Total Pageviews

Saturday, January 14, 2017

When is a signature on a contract non-binding?

It is not often we get to deal with antiquity in law -- so this was a great question recently posted on a legal bulletin board.

I signed up for a loyalty program. I then switched to another product not in the program. The loyalty company sent a letter and bill for 30,000 to "complete my commitment with them" Under the line I signed it say "this is a non-binding signature". Do I have to pay them?


This is an interesting case. Without reading the contract, it is hard to say what the terms and conditions of the loyalty program are (were?). You need to call us to discuss the contract -- and then I can provide a legal answer as to the level of liability/exposure you face. That aside, the case is interesting for its historical context. You wrote "non-binding signature" (or was that pre-printed?). In days of yore, a seal indicated that the signature had been verified. This was especially important in the age of wax stamps and individuals who could not read or write. A "sealed" document had its statute of limitations increased from the typical three years to five or even twenty years, and prevented the "sealed" signature from being contested as false or forged. In Virginia, the code for this is 8.01-246, and a "seal" is not required, and the period to bring an action in a contract case is consistent whether there is a seal or not.

In modern contract law, wording such as "non-binding" (or "(seal)") really only opens you up for protracted litigation. Under commercial contract regulations, any intent to enter into a contract can be used to indicate acceptance of terms and conditions in return for some kind of benefit. Signatures may not be required, if consent can be presumed from your acceptance of some benefit (for example, placing an order on the phone, and receiving the goods would obligate you to pay for the items ordered, even if you didn't sign anything). Conversely, indicating you refused to be bound by terms would arguably act as a rejection to the terms of the agreement. So, it's murky.

Do you have a question about contract law? Call us! We handle trials and contract negotiations in DC, VA, and MD.
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.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Matter of Avetisyan and Immigration Court Case Control

A seasoned immigration attorney, Ms. Alison Yew, started a discussion regarding tactics in immigration court. I responded to her question, and thought the answer could be useful to other practitioners and individuals working on immigration cases.

Matter of Avetisyan is a case relating to the judge's discretion to admin close a matter over DHS's objections. The case states that "neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party’s opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action."

I've requested DHS's stipulation to _TERMINATE_ (as opposed to admin closure) on the grounds the respondent (my client) has basis to adjust status (married to US citizen, whose I-130 petition has been approved, and client entered the US on a visa which he has now overstayed). In my motion to terminate I want to use the Matter of Avetisyan, but this is an admin close case. Has any one successfully argued that Avetisyan applies to termination?

Great question, and sure, we've used this before. That case actually stands for the fact that an IJ can't relinquish his/her duty to decide a motion (or case!) to the DHS attorney. Although this was couched in the argument of admin closure, it is not strictly tied to that. The judge must weigh the merits his/herself. As such, it applies to any application or motion where you would like the judge to rule on an action over the objection of DHS. The exception, of course, is when a statute or CFR requires DHS concurrence in order to move forward.

"In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and regulations that is appropriate and necessary for the disposition of such cases. 8 C.F.R. §1003.10(b)." - Matter of Avetisyan

If you have a question regarding immigration court, or tactics for handling (or closing!) your case, give us a ring! We'd be glad to help.

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, January 4, 2017

How to file a 212H waiver in immigration court

Alright, this is a short and dirty posting today. I was doing research online, and noticed that there is a dearth of "how to" guides on 212(h) waivers. The 212(h) waiver is valid for LPR's who originally adjusted their status while in the US. Although 212(h) was designed for first time applicants, it is most often used (in the immigration court context) by LPR's who are returning from overseas, are stopped at the border by CBP (Custom and Border Protection).

Section 212(h) of the Immigration and Nationality Act provides that the Attorney General may, in his/her discretion, waive the application of subparagraph 212(a)(2)(A)(I) (crimes involving moral turpitude), 212(a)(2)(B) (multiple criminal convictions), 212(a)(2)(D) (prostitution and commercial vice), 212(a)(2)(E) (certain aliens who have asserted immunity from prosecution), and 212(a)(2)(A)(i)(II) (an offense of simple possession of 30 grams or less of marijuana). See, EOIR Judge's Benchbook regarding 212(h) relief. Additionally, In Matter of J-H-J-, 26 I.&N. Dec. 563 (BIA 2015), the waiver was extended to individuals who are convicted of aggravated felonies.

There are two types of 212(h) defenses:

1. If your client has been in the US for 15 years or more, BEFORE the filing of the 212(h). Note, this is NOT before the commission of the crime (or conviction thereof), rather before the 212(h) is filed.

2. If your client has NOT been in the US for 15 years, then he/she can file for a 212(h) on a showing of extreme hardship to a US Citizen of LPR family member. This is the same standard as the I-601.

To request type (2) relief above in immigration court, the attorney must file an I-601 with USCIS including paying the appropriate filing fees. Proof of payment of the fees, along with proof of mailing, is sufficient to initiate a 212(h) defense in the Court. You need to submit the filed I-601 and proof of payment (copy of the check and proof of mailing is usually sufficient), to request this relief.

No filing with USCIS is required when requesting 212(h) relief of type (1) above, as no hardship must be shown. This is merely an alternative to LPR cancellation.

Given that the LPR is likely detained (arriving aliens cannot get bond), make sure you have a 212(h)/601 application ready at the first hearing. This will allow you to request the earliest possible trial (merit's hearing) date.



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, December 21, 2016

How to resolve an outstanding arrest warrant

Today's post is rather short. A question that we often run into in criminal law deals with warrants. This recent question on a law bulletin board we participate on is typical:
I have a parole violation warrant an would like to know how I should turn myself in. How do I do this?

Great question! There are generally three methods for resolving an outstanding warrant.
  • (1) you are picked up by the police
  • (2) you turn yourself in to the local police stations
  • (3) you hire an attorney to make a motion on the docket of the local court, and ask that the arrest warrant be withdrawn (recalled, vacated, or dismissed) and a return date be given.


As you might imagine, option 1 is not desirable, as that almost always results in jail. In DC, I would always get an attorney to file on the docket (option 3). You don't want to sit in jail awaiting a hearing date on your parole violation. This is especially true if you believe they may revoke parole. In that case, you'll sit in jail until the actual parole violation hearing, likely you will not get another bond pending the trial on your parole violation (although, you can).

The term "return date" is legal jargon. It means a new date when you appear in Court for the judge to rule on the arrest warrant, and then to set the appropriate term of your continuing parole and/or violation hearing. Be cautious of the Bail Reform Act that can cause serious problems if you violate a return to court order. If you think that may have happened, you need to contact counsel immediately, as such a violation could result in up to 5 years in jail.

If you need help with getting your parole violation and arrest warrant resolved, give us a call! 703-402-2723.



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, December 3, 2016

What the HECK!? A story of co-worker harassment gone wild

Sometimes, conflicts spin out of control, and can get disruptive and even dangerous. Image from http://quotesgram.com/img/avoid-conflict-quotes-funny/3303875/


What happens when you work with a person that goes off the rails? Do you have to put up with it? Listen to this recent story posted on a law bulletin board we monitor:
I have learned that several people in my office are extremely concerned about the erratic behavior of a colleague and no one is sure how to handle the situation. This colleague has a unique personality and in the 2-3 years he has been employed everyone has been sensitive to this and generally people do not discuss it; however, on a few occasions we have speculated that he may be on the autism spectrum. This seems important now because we are not sure whether his escalating behavior is benign or if it may be extreme even for him. A couple of months ago, a new person who has a supervisory role over him was hired, and they immediately had poor chemistry. She claims only to interact with him on a business level, disregarding his behavior, and he plainly is disrespectful to her and speaks to her in a condescending tone. On one occasion approximately six weeks ago, she told him he needs to behave in a professional manner and that she wouldn't allow him to speak disrespectfully any longer. He went to his desk and sent her an email telling her to be more professional and respectful and then told a colleague to handle a meeting he was supposed to staff because he was enraged and had to go home. Shortly thereafter he did not go to an annual out of town meeting that all staff are required to attend; the reasons behind this were handled confidentially and staff only have vague rumors as an explanation. Since returning there has been no discussion of it. Upon returning, the supervisor discussed above and another colleague received emailed "reprimands" from this man that told both to behave more professionally and respectfully. The other colleague had not been involved in the personal dispute prior and she has kept her distance from this man since she received the reprimand. (Both women are organizationally senior to the young man who "reprimanded" them.) Prior to the 2016 presidential election, the young man taped photos of one of the presidential candidates and Adolf Hitler to his office window facing out toward employees, which disturbed several people who previously had chosen to ignore his disruptive behavior. Following the election, he replaced the photos with five posters that illustrate the four horsemen of the apocalypse and satan in the center. He has reduced his socialization with staff overall but has escalated his aggression toward the two women discussed above during this period. The vice president in charge of his department evidently did ask him to take down the apocalyptic images after two weeks. She has privately disclosed to the CEO that she feels this employee could be a potential threat to her safety and to others', but she said she is concerned about retribution if she disciplines him because she is worried his mental health and his sexuality may be used as the basis for a discrimination claim should she dismiss him. I am seeking professional advice about the appropriate measures. Despite the bad blood between the two individuals involved, everyone's concern is this young man's erratic behavior, which feels vaguely threatening and which has at least four women feeling fearful and "walking on eggshells" to avoid triggering potential violence.

This is more a narrative than an actual question. You need to tell your employer to contact an employment attorney immediately. Hanover Law both defends and prosecutes civil cases related to EEO and reasonable accommodation issues. Have your manager contact us now. I should note that the person who is acting erratically can sue both the employer and the manager herself. Delicate situations like this require ironclad processes and response. The law does NOT require that you tolerate abusive or disruptive behavior. However, it DOES require that you ensure all procedural safeguards have been met before taking action. The EEO defines harassment as follows:
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:
  • The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim.

See: EEO Harassment Guidelines


I would also refrain from any public comment of your employment issue (such as the outline you provided). If anything, that could be found later and used against you (to show your "true" feelings about the person). The important step here is to get counsel and discuss this privately. Your employer and the manager (supervisor) in question should do this without delay.

I should also note that by NOT taking action, the employer may be creating a hostile working environment for the remaining employees -- especially the other employees that he is accusing of being rude, and otherwise making them feel very uncomfortable. You cannot ignore this type of conduct.

Give us a ring at 703-402-2723 or 1-800-579-9864. You can also email us at admin@hanoverlawpc.com.

BDSM and public lewdness in front of children. WHAT!?

Every once in awhile, we get a wing-dinger of a question. This rates right of up there! However, it does bring into question what constitutes free speech, and what constitutes lewd conduct. The question:
Let's say that you are into the BDSM scene. This fetish involves you engaging in spit play, where as a submissive you hold you head back, open your mouth and let your dominant spit a liberal amount of saliva down your throat as part of a spit fetish, and you do it outdoors in full view of women and children who don't want to see it are you guilty of indecent exposure. Or how about you perform such an act at a party at your house with women and children present are you guilty of indecent exposure?


Of course, spitting in someone's mouth may not be your cup of tea, but is it illegal? Two considerations here -- (1) what conduct falls afoul of public displays of sexuality, and (2) does doing this in front of children cause a problem?

As to the first point, probably not. While sexuality in public constitutes indecent exposure and probably disorderly conduct, spitting, while fully clothed, into another person's mouth is probably not going to cause a problem (assuming assent, of course). In DC, the code section for this is DC Code 22-1312 entitled "Lewd, Indecent, and Obscene Acts". It reads:
It is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act as defined in § 22-3001(8). It is unlawful for a person to make an obscene or indecent sexual proposal to a minor. A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, imprisoned for not more than 90 days, or both.


So what is a sexual act? Good question! The code section is clear on this, too. A sexual act must involve the touching or stimulation, even through clothing, of the sexual organs. Specifically:

DC Code 22-3001
(8) “Sexual act” means:
(A) The penetration, however slight, of the anus or vulva of another by a penis;
(B) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or
(C) The penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
(D) The emission of semen is not required for the purposes of subparagraphs (A)-(C) of this paragraph.

(9) “Sexual contact” means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

Although disorderly conduct laws (DC Code 22-1321) could be cited to show you were causing a disturbance in the public thoroughfare, it is doubtful this would actually be brought to trial. Likely, public spitting in each others mouths, no matter how distasteful to others this may be, will not be illegal.

However, we have a problem concerning the children. Here, the code is a little different. Any act designed to arouse a sexual gratification in a child is prohibited. Notice the subtle shift in emphasis. This is to prevent children from being exposed to pornographic videos, or being made to watch sexual acts -- even if that are not touched. The code for this can be found at DC Code 22-3010. In part, the code reads:

(a) Whoever, being at least 4 years older than a child or being in a significant relationship with a minor, (1) takes that child or minor to any place for the purpose of committing any offense set forth in §§ 22-3002 to 22-3006 and §§ 22-3008 to 22-3009.02, or (2) seduces, entices, allures, convinces, or persuades or attempts to seduce, entice, allure, convince, or persuade a child or minor to engage in a sexual act or contact shall be imprisoned for not more than 5 years or may be fined not more than the amount set forth in § 22-3571.01, or both.


Your actions of spitting into your partners mouth is arguably sexual in nature (you described it as part of your BDSM relationship). Doing so in public could well have the consequence (intended or otherwise) of causing sexual arousal or enticement to a minor who, like you, may find such domination and abject subjugation erotic. This is a problem under 22-3010.

Remove the child component, and probably the worse you could get is disorderly conduct, and even then, that would likely be dropped. Do it in front of children, and you could find yourself facing up to five years for attempt enticing a minor or child under 22-3010. Note that whether you perform in front of children in your house or in the middle of Independence Avenue, makes no difference. This crime is not location centric.

Do you have a question regarding criminal law? Give us a ring! First consult is free -- and as you can see, no topic is verboten! 703-402-2723 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, 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