a question regarding protective orders? Call us! We can help you. Note that handling child abuse allegations are much different, and the advice above does not apply. Call us immediately if there are any allegations of child abuse.

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, November 17, 2016

Getting an Arrest Warrant dismissed - how to quash

The errors in my warrant of arrest are that they put the wrong address and phone number for me, so I was never contacted or interrogated in regards to the charge. I was actually filing charges against my ex, when someone at the police station told me about the charge 8 months after the alleged incident. SMH. I'm filing a motion to dismiss. What should I cite to really make a strong argument for a motion to dismiss? There's so many flaws on the prosecution's side. Plus the police officer put the wrong date for the alleged incident on the police report. There is a different date for the alleged incident on the police report and the warrant of arrest.

Generally, you won't be successful on quashing an arrest warrant, no matter how defective. However, once your arrest is processed, you can then challenge the charges, etc. at your initial detention hearing. In VA, you will be seen by the magistrate when you are initially "booked." A bond will be set (unless your crime is particularly notorious), and once paid, you will be released with a return court date. That return date is called an arraignment, and it is at that point you can challenge the arrest.

The discrepancy between the police report, and the arrest warrant is fertile ground for examining the detective or police officer during a preliminary hearing. However, if this is a domestic violence charge (assault on a family member, for example), then you won't have a preliminary hearing, as most DV charges are misdemeanors. Although in VA, you can get a jury trial in just about every criminal instance, a preliminary hearing is limited to felony charges only.

A motion for judgment of acquittal (that's the federal term), or motion to strike charges, usually does not succeed when there is any evidence of an underlying crime -- and it sounds like there was a police report that did list the accurate times, dates, people. In those instances, the court will want to hear from the aggrieved party for the specific reason of not wanting to dismiss a valid case based on a clerical error, or police typo. The question is: was their an underlying offense? Put a different way, if the Court was to dismiss the information (that's the piece of paper that lists the misdemeanor charges) because it had the wrong dates, etc., the prosecutor could just refile, based on the police reports, with the correct dates. It would waste the Court's time, your time, and the police officer's time.

Is there an instance when an arrest warrant can be quashed, or set aside? Absolutely. When the arrest warrant has the wrong person named, or the wrong crime charged. Those are the two most common causes for setting aside a charge. The fact there is an incorrect date, or that you were not interviewed would not, per se, invalidate a warrant. They are certainly not required to speak with you or seek your permission before obtaining a warrant. And a date can be a typo.

When the arrest warrant fails to cite a specific element of the crime (i.e. show probable cause that the crime was committed through an arrest affidavit), that can be used at the preliminary hearing to show failure to demonstrate an element of the crime, which in turn negates the charge. However, that is usually easily overcome by the officer on the stand.

To properly move forward, you need an attorney. You simply lack the training to recognize the best tactic, as this is your first time through the system. No one get's this right the first time! It sounds like you need to turn yourself in, get processed and release on bail or your own recognizance, and then kick this charge when you're in front of the judge. Give us a ring! We can help with this.

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

Tuesday, November 15, 2016

How to release an immigrant from detention if the underlying case is dropped

A bit of a mouthful for this blog title -- but it is a surprisingly common topic. What steps do you follow if the case is terminated in Immigration Court, but the client is still detained. This usually happens when there is a joint motion to close (terminate) proceedings, but the Court has not yet ruled on the case. When the next status hearing (called a Master Calendar hearing in Immigration Court parlance) is several months away, or the Court has not yet set a status date, the idea of staying detained when the government has moved to close the case is...galling.

From a fellow practitioner in New Jersey:

I have a case of first impression and I hope you can give me some guidance. OCC [Ed: Office of Chief Counsel -- another name for opposing counsel in an immigration case] just terminated proceedings against my client because his conviction is no longer considered a crime of violence. His next hearing date is December 13, 2016 at Elizabeth, NJ.

My question is: can I get him out sooner since OCC is terminating or must my client wait an additional month in detention (seems counter-intuitive but this is the Government) for the hearing I which the judge will release him?

That isn’t handled by the Court – early release would be through ICE (Immigration and Custom Enforcement - or ICE - is responsible for detaining aliens; although the Court can set bond in certain cases, ICE always has jurisdiction pursuant to ). I would petition his DO (deportation officer). Generally, they want the bed space. Do the following:

  • Write a formal letter to the DO stating the reason for releasing your client early
  • Include a copy of the Government's motion to terminate
  • Include a copy of your G28 (if you have not already)
  • Include a copy of the policy memorandum governing release (see here: policy)

And then nag the hell out of the DO guy (or gal). If the DHS counsel is willing to sign on to your letter, get that signature, too. The main kick, though, is through the DO.

Do you have a question regarding immigration procedure, court, or policy? If so, call us! You can reach us at 1-800-579-9864 or email at admin@hanoverlawpc.com. You can also visit our website, www.hanoverlawpc.com for additional information on immigration laws, policies, and procedures, as well as issue related to criminal, family, and business (civil) law.

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

Saturday, October 1, 2016

Driving under the influence of drugs - immigration consequences

What happens if you are convicted of a DUI (driving under the influence) based on drugs. An interesting discussion. If you have digested a drug, are you in possession of that drug for immigration purposes?

Steve presented the following scenario on Friday:
A client of ours, pled to that DUI (Xanax) in Arlington. He’s been LPR for 12 years, and the only things on his record are a Reckless Driving and the DUI, both from 2016. He wants to know about naturalization. My thought on this is that his only potential question has to do with Good Moral Character, and he should probably get some help explaining that he is a person of good moral character when he submits his N-400.

Here are Steve's discussion points:
a. First of all, don’t travel outside of the US right now. He can totally get picked up on the way back in.
b. Get everything associated with the DUI (ASAP, Restricted OL, etc.) taken care of and get clear of “court supervision,” which will be done in about 12 months.
c. Once he is fully clear of the DUI matter, get his ass into our office so we can help him get to work on his N-400. I wonder if you think he should even wait a little bit longer to apply to naturalize than I am suggesting.
d. Do you know if a LPR with convictions could wind up in Removal Proceedings by getting the attention of USCIS with the submission of a N-400?

My answer:
So the bottom line is this: a drug conviction is a permanent bar to naturalization, and a cause célèbre for deportation – even for an LPR. The code that deals with this is INA § 237(a)(2)(B)(i) (deportability). Admissibility is covered under State Manual on approving entry visas (see also: INA 212 drug convictions dealing with admissability).

Xanax is a schedule IV controlled substance as defined by 21 U.S.C. 802. Apparently, it is has low probability for abuse. Also, an argument can be made that a DUI is not a drug offense per se, and if there is no inquiry into what type of DUI it was, it may be possible to submit a disposition paper without mentioning xanax at all (the N400 adjudicator does not generally inquire into the substance of the offense if a disposition is provided). To constitute a drug offense, the statute is clear - you must be convicted of possession or distribution. There is nothing saying that ingestion constitutes possession under Federal Law.

As for good moral conduct, Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, held that one DUI conviction that results in a year of probation does not bar a good moral character finding. I’m not sure if the 4th Circuit has followed suit, but probably. You should expect a denial, followed by an appeal. It is important to show rehabilitation and regular ameliorating actions.

Do you have a question about DUI's, drug possession, or naturalization? Ask us! You may 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.
1-800-579-9864
admin@hanoverlawpc.com

Petty drug exception - admissions vs. deportability. NOT THE SAME.

Here's the scenario:
Steve was working with a client in VA state court. He asked for advice on the immigiration consequence. He said: There was a client of mine who was charged with Possession with Intent to Distribute (Marijuana) in Fairfax. We got the charge amended to straight Possession and plead guilty. He did a couple of weekends in exchange for the amended charge. He recently traveled out of the country (against our advice) and upon his return, was given a date to meet CBP out at Dulles. Bad news. I’ve already told him that he is almost certainly going to get a NTA, and possibly detained. I have a possible solution for him: The cop really liked the client, and was a huge help in getting the charge amended. There was also not very much pot at the time of the arrest. If I can get a statement from the cop that would get this within the de minimis range, we might even be able to head this off at the CBP level. Even if that didn’t work, we would have that for his defense in the eventual Removal Proceedings.

My thought is to go with him out to Dulles in November. Because he already paid us to defend him in the criminal case, and because he is very likely going to have to pay us to represent him in Removal Proceedings, I was thinking XX for the CBP meeting only. (Removal Proceedings is a whole new ball of wax.) I can try to get some help from the cop to see if we can kill this and keep our guy in the country and out of Farmville.

This is a great case to discuss the difference between INA 237 (deporability when in the US) and INA 212 (inadmissibility) concerning the petty exception.

Because the client is a returning alien, his entrance into the United States is controlled by INA 212 (restrictions on admissibility) as opposed to INA 237 (deportability once in the US). The petty exception is quite different. In 237, the exception covers marijuana at 30 grams or less. In 212, no drugs are permitted – the petty exception covers only CIMT’s whose max sentence is 1 year or less, and whose actual sentence (served or given) is 6 months or less. Because possession is not a CIMT, the petty exception under INA 212(a)(2)(A) won’t work. Because our fella is an LPR, there is a different type of waiver available for drug convictions. It actually applies to any drug conviction, not just 30 grams or less of marijuana.

The exception is found under INA 212(h). There are requirements for this, though, and I’m not sure he’ll meet them. In this case, he would have to have been an LPR for at least 15 years, or he would need to have an immediate family member who would suffer an extreme hardship. For petty drug offenses, these waivers are granted fairly routinely. However, he will have to sit in immigration court, and he will have to go to a trial. Extreme hardship will require the case to be prepared and litigated, and as you know, DHS will argue against it as a matter of course.

A frank discussion with the client will explain all this to him, and prepare him for the process. You won’t be able to head this off at the CBP level. They lack the statutory authority to approve (well, that’s technically not correct – acting on behalf of the Attorney General, a CBP officer could waive him in. Not likely, though). He need us to spearhead a 212(h) on his behalf.

Do you have a question about admissibility or CBP? We can help! Contact 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

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