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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