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Sunday, December 16, 2012

IRS -- Stopping Collections and the awesome 433A (or 433F) form

Ho Ho Ho! It's getting right around the end of the year now, and that means the dreaded specter of taxes! Everyone is ready, right!? Well, perhaps. But if you are like many of our clients, you're more worried about the past than the future. Past IRS tax debt can be a monster. In this article, I'll discuss one tool in the arsenal of tax attorneys -- the 433! IRS form 433 is a collections information form, and completing it, along with substantiating documentation, is the first step to getting things "right" with the IRS. So..what exactly is this IRS 433 form? Glad you asked!

In the days of yore, the IRS was little interested in whether you had money or not. If you did not pay your taxes, the Service would just "swoop" in and take everything. Furniture, cats, small children -- all your money, bank accounts, etc. There was extremely little they would not touch, and absolutely no mercy. If you did not pay your taxes, you were considered a fraud, and very little effort was given to relieving any of that outstanding tax burden.

Then beginning in the 1980's, and through recent times, the IRS began taking a different tactic. The idea was that if the IRS helped the taxpayer meet his/her obligations the Service would (a) look a lot nicer, (b) get a lot more money, (c) encourage folks to tell the truth. From this nascent set of ideas, came the wonderful form 433.

IRS Form 433 (see http://www.irs.gov/pub/irs-pdf/f433a.pdf) gives the IRS all the information about your income and assets, as well as your debts and obligations. Finding directions for completing this form is almost impossible. In point of fact, there are several different versions of the 433 abounding. Two of the most common for individual taxpayers are:
1. 433A -- the full enchilada. This unabridged document contains every conceivable income/asset/debt/obligation category the IRS can imagine. It is detailed, cumbersome, and rather depressing.

2. 433F -- this is the summary form of the 433A. Much easier to complete -- only two pages. Completing the 433F first makes completing the 433A much easier. In our firm, we have clients complete the summary form and then we complete the 433A, asking additional clarifying questions as needed.


The 433B is for businesses and is rarely used.

Once completed, the 433 is submitted to the auditor handling the case. If there is no auditor assigned, the attorney on the case contacts the local field office and arranges for an appointment. The taxpayer does NOT need to be there for this meeting.

It is critically important that you provide all substantiating documentation for income and expenses.

Typically, substantiating documentation includes copies of W-2 forms, pay stubs, bank records, lease agreements, titles to vehicles and property, copies of loans and investments paperwork, and any other entry on the 433 income/expense summary page.

THERE IS NO EXCEPTION TO THIS. IF YOU DO NOT HAVE THE DOCUMENTATION -- EITHER GET IT, OR YOU WILL NOT BE PERMITTED TO CLAIM THE EXPENSE, ETC.

At the meeting with the auditor, your attorney will review all the numbers and provide all supporting documentation. The idea is to figure out how much you will be able to afford to pay -- negotiate on monthly payment amounts. Note -- the withholding amount you claim on your paycheck is important here. The IRS WILL review this number when working with you at this auditor meeting. If the number is whacky wrong (i.e. you are withholding 10 and you are actually single without any reason to have anything more than 1), it will hurt you badly. Do NOT go to this meeting with a bogus withholding number.

If your income does not support paying any past taxes, you will be entitled to be placed in "uncollectable" status. This means that while liens may be placed against your property, the IRS will not garnish your wages or take anything from you. Note -- this is a two edged sword. It does not relieve you of tax liability. It does not remove your previous tax debt. It merely means the IRS will not seek to collect from you. Interest will continue to accrue. For some folks, however, the 433 and the audit represent the best method for not losing over 60% of their income to tax garnishments

Two points to remember here: 1. This is complicated form that has to be completed properly -- an attorney is best for this, and 2. The taxpayer meeting with the IRS is never a good thing (handling the audit him/herself) -- the IRS auditor cannot make the same negotiated deals he/she could with your attorney. You need a representative for this purpose.

If you have questions or need help addressing a tax law question, please do not hesitate to contact us! We are experienced immigration, tax, and bankruptcy attorneys who can help with questions from any state in the US. S

Sean R. Hanover, Esq
HanoverLawPC.com
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Wednesday, December 12, 2012

A Primer on Divorce -- the three key areas and samples

Folks -- we get a lot of phone calls on divorce. Most people come very angry and often confused as to what steps are required to get a divorce. That is not altogether a bad thing -- divorce should only be undertaken if there is no chance of reconciliation or there is danger to one or both parties. That having been said, I wanted to provide a brief overview on divorce, what you can expect to discuss with your attorney, and provide a sample separation agreement (this is from VA, but it is very similar for DC and MD, too).

There are three areas to divorce, and one special cavaet. The three areas are:
1. Separation Agreement: Covers property and marital assets obtained during the course of the marriage. This includes things purchased separately, but during the marriage (i.e. the car is only in husband's name, but it was purchased during the marriage -- it is still joint property in a joint property state (MD, VA, DC). Ditto on the house only in the wife's name...still joint). Things to remember here are retirement plans, stocks, and insurance plans. Be careful here...you only get one bite at the apple to get it right! Once entered, this cannot be easily changed. The separation agreement also covers spousal support. Spousal support is not automatic and is controlled by two factors: the length of the marriage, and the income of the respective spouses.

2. Custody: When there are children involved, an arrangement for where the child(-ren) will reside must be made. This includes primary custody, and physical custody. "Primary Custody" is called different things in different jurisdictions, but mainly applies to who is repsonsible for the child on an ongoing basis. Where does the child live for purposes of school determination, state care etc. Physical custody deals with the actual division of the which days are spent with which parent. The courts in all three VA, MD, DC jurisdictions seek a 50/50 split by default. The burden of modifying that custody arrangement rests with the party seeking the change, and is often the number one cause of litigation. Custody issues also determine payment of child support. Determination of child support is a matter of state posted payment schedules, and is based on (a) amount of custody each parent has, (b) the income of each parent, and (c) the best interest of the child.

3. Divorce Decree: The decree is actually the end of a multi-step process that begins with a motion for...you got it! Divorce. It is called a motion for divorce "mensa et thoro" -- this is the type of divorce that is predicated on a separation starting once the court filing is made. This divorce pleading prevents the spouse who is "leaving" the marital home from being blamed for abandonment. It also starts the "clock" on the divorce proceeding. If the "time apart" requirement is complete before this filing (i.e. filing after the separation period), or after the separation the filing is amended to a complaint for divorce "vinculo matrimonii" - or the final divorce. You can only file for this once the separation period is complete. Without children, the separation period is typically six months. With children, the separation period is one year.



I mentioned a cavaet -- where there is danger to one spouse or to children, the threatened spouse may file for a "protective order" -- this is often a hotly constested area of divorce litgation, as a protective order gives rise to a claim of bad acting on the part of one spouse, which in turn causes significant problems in the determination of separation, spousal support, custody and child support.

Most divorces these days are due to irreconcilable differences. When this form of divorce is pursued, both spouses are considered neutral, and neither is given any particular preference in the handling of property, support, etc. Each is equal. However, if one spouse is a bad actor -- for example, committed adultery, or stole money, had a gambling problem, was a habitual drunkard, etc. -- then the court will skew the property, support, and custody issues more in favor of the innocent spouse. This is another area of hotly contested divorce litigation (see last paragraph).

As you consider divorce and the steps involved, give consideration to the sample below. The sample is a separation agreement. There are plenty of self-help clinics and forms. But remember...one mistake here can really screw up your future for a very long time. The cost of an attorney at the early stages can save you untold thousands in years to come.

----------------------

SEPARATION AGREEMENT SAMPLE


Before continuing with this document, please read and acknowledge the following: _____/_____ (initial) This is an important legal document. By signing below, you agree that you have thoroughly and carefully reviewed the contents of this Agreement. Each party expressly acknowledges that he/she has had the opportunity to consult with consul of his/her choice. _____/_____(initial) Each party has three days from the time the document is signed to withdraw consent to this Agreement without penalty. If so withdrawn, the Separation Agreement becomes void and negotiations between the parties will begin anew.

This AGREEMENT is made between XXXXX and XXXXX, Husband and Wife, to determine all property rights, including property and debt distribution, between them.

The parties to this Agreement represent the following:

1. They were married on XXXX in Fairfax, Virginia.
2. Irreconcilable differences have arisen between the parties and they are now living separate and apart.
3. There are no minor children of the marriage, either by birth or adoption, and the Wife is not pregnant.

4. The parties intend this agreement to be a full and complete settlement of their rights, one to another, as to the duty of support to one another now or in the future, any rights of inheritance from one another, and any rights to any interest in or to any property of the other, whether acquired before, during, or after marriage, or other rights or benefits that may arise from the marital relationship.

The parties therefore agree as follows:

ARTICLE ONE
Separation

Each party shall hereafter live separate and apart from the other, and neither shall annoy, molest, interfere with or harass the other in any way or manner, either directly or indirectly.

ARTICLE TWO
Spousal Support

/_____(initial) Neither party shall pay to the other any amount, either in installments or in a lump-sum, for spousal support. This provision may not be modified.

ARTICLE THREE
Division of Property and Debts

  A. Real Estate
The parties own one rental property located at XXXXX , Herndon, VA 20170. The property was purchased during the course of the marriage. The deed and the mortgage are in the name of the Wife. Husband renounces any and all claims, for himself, his heirs, his estate, and his agents, now and forever, on said property. He relinquishes any rights or entitlements to said property now and forever, agreeing to sole and complete possession by the wife of the same. This includes but is not limited to any right to ownership, lease, rents, or any form of utilization, control or direction. Husband shall not be entitled to any payments from said properties, nor any debts accrued thereon, either in the past, the present, or the future. Wife agrees to assume any and all outstanding liabilities and indemnify Husband from any future costs associated with the property.

B. Household Goods, Furnishings and Personal Property
Each party shall keep any households goods, furnishings, and personal property now in that party's possession, free of any claim of the other.
C. Motor Vehicles
Each party shall retain title to and possession of all motor vehicles, boats, campers and other titled or registered conveyances, now titled or registered in that party's name. The party retaining the vehicle shall be solely responsible for any debt on or expenses regarding that vehicle and indemnify and hold harmless the other party from any and all liability associated with the motor craft.
D. Bank Accounts and Employee Benefits
Each party shall retain any bank or investment accounts in that party's name as well as any employee benefits, including pension, retirement, stock ownership, 401(k) or other employer plans, free and clear of any claim of the other. There are no joint accounts to be closed and/or divided.
E. Life Insurance Policies
Each party shall retain any life insurance policies owned by that party, and the parties give up any interest in being named beneficiaries of the other policies.
F. Debts
Each party shall pay those debts in the parties name, and neither party shall incur any debts in the name of or on the credit of the other party. There are no joint debts.

ARTICLE 4
Court Costs

The Court costs will be paid by Husband. Any legal fees will be paid by the party incurring the fees without recourse to the other spouse.

ARTICLE 5
Complete Settlement<

______/______ (initial) This agreement is a full and complete settlement of all spousal rights and property claims, inheritance, descent and distribution, allowance for support and maintenance, exemption from administration, all rights as surviving spouse, heir, legatee, and next-of-kin in the estate of the other, and all rights to administer estate of the other, and in all property rights that each now has, or may acquire in the future, except as specifically agreed to in this Separation Agreement. This Agreement shall be binding on other parties heirs, administrators, executors, and assigns.

ARTICLE 6
Incorporation Into Decree

It is agreed and understood that this agreement shall not constitute consent by either party to a divorce or dissolution of marriage; however, in this event that either party files for divorce action or dissolution proceeding is begun, the parties agree that this entire Agreement shall be disclosed and presented to the Court in that proceeding or in any such proceeding now pending, with the request that it shall be determined to be fair, just, and proper, and that this Agreement and all its terms and provisions be adopted by that Court, and made part of the order of that Court in its final decree of divorce or dissolution.

ARTICLE 7
Implementation of Agreement

Except as otherwise provided in this Agreement, each party shall upon the signing of this Agreement, deliver to the other party, or permit the other party to take possession of, all items of property to which each is entitled. Within 14 days after the filing of the decree of divorce or dissolution that incorporates this Agreement, whether modified or amended, each party shall execute or sign and shall deliver any and all deeds, titles, certificates, or other documents necessary to carry out execution of this Agreement. Auditor, county record, clerk of courts, and any other public/private officials are hereby authorized and directed to accept this Agreement, or a properly certified copy of it, in lieu of the document regularly required for such conveyance or transfer.

  ARTICLE 8
Full Knowledge and Disclosure

____/____ (initials) Each party acknowledges that he/she has read all the terms and conditions of this Agreement and understands all the terms.
Each party further represents that he/she has made a full and honest disclosure of all assets and liabilities, earnings and beliefs, so that the other party could take such representations into account while negotiating this Agreement. Each party further represents that he/she is satisfied with the disclosure made by the other party.

ARTICLE 9
Modification of Agreement

This Agreement may only be modified in writing. Any modifications must be signed by both parties. No waiver or breach of any one term shall be considered a waiver of any other duty or right under this Agreement, including and subsequent breach or default of a similar nature.

ARTICLE 10
Integration

This document is fully integrated and supersedes any other Agreement on the same topic. Further, there are no other considerations or modifications of this Agreement outside the bounds of this document; the Separation Agreement is fully integrated.

  IN WITNESS WHEREOF, the parties have signed this Agreement before the witnesses and on the date set forth below:

Signed in the presence of:

Signature of witness to Husband Signature of Husband

Signature of witness to Husband Printed Name of Husband

Date Signed

Signature of witness to Wife Signature of Wife

Signature of witness to Wife Printed Name of Wife

Date Signed

------------------- Divorce is a very serious matter. You need an experienced litigation firm to ensure your rights are protected. We always try to work witht he other side -- however, if a vigorous engagement is required, Hanover Law is up to the task. CALL US before you agree to anything.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief

I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth.

After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012.

I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprised would be an understatement! She scurried off upstairs, as DHS did not know what was going on with the client and ICE had put nothing into the file. Nice.

When the judge came in, I explained the situation to him. He then took the motion packet and a stack of law books and reviewed it all in his office.

The tactic I decided on was not presentation on the record, per se – rather a soft demonstration prior to commencing operations. Gave everyone time to review and help come up with a solution. Very collaborative. I got one hell of a payback for that at the beginning of the trial, but at least at this point, my “sandbagging” the court and DHS was received with only a modest amount of grumbling. I will tell you, though, that I came prepared. The motion was properly formatted, and even hole-punched at the top! (I forget that all the time on emergency motions). I digress.

The awesome aspect of this was the ability to discuss with the judge and DHS counsel the prison conditions and rape (including medical problems, and document theft/protection money payments being required from my client) prior to any hearing on my CAT claim.

The judge proceeded with the trial, but it was obvious that he wanted to find some relief for my client just to get the guy out of prison (he had been detained by ICE for 10 months).

DHS had it’s own unexpected whammy. After the trial started, we immediately went into a M-A-M hearing – which I was entirely unprepared for. I was not even clear if I should be arguing my client was competent to stand trial (he had a couple of “not-guilty” findings due to insanity defense) or if I should try to ditch the case on grounds he could never comprehend the criminal nature of his conduct. That was a tad awkward. As a foot note – for those of you who have not done M-A-M hearings, these are generally fairly straight forward question/answer sessions based on medical reports and other corroborating evidence that speaks to your clients mental capacity. As a rule of thumb, a client represented by an attorney, and who can answer questions about the nature of the NTA, allegations, and why he/she is present at the trial, will be found competent to move forward. If the client is not found competent, the court has leave to suspend the hearing until competency can be established, appoint a guardian, or even remove the case and terminate proceedings. In the instant case, it was strange because I did not know how to argue it – especially given the prison rape, the psych background, and the need to get my client out ASAP. I hate not being prepared. For those who take the class on 18 Dec – you will have that hammered into you quite well.

Regardless, the judge found the client competent to stand trial and we had very interesting trial for many hours on homosexuals and transgenders in Venezuela.

It was a great hearing – but the take away is the tactic for handling prison situations prior to an IC wholly unrelated to the matter.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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Wednesday, November 28, 2012

Marriage Fraud and INA 212 - or 237(a)(1)(H)

Marriage fraud is more common than most folks think. Application for US Citizenship and green-card status (LPR) is a long, painful road. Marriage offers a relatively rapid acceptance into the USC/LPR ranks, and is therefore extremely tempting from a fraud persepctive.

To defeat a claim of marriage fraud, some of our clients have actually attempted to to bribe their respective former spouse to recant his/her statement to USCIS that the marriage was fraudulent. Usually, it is the sworn statement of one or the other spouse that gives rise to a fraud claim. Of course, our law firm starts singing loudly at that point and covering our ears..one can never condone such conduct (perpetuating fraud and all). However, if the original nay-sayer DID recant, you would have a legal argument…

That having been said, if you really want to fight a marriage fraud, you really need to attack the original marriage and show that the spouse currently being charged with marriage fraud was NOT committing fraud. That is a state action against the other spouse to show intent during (or at the time of) the original marriage. If you can get a judgment showing that the court found the marriage to be just and true, and that the other party is intentionally misrepresenting the situation, you can make a viable argument that marriage fraud was not operative in the instant case. This is a fun argument to make, and is based, again, on a state level trial against the spouse alleging the fraud.

You won’t be able to toss the marriage fraud via a 212 waiver (asking for discretionary grant of "leniency" based on fraud) as it was not incident to arrival:
While § 237(a)(1)(H) is a deportation waiver that requires a prior admission, it also requires that, at the time of that admission, the applicant was inadmissible due to fraud or misrepresentation. The BIA has held that the waiver is not available if the fraud or misrepresentation occurred subsequent to the admission. See, e.g., Salas-Velasquez v. INS, 34 F.3d 705, 708 (8th Cir. 1994) (former §241(f) waiver unavailable where applicant entered U.S. on a valid visitor visa and subsequently entered into a fraudulent marriage with a U.S. citizen); Matter ofConnelly, 19 I&N Dec. 156 (BIA 1984) (addressing the former § 241(f) waiver).(see http://www.ailf.org/lac/pa/lac_pa_fraudwaiver.pdf)


However, if you re-apply for admission and are denied, it is possible that a 212 might be available…but that is the instance where admittance is denied based on the fraud, you and re-open the marriage fraud allegation with the intent to retry the underlying issue (in this case, the BIA has held that when reviewing a subsequent request regarding the marriage fraud, the review must be taken anew and must be a substantial consideration, not relying solely on the determination alone of the prior finding). Generally, marriage fraud is not eligible for a 212 waiver because it was not fraud at the time of entry.

An interesting aside from this (same article):
Similarly, in certain marriage fraud cases, the retroactive validation of the applicant’s LPR status is critical. Specifically, where a non-citizen has been found to have committed prior marriage fraud, but now is in a valid marriage to a U.S. citizen or LPR, INA § 204(c) would bar approval of a visa petition filed by the second spouse. Thus the non-citizen would be barred from ever immigrating through this second, valid marriage. However, in Virk v. INS, 295 F.3d 1055, 1059 (9th Cir. 2002), the Ninth Circuit held that, where the non-citizen was admitted as an LPR based upon the fraudulent marriage, the grant of a § 237(a)(1)((H) waiver would waive the underlying fraud and the non-citizen would retain LPR status. As such, the court found that there was no need for a new visa petition by the second spouse and INA § 204(c) was inapplicable


Note, however, that the in the excerpt above, it would appear the applicant was admitted as an LPR (presumably through consular processing, for example), and as such the fraud was relied upon for entry.

Marriage fraud is generally terminal -- unless the client desires to fight the underlying cause of the fraud. The time required for this is extensive, and the expenses are not trivial. Waivers are rare, and generally, like asylum fraud, the bar is permanent. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed. This freuqently involves state court.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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Tuesday, November 13, 2012

Clarification on Double EWI -- follow on to the post from June 2012

I was contacted by a fellow practioner today regarding double EWI's. She had an excellent question, and I thought I would display my answer here.

You are right about the need to accrue 1 year unlawful presences before you’re really “in the soup” with a double ewi. The catch-22 is that if you cannot prove the time you entered and left, the presumption is that you did accrue the requisite time and the double ewi becomes a bar. Fancy, eh? Wait until they pull that on you at court!

It usually goes like this…
Client stopped by police for driving on expired tags (or whatever)
Asked when she came to the US – she says 2001.
ICE later interviews her and she tells them she has been going back and forth across the border “for years”.
The last time she crossed was in 2003 when she decided to “stay for good…too dangerous to make the crossing anymore.”

Uh oh.


Presumption is that between the first EWI in 2001 and the last known EWI in 2003, she has accrued more than a year and…poof.

The very absence of dates gives rise to the problem, and by definition, an EWI often does not have specific dates. Defense cannot rebut the presumption and client get’s nailed.


-- In terms of DACA, though, I would be less concerned. An 821D is a form of deferred disposition – that means that the government already knows that it has the right to bar or “toss out” all the applicants; it is choosing not to enforce the rules only in so much as it promises not to pursue those people who register and are approved (selective non-application of appropriate law). As such, full disclosure is in order (lest the state say you are lying), and it should be okay (presuming EWI’s are the only problem).

Outside the context of DACA, always presume a double EWI is terminal to almost all forms of relief (except asylum based) unless there is definitive proof it is not (catch and release; multiple EWI’s in a single day, or other bizarre non-normative operations).

It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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Saturday, November 10, 2012

CBP Code Stamps (Codes found in passports -- immigration law)

From time to time, we get requests to dechiper scrawl found on I-94 forms, passports, or even handwritten notes on visa pages. I am including in this brief post the codes that are often associated with those scribbles, and what they mean:

(As a footnote, credit is due to Mr. Robert Rone, an attorney in Mobile, Alabama, and Ms. Meighan L. Vargas, another attorney specializing in immigration law. While they did not come up with the codes (obviously!), they did format them in these nice tables I am displaying here.)

CBP is an abbreviation for "customs and border patrol", and it refers to the officers that inspect incoming aliens upon arrival in the US. From the CBP website:

After the successful completion of processing the applicant, a CBP officer stamps the applicant’s CBP Form I-94, Arrival and Departure Records, and the passport. The CBP Declaration, used at air and sea ports of entry, may also be stamped by the CBP officer. The CBP officer retains the arrival portion of the CBP Form I-94 and returns the departure portion of the CBP Form I-94 and passport to the applicant.


However, the following notations can be found anywhere in the a passport or visa form. They are not limited to an I-94 specifically.

Immigration Status

CARES Code

I-94 Codes

I-551 Codes

Other

Cuban/Haitian Entrant

11

212(d)(5) or paroled or C/H Entrant and from Cuba or Haiti or I-551 stamp and CU6 or CH6

CU6 or CU7, CH6

Unexpired and expired 1-551 stamp in foreign passport

Deportation Withheld

15

106 or 243(h) or 241(b)(3)

NA

INS Form I-688B annotated 274a.12(a)(10); INS Form I-766, annotated A10; order from an immigration judge showing deportation withheld under 243(h) or removal withheld under 241(b)(3)

Battered Alien

16

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

I-551 stamp in foreign passport with one of the preceding codes; or

IMPORTANT: Applicant has filed an I-130 or I-360 petition as a battered alien.

INS Form - 797 is documentation of approval of an I-130 application.



Immigration Status

CARES Code

I-94 Codes

I-551 Codes

Other

Cuban/Haitian Entrant

11

212(d)(5) or paroled or C/H Entrant and from Cuba or Haiti or I-551 stamp and CU6 or CH6

CU6 or CU7, CH6

Unexpired and expired 1-551 stamp in foreign passport

Deportation Withheld

15

106 or 243(h) or 241(b)(3)

NA

INS Form I-688B annotated 274a.12(a)(10); INS Form I-766, annotated A10; order from an immigration judge showing deportation withheld under 243(h) or removal withheld under 241(b)(3)

Battered Alien

16

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

AR1, AR6,

C20 through C29, CF1, CF2, CR1, CR6, CR7, CX1, CX2, CX3, CX6, CX7, CX8,

F20 through F29, FX1, FX2, FX3, FX6, FX7, FX8, IF1, IF2, IR1, IR2, IR3, IR4, IR6, IR7, IR8, IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21, P22, P23, P26, P27, P28; IB3, IB6, IB7, IB8, B11, B12, B16, B17, B20 through B29, B31, B32, B33, B36, B37, B38, BX1, BX2, BX3, BX6, BX7, BX8 some Z13

I-551 stamp in foreign passport with one of the preceding codes; or

IMPORTANT: Applicant has filed an I-130 or I-360 petition as a battered alien.

INS Form - 797 is documentation of approval of an I-130 application.

Amerasian

17

AM1, AM2, or AM3

AM 6, AM7, or AM8

I-551 stamp in foreign passport with one of the preceding codes

Foreign born Native American

18

S13

S13

I-551 stamp in foreign passport with S13 tribal membership card from federally recognized tribe.

Trafficking Victim

19

T-2, T-3, T-4 and T-5 known as "Derivative T" visas are not currently available in the SAVE system.

 

Call the toll-free trafficking verification line at 1-866-401-5510 to notify ORR of the benefits for which the individual has applied.

 

Health and Human Service Office of Refugee Resettlement Certification Letter



Hanover Law specializes in immigration defense -- specifically in court for removal, deportation, and asylum claims. We would be glad to take a look at your situation and help you get the best possible outcome. Call us at 703-402-2723 to discuss your case and begin the process getting you both legal, and working, in the US.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

I-94 and -Humanitarian- Notation in Immigration Law

I was recently answering questions on AVVO, an attorney inquriy board that, in part, specializes in immigration questions. An interesting question about I-94 forms and humaitarian/refugee parole was asked.

First, you need to understand the purpose of an I-94. The I-94 is often (but not always) given when an immigrant enters the country through a boarder crossing or inspection point. The actual name of the form is "arrival/departure record". It should be noted that many immigrants do NOT get this, and its absence does not per se cause a denial of any benefit (although it does shift the burden of proving legal entry onto the immigrant). Most commonly, folks come to the United States under a B2 visa. This visa, known as a visitor visa, entitles the bearer to remain up to 6 months in the country. The actual amount of time the visa holder may stay is -- you got it! - marked on the I-94. There are also certain codes entered on the I-94 that tell CBP (custom and board patrol officers) the nature of your entry, whether you are being watched or tracked, if you are permitted multiple entry/re-entry on the same I-94, etc.). In the instant case, the question is: what does the indication "indefinite" mean on the I-94? It means that instead of a 6-mos or other time window for this arriving alien, CBP granted "parole" to remain in the country without ever having to depart. This is in effect a pseudo-deferral, allowing the immigrant to remain in the country, but providing no benefits (work permit, for example). It is an excellent defense to a removal charge (assuming no criminal charges), but does little to provide a future for the immigrant.

In this instance, the proper next step would be application for asylum. Asylum is, defacto, a request for humanitarian/refugee relief. It means that you have a credible, meaningful fear of returning from where-ever you came from. More importantly, because CBP already paroled you in under humanitarian grounds, the credible fear determination is all but automatic. I don't know the specifics of your case, but one can imagine it must be compelling, as CBP paroles are not that common.

Once you apply for asylum, and you have established your credible fear during that process, you are eligible for EAD (employment authorization documents). This in turn allows you to work legally in the US.

The trick here is to ensure your asylum application process is done properly and timely, so you do not lose out on the potential benefit of a CBP humanitarian parole.

Hanover Law specializes in immigration defense -- specifically in court for removal, deportation, and asylum claims. We would be glad to take a look at your situation and help you get the best possible outcome. Call us at 703-402-2723 to discuss your case and begin the process getting you both legal, and working, in the US.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Wednesday, October 31, 2012

Duty of Fiduciary Care -- Duty of Loyalty (business law)

While the Firm is quite adapt at handling immigration cases, and frankly, many of our clients are aliens, illegal or otherwise, we also have a vibrant business law practice. We recently filed in Superior Court (Washington, DC) for a client suing a former business with which he was associated. While the case is interesting on its own, just for the relationship between the plaintiff and defendant(s), the matter at focus in this blog is one cause of action brought forth in the complaint -- Duty of Fiduciary Care (and as a subset, duty of loyalty). What are these concepts..what do they mean?

When an executive or key employee is entrusted with operations at a company (corporation, partnership, or LLC), they have a duty to place the wellbeing of the company above their own gain. They cannot "sell-out" the company, and they cannot purposely fail to take action that would benefit the company or keep the company in the same position it currently holds -- just so that they prosper. The key is: "put the business before your own interests in areas where there could be a conflict of interest." By taking a leadership role in the company, a person agrees to this and by virtue of the position they hold, promises not to harm the company for personal gain.

Fiduciary duty is a fluid concept. However, there are certain key characteristics in business that always come up in the context of fiduciary duty. These are: duty of loyalty, duty of disclosure, duty of care (this one is not really fiduciary in nature, but is often lumped together with the rest).

On legal.practioner.com, an anynomous author explains the concept thus:
Fiduciary duties require that the fiduciary acts solely in the best interest of the employer/principal, free of any self-dealing, conflicts of interest, or other abuse of the principal for personal advantage. Thus, corporate directors, officers, and employees are barred from using corporate property or assets for their personal pursuits, or taking corporate opportunities for themselves. More traditional fraudulent conduct, such as thefts, acceptance of secret commissions, and conflicts of interest also violate the duty of loyalty, and may be prosecuted as such in addition to or instead of the underlying offence. (http://legal.practitioner.com/regulation/standards_9_3_6.htm)

Another excellent resource for fiduciary responsibilities of corporate officers is RR Donnelley publication entitled, "FIDUCIARY DUTIES AND OTHER RESPONSIBILITIES OF CORPORATE DIRECTORS AND OFFICERS" (written by Christopher M. Forrester and Celeste S. Ferber). While this is hardly light reading (the term slogging through molasses comes to mind), it is extremely thorough, especially on corproate boards and executive officers. See: http://www.mofo.com/files/Uploads/Images/RRDonnelley-2011-Fiduciary-Duties.pdf

Fiduciary duty cannot be a "surprise" to one of the parties. That is, you cannot accidently wake up one day and suddenly find yourself a "fiduciary" of some business or concern. In fact, each side must agree to the fiducairy relationship in order to one to exist. However, inherent in taking and executive position, or running your own business (where you are the owner), or becoming a director, etc., you agree to become a fiduciary to the extent the position entails it.

Do you have a business relationship or fiduciary issue that would benefit from a thorough review? Being threatened with a lawsuit, or wishing to challenge someone's handling of sensitive company operations can be tricky. Contact us! We'll take a look and let you know.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Tuesday, October 9, 2012

Gang Asylum-Withholding Cases (second post)

In my previous posting, I shared relevant case law governing BIA decisions in gang related asylum/withholding I-589 cases. I now turn to a discussion on how to argue the actual case. For security and privacy purposes, the name of the petitioner is removed. However, this material can be used as a tool for organizing a logical appeal brief. For brevity sake, footnotes have been excluded. Contact me for case information located in the footnotes.

A. CRITERIA 1: Immutable characteristic In the December 2007 Executive Office for Immigration Review, Immigration Law Advisor, the article, Gang Violence and Asylum: The Problem of Defining a Particular Social Group by Ms. Katherine A. Smith, discusses the immutable aspect of gang membership. She argues: ...[O]ne view is that a group consisting of former gang members meets the immutable characteristic test because former membership is a characteristic of the past that cannot be changed. For example, in Sepulveda v. Gonzales, 464 F. 3d 770 (7th Cir. 2006), the Seventh Circuit found that former employees of the Columbian Attorney General’s office belonged to a particular social group….The Court found that the status of being a former employee distinguished the case from the claimed social group of uncorrupt prosecutors who were subject to persecution….Former gang members are also a clearly defined discrete group of people. (Id., page 3)

In Valdiviezo-Galdamez v. U.S. Atty. Gen., 502 F.3d 285 (3d Cir. 2007), the Third Circuit sites to In re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA 1996) suggesting that individuals who deny their membership in a group (in this instance, a tribe) and oppose prevailing organizations or practices can be considered a social class .

Mr. Anonymous was a member of a known and clearly defined gang, the Hot Skulls (Oral Decision, transcript, page 4). In turn, the gang was part of a larger organization, with ties to the government, called “Beast of the Southern World” (Testimony, transcript, page 52, 56). Petitioner “turned his back” on the gang as a requisite for coming to the United States. He was required to renounce gang affiliation, despite knowing what happened to those that did so, and despite receiving demands for money and payment to be allowed to leave. (Testimony, transcript, pages 53-55) The Immigration Judge found Mr. Anonymous ’s testimony to be credible (Oral Decision, transcript, page 9). Petitioner has demonstrated he was part of an immutable group in two capacities: (a) he was a former gang members, and (b) he was part of a specific, clearly defined group that renounced gang membership in favor of leading a normal productive life, and received death threats and promises of violence as a result (“I mean they will hurt you. They will kill you, definitely”, Testimony, transcript, page 55) .

The 9th Circuit case, Artega v. Mukasey, 511 F.3d 940 (9th Cir., 2007), stated that gang membership, in and of itself, does not constitute a cognizable group for immigration purposes. However, the present appeal is distinguished from that holding in that membership in a gang is only the precursor to the requirement that the gang be renounced (you cannot be part of a socially recognized group that renouncing gang membership unless you are, de facto, a member of a gang). Additionally, in Guyana, gang membership is a form of social unit whether appealing to our culture or not. To discount a social unit, regardless of their function, is an anathema to immigration and refugee law. Whether the immutable aspect of gang membership alone is sufficient to create a social group in and of itself is debatable (as Artega suggests it is not). That it satisfies the requirement for the first criteria of the Board’s social group definition is not.

B. CRITERIA 2: Visibility According to Smith (EOIR Immigration Law Advisor), “[t]he issue is whether members of society perceive those with the characteristic in question as members of a group. Factors in this analysis include whether there are additional indentifying characteristics…” (Id., at 4). The “Hot Skulls” and the “Beast of the Southern World” are well known, active gangs in the Georgetown area of Guyana. Gang violence, and recognition of gang activity is well known, and common place in Georgetown, Guyana . While it is generally accepted these gangs exist, and Guyanese society as a whole recognizes the public, visible nature of the gangs in question, the question remains whether Mr. Anonymous ’s involvement with the gangs needs to be public and visible such that he should be included in the gangs themselves. In this instance, petitioner argues this is not necessary. Mr. Anonymous does not attempt to identify with the gangs any further. It his opposition to a well known, public gang, that gives rise to the social group he wishes to claim. Petitioner’s public admission that he was “out of the gang” and his renunciation of gang activity , is itself a public declaration, and immediately places him in direct and firm opposition to a recognized drug gang. Further, his public implementation of that declaration, by leaving the gang and never coming back, demonstrates an act which gives substance to his statements. It is not necessary that Mr. Anonymous be harmed in order for his public declaration of gang disaffiliation to be operative . Operative for visibility is: (a) that the petitioner was a member of a discreet, known gang; (b) that a clear statement was made, publically and visibly, against gang membership; (c) that substantive action was taken to implement the public declaration. Mr. Anonymous meets these elements.

C. CRITERIA 3: Particularity Particularity requires more than just common danger, or gross generalization. To specify a group with particular characteristics requires clearly defined, articulable, characteristics that when viewed as a whole, clearly delineate a subset of society (see generally, Immigration Law Review, 2007, page 4 citing to Ochoa v. Gonzales, 406 F.3d 1166, 1169 (9th Cir., 2005)). (a) Clearly Defined: Mr. Anonymous belongs to a unique, defined sub-group – individuals who were once gang members and who have now renounced their membership, openly, publically, and have taken material, substantive steps to enact their renunciation; further, they have suffered some harm or have been threatened as a result of that renunciation and the steps so taken . (b) Articulable: In contrast to Escobar v. Gonzales, 417 F.3d 363 (3rd Cir., 2005), Mr. Anonymous ’s social group characteristics are not “amorphous” or vague. Guyanese and even United Nation reports of events in the region, news and public literature supports and recognizes this group (former gang members who renounce their affiliation and take substantive steps to implement the renunciation) as a valuable contribution to civil society, and key to fixing the gang problems in the Caribbean, and Guyana in specific . In this case the very social group in question is recognized by the Guyanese government as key to fixing the gang problem in the country .

D. CRITERIA 4: Harm The likelihood of gang members who renounce their gang affiliation being harmed by the gang they left if they return is significant . Matter of Enamorado, unpublished Immigration Court decision, November 22, 1999, A#77530541, at page 26. “[I]n this particular case, members of “MS”, in fact see persons such as Edwin, i.e., individuals who are former gang members, as having characteristics that warrants suppression or the infliction of harm….As a result, the court finds that Edwin’s status as a past member of the “MS” does entitle him to be treated as a member of a particular social group.” ) See also Matter of -, CGRS Case #4158, IJ Decision, Eloy, AZ (February 17, 2005) stating that a gang member who attempted to leave his gang and remove his tattoos could be considered a refugee. Under oath, Mr. Anonymous gave credible testimony that he would serious, even fatal harm, if he were to return to Guyana having turned his back on his former gang. Q: Did anybody in your gang ever try to quit? A: Well, yes. We had one guy that, that I remember. He try to quit and it didn’t work out so nice for him, when he – they beat him real badly, you know. They almost killed the young man, and he didn’t quit anyway. (Transcript, page 50).

… Q: Do you know anything about the Beast of the Southern World? Do ou know anything about that group, at all?
A: Well, I know that if you try to steal from them, and you try to disobey them, you know, it’s nothing nice about it. They will, you know, they will terrorize your family. They will kill you, torture you. I mean, the guys was rough. They, I mean, they were no joke. (Transcript, pages 52-53)

Q: Before you left Guyana, to come to the United States, in December of 1989, did you tell your gang anything?
A: Well, yes. I told a few guys, that I was very close, but I couldn’t tell all of them, because, you know, they, they don’t like when you departure. I told a few of my friends, the ones that was close, that you know guys, I’m leaving, you know, and I got to go, and they, they, you know, they wasn’t too happy with the situation, because, you know one of the members leaving, so they asked me to, when I get there, when I get to America, and I get situated, if I should, I mean, I should support them, you know, with some funds, but you know, when I got here, I didn’t do such thing. I just, I just forget all about them. I turn my back on them, as we speak. (Transcript, page 54)

Q: Would you describe what would happened to you if you returned to Guyana now after what you told the gang when you left?
A: Well, they will, they will kill me, because simple fact I, I ain’t send them a penny. I didn’t support them in nothing. I just turned my back and they don’t like that. I mean, if you disobey orders from your crew members, it’s, it’s something terrible. I mean, they will hurt you. They will kill you, definitely. (Transcript, page 55)
The testimony supports a serious and credible fear of harm if petitioner returns. It should be noted that the Immigration Judge felt that they likelihood of the individuals with whom Mr. Anonymous was associated when he was in the gang, hurting him now was remote (Oral Decision, Transcript, page 9). However, this mistakenly assumes that gang memory is localized to merely the individuals who were “friends” or associates of Mr. Anonymous . We argue that the gang, as an organization, remembers and would persecute Mr. Anonymous even if the original individual members of the gang are no longer active.
E. CRITERIA 5: Cultural Perspective Country based perspective is a matter of fact and research. Arguably, each culture has its own view of what constitutes a group, and what constitutes persecution. While not controlling on whether any one alleged social group should indeed be considered a group, cultural “opinion” can help explain “norms” that define acceptable conduct, or behavior that defines group activities. Gangs are a known social element in Guyana and they are not welcome. Gang violence is not just perception – it is reality. Guyana has an epidemic of gang related problems, and more than 70% of the population feels that the government is unable, or unwilling, to change the criminal effect gangs have on communities, institutions, and corruption within the state . Approximately 29% of Guyanese feel that gangs are problem in their neighborhood . Over 50% feel less than secure or very unsafe . 13% of youth report being involved in serious criminal activity (more than any other Caribbean country) .
Those former gang members that break-out of the gangs and renounce violence are viewed as a cognizable, acceptable group that is contributes to the stabilization and betterment of the Guyanese society. Petitioner argues they have same status as ex-convicts who have completed their sentence and are rehabilitated.

Do you have an appeal (BIA or Federal case) that would benefit from a thorough review? Asylum/Withholding/CAT claims are tricky, and require experience to properly argue -- and even more so to win on appeal. While no appeal is guaranteed, there are key writing styles/approaches that can make a significant different. Contact us! We can help you ensure the highest possibility of success. When deportation or jail/detention is at stake -- it pays to have an expert help.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Gang Asylum-Withholding Cases

Our firm recently submitted an I-589 asylum/withholding appeal for a client that was involved in gangs while living in Guyana. Our BIA appeal centered on what is considered a "social group" for purposes of withholding. We argued that, "former gang members who have publically renounced their gang affiliation and taken substantive steps to effect the renunciation" are a discreet social group warranting protection.

This is the first of a two part posting on the topic. This first post covers current cases (we are located in the 4th (Federal) Circuit -- The 4th Circuit has upheld BIA’s definition process for social groups. Citing to the same cases outlined in the text below, the Court stated: “Neither the relevant statute nor its associated regulations specifically define the term "particular social group." We therefore defer to the BIA’s reasonable interpretation of the term.” (citing to Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir. 2009)). Lizama v. Holder, 629 F.3d 440 at 446-447 (4th Cir. 2011))

Summary:

1. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) constitutes the over-arching case which controls the premise upon which “social groups” are defined. This case has not been overturned by any Federal Court, and BIA continues to refer to Matter of Acosta when considering matters pertaining to social groups.

2. To qualify for inclusion in a protected group, an individual must be a member of a group of persons all of whom share a common, immutable characteristic. (supra, at 233).

3. In Matter of C-A-, 23 I&N Dec. 951 (BIA, 2006), the Board updated its approach to defining social groups by expressing that one factor to be considered is the extent to which members of a society perceive those with the characteristics in question as members of a group. (supra, at 957, stating: “we have considered as a relevant factor the extent to which members of a society perceive those with the characteristic in question as members of a social group.”). This was strongly re-affirmed in 2008, when the Board summarized the “society perception” concept into one word: visibility. Matter of S-E-G-, 24 I&N Dec. 579, 586 (BIA, 2008).

4. Yet another key characteristic of defining a viable, social group acceptable for purposes of refugee, asylum, and withholding purposes is whether the group can be defined with sufficient particularity to delimit its membership. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA, 2007). For the purposes of particularity, this case discusses whether “wealth”, “affluence”, or more generally monetary standing constitutes a sufficient discriminator for group definition; the Board held it did not, and discussed the need for specificity as a core characteristic of social group definition.

The respondents’ proposed social group is indeterminate, and not just at the margins, as will often be the case in describing group membership. Rather, when “wealth” is the sole criterion, group membership is difficult to delimit for a large swath of potential members. The characteristic of wealth or affluence is simply too subjective, inchoate, and variable to provide the sole basis for membership in a particular social group. (supra, at 76)

The essence of the “particularity” requirement, therefore, is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized in the society in question, as a discrete person. Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA, 2008).

5. Two additional characteristics of social groups were teased out of the Matter of A-M-E & J-G-U case when the Board issued its decision in 2007. Specifically, that the level of harm incurred is relevant to group definition, and that all other factors must be taken in the context of the country in question (from which refugee, asylum or withholding is sought), and the type/nature of persecution alleged. Referring to the 2002 Guidelines of the United Nations High Commissioner for Refugees, the Board wrote: Although a social group cannot be defined exclusively by the fact that its members have been subjected to harm, we noted that this may be a relevant factor in considering the group’s visibility in society. Id. at 960 [reference to UNHCR report] (supra, 74).

Further clarifying the “social visibility” doctrine enunciated in Matter of C-A-, the Board explained: Whether a proposed group has a shared characteristic with the requisite “social visibility” must be considered in the context of the country of concern and the persecution feared. (Matter of A-M-E & J-G-U, at 74, Social Visibility).

6. In summary, over the period of 1985 – 2008, the Board has established the following criteria for defining social groups :



Do you have an appeal (BIA or Federal case) that would benefit from a thorough review? Asylum/Withholding/CAT claims are tricky, and require experience to properly argue -- and even more so to win on appeal. While no appeal is guaranteed, there are key writing styles/approaches that can make a significant different. Contact us! We can help you ensure the highest possibility of success. When deportation or jail/detention is at stake -- it pays to have an expert help.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Sunday, September 9, 2012

Assignment -- what the heck is that? (contracts)

A former client of ours revisited our shop this week, and asked for help in modifying an employment agreement. Nothing unusual about that -- but the requested paragraph was rather interesting. He asked us to modify/update his Assignment terms.

In contracting, the terms "Assignment" refers to the right of one or more of the parties in the contract to "assign" (give their rights, privileges, or duties to another) their portion of the contract to a third party. Why would anyone want to do that?

Restatement (2nd) of Contracts, chapter 15, deals with assignment of both duties and rights under a contract.

Assignments are generally important to folks for two reasons (most common -- this is not exclusive): (a) death of a party and the liability of the estate, and (b) right of sale of the contract (such as a business).

If one party to an agreement dies, who is responsible for fulfilling the obligations or receiving the rights/privileges of the contract? Generally, it goes to the estate. That is where the terms, "to his (her) heirs and assigns" comes in. This gives full rights to any person that succeeds the party in the agreement. Usually, this is used for real property (land, or vehicles are most common), but can relate to anything in which a clear path of assignment should lie in the event of death (or even disability, if so indicated).

In business, it is not so simple. Suppose you are an independent contractor who is tasked with providing IT services at a government installation. As an independent contractor, you are in charge of the manner and mode of your services delivery. Do you have the right to "assign" another person from your shop to go to the government agency and perform the work? This is, of course, an assignment of duties. On paper, you should be able to do this. However, most contracting agreements provide a block to assignments on the part of the person doing the contractor work. If that block is NOT there, you would be absolutely legally entitled to make the assignment. Might be a short lived contract, but it would be legal.

Another area you often see assignments are in favor of the employer. Often, when an employer sells his/her business, contracts with employees or contractors are expected to continue. However, absent a clause permitting unfettered assignment of the rights and privileges of the contract to the new owner (an assignment), each contract would have to be re-negotiated with each respective employee/contractor, and the new employer would have no privity (see previous article on privity) with the current employees/contractors.

Assignment is usually a small paragraph, and can be written very plainly. An example might be (in this case, decidedly pro-employer):

III. RIGHT TO ASSIGN
1. The company may assign its rights and entitlements under this Agreement to any third party (for example, if the Company is sold) without further notice or requirement to you.

2. Because of the sensitive and critical nature of the work, and your job skills, you may not assign your duties and/or responsibilities to a third party without the express, written consent of the Company.



Do you have a business contract that would benefit from a thorough review? Missing an assignment clause or other critical element of a business agreement? Contact us! We'll take a look and let you know. Equally, as an employee or contractor, it is very important that you understand what you are signing/agreeing to. Let us help you review your agreement and ensure that you are not being snookered!

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Defense to Traffic Stops (no license/etc.)

We have a section of the firm that specializes in criminal law, and a frequent cause of action in this group is (are) traffic stops. Now, for your average ticket, this is not an issue. But what if you are stopped and then fined for having an expired license? For driving without a license? For driving on a suspended license? Even some DUI issues fall into the questionable area of: Do police have the right to stop you for no reason other than to check your credentials or who is in your car?

I spoke with an associate of Hanover Law, Mr. Stephen Salwierak. He is the attorney that handles most of our litigation in Virginia, and often runs into illegal stop questions in traffic matters. He provided a brief explanation out of a recent case filing he made in Fairfax.

(from Mr. Salwierak)

Without violating Fourth Amendment protections, an officer may conduct a brief, investigatory stop when he has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). A reasonable suspicion is more than and “unparticularized suspicion or ‘hunch.’” Id. at 27. To reach the level of reasonable suspicion requires less of a showing than probable cause, but still requires at least a minimal level of objective justification for making a stop. United States v. Sokolow, 490 U.S. 1, 7 (1989).

These Fourth Amendment principles have been applied specifically to traffic stops. Any stop of a vehicle and subsequent detention of the driver is unreasonable under under the Fourth Amendment absent a reasonable, articulable suspicion that the driver is unlicensed or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for a violation of the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979). The Supreme Court of Virginia has applied the rule in Prouse, making clear the requirement that a police officer in the Commonwealth may make a traffic stop only when he has reasonable suspicion that a traffic or equipment violation has occurred. Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 925 (2000).

In practice, these summaries would then be followed by a review of the fact for each particular case, and a conclusory statement such as:

"CLIENT'S" constitutionally guaranteed protection against an unreasonable search and seizure has clearly been violated. He was twice pulled over and issued citations for a violation that, but for the illegal seizure and subsequent investigation, would not have been discovered. There are no facts to suggest that "CLIENT" was stopped based on anything other than a “hunch” that may have been felt by the officers. Because it is illegal for an officer to stop a person based on anything less than a reasonable articulable suspicion that criminal activity has taken place, "CLIENT" should never have been stopped, because no such suspicion existed. Finally, because "CLIENT" could not be permissibly stopped, he never should have been issued a citation for driving on a suspended license, and both of the citations should be dismissed.



Note how the summary paragraph cleanly and clearly brings together the constitutional law with the facts of the case (in this case the illegal stops), to reach a conclusion that clearly shows the client is not guilty.

We welcome discussing any traffic or DUI infraction you might have. Traffic and DUI cases can be tricky, and require a skilled, knowledgeable attorney to help navigate the best end scenario (plea or not-guilty as appropriate). Don't make a mistake that could cost your license or even jail! Contact Hanover Law and ask to speak to a skilled attorney in criminal law.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Sunday, August 26, 2012

Motions to Re-Open in Absentia Decisions

Many of our immigration clients come to us with serious problems -- often with imminent threat of deportation looming over their heads. I thought I would take a moment to discuss how to re-open a case where a decision was made against you in absentia (you weren't at the hearing).

When a client has been found deportable in a prior removal hearing, an order of removal will be issued by the judge, and the immigrant should be deported. However, it happens frequently that immigrants who should be removed are left languishing in the United States. One reason this happens is failure of the ICE or DHS representative to properly serve the alien with a notice to appear, or if served, with a trial date he/she needs to be present at. This is especially true when the alien does not have an address to mail notice to, or the address given was not properly understood and no notice was ever received by the alien.

The take away from this: To be a valid form of service, the alien must have received notice of the trial. This requires the alien to provide ICE/DHS with a valid address.

If there is an outstanding order of removal on an alien, they will be arrested and detained by ICE, and deported usually within 30 days of being detained. No further trial is needed.

How can you stop this? The process is called "Motion to Re-Open a Removal Order Issued in Absentia". In years gone by, this was much easier to obtain. Usually, if the judgment was made without the alien present, there would be an automatic re-open if requested by the alien at a later date. This is no longer the case. Now, you must show that proper service was not had in order to re-open an in absentia hearing.

The filing of an in absentia re-opening motion includes the brief, proof of service on DHS, an EOIR-28, and usually a cover letter. There is no fee for this motion, as if judged valid, an in absentia order is considered a revocation of an improper trial, and that should not be at the expense of the alien (improper notice = bad trial = re-hearing).

Remember, a mere re-hearing does not a victory guarantee. Indeed, you will have to defeat the original cause of deportation that has now been re-opened, and you have to contend with any additional problems that have manifested since that time.

Do you need an immigration case re-opened? DO NOT WAIT! There is no need to require a trial BEFORE deportation if an outstanding removal order is place. Call us immediately and let us stop the clock and review the case before your loved one is shipped out-of-country!

S

Sean R. Hanover, Esq
HanoverLawPC.com
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703-402-2723