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Thursday, April 28, 2016

ETHICS: When you need to let a client go...

A great question was asked about requirements of an attorney to maintain a client who was misbehaving. I responded as follows:

I have a current client who submitted an EAD application, against my explicit advice, through the help of his sponsor. Client was released on bond and is relying on the sponsor who is a well known individual in the community but who is not an attorney. I told the client that I would like to review any submission to USCIS before it is sent. I knew he was not eligible for employment authorization because he was not paroled and his asylum application has only been pending for 30 days, and I explained that to him until I was blue in the face! Client kept insisting that the sponsor knew what he was doing because he has “been doing this for 20 years.”

So, client went ahead and sent it anyway, then brought the documents to me afterwards. The information on the EAD application was not correct, including his current address and his basis for qualification. The sponsor also filled out the G-28 even though he is not an attorney or an accredited representative (I looked it up to make sure).

Client is in removal proceedings and I’m afraid that this type of application may result in a discretionary denial of his asylum application

I had a similar situation in a family law case in VA. Client decided to file a protective order against her spouse, didn’t tell us, and then refused to explain what the protective order was for – only that she was “told” to file it by a “good friend” who was a clerk at the Court. Completely wrecked our representation in Court and our attempt to work out a solution with the other side. Moral of the store – we fired her.

I teach new attorneys at my firm that (a) the client tells us what they want – what the end objectives are, and (b) we tell them what law and tactics we will use. If they don’t like the law/tactics, then they can go somewhere else. But the client cannot tell us what law/tactics to use, or try to strong arm the legal process themselves. Ever.

Your client is not cooperating with you, prejudicing his case, and potentially opening you up to false representation to the Court. Further, they are mocking your ability to strategize and actually move the case along in a proper manner. That would (and has in the past) infuriate me.

I would explain to him that he is paying good money to have you lead him through the immigration jungle. If he does not intend to follow your advice, you will refund any remaining monies in IOLTA (or operations) that have not been used and allow him to continue on his own.

Do you have questions about ethics or client management? Contact us! We're glad to chat. 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

Sunday, March 27, 2016

Garnishment: Federal Pay and Child Support (or garnishment issues)

Stop garnishments on federal income
This may be helpful for individuals working on child support cases, or answering/challenging a demand for payment or garnishment pursuant to a valid judgment. In both situations, when considering Federal income such as SSI, military pay, retirement, federal pensions, contract payments or other income with its ultimate genesis in the Federal Government, the following chart will be helpful: Federal Garnishment Grid. This originates from the Commissioner at Commissioner's discussion of permissible garnishment actions against Federal income. Ultimately, the most common code section dealing with Federal income and all forms of garnishment is 5 CFR §581.104.

An area of often overlooked income "jamming" is contract income for government work. Unless the individual is paid directly for the work services provided, contract payment to a business or other entity is not subject to garnishment. This is a powerful tool for small businesses working with the government. If you own such a business, be sure to speak with an attorney to verify your company is properly setup and wholly independent of you as an individual. See 5 CFR §581.104(g) -- personal services are NOT exempt, but general contract payments are.

Also, note that while some forms of disability payments are attachable, generally, income that is not derived from work or prior work for the government, is not attachable. Therefore SSI income, or disability income not related to service related action is not attachable. See 5 CFR §581.104(b) and 5 CFR §581.104(j).

INCOME

Remember, that even where income is concerned, garnishments cannot exceed:
  • 25% of disposable weekly income, or
  • the amount the debtor's disposable income exceeds 30 times Federal Minimum Wage, whichever is less
(see 15 USC §1673(a))
NOTE: This does not apply to child support or alimony, where withholding can be any amount ordered by a Court, but generally not exceed 50% for individuals with other obligations, or up to 65% for single, non-obliged child support/alimony payors. This is all explained at 15 USC §1673(b). This can get right complex, so be sure to contact us if there is a question of multiple deductions, obligations, and other considerations. We have considerable experience in handling complicated support issues. Thee exemptions discussed in this article also apply to child support and alimony.

When jamming collections, it is important to (a) delay the action as long as possible (except in support or alimony issues), and (b) seek to categorize the income under a permissible exemption. This takes specialized skill, and frankly, it is not always possible. Careful planning is required to ensure the maximum number of exemptions are considered. Do you have a question about income exemption and garnishments?

Do you have questions about income garnishment avoidance, jamming, or alimony/child support issues? Contact us immediately! Time is of the essence. 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

Can you renounce foreign citizenship to avoid deportation?

No. Although, it would be interesting to see if you renounced your citizenship at your home embassy and then were placed in removal proceedings, what effect that would have. Most likely, the government would determine your renunciation was not effective and send you home. It would be an interesting case.

Renunciation of citizenship must be done prior to an immigration event, for renunciation to have any effect. For example, you must renounce your native citizenship prior to illegally entering the US. Otherwise, even if you later renounce your foreign citizenship, the illegal immigration event (entry without inspection, for example), occurred when you were a foreign citizen, so you will be deemed a citizen of the country from where you came. Designation of a country of deportation is regulated under 18 USC §1231(b). (b)(1) controls arriving aliens; (b)(2) controls all other aliens. Specifically, the order of priority for deportation is as follows (18 USC §1231(b)(1)(C) and 18 USC §1231(b)(2)(E) -- (E) is used here, as it encompasses all conceivable legal scenarios):
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States. (iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien’s birthplace when the alien was born.
(vi) The country in which the alien’s birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.


There are certain countries were deportation is not practical or possible. For example, Sudan, individuals who arrived from Vietnam before 1995, etc. In those specialized cases, you need to contact us immediately, as certain procedures must be followed to ensure you are not sent home regardless of treaty regulations.

Generally, as a matter of best practice, you do not want to designate a removal country in Immigration Court, as it may limit options under (b)(1)(C) and/or (b)(2)(E) above.

Do you have an immigration question? Contact us! Your first consultation is free, and we're glad to help! 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

Tuesday, March 22, 2016

Lessons from the Criminal Bar -- making up a sentence and crafting probation

A couple of hard learned lessons from criminal court in DC.
  • Certain criminal activity doesn't have a sentence associated with it. When that happens, go for misdemeanor 180/$1000. This is especially true for inchoate crimes (attempt, conspiracy, etc.).
  • Crimes that stem from the same event should always be argued as concurrent sentences. Remember the rule - if it stems from the same event or facts, treat it as one clump. See? That rhymes.
  • Always prep your client with the plea proffer before the prosecutor reads it to the judge. If you don't do that, expect all hell to break lose. It's also malpractice. The proffer is a key area to negotiate, as the facts often lead up to the degree or severity of the sentence. An example will help with this:
    BAD PROFFER:
    The man went to the house and stabbed his wife in front of his child.

    GOOD PROFFER:
    The man received a text from his ex-wife to come to the house and watch their children. When he arrived, an altercation ensued when the ex-wife saw sexually explicit email and pictures on his phone. During the course of the altercation, the man stabbed his wife. He was unaware that his son was observing the event.

    Which of the two above would be easier to argue at sentencing? Review and negotiate all proffers of substance.
  • When discussing probation, always be specific as to the level of probation required. Does the Court permit phone contact or no supervision? If so, make sure that is written in the agreement.
  • Always make sure your client has a home address before probation get's a-hold of her.


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

Monday, March 14, 2016

Rule 68 and how to stop petty copyright cases

I belong to the Electronic Frontier Foundation (EFF). This great organization focuses on helping "little people" who find themselves at the butt end of a nasty lawsuit due to first amendment or copyright problems. You can find them at www.eff.org. Now, I should note that not every "little guy" is innocent, and sometimes, a copyright violation is just that -- oops, I stepped in it! But that doesn't mean that a mistake has to cost you your entire business. In this blog, I wanted to share one way of jamming internet "copyright enforcement" lawyers. It won't stop you owing something for your copyright violation, but a trivial payment is significantly different than $5000 or $10000 which is often the demand amounts from these trolls.

Welcome, my "homies", to the dreaded Federal Rule 68. Most states have an analogous rule, although almost all copyright violations are brought as federal action to make them seem scary. Which, I might add, is often successful, and is a rather good tactic. But I digress!

Let me give you the example of the McCleary's. Obviously, I have changed the name - but the fact pattern is the same. Mr. and Ms. McCleary own a small internet music review and production company. They play at various cover concerts, and maybe earn $20 to $25K per year from their newsletter, productions and sales, and cover engagements. Recently, they were contacted by Evil Empire Lawyers who stated that one of the pictures in their blog from seven years ago was actually a copyrighted picture of an artist, and it was used without permission. It was seen a whopping 177 in the last 7 years. Violation of copyright image laws (the image is legal (i.e. not a violation of the first amendment or invasion of privacy), but its use is restricted by rights) has fines up to $30,000 (if willful, up to $150,000) plus the cost of attorney fees. See 17 USC 504(c) which reads in part:

(c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.


Now, as you might be saying -- if the Court believes the violation was not willful, and finds that the act was trivial in nature, what's the fuss? A fine of $1000 or so is not likely to cause complete ruin. The problem, folks -- is attorney fees. The judgment may be for $750, but the attorney fees could be considerably more. The filing of a complaint in federal court can cost upward of $5000 between costs and attorney fees. Image if this continues for a year of litigation? A trial? You get the idea.

Here is where Rule 68 comes in. Because the internet law firms enforcing the copyright only get paid if the court awards them money (at a trial) or 33% of a settlement, they will always threaten a trial to scare you, and hope you fight. If you threaten them with a Rule 68 motion, you will cripple their will to fight. Here's why -- Rule 68 says that if you make an offer, and the final judgement is LESS than the offer you made, the internet law firm cannot collect attorney fees from the date of the offer. ALWAYS MAKE A RULE 68 OFFER (if you violated) when filing your initial answer to any complaint.

RULE 68:

(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.

(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability is Determined. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time—but at least 14 days—before the date set for a hearing to determine the extent of liability.

(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

Always consult with a competent attorney to determine what the amount to offer should be. A review of copyright rules and liabilities is required as well.

Do you have a question about copyrights or federal court? Call us! The consultation is free - 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

Saturday, March 12, 2016

Immigration: Motion to Reopen and 42B

Shockingly, sometimes things go poorly for immigrants in court. I was recently given a fact pattern and asked what assistance could be done.
* PC was admitted on 6/22/05 under H-2A through 12/1/05; he never left
* In 2010, when PC was 25 years old, his USC father recognized paternity and legitimated him in PC's birth country of Brazil
* In 2015, PC was convicted of DUI (not clear if there were any aggravating factors). He was detained after violating his parole (drank the night before going to see his PO)
* NTA was issued on 12/15/15, charging him under 237(a)(1)(B) only
* On 2/24/16 he was ordered removed by Dempsey. It appears that he was represented and attorney advised him to take the removal order
* PC has a 5-year-old USC son

Based strictly on the facts you presented, it would appear he is eligible for 42B. He has the time in-country, and the USC child. The question is – why did he not plead this relief at his hearing? The part about dad sponsoring him seems like a bit of a red herring at the moment, as there does not seem to be a basis for auto citizenship here.

I would immediately file an appeal with BIA. When filing an appeal ALWAYS FILE FOR A STAY OF REMOVAL PENDING ADJUDICATION. If you don’t file this…bye-bye. The relevant code is 8 CFR 1003.2(c)(1) which reads in part:

“…nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Subject to the other requirements and restrictions of this section, and notwithstanding the provisions in § 1001.1(p) of this chapter, a motion to reopen proceedings for consideration or further consideration of an application for relief under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates that he or she was statutorily eligible for such relief prior to the entry of the administratively final order of deportation.”

Note that you will need to show that he was not presented with this relief. You need to support the HELL out of this relief. What is the hardship? Get it all together and get a-filin’. Normally, I would advocate filing with the court first, and THEN filing the appeal. However, I have never known the immigration court to stay a deportation – and I’ve never known the BIA NOT to stay a deportation order pending determination. So go with the BIA.

Do you have an immigration question or removal defense problem? Contact us -- consultation is free! 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

Tuesday, March 1, 2016

Criminal Consequence for Immigration -- a snapshot

I recently had a great discussion with a colleague of mine regarding criminal/immigration consequences. I thought I would post the distilled form of the discussion here. By the way, if you need a great immigration attorney in New Jersey, be sure to contact Ms. Yolanda Navarrete, Esq. at 973-984-0800.

The conversation began with a question about immigration consequence:

Hypothetical client is detained in county jail, due to DV charges. The girlfriend does not want to press charges, by the DA is moving forward. The state is offering harassment as a plea agreement. This person is desperate to get out of jail. There's an "immigration hold" (means that ICE has placed a detainer on him) so bail is not practical. Should I make him wait for trial, or will pleading to harassment make him (undocumented but has a USC baby) an enforcement priority?

I responded:
Harassment of a family member could potentially make you a domestic violence (DV) removal priority. Actually, though, I would strongly advocate for sitting on this hypothetical client's head and not letting him (or her!) plea to anything. It can be very hard, but no desire to get out can offset a dismissal.

Next question:

How about pleaing to criminal mischief (admitting to breaking a cell phone or other personal effect)?

Answer:
Probably a lot safer in regards to an object. The issue is to avoid any kind of domestic abuse issue, or provide evidence the DHS attorney could use to that effect.

Destruction of personal effects is childish, but does not amount (arguably) to domestic abuse. Harassment, however, is the traditional precursor to a protective order, which would be extremely bad. No to harassment, a qualified "okay" to destruction of property <$100 (I believe you call that criminal mischief). Better still if the plea colloquia just stated destruction of a cell phone, without reference to the other party -- but that could be asking too much.


Do you have an immigration question or removal defense problem? Contact us -- consultation is free! 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