Total Pageviews

Sunday, December 22, 2013

BIA -- remember to STAY REMOVAL during Appeal

Happy Holidays to everyone -- and I hope this posting finds folks setting enjoying the season, and a warm fire. As I contemplate the thought of Christmas, I am reminded of the many clients we have that may not be with there loved ones. One method of ensuring that our friends who have been denied relief in immigration court is through a BIA appeal. However, it is very important to remember that once an appeal is filed, a stay of removal must be requested before the stay will be granted. Stays are granted as a matter of course when an appeal is filed.

What are the steps to a BIA (Board of Immigration Appeals)filing? There are several routes, however, today we speaking only of an appeal from an immigration judge's decision. Generally, you have 30 days to appeal a decision of the Court. You must note your appeal at trial. Appeals are divided into three categories: (a) procedural deficiency, (b) abuse of discretionary (defined as a misapplication of fact or denial of objection), and (c) discovery of substantive information that was not available at trial but materially effects the outcome (this is rare, but can happen in immigration cases).

To effect a good appeal, you must get a copy of the Court hearing. Generally, this is accomplished by having your attorney contact the clerk of the Court that held the hearing, and request a CD that have the audio transcript of the trial. This is important! Both (a) and (b) above require a thorough and comprehensive understanding of the issues that were raised at trial. Even if you were the trial attorney that conducted the first case, you still need to have a copy of the transcript to cite to errors or omissions.

The appeals package consists of a cover letter, the appeals request (EOIR-26), notice of appearance before the BIA (EOIR 27), filing fee, and a motion to the Board to STAY REMOVAL. This last is critical -- forget this, and your client will be sent packing long before the Board can make a decision. It is not necessary to submit a full appeals brief when you initially file, however, you must indicate on the EOIR-26 that you intend to submit a brief. The Board will send you "orange sheets" -- these are forms that show the briefing schedule and due dates for all aspects of the appeal. That will arrive about 30 days (sometimes sooner) after your filing.

A note about the stay of removal. Generally, a stay is automatically granted once the request is received. HOWEVER -- if your client is detained, he/she will REMAIN detained during the pendency of the appeal. Be sure to discuss this aspect with the client BEFORE you file. A full appeal may take over a year -- during which your client will be stuck in the pokey. This makes for very unhappy clients if they are not briefed prior to agreeing to an appeal. Once the BIA has control of the case, you may petition for a bond reconsideration -- however, it will be based on the initial bond hearing that was held before the IJ (immigration judge), so be sure to get a copy of that transcript and be ready to argue the merits of reconsideration. I have yet to see a request for bond reconsideration by BIA be granted at this stage (appeals), but it may serve to placate your client to at least try (you never know...).

In future articles I will cover strategy on how to write an appeals brief in full, covering each of the three points (a, b, and c) outlined above. Below you will find a sample stay of removal request to submit when filing your BIA appeal.



Sean R. Hanover                                                                                  DETAINED
Hanover Law, PC
888 16th St. N.W. Ste. 800
Washington, DC 20006





UNITED STATES DEPARTMENT OF JUSTICE
BOARD OF IMMIGRATION APPEALS





IN THE MATTER OF                                IN REMOVAL PROCEEDINGS

CLIENT X          

RESPONDENT                                          FILE NO.:  AXXX-XX-XXXX






MOTION TO
STAY DEPORTATION PENDING HEARING ON THE MERITS



Comes now your petitioner, through counsel, and requests this honorable tribunal
grant a stay of deportation pendant the appeal process with BIA.

1.  Mr. X requested to re-open his underlying removal order in San Antonio Texas immigration court, based on lack of notice, was denied.

2.  An appeal was properly and timely filed with BIA in accordance with EOIR procedures.

3.  A stay is appropriate given the likelihood of success on the merits, and the expenses imposed on the government to transport and retrieve Mr. X for trial on remand.

4.  For the foregoing reasons, petitioner requests BIA exercise its discretion and grant a stay pendant the appeal process.

I ask for this:
Client X

Through Counsel:

Sean R. Hanover, Esq
Principal Attorney
Hanover Law, PC
888 16th St., NW Suite 800
Fairfax, VA 2006
703-402-2723



CERTIFICATION OF SERVICE

I certify a copy of this motion was served on DHS Office of Chief Counsel at 8940 Fourwinds Drive, 5th Floor, San Antonia, TX 78239.


Sean R. Hanover, Esq


Do you need help with a BIA appeal?  MOVE QUICKLY!  Timing is very important.  Contact us immediately for a free discussion on the matter, and a review of your case.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Friday, November 29, 2013

Model Witnesses -- a review of a trial strategy book.

This is a different Blog approach. For my posting this week, I thought I would review a book I recently purchased. I have several upcoming jury trials, and thought I would see if there were any good resources on trial tactics that perhaps I had not seen before. Never hurts to pursue new reading material!

I decided on Model Witness Examanations, by Paul Sandler and James Archibald (Third Edition -- 2010). Not sure if there was a fourth edition, however, this work was recommended to me by a fellow practitioner so I thought I would give it a go.

This is a very interesting work -- first, it provides concrete examples of how to conduct a direct (and cross) examination of a witness under different circumstances and for different purposes. Secondly, it sites rules and cases heavily, providing a strong basis for the example and supporting "reasons" for the rules.

However, there are two significant detractors, and I am unclear why the book does a poor job of addressing them. They seem fundamental to the topic. First, the author makes no attempt to explain what a practitioner should expect if he/she actually used one of the sample approaches in trial. While the examples are generally sound, you ought to bet that opposing counsel will protest and object vigorously -- and Mr. Sandler does little to address what these objections will be. Oh, there are half-hearted attempts to indicate what might be said, and how a judge would rule, and there are some warnings (for example, "Whether the police officer in this pattern can testify to a hearsay declaration by an absent witness might present a problem." - pg. 8), but truly little is discussed about the "jam" effect of opposing counsel objecting and completely throwing the questioning line of thought. And to think a judge would actually site to Rules is just ridiculous. They (judges) rarely do --and often judge get's it wrong, too. For example, helpful might be: "When you use this line of questioning, you should expect objections in the form of objection...."

Tied closely to the first detractor, I did not like how the author brought forth various forms of testimony on one hand, but failed to give examples on how opposing counsel might rehabilitate a witness (or challenge an expert) on the other. Essentially, there are two sides to every case -- and there was not enough examples of for/against positions and how to guide questions on each side (on the same topic). That would have really assisted in developing good case management strategies. As we often teach new associates -- take the position of the opposite side -- thus will you be ready for any argument.

Overall, the work was intelligently written, clearly well researched, and helpful. It will find a nice place in my litigation library. However, with just a few more tweaks, it could truly have stood out as an exceptionally useful training tool.

Do you need a book, article or paper reviewed? Would you like a seminar or class on a particular legal topic? Let us know! We've been doing this for a few years, and would be glad to share our experiences as trial attorneys.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Sunday, November 24, 2013

The abused spouse and the I-360 - VAWA

An interesting crossroads between Family Law and Immigration Law is the I-360 -- Petition for Special Immigrant Visa. While this form can be used for a couple of purposes, by and away the largest utilization is for VAWA purposes -- Violence Against Women Act (VAWA). Fortunately, this Act applies to both men and women, so do not be confused by the gender in the title. The I-360, in the Family Law context allows an abused immigrant to self-apply for a green card (LPR status) if the marriage that brought him/her to the US was broken due to violence, abuse, or fraud by the his/her partner.

Under normal I-130/I-485 procedures, in order to apply for a green card (LPR status), once married, the sponsoring spouse (citizen or LPR) must submit supporting forms to show that the immigrant is lawfully married, and that the marriage is not a sham. This involves, among other things, the requirement that the sponsoring spouse attend the LPR interview for the immigrant.

In the 1980's there came about an explosion in mail order brides -- and with this, the attendant exploitation of foreigners coming to the US for the first time to meet their "mates." Women would all too often be trapped in a relationship, unable to obtain legal status (and often with her passport taken), and therefore unable to leave. Report of rampant abuse, prostitution, and horrid conditions led to the passage of the VAWA (those section regarding immigration)in the early 1990's.

Key aspects of VAWA -- you must show abuse (mental or physical); it must be documented. The marriage must be concluded (i.e. divorce must be underway), and the original marriage must be valid (the person petitioning for the I-360 cannot have caused the fraud to have occurred if it did).

While awaiting final adjudication of your application, you can also receive a work permit, and any pending immigration action is frozen (i.e. deportation actions if your spouse refused to attend your LPR interview).

If you have a question about VAWA, divorce, spousal abuse, or family immigration activities, CALL US! We can help -- we've been doing this for years, and have considerable experience on helping women (and men!) who are in an abusive situation.

By the way -- spousal support is often possible if the I-864 was filed by the now abusing spouse. Be sure to speak to us about this -- as it could be critical to getting money until you have a job. I-864 litigation must take place in FEDERAL COURT, not the court where you get a state divorce. This is tricky, so talk to an attorney first! http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Monday, November 11, 2013

The Useful "Q" Visa -- another way to work in the US

I recently had the pleasure of writing an article or two for use in the AILA Paralegal Handbook. For informaton on ordering or learning more, go here: Paralegal Manual. For an overview of material covered by the book, go here: Table of Contents.

An area I covered for the book included Q visas. This handy visa is an excellent work-around for finding a legitimate means to bring over a foreign worker for a short duration work experience. I've included an excerpt below.

There are two forms of exchange visas issued by the United States. The first, and most common, is the J visa. Less common is the Q. This under-used visa category offers unique opportunities for the immigration advocate to bring foreign aliens into the US in a manner that allows them to work, as well as learn, for a period of 15 months.

In a Q visa, the definition of cultural exchange is much broader than that of the J. 8 CFR 214.2(q)(3)(iii)(A) - (C) describes the requirements of a "cultural" engagement under Q. Essentially, this includes a requirement that the cultural aspects of the visitor be displayed to the general public (museums, schools, parks, or other public forums), and that the cultural aspects themselves include things such as (a) cultural heritage of the alien's home country, (b) structured instruction on particular aspects of the alien's country, (c) language, (d) history and heritage, etc.

Section 214.2(q)(3)(i) and (ii) explain the requirements for an employer to be involved in the program. These include the creation and maintenance of an exchange program (usually a program which shows the connections outlined in this section), and accessibility of the program to the public (214.2(q)(3)(iii)(A)).

The Q visa is uncommon, largely because it is unknown. However, the clever practitioner will recognize that almost any educated foreigner can be presented as a cultural exchange ambassador. With some thought, and creative sponsorship, it is possible to bring individuals to the US who may work, present on their home country, and remain in the country legally for 15 months. Finally, there is no bar from converting from the Q visa to another status.

Do you need help getting "legal" in the US, or determining how to come to the US to work? Contact us! It is often much cheaper to fix a problem before it happens. Like many visas, a "Q" visa requires a sponsor and proper planning. However, with a little forethought, you can work and operate legally in the US. Further, you can convert into a Q visa if you are already here. A consultation may be just the ticket to avoiding illegal overstay or finding the perfect segway into employment with a qualified organization.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Thursday, November 7, 2013

DUI -- and the five day rule

Recently had a couple of DUI's that seemed to have come to me after they had attended their initial hearing. This is just a reminder about seeking to have your license re-instated prior to your hearing date. In order to do so, you must file with the DMV to have a preliminary hearing within five days of having your license taken by the police for a DUI. This is known as the "five day rule."

A mere arrest for DUI is not a conviction, and an argument to have your license re-instated pending a trial on the merits will usually be permitted. Remember, though -- you must contact the DMV within 5 days of getting the DUI or jurisdiction on the license question is permanently transferred to the courts.

Need help with a DUI or OWI? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in drunk driving, operating while impaired, and drug cases.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Tuesday, October 15, 2013

TRO (Temporary Restraining Order) and Injunctions in Civil Cases

I had an interested day in Court today. We won our case -- the surprise was the amount of evidence and the depth of the hearing. Usually a TRO -- slang for a temporary restraining order -- is almost universally granted pending a full hearing on the matter.

In this case, we represented the respondent -- the individual being accused of taking actions that should be "stopped." How did we beat this case? The key is understanding what is requried for a TRO.

First, a discussion of the process. When a petitoner brings a complaint of harassment, threats, or assault, that is not family related, the Court will schedule an initial TRO hearing. Additionally, the court will schedule a full injunction hearing for about 90 days following the TRO hearing date. The full hearing is conducted in front of a judge, using strict rules of evidence.

A TRO requires that the petitioner (the person bringing the case) show:
(1) that there is a substantial likelihood he [or she] will prevail on the merits; (2) that he [or she] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him [or her] from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order.

(In re Estate of Reilly, 933 A.2d 830, 834 (D.C. 2007))

When defending these cases, first, focus you need to prepare your respondent. This requires carefully preparation to demonstrate that he/she is reasonable, even tempered, and presents well at court. Practice! Your client MUST be smooth and clear in his/her presentation.

While the level of proof required for an initial TRO is minimal, it is STILL present. Mere allegations are not enough for the petitioner to succeed. Therefore, you should be prepared to rebut any witness that might be brought by the petitioner -- strike the credibility or the knowledge of the witness. Isolate the petitioner -- her word against his word is not enough to convict. It is frequent that the petitioner (especially wilely plaintiff's attorneys) will try to get petitioners to claim "fear of harm" and that "he/she is facing immediate, irreversible harm". CHALLENGE THIS. There must be some corrobration to support the position. It must be credible.

You should, generally, expect to lose the initial TRO hearing. This is common -- the Court is inclined to grant this just to be safe. However...and this is VERY important - you want to setup for the scheduling conference for the full injunction hearing. The scheduling hearing will be set at the TRO hearing, and is usually one to two weeks after the TRO hearing. Regardless of the outcome, either party may continue with the full hearing.

By asking the proper questions at the TRO hearing you setup the record to challenge (or refute) the petitioner's position. At the full hearing, the petitioner will have a much more strenuous time getting a permanent order.

Note -- for the TRO, come prepared to ask questions of the opposing witness. You will have a chance to put on a case, no matter how low the bar for an initial finding may be. THIS WILL BE ABOUT CREDIBILITY.

Need help with a restraining order? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out messy and complex TRO/injunction issues.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Saturday, October 5, 2013

Tax Liability and Divorce

So what happens when your love is shattered on the shoals of acrimonious divorce? Well, according to the tax man (aka Federal Government) -- not much. A joint tax liability waits for no man (or woman!), regardless of the current status of the divorce. Let me explain what this means, and then a few tricks to address the problem.

Okay -- here's the scenario. Wife and Husband have been married for five years. They created a joint basket business supplying eager underwater artists. The business was a success but the marriage was not. On the eve of the fifth anniversary, wife informs husband that the honeymoon is over, and serves him with a causes bellos for mensa et thoro in Virginia. All is progressing as these actions are want to do, with a large joint asset pool, including vehicles, an expensive home, and two kids. Then -- the unexpected happens.

In August of 2012, the IRS contacts the husband (nominal CEO of the basket business). They are being audited. The tax returns from 2007 - 2012 were filed jointly (1040) and include, primarily, the income from the business as the income for the couple. Additionally, although wife is listed as the only member of the basket weaving business, in fact the 1120S forms show husband as owning 49% (via K1's). The audit progresses, and it is determined there is a liability of $60,000.

Now, you would expect this debt (joint) to be considered a marital debt to be determined by the state court handling the divorce. However, the IRS is demanding payment NOW or levies will be had (now = August 2013), and the payment demanded is $60,000. Husband is no longer communicating with wife, and she has no way to get him to pay his part of this prior to the final merits hearing on the divorce, which is not scheduled for April 2014.

So, what options are out there to handle the impending debt? First, they need to be three months behind before the IRS starts rattling the lien-sabre. Interest will accrue, but nasty messages will be minimal.

The solution to this is to have the wife pay the IRS debt and then sue in state court to be re-paid...but what is husband is likely to be a no-show at the hearing, or has no money to pay?

Then the couple should file for a payment plan or reduction in the punishment amount from the IRS via a form 433A. This is a request for payment plan and abatement of collection operations. This will allow a payment plan to be implemented until a final judgment from the state judge may be had. Of course, both parties must sign. However, you can ask the court to enforce payment pendente lite or conversely require that the state court require the reticent party to agree to complete the 433A.

Interestingly, on a joint case were share with another law firm, one of their associates came up with a clever idea to get a home equity loan on the house to pay the tax debt, then sort out the home equity loan in the state court. That would work, too.

Finally, you can petition the IRS to split the tax liability by filing amended returns. This is the least palatable option as it causes significant disruption to the agreed on tax resolution.

What you must advice your client, however, is that the IRS does not care about his/her state divorce operations. A joint debt is joint and severable. Someone will pay, or both will get liens. Do not let on of the parties use a suicide-technique of just "sacrificing" themselves via tax lien to hurt the opposing party (i.e. do nothing just so that the parties will be hit with the liens). That is gross bad act, and warrants state court action to injoin. Need help with a tax or family matter? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out messy and complex litigation matters.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Wednesday, September 18, 2013

IRS Form 443 -- Help, I can't pay my taxes!

So what really happens when you are waaayyy behind in your taxes? You see those ads on TV that promise to reduce your debt -- "Call us! We'll handle the IRS for you!" How true are they? What is an offer in compromise, and what it the process for contactin the IRS Field Office? Can you do this without an attorney? Are they unfriendly!? Enter the IRS form 433A.

These are great questions! And, yes, you can do much of this without an attorney. This blog post will talk about what is required to "fix" deliquent taxes. Remember, an attorney (that would be Hanover Law, of course!) can really help sort through the mess and guide you in the process. However, believe it or not (gasp) -- the IRS is rather helpful in providing pointers and tips on how to move forward. The difference with an attorney is that we can often get help faster for you, and usually talk directly to the folks that make decisions on your case. More on that in a moment.

So is there a magic button? NO

If you owe taxes, you have a serious problem that must be resolved. The IRS will not hesitate to garnish your wages or place liens on your propert. However, it is often possible to schedule payment, or even place yourself in non-collectible status, based on your income. This process requires you complete an IRS form 433A.

A 433 form asks for information about assets and income, and is designed to let the IRS know all about your personal situation. If you filed jointly, you must also have your partner sign. There was, for some time, an interesting question as to how married, gay couples, would file 433's or other IRS documents that require married couples to jointly file various documents. However, that issue now seems to have resolved in favor of same-sex couples being treated as married couples as appropriate.

Be truthful! Avoid answering questions on the phone. If you request that an IRS representative contact you, you may be asked to complete the 433 on the phone. DO NOT DO THIS, as you are apt to make errors or mis-state amounts.

Also, it is important to remember that deferred payment plans, or "uncollectable status" does not remove the IRS debt! It is stilled owed, and will still continue to accrue interest. It will, however, stop liens and garnishments.

Need help with a tax matter? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out complex IRS matters.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Saturday, September 7, 2013

CBP and LPR -- what happens at a "deferred inspection"

Interesting case recently. A client called us with a not-to-uncommon problem. On the way back from visiting an ailing relative in Costa Rica, the family was stopped at Dulles International Airport (a la Virginia). The dreaded hand gesture was made by an immigration border officer to "go to line B". Deferred inspection is in your future.

When Custom and Border Patrol (CBP) takes your passport and gives you a date to return to talk to them -- that is deferred inspection.

So what happens? You get a deferred inspection when you have criminal incidents in your past that could reasonably lead to inadmissibility into the United States. Eh, you say? What is THAT!?

So first, a discussion on crime and immigration. Remember, no matter how old your criminal convictions they are still eligible for immigration review. There is no "ignore after certain date" -- although, there are crimes that are treated differently if your convictions fall before 1990 (among others). That notwithstanding, remember that CBP can review ANY crime convicted at ANY time. However, the crime MUST have resulted in a conviction.

When speaking of crimes, it is important to remember that any crime that has a detention or deferred sentence (suspended sentence) of 12 months or more is considered an aggravated felony, and constitutes inadmissibility on its face. That's bad.

Certain crimes can be waived under the petty exception for CIMT's. Remember that time when you were busted for shoplifting and served 30 days in the brig? Likely, a single offense can be ignored and you will not be found inadmissible.

When you go for your interview, bring a lawyer, and if you can afford one, bring a book. Whoops -- that was backwards, but I'm biased. You will be waiting for quite some time. While you are obligated to be on time for your 11AM deferred inspection, CBP will often stall and you won't be seen until 2pm! Or later. Can you sense my frustration? Baah.

Why do you need a lawyer? Well, a lawyer cannot change the law. If you have an aggravated felony, or you have been smuggling little children into the country, there is nothing the attorney nor the CBP officer can do -- our hands are tied, and the law says you will be found inadmissible. However, an attorney can make a good argument to NOT HAVE YOU DETAINED. CBP will contact ICE once they determine you are inadmissible. It is up to ICE -- not CBP -- whether you shall be detained (sent to jail while you wait for your immigration trial). NOTE -- that an aggravated felony cannot be bonded out. So, having your attorney get CBP to argue that you should NOT be detained (when speaking to ICE) is worth its weight in gold. CBP can make a good argument to have ICE just ignore you. You do NOT want to be detained. While this does not always work, it can ONLY work when you have an attorney.

When you leave (non-detained), you will have a court date from your Notice to Appear (NTA)and you should meet with your attorney to plan your case (see my posting on what to expect at your first immigration court hearing). If you are detained, you will be taken to an immigration detention center and "booked" directly from the deferred inspection meeting. You will then be given your NTA while detained, and need to get in touch with your attorney, who will need to come and meet you at the detention center. Do you need help with a CBP or deferred inspection? You came to the right place! We have considerable experience helping walk clients through tough situations. We'll walk through each step and help you get the best possible results.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

So you're going to immigration court...what should your lawyer do?

Ah...the fun of the court room! Gotta love it!

Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a jerk. If the allegation is valid, don't get a reputation of wasting court time on goofy meaningless foot dragging. This is especially true if your fella (or lass, as the case may be) is detained.

As to relief, that's where you pull out your trusty tool box and ponder the possible options. Generally, you want to do this prior to the hearing -- however, if you had not chance to see the NTA afore the hearing, take a moment to consider. Besides, you look good staring out the window rubbing your chin as you ponder how to save your client. You go, attorney! Typical relief options are Cancellation of Removal (COR 42A or 42B), some assortment of asylums (A-W-C), family adjustment (when appropriate), stalling with a plea for Prosecutorial Discretion (truly a waste), continuance for post-conviction relief (right....usually a stall tactic for some out of court magic date when bubba suddenly becomes eligible for relief), voluntary departure (one of the least understood and quite helpful tools for folks that can later adjust and don't already have EWI's etc.), and the old favorite -- a request for peonage (rarely granted, but often illicits a grin for those that know you have just asked to violate a host of immigration laws and the US constitution...but hey, if you have nothing else...)

When you really have hit the "duh...why am I here?" problem, and this is the first MCH...punt! Ask for a continuance to consider your options. Usually, you get one pass. Use it wisely.

Also, prior to requesting relief, but after a reading of the allegations (and any challenges thereunto), you'll have a chance to plead for bond, if your alleged evil alien monster is not already detained. Now, save yourself some grief, and the expectation crushing blow to your client's dying mother who just happened to attend your first MCH -- if your client has an aggravated felony (affectionately known as AgFel's). Don't know what constitutes an AgFel? Ping the law firm, and I'll send you a nifty cheat sheet (although as I have posted this prior -- I warn you that some of my more learned colleagues challenge some of the agfel definitions included on my sheet of cheating...but I'll leave that for your free time to hunt my alleged errors :). Regardless, with an AgFel, guess what? Your guest alien will not be getting out of the pokie. Don't even ask. Your client has "detained" stamped on his forehead. If you want to see if you can avoid that...TALK TO ICE BEFORE BEFORE BEFORE BEFORE (ahem...did I mention, um, "before"?) the judge has your case. The judge is compelled to keep your client detained if she has an AgFel. However, ICE can do whatever they want before EOIR takes the case. This is really important for CBP (custom and border patrol) ops (that would be LPR's that are snagged at the border for having a nefarious AgFel past that, for some reason, was allowed to be ignored for years and only now makes the evil heathens). If someone contacts you about a CBP "deferred inspection" grab them vigorously, and make SURE he or she takes you to the interview. You can beg and plead with the CBP officer to ask ICE to let your client walk -- even with AgFels. Once your client is non-detained -- judge can't revoke that, so it is possible to have a doomed, er..client out even with an AgFel. So...see if you can cajole ICE to play nice. Good luck with that, by the way :)

Let's see.. oh, and what about other MCH's? Well...they are just status hearings (a federal term for a continued case on the criminal docket). Usually you'll have one more after you plead relief so that you might have a glorious opportunity to, before all the assembled sad faced immigrants who, in court do find themselves, present a completed application of whatever relief thou hast otherwise requested in this, you first MCH.

The real fun is trying to prepare your client for their actual hearing on the merits (called an "individual calendar hearing" in immigration court parlance -- and by the way, if you are a client reading this LEARN AND DO NOT DO THESE THINGS). It is quite common to get hearing dates that are quite literally years out from the MCH (for non-detained). Your honest hard working client(s) will wander away...move to different states...go back to their home country, get DUI's (unbelievably...this is the number one charge for most of the folks that come to our office...an endemic problem in the Hispanic community of Northern VA...is there an ADA claim there somewhere? I'm game if anyone wants to help)...or, their story will change, the facts will be all wrong, and when trial comes, they'll not have provided anything you need. Remember! You are now a stunning paragon of justice and imminent speaker on all matters immigration -- so no worries (laughing)...you will persevere. On at least one in ten. (laughing again).

Court is a lot of fun, and the challenges of immigration court are really the same for all court cases -- facts and foundation. Get'um right and the relief you seek is indeed a pearl of great worth within your grasp.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Tuesday, June 4, 2013

PODR - ICE Detention with a Final Order of Removal

Front-line immigration law work (affectionately known as "in the trenches" law) usually involves taking crazy situations and attempting to find some nuance -- a subtle interpretation of an obscure memo or regulation -- to give an otherwise hopeless situation a glimmer of "possibility." One are ripe for such plucking is the post order environment. "Post Order" refers to the period after a removal order has been entered, but before a client has been transported to a holding camp, and then off to the country of deportation. Post Order Deportation Relief (PODR) are the tactics used to attempt to jam that process based on ICE not moving forward in a timely manner. PODR does not grant any benefit to your client, only prevents them from being vacuumed out the exit door prematurely.

There are four steps to PODR:
1. 30 Day automatic review by ICE
2. The 90 Day Letter
3. The 180 Day Letter
4. The habeas corpus filing


Governing regulations are Zadvydas v. Davis, 533 U.S. 678 (2001), 8 C.F.R. §241.4(d)(1) (30 day ICE Review with criteria), 8 C.F.R. § 241.4(h)(2) (90 day ICE Review), 8 C.F.R. § 241.13 (6 months review by ICE Headquarters) .

However, what happens when the alien does not cooperate with ICE in the deportation action? This usually involves refusing to provide a passport, refusing to get travel documents, or other indications of non-compliance with ICE requests found of the I-229a form. Watch for this when the client has a viable asylum claim after an order of removal has been entered. Refusal to cooperate is grounds for ICE to maintain a client in custody regardless of duration (8 C.F.R. § 241.4(g)(ii)). However, impossibility is a meaningful defense to a charge of non-cooperation. A detained alien cannot get a passport, and requesting travel documents to a country that "abused" the client is illogical. Verify also that the deportation country has a treaty with the United States to accept back their removed citizens.

We are currently arguing on behalf of a detained immigrant who has not cooperated with ICE. An example of the 180 day letter is below:


MEMORANDUMM


10 APR 2013

TO: Headquarters Post-Order Detention Unit, U.S. Department of Homeland Security Immigration and Customs Enforcement, 801 I Street, N.W., Suite 900, Washington, DC 20536

IN RE: 180 Day Detention Letter, Mr. Detained Alien, A# 123 12 3432

1. We request that ICE take the following information into consideration in reviewing Mr. Detained Alien's custody status. We believe that he qualifies for an order of supervision. He is presently under a final order of removal and has been in detention for more than 6 months immediately preceding the writing of this memorandum. MR. DETAINED ALIEN HAS COMMITTED NO CRIMES.

2. It is unlikely that he will be deported to Nigeria in the reasonably foreseeable future due to the failure of the Nigeria embassy to provide travel papers, and the lack of passport.

3. Mr. Detained Alien is not a danger to public safety. He is not a flight risk.

4. Mr. Detained Alien last entered the United States on March 8th, 2003. He was ordered removed on July 2nd, 2008. He has the following family members in the United States:
Freed Sister US Citizen Happy Island, New York
Freed Brother LPR Happy Island, New York


5. Nigeria will not accept Mr. Detained Alien's deportation because of his homosexual status. Mr. Detained Alien does not have a passport, and cannot obtain one in detention. Our attempts to work with the Nigerian embassy have failed; they have not responded to our requests for any travel documents or other information (May 2013).

6. Mr. Detained Alien has not signed any I-229(a) because he has repeatedly indicated that he will be killed, tortured or detained indefinitely if he is returned to Nigeria. He has repeatedly asked for an asylum hearing, and he has indicated absolute fear of any return. He has not hindered his counsel or family from seeking information from the Nigerian Embassy, however, as he is detained, he cannot do this himself. It is impossible for him to comply, pursuant INA 241(a)(1(C), as there is no assistance he can render while detained, and no documents he can provide. Further, the required agreements under the I-229 form would vitiate his claim of fear of return by making him seek documents that would force him to go back to a location where he has expressed repeated fear of harm. His refusal is for that reason alone.

7. Mr. Detained Alien does not have a valid Nigerian passport, nor even an expired passport, available. He cannot provide what the deportation officer continue to demand, and it is manifestly unjust to demand he deport himself to a country where his harm is imminent .

8. There is no danger to public safety in Mr. Detained Alien's release. He has no criminal record, maintained a vibrant construction business in the community, and assisted in the employment of several citizens before his detention. Attached are letters from community leaders supporting his position.

9. If released, Mr. Detained Alien will live with his brother, Isioma Akwara in Maryland.

10. NOW THEREFORE, we ask that your office issue orders permitting Mr. Detained Alien's supervised release because of (a) the inability to deport Mr. Detained Alien in the future, and (b) the likelihood Nigeria will never accept him, nor issue travel documents for his return.

Fighting for detained aliens who have removal orders is often a losing proposition. However, finding the right relief, and arguing for their relief is a very rewarding an exciting area of federal practice. Often the most challenging aspect of the PODR process is keeping the morale of your detained client at a positive, functioning level. These cases can take many, many months to prosecute. Patience and persistence are key.

Questions about someone who is detained? Give us a call or visit our website today!

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Thursday, May 9, 2013

TPS for late filers -- Asylum and a new approach that might work...

We were recently approached by a charming fellow from El Salvador. He had been here illegally from 2008, and was not eligible for most forms of relief under standard INA outside-of-court options. Although, he did not have a phenomenal claim for asylum, he had been badly abused in El Salvador, which gave rise to his "escape" to America. I do believe we have some traction with a late asylum filing, but it will be tough. However, I wanted to see if there was some way to get him Temporary Protected Status -- or TPS. TPS is the golden grail for El Salvadorians without other means of adjusting.

The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our despondent state -- namely, El Salvador has been continuously re-designated, and the current extension of TPS status has been pushed to September of 2013.

Turns out, this "push" of extension to September is key. Taking the extension in mind, and reading about "late filing" we came up with an idea -- (and NOTE! This is just an idea...this is not by any means settled law -- we are experimenting with an otherwise stagnant case). 8 CFR 244.2(f)(2) states:
(2) During any subsequent extension of such designation if at the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;

Of special interest to us was the provision at 8 CFR 244.2(f)(2)(ii) which seems to suggest that a late filed TPS will be accepted if there is a pending asylum application in the works.

To be clear, our test case is not in removal proceedings -- this is an affirmative asylum application filed with a request to waive the 1 year filing requirement due to extreme hardship.

We plan to file the initial asylum case within a month or so, then take said filing receipt and immediately apply for TPS.

The question is -- will USCIS accept the notice of filing of the asylum case as proof of "in asylum application status" for TPS purposes? We are prepared to argue, "yes" -- as the regulations do not clearly stipulate otherwise.

Do you have a tricky immigration problem? Hanover Law specializes in working with tough cases and clients with special immigration needs. We approach your immigration issue from all angles, and seek to explore every avenue of relief.

Give us a call or visit our website today!

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Saturday, March 30, 2013

DACA (deferred action) and crime -- what happens when you have a conviction?

We recently completed a DACA (Deferred Action for Childhood Arrivals) case for a client who was convicted of simple possession of marijuana (less than 30 grams). What is involved with resolving criminal convictions for DACA applicants? You may have heard that criminal convictions are a complete bar to deferred action -- and this is largely true, unfortunately. But like every good rule, there are...exceptions. It is often worth speaking to a qualified immigration attorney (that would be us!) to determine if you meet one of the exceptions and are in fact eligible for I-821D (deferred action) relief.

To begin an analysis of whether you can apply for DACA, we will review the level of criminal activity. What is a "significant" misdemeanor as barred by the deferred actions rules?

Any offense that has a term of imprisonment less than one year but more than five days and is an offense of:
1. Domestic violence
2. Sexual abuse/exploitation
3. Firearm violations
4. Drug sales (distribution or trafficking)
5. Burglary
6. DUI/DWI

Or

any other misdemeanor where the guilty party is sentenced to 90 days or more.

When there is a criminal conviction, and the charge/sentence is not listed above, then we would write a letter to the USCIS directory recommending that your request for deferred action should be granted (called a "narrative"). To help offset any "bad" acts, we would submit proof that you attended rehabilitation classes (anger management, drug addiction, etc.) and that you have "good acts" to offset your criminal activities.

A conviction is a serious matter, and it can have terrible consequences for your immigration case. Contact us immediately for assistance if you have been arrested or have convictions on your record. We can help!

S Sean R. Hanover, Esq HanoverLawPC.com Contact Us 703-402-2723 Visit the Hanover Law firm at www.hanoverlawpc.com

Monday, February 18, 2013

GALs (Guardian Ad Litem) -- when and why

Guardian Ad Litem (GALs)


By Shara Herr

Today I had the chance to speak with our Family Law attorney, Stephen Salweirak, discussing the topic of GALs and their importance in difficult Divorce/Child Custody cases involving neglect or abuse of children.

What is the role of a GAL?


In some cases, especially those involving abuse or neglect, the children involved have rights and interests they are unable to protect on their own. The GAL provides the voice for these children, protecting their safety and needs and finding the best options specific to the case. Good GALs will not only interview the child in their home environment, but also take them out of their typical environment so the child is able to speak freely about any neglect/abuse in the home. They may also interview teachers, other child care providers, family members and anyone else that would have relevant information about the child’s best interests.

These attorneys are appointed by the court, and are required to have training specific to GAL advocacy. Your attorney may make recommendations to the court as to who is best qualified to represent the child. This is important because the expense of the GAL is often court ordered to be split between the two parents and may be very costly. In such a case, your attorney would review with you the options and rates of qualified GALs.

Preparing for GAL investigations


The Guardian Ad Litem is vital to the case. He or She investigate extensively, and then report back to the court, recommending where and with whom the child is going to be placed. It is important to speak with your attorney and create a checklist of things to be discussed with the GAL prior to any home visits to ensure they get the most important information about the child’s needs. Maintaining a good relationship with your GAL is very important.

“The GAL is charged by the court with the task of representing the best interests of the child, and it is important to demonstrate that you put the same interests above all else, even if it means tolerating the GAL’s occasional incursion into your home,” –Stephen Salwierak, Esq.

Thursday, February 14, 2013

So you are a witness...

For some people, there is great anxiety in appearing in court. This is especially true if the case in question revolves around you personally. Always a challenge! However, as trial attorneys, we have learned a few tricks that make appearing in court easier. Specifically, what the heck happens when you "go on the stand" -- this article will talk about immigration court, and state court specifically (criminal law, and family law), but it applies to any hearing where you are in adversarial proceedings.

The key thing to remember about testifying is -- everything you say can and will be used against you. It is the job of opposing counsel (or the state, in criminal cases) to try to learn everything he/she can about you, and then use that information against you, or against some individual in the trial.

Remember, you are speaking under oath. That means, if you lie, bad things can happen to you. Perjury is the act of lying under oath (to perjurer one's self).

What do attorneys ask of their clients? We want you to do the following when answering opposing counsel:
  • Answer only the question asked.
  • Keep your answer simple. Provide as little depth as possible to what is asked.
  • Be polite, and always respectful.
  • DO NOT be evasive or argumentative.
  • Stick to the story! Remember, prior to trial you will have already chatted with your attorney and described what happened. Don't change things!
  • If you get confused or don't know what to say, look at your attorney so he/she can object to buy you time.


Whenever possible, site (mention) supporting documents. Use outside evidence to bolster your story.

The VirginiaCLE website has a useful summary:
Witnesses must come to understand that there is no "truth" unless it is proved in court by persuasive evidence. An online definition of "finding of fact" reads, "the determination of a factual question vital (contributing) to a decision in a case by the trier of (jury or judge sitting without a jury) after a trial of a lawsuit, often referred to as findings of fact." And yet, the definition of a "fact" is variously "the quality of being actual," "an actual occurrence," or "a piece of information presented as having objective reality." A person limiting herself to presenting Sergeant Friday's "Just the facts, ma'am" will be presenting subjective observations as perceived by her, not unassailable truths.


Remember, work with your attorney to practice and test your statements. Tell the truth, but be ready to be thorough and be questioned. You can do this!

Do you need trial help? Call us now to get prepared for your hearing. It can make the difference between success and failure.

S

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

Saturday, January 5, 2013

New Provisional Waiver -- I-601A. Key for EWI I-30 Processing

The long awaited issuance of the state-side 601A waiver is over! The new regulations go into effect 04 March 2013. This is great news to many individuals waiting for 601 waivers in order to proceed with their I-130/I-485 processing packages.


History


Perhaps a brief explanation is order for the rest of us! Many immigrant family members find themselves with a serious problem. They realize that, although they qualify for sponsorship by an LPR spouse, because they entered the country illegally, they are no allowed to convert from non-immigrant status to LPR status without first obtaining a waiver (called an I-601) allowing them to be forgiven for entering, and remaining in, the country illegally.

Living in the US illegally triggers a 3 or 10 year bar, depending on how long you remained here illegally (<1 year = 3 year bar; >1 year = 10 year bar). You cannot be sponsored until you have spent that time outside of the country. In order to avoid the "bar", and immigrant must file an I-601 "waiver" form with the consulate in their home country. Note the location of filing -- the consulate in his/her home country (although this recently changed to allow stateside filing of the forms, the process for the immigrant was still the same). Under a standard 601, An immigrant with a 3 or 10 year bar is required to leave the country after filing an I-601. The term for this is "consular processing." If the immigrant can show extreme hardship, the bar is lifted, and the immigrant may re-enter the country legally. It can take anywhere from 6 to 8 months for a determination to be made on an I-601 application -- and the entire time, the immigrant must wait in their home country.

For many years, there has been a great cry to have the I-601 process modified. Family members (specifically, spouses of US Citizens, children, and parents)have been sent home waiting for 601 waivers that have taken years -- effectively destroying the family or causing terrible problems. The USCIS has studied the problem for some time, and determined that allowing the illegal immigrant to remain in the country during the 601 waiver adjudication period would not unduly burden the USCIS system.

Therefore, beginning in March, illegal immigrants whose only problem is their status in the country at the time they filed their I-130/I-485 package are elligible for expidited, in situe processing of their I-601. The new form allowing this is called an I-601A. The immigrant does not have to leave the country until the waiver is approved -- and then he/she travels to his/her home country, retrieves the I-130/I-601A visa and returns home the next day. No (or minimal) delay!

This is a tremendous breakthrough for our clients, and for millions of undocumented, but otherwise eligible immigrants to become legal LPR and eventually citizens.

Do you need an immigration help? Are you here illegally and would like to convert?Call us immediately and let us stop the clock and review the case before your loved one is shipped out-of-country! With the new I-601A provisisons, you may qualify for preferred processing and get a work visa or legal documents much more quickly that you imagined!

S

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