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Wednesday, December 3, 2014

IMMIGRATION WEBINAR: 18 December 2014 at 1pm (FREE!)

Entry into the United States -- whether as a visitor for a short duration, or an immigrant with an intent to stay -- is a complicated area of law. Learn how to advise your clients -- and how to help yourself! -- while navigating the changing landscape of US immigration law.

This workshop will cover three topics -- family immigration, business immigration, and visas. It is not meant to be exhaustive. Rather, as a topical overview, you will leave the webinar with a greater understanding of how the US system works, the timeframes involved, the steps required for the most common forms of immigration and visa applications, and what to watch out for in terms of triggers and immigration pit-falls. More importantly, the new immigration reforms by President Obama will also be discussed.

Everyone is welcome to take part. Please invite any you feel might benefit from learning more about US immigration law. Let's get the right information out to those that can benefit from immigration reform!

Sean R. Hanover, Esq., principal attorney of Hanover Law -- an immigration and criminal/family law practice based in Washington, DC -- will be hosting the event.

The entire presentation will be streamed live, 18 December 2014 at 1pm (Eastern US time). It will last approximately 90 minutes and is absolutely free. If you are in the Washington, DC area, you are welcome to attend in person (this will be produced in our Fairfax offices).

To register, contact admin@hanoverlawpc.com. Please indicate your name, and occupation. We will send you the link and syllabus. There are no prerequisites to attending -- and we will answer questions at the conclusion of the presentation.

Saturday, November 22, 2014

NEW IMMIGRATION RELIEF: DACA EXPANDED -- NO MORE AGE LIMIT!

DACA is Now Available to All!

With President Obama's announcement last night, DACA (Deferred Action, Childhood Arrival) has been expanded. Previously, the age cap was 31 -- individuals older than 31 could not apply. That cap has been removed! DACA is now available to a person meeting the DACA eligibility requirements, regardless of age. Further, the continuous residency requirements have also been amended. The new DACA requirements are:

  1. You must have arrived in the United States before you 16th birthday.
  2. You must have remained in the United States continuously since 01 January 2010.
  3. You must not have any serious criminal record (no misdemeanors or felonies -- some exceptions here).
  4. You must not be a priority removal target for ICE/DHS (generally, this means you cannot be a repeat immigration removal offender, terrorist, national security threat, serious criminal, gang member, smuggler, or other ne'er-do-well).
Source: DHS Memorandum on DACA eligibility amendments

This is an outstanding opportunity for those who were previously excluded. We expect an overwhelming response to these new regulations. This will result in a large backlog and significant delays in processing. Contact Hanover Law now to start this process immediately. We will determine if you qualify, and what steps you need to take to complete the application process.

Do you have a criminal conviction that makes DACA difficult?


Do NOT be afraid. We specialize in helping folks just like you overcome their immigration difficulties. We practice throughout the East Coast in immigration courts from New York to Florida. We can help you! While no attorney can guarantee success, our experience assures you the best possible chance for obtaining legal status.

The new regulations indicate that you will receive a work permit (EAD = employment authorization document), and legal status, for three years under the DACA program. In most states, this will also allow you to obtain a driver's license and apply for student loans/aid. This is state specific, however, so be sure to discuss this with us when you call.

Start your DACA application now. Call us at 1-800-579-9864. The government filing fee for DACA is $465. This covers the EAD and biometrics fees. The actual application is free. We will complete your DACA application and shepherd your paperwork through the system for $750 + the filing fees. If two or more applicants apply from the same family, the cost is $500 per applicant + the filing fees.

Be CAREFUL how you apply. If your application is denied, you do not have a right to appeal the decision, and you may not apply again. We are licensed attorneys.

Your better future starts today. Contact us to start the process of obtaining legal status. Stop hiding and start living.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Friday, November 21, 2014

NEW IMMIGRATION RELIEF: DEFERRED ACTION FOR PARENTS

DACA expanded to parents of US Citizen or LPR children!

With his announcement last night, President Obama fundamentally changed the immigration landscape. If you are here illegally in the United States, and have a US Citizen or LPR child, you need to contact our Firm immediately. We can help you obtain legal status under the expanded DAP -- deferred action for parents program. The components of DAP are:

  1. You must have been continuously present in the United States since 01 January 2010.
  2. You must have a US Citizen or LPR (green-card holder) son or daughter.
  3. You must not have any serious criminal matter (generally defined as no misdemeanors or felonies -- some exceptions).
  4. You must not be an "enforcement priority" -- generally defined as a national security risk, criminal, repeat immigration offender, or gang member.
See: DHS Memorandum on expanded DACA/DAP

The filing cost is $465. This includes the cost of the EAD (employment authorization document) and biometrics. The actual application itself is free. Hanover Law is completing DAP applications for $750 (not including the filing fees) each -- or both mother and father together for $1000 + filing fees. Folks -- that includes preparing the package and shepherding the paperwork through the system. Let us help you, as we helped hundreds of DACA applicants. We can't guarantee any result -- that's up to the Attorney General, the Secretary of Homeland Security, and the President. However, we can promise a properly submitted application that has the best chance of success. Don't take any risks with this!

Like DACA, you do not get to apply twice. If you are denied DAP, there is no appeal or second application. DO NOT make the mistake of carelessly applying, or waiting too long. This will take some time for DHS/USCIS to get the process properly perfected -- you want to be in the front of the line to take advantage of this program -- not waiting years to get your work permit.

Once approved, DAP is valid for three years. This includes you right to work in the United States for three years, and further, to get a driver's license. Let us help you!

Contact Hanover Law today at 1-800-579-9864 to begin gathering information for the DAP process. Be ready when submissions are accepted -- get legal status and join the millions who enjoy the benefit of working, living, and thriving in the United States.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Saturday, November 8, 2014

Bankruptcy -- sample Complaint Filing for 523(a)(2) and 523(a)(6) Adversarial Process

I have been meaning to post the link to this for a bit. We are representing a client who is attempting to avoid the discharge of his claim against the debtor. The following is an example (pdf) of a bankruptcy adversarial filing under 523(a)(2), fraud, and 523(a)(6), willful and malicious injury done by the debtor.




Click here to download the PDF file.

If you have a bankruptcy adversarial case, contact us! We can help develop both a defense and offensive strategy as required.



Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Bankruptcy -- Supporting a Motion to Remand to State Court (Relief from Stay).

Hanover Law recently won a hard-fought battle in DC Bankruptcy Court. The defedant/debtor sandbagged our client two weeks before a jury trail in Superior Court by filing bankruptcy. This is known as a tactical filing, and is not uncommon. However, fortunately for our clients, we also practice in bankruptcy court. Nice try -- but defendants actions were not successful. The Superior Court case will now go. Nevertheless, it is educational to see how the case proceeded in Bankruptcy.

I am including our response to the filing to prevent removal of the case back to State Court. I believe it is worth reviewing our strategy. When considering adversarial bankruptcy defense -- specifically remand or relief from stay, the key is to remember three critical points:
  • The litigation in state court must be well advanced (usually, through mid-discovery or later). Also known as the "amount of time" the state case has been ongoing.
  • The matter must be substantially regarding state law and NOT a federal or bankruptcy question (the resulting decision is always a bankruptcy question, obviously. Rather, the matter itself, about which the state litigation is concerning, cannot be a federal or bankruptcy issue.)
  • It should involve a jury matter. Though not strictly required, the fact there can be no jury trial on state matters in bankruptcy court is a strong motivator for the Bankruptcy Court to send the matter back to state.


The controlling cases are: Barge v. Western Southern Life Ins. Co., 307 B.R. 541, 547 (N.D. W. Va. 2004), and Linkway Inv. Co. v. Olsen (In Re Casamont Investors), 196 B.R. 517 (B.A.P. 9th Cir. Cal. 1996).

If you are the defendant attempting to prevent removal/remand, remember -- never argue that due process was violated in the state court (say, for example, due to pre-trial irregularities in preparing the case, discovery, etc.) when the parties have had ample time to prepare and litigate. There is nothing wrong with the approach per se, rather, the Bankruptcy Court is just going to point out that deficiencies in state court trial procedures are best handled at the state court level, not at Bankruptcy. A filing in Bankruptcy Court is not a second bite at the litigation apple.




Click here to download the PDF file.

Do you have questions about bankruptcy or an adversarial process involving a debtor? Come talk to us! For the defense or the plaintiff, we are an experienced litigation firm, and we are accomplished at interweaving bankruptcy procedures with state court action.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Tuesday, October 14, 2014

EEOC and Employment Discrimination Overview

EEO Complaint – tactics for filing.

We have recently had an influx of EEO (Equal Employment Opportunity) complaints at the Firm, so I thought a few minutes spent discussing EEO tactics would be helpful for future would-be filers.

First, the process for filing a complaint requires a thorough analysis of the claim itself. There are two very distinctly different types of employment claims.

  1. A suit filed against an employer for violation of employment discrimination law. These include must Title VII (race, color, creed, national origin, gender), American with Disability Act (illness or disability), Pregnancy Discrimination, sexual orientation, family leave, and Age Discrimination in Employment Act to name a few. To prove this, you must show that the employer did not have a reasonable, non-discriminatory business basis for the adverse employment decision. Retaliation has become a popular vehicle for discrimination suits, but requires some form of underlying protected action before it can apply. Sexual harassment or gender discrimination falls under this category. This grouping of laws carve out a “protected class” or grouping that cannot be the basis of employment decisions without seriously compelling business necessity.
  2. A suit filed for wrongful termination in violation of the employment agreement between the parties. This mostly applies to contractors, however, depending on the employment agreement between employee/employer, it may also apply to a regular employee. In this instance, a term of employment was violated by the employer, making the employer’s conduct invalid on the basis of breach of contract or estoppels.

When employment discrimination is alleged, it is important that the employee start taking notes documenting employer misconduct. Overt discrimination is rare, but does happen on occasion. In legal parlance, overt discrimination is called “disparate treatment”. This occurs when the employer states they are taking some action against you on account of your protected class. For example, your boss indicates you cannot be promoted because you are male. This is a form of overt, intentional discrimination that leads directly to a legal argument in front of a judge.

Usually, however, discrimination takes the course of “disparate impact.” In this form of discrimination, the employer does nothing overt. Instead, he engages in a pattern and practice of discriminatory practice designed to “push” the undesirable protected individual out, or prevent promotions, raises, hiring, etc. of a particularly protected group. An example of this might be a consistent failure to approve any medical sick days when your boss knows you have an illness that requires treatment. The mere denial of leave is well within the purview of the employer. A pattern of denying sick leave when you need to take care of on-going medical issues could give rise to a violation of the FMLA (Family Medical Leave Act) – and show a passive method your employer is using to force you out on account of illness.

It is important to remember that the key to proving disparate impact is note keeping. You must have a good series of records and instances where the employer has acted out against you or against those similarly situated. That having been said, do not presume every negative action of your employer is aimed as discrimination against you. Discrimination is a long and difficult course to prove.

A discrimination case may be initiated with the State EEO office, or the Federal EEO office. The initial investigation often requires mediation and discovery; in the Federal government, each Federal Agency has an EEO investigation office that conducts investigations of all EEO claims. While mediation can be helpful to learn more of the opposition’s position, it should be avoided as a time wasting exercise whenever possible. The real negotiations begin when either arbitration or a hearing before the EEO administrative judge is had. It is often not advisable to agree to binding arbitration. However, arbitration itself can be very employee friendly given the often significantly relaxed evidentiary standards (although this is not always the case, and research should be done to determine with whom the arbitration will be conducted and under what rules prior to agreeing to binding arbitration).

For more guidelines on how the EEOC (Equal Employment Opportunity Commission) handles federal worker employment discrimination cases, visit the trial manual (rules of court) at: MD110 Guidelines.
For more information about how to file a basic (non-federal employee) complaint with the EEOC: How to file with the EEOC.
Remember -- you have only 180 days to file (in most instances; this can be extended in certain circumstances).

Are you facing an EEO challenge? As either employer or employee, trial and employment matters can be frightening. Let us help you! Give us a call for a free, confidential, case assessment.

If you have a bankruptcy adversarial case, contact us! We can help develop both a defense and offensive strategy as required.



Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Saturday, September 13, 2014

Understanding the term "arriving alien"

Be careful not to get your immigration client "no bond" on result of bogus allegations!


Many DHS attorneys (opposing counsel in immigration cases) do a great job, but you still need to be vigilant against your fella not getting bond or access to certain relief because the government incorrectly classifies him as an arriving alien.

The term "arriving alien" is defined in section 8 CFR 1.1(q). It is a clear definition, and you must not let DHS or ICE mis-categorize the alien:
8 CFR 1.1(q):
(q) The term arriving alien means an applicant for admission coming or at- tempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of trans- port. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted ad- vance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act.

A recent example on a popular listserve we work with should illustrate:

My client entered the USA with a J-1 visa. The TA said that my client is an arriving alien. NTA allegation #3 states that client was admitted as a nonimmigrant exchange visitor for duration of Status. I have been doing research but I can't find it. Would anyone tell me where to find whether or not my client is an "arriving alien".

In this example, the client received a stamp -- "D/S" and entered the country. D/S stands for "duration of status" and indicates that the individual was reviewed by a Customs and Border Patrol officer, and admitted. Per 1 CFR 1.1(q), his is no longer an applicant for admission, and therefore he is not an arriving alien.

Where your client sneaks into the US (entry without inspection or EWI), the rule is that once he has "arrived" and is not detained within 100 miles of the border, he is considered to be within the US and no longer an arriving alien for Court purposes. The 100 miles, by the way, is a rule-of-thumb, not a firm statute.

Do you have a case involving an arriving alien? We'd love to help! Give us a call at 1-800-579-9864. Do not let your case get white washed!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Friday, September 12, 2014

Bruton Doctrine - suppressing co-defendant statements

When a co-defendant squawks – suppressing statements made by the “co-d”.


In criminal defense, it is often the case that more than one person is “nabbed” for the same criminal conduct. In the zeal of the prosecution to charge multiple parties as conspirators and individuals with “constructive” guilt, it is a common problem for the defense to be confronted with statements from one defendant that implicates the other. The proper action is to move to suppress these statements under the Bruton Doctrine.

For example: Frank and Tom are pulled over after being stopped for speeding. The police officer conducting the stop sees one of the two men through an object out the window of the car. It is dark and the windows are tinted. Later, a gun is discovered in the bushes where the car was stopped. The driver, Frank, states that he had the gun, but had given it to Frank when the car was stopped, and it was Frank who throw the weapon from the car. Frank does not make a statement. Both individuals are charged with illegal possession of a firearm, and ammunition. There are no finger prints or DNA evidence recovered on the weapon. Can Tom’s statements be used to convict Frank?

The Bruton Doctrine, named after the Supreme Court case Bruton v. United States, 391 U.S. 123 (1968), was originally aimed at co-conspirators, but subsequently expanded to include co-defendants. The central holding states:
[A]t a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial.

Key elements of the Bruton Doctrine include:
  • There must be at least two defendants.
  • The statements of one defendant must be used against the other.
  • The defendant making the statement must not testify at trial.

The Bruton Doctrine was further refined by subsequent case law limiting the reach of “statements” to testimony by a co-defendant only. See, Johnson v. United States, 17 A.3d 621, 628 (D.C. 2011) where the Court found that statements made by one co-defendant implicating a fellow wrong-doer were not excluded under the Bruton Doctrine because they were not testimony and therefore not subject to the Confrontation Clause.

The next logical question is – what is testimony? If Bruton indicated statements, but current case law limits to testimony, understanding the scope of “testimony” is critical to an effective Bruton argument. In United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004), the Court indicated a statement was testimonial in nature if it “intended to bear testimony against the accused.” Was the statement given for the purposes of convicting the codefendant? In point of fact – the matter is far from clear. While common law has defined testimony, counsel should always file a Bruton motion to suppress co-defendant statements regardless of whether such statements are clearly testimonial in nature or not.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Wednesday, August 27, 2014

Revoke a plea -- how to withdraw a plea and seek a trial

Occasionally, it becomes necessary to withdraw a plea once made. This is usually a messy situation that does not enamor the defense counsel to the prosecutors in the local district. Nevertheless, there is a certain strategy to the process, and I'll cover it here. For ease of discussion, I will refer to the D.C. Code. However, similar provision exist in VA and MD rules, and the general thrust remains the same in most jurisdictions.

The controlling code in D.C. is Superior Court Criminal Rule 32(e) which reads:
(e) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

Only pre-sentence plea withdraw is discussed in this article. Post sentence is almost impossible to obtain and usually requires clear error and is exceptionally difficult to obtain.

The controlling case in this matter is Gooding v. United States, 529 A.2d 301 (D.C.1987). This case lays out the foundation for the three elements which must be proven in order to obtain a pre-sentence plea withdraw. They are:
Element
Whether the defendant has asserted legal innocence.
Length of delay between entry of plea and the desire to withdraw it.
Whether the defendant had the benefit of competent counsel.


As in most motions, you should argue each element and demonstrate that the client has met the requirement. The one exception is the final element - competency of the attorney. If you also represented the client in the plea hearing, obviously you will not argue competency. However, not all three of these need be proven -- in fact, no specific element has more weight, and all must be considered in sum (Id. at 306).

To prove legal innocence, have your client submit an affidavit explaining why she accepted the plea, and why she feels it should be revoked. In her affidavit, have her state she is innocent, and have her deny the charges with particularity. Confusion as to what the prosecutor was offering, confusion in the prosecutor's proffer, or a short time window to accept a plea are all fertile grounds to assert innocence. Binion v. United States, 658 A.2d 187 (1995)

Length of delay should always be short -- no more than a week or two at the most. The longer the delay, the less compelling an argument the defense will have. United States v. Roberts, 570 F.2d 999 (D.C. Cir. 1977)

Be sure to always include new facts that make re-opening the case just and fair. The stronger the new facts, and the less likely the client would be to have known them, the more likely the court will hear the case.

Finally, review your drafts carefully! Effective writing of the motion to withdraw the plea is critical. You have only one bite at the apple. Remember - if this is done before sentencing, a motion to withdraw the plea severely damages any attempt at rehabilitation and remorse. This will cause sentencing to be much less favorable to your client.

Do you need help with a motion to withdraw? Give us a call -- we can review your case and discuss options for post-conviction/plea relief.

Taxes: Reporting Business Income (when you are paid instead of the business)

I have a 1099 in my name, but the money was really for the business...


This is a common problem we see in tax filings of small businesses -- especially those involved with the Federal Government or consulting work. Frequently, a hiring company will refuse to pay corporation-to-corporation, and instead insists on paying in the name of the principal. Said a different way -- your business isn't paid for the work you've done -- you are paid directly.

This presents a serious problem. First, by paying you directly, it most likely changes the taxable bracket in which you fall. Secondly, by paying you directly, you are unable to claim business deductions from the amount - before it becomes income via a K1 or other vehicle.

The fix for this is not too complicated, but does take a little planning. First, you must report your income. The key is where. In this case, you must file a 1120S (1120S = corporate filing, sub-chapter S election -- if you need help understanding this, you need to contact us to discuss. You must elect sub-s status, it is not automatic. Technically, this applies to C corporations, also, however, handling partnerships may be a little different -- so chat with us first). The 1120S needs to reflect the income that should have been attributed to the company, but was paid to you directly (the principal). To the penny, this must be accurate.

Then, on your 1040, include the money from the 1099 as self-employed business income. You will complete Schedule C, indicating a business. Use the EIN from the 1120S. Show all income paid on the 1099 or W2, and deduct the entire amount. Under explanation, indicate that this money was accounted for in the 1120S that was filed for the corporation. You should, therefore, show the income and a 100% right off on your 1040, and an exact matching entry on the 1120S (income). This properly removes the amount from your 1040 personal income, and places it on the 1120S. Once you have completed the deductions on the 1120S, the remainder income will then come over as a K1 -- so you'll see at least part of the income again in the form of dividend income (the proper method for receiving any overage from the corporation).

Do you have a tax question? Give us a call at 703-402-2723 or 1-800-579-9864. Your initial consult is free, and we're happy to discuss tax matters in a way you can understand.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Sunday, August 24, 2014

Conviction for immigration purposes

There is some interesting debate on aspects of INA 101(a)(48)(A), and I am actually looking to try a case on the matter. If you have a criminal conviction and are before the immigration court, call us!

If we analyze that section carefully, the wording is quite specific:
(48) (A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where­
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

The mere entry of a plea does not cause an immigrant to fall afoul of the "conviction" statute. INA 101(a)48(A)(ii) requires the judge to enter some form of punishment.

In Superior Court, in DC (as is true in most Federal jurisdictions), one can get a DSA -- deferred sentencing agreement. In this case, the individual pleads guilty (satisfying (48)(A)(i)), but the judge enters no sentence. Instead the prosecutor and the accused enter into an agreement (say -- community service). The judge merely continues the case to a different "status hearing". After six months and completion of the agreement with the prosecutor, the judge accepts a motion to change the plea to not-guilty, and the prosecutor enters a nolle prose. In this case section (48)(A)(ii) has not been satisfied, so despite the plea, there is no conviction. These are common in most states -- SIS in VA and PBJ in MD, for example (although one must be careful in the approach, obviously, as mishandling this in state court could be a problem).

Generally, this means DSA's and DPA's (deferred sentencing agreements and deferred prosecution agreements), as well, are conviction avoidable.

Also, be careful to read the difference between arriving aliens (inadmissibility) and removable offenses.

Post conviction relief is not so cut and dry. In VA, it doesn't really matter what the snorkel the federal holdings are -- the Supreme Court of VA has said no dice to re-opening immigrant cases for lack of notice as to consequences. However, re-opening a case for substantive fault (i.e. procedural or factual defect) is always an option. Removal of the conviction = end of the immigration issue (although, again, you need to be careful as to which type of case this is removal or inadmissibility). I would also be delighted to argue that a case dropped in state court (regardless of the genesis of the convictions removal) ought to be sufficient to end immigration proceedings (it is hard as hell to get post conviction relief in most courts). Let the government prove it was done only for immigration purposes.

Finally, post conviction relief that does not remove the conviction, but changes the sentence, is also effective for changing the consequences in immigration court (I believe your handouts spoke about this). While not directly on point to what was originally brought forth here, it should still be noted that you might be able to get an agg-fel dropped to something...well...less than an agg-fel by get the underlying court to modify the original sentence to less than one year.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Sunday, August 10, 2014

Filing a Continuance -- I can't make it, what do I do?

What to do when you cannot attend a court hearing.


If you do things out of time you're weird.
Robyn Hitchcock

No truer statement was ever uttered when it comes to legal proceedings. Changing the calendar is certainly a problem, but if approached properly, it can be done with a minimum of trouble. Approached poorly, and a calendar change will be denied.

Asking for a continuance falls into two categories.
  • A. Non-substantive hearing (frequently called a "status" hearing)
  • B. Substantive (also called "merits" hearing) court date

Generally, a motion to continue must be submitted at least two weeks prior to the impending date. You should contact opposing counsel and seek consent for the continuance. As a rule, a merits hearing will require consent to move or a substantitve reason (i.e. illness, or the attorney has another trial on that date); a status hearing can usually be altered merely at the request of either party.

As with all motions, be sure to include a certificate of service statement. Additionally, every motion should include certification that you have conferred with opposing counsel in good faith and he/she either agreed or did not agree to the proposed motion.

Finally, where your Court requires a Memorandum on Points and Authorities to be included with every motion, you can usually include the following two points, and it will be found sufficient for your memo:

1. The Rules of Civil Procedure and the Local Rules of this Court.
2. The record as thus far developed in the case.

One interesting variation on this is criminal procedure. Often, the calendar control for criminal court can, with the consent of the prosecutor, be modified through the submission of an email to the clerk of the particular judge hearing your case. Judges appreciate the steamlined nature of working with parties sans paper, and it makes coordination between the prosecutor and the defense much faster. Be sure to check with the prosecutor on your case to see if this is a possible avenue. A sample email might read:

Sir/Madame:
With the consent of the prosecution, I am writing to request the status hearing, scheduled for 12 September 2014, be changed to 25 September 2014.


The body of a sample motion to continue (this appears beneath the caption of the case):

[Defendant’s name], through counsel, moves this Honorable Court to grant [him][her] a continuance and reschedule [his][her] case from [Present trial date] to be reset at the [Date of next] docket call.

The basis for this continuance is that the undersigned will be [whatever prevents the attorney from being there].

Counsel has discussed this with the prosecutor on ______ (date) and [received/did not receive/obtained no answer] consent for this motion.

WE ASK FOR THIS:
[name of client]

THROUGH COUNSEL:
XXXX

Alternative format:

Comes now your [Claimant, Petitioner, Plaintiff, etc.], [client], and through counsel requests this Honorable Tribunal grant a continuance for the hearing scheduled for 13 May 2014, and in support thereof submits as follows:

1. Claimant's counsel is in trial on the 13th. I have provided a copy of the scheduling order with this motion (See, Exhibit A).
2. Counsel sought the consent of the opposing party, namely [opposing counsel]. [Counsel] did not return our contact.
3. Due to the immediate nature of this hearing, and the unavoidable conflict a trial on the 13th creates, [client]requests that the hearing be rescheduled for the first week of June. Preferably 02 - 04 June 2013.



Be sure to always copy the prosecutor on every email you send to the Court.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Monday, August 4, 2014

Get Out of ICE Detention -- When you have credible fear but remain detained.

Among one of the more perplexing aspects of immigration law is the plight of the arriving alien. Bluntly, an arriving alien without proper paperwork is going to experience a considerable amount of trouble. The procedures for an "undoc" arriving alien (aka smuggled, border jumping, etc.) are contained in 8 CFR 235.3. If the alien claims asylum, then a credible fear interview must be held. Regardless of whether the investigating officer determines fear, or if the an immigration judge later finds credible fear despite the investigating officers determination, the individual who entered the US remains in custody as an arriving alien.

There are three key steps to getting bonded out in a credible fear/arriving alien situation:
  • First, there must be a finding of credible fear by an asylum officer. The credible fear checklist is found at 8 CFR 208.30. For a more in-depth step-by-step application of 208.30, see the USCIS field training manual here.
  • Secondly, if the asylum officer declines to find credible fear, the arriving alien must ask to appear before a judge. The judge will then review the notes of the interviewing officer, discuss the case with DHS counsel and with the counsel for the arriving alien. Note -- you absolutely need an attorney here if you are planning to actual fight this. Although technically, an attorney for the alien exists only to advise the alien during a credibility determination (cannot make representations to the Court), as a practical matter, the judge usually does not question the alien further, but instead looks to the alien's attorney to explain the nexus and why, at law if all facts are properly admitted, this alien will be eligible for asylum. How to handle a credible fear hearings is the subject of a different blog.
  • Finally, if either the judge or the asylum officer has determined there is a credible fear, and that a nexus exists tying the credible fear to a protected class, the arriving alien will be eligible for parole.

Recognize that ICE parole/bond is not the same as an Immigration Court bond . An immigration court has no jurisdiction over arriving aliens (on account of the expedited removal order that is already entered upon an illegal entry into the US -- see 235.3 above). This means that an immigration judge is barred from granting bond. By statute, only ICE has jurisdiction over release of arriving aliens, even if they are placed in removal proceedings.

To obtain parole for a detained alien with a positive credible fear determination, the alien is no longer required to complete the deportation parole worksheet; however, as a practical matter, every alien should request parole and affirmatively ask to complete the worksheet once credible fear has been established. The form has no number, but an example can be found here. This should happen automatically. However, having an attorney complete the paperwork is of critical assistance to ensure no loose ends are left undone. Be sure your attorney informs the DO (deportation officer) or the DRO (detention and removal office) in charge of the alien's case that the presumption is release unless there is an overriding need to keep the alien detained (defined as safeguarding the community or national interest). See the ICE Memorandum on parole and release for more specific legal guidance on this. This memorandum has been key on several occasions to get ICE to "move along" on the parole request.

A few pointers to remember. The DO cannot complete a parole worksheet until credible fear has been established. Also remember that the arriving alien will not be paroled until an NTA (Notice to Appear -- subpoena for immigration court) has been issued with a return to court date. The reason is that once the alien is released on parole -- poof. No more alien. Unless ICE has the alien sign the NTA, there is no proof the alien received notice of the immigration court date, and no way to enforce a removal order if the alien does not show to court. Not going to happen -- ergo, no bond/parole until an NTA with a date certain return is issued. This can take a week or so after a hearing, or usually immediately is credible fear is granted by the asylum officer.

DO NOT forget to complete an AR-11 (change of address form) prior to having your arriving alien disappear on bond/parole.

What is the difference between bond and parole? From an absolute standpoint -- nothing. From a practical standpoint, a bond requires the payment of collateral in order to ensure the alien will return to court. Parole requires no payment (hence the term, "parole", which means "word" in the sense of "to give one's word").

Do you have an immigration question about arriving alients? Give us a call! We can help. Do not try to handle immigration court on your own -- this can be disastrous and lead to expedited removal without an appeal. We have specialized experience with gangs and special juvenile immigrant status (SJIS) cases. Let our expertise work for you.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

Wednesday, July 23, 2014

Jam that bankruptcy! The power of a 523 exception.

When the case you are pursuing get's booted by a bankruptcy -- fight back!


Folks, there are few things more frustrating to civil attorneys than watching a great case get all the way to trial stage...and then poof! Bankruptcy is filed by the defendant and the case flops like a fish on dry land.

Saturday, July 19, 2014

Appropriate conduct at a deposition.

Am I allowed to pummel and yell at an "opponent" in deposition? If I called a Naval officer a liar, am I in trouble?

Depositions are covered by both local rules, and in Federal procedures, Rule 30 of the Federal Rules of Civil Procedure. Specific to this question, Rule 30(d)(3)(A) which reads:

Monday, July 14, 2014

Can support paid to family members count as an IRS deduction?

Does support count as a charitable contribution?


Well...no. A "charitable contribution" must meet the qualifications of the IRS covered under 26 USC §170, specifically 170(c) -- definition of charitable contributions. As a rule of thumb, you need to donate to a corporation that has been qualified as non-profit or tax deductible by IRS regulation. This is not an absolute rule, but rather a good guideline. If you really have nothing to do, feel free to slog through section 170. This section has been known to make seasoned lawyers weep. Or, you can always find a willing tax attorney of CPA who will meet with you to help qualify your contributions.

Thursday, July 10, 2014

Admitting evidence when the authenticator can't come to trial

I have a great document I want to admit at trial, but author of the report is not coming to trial. What should I do?

Rather than try to answer this question under local jurisdiction rules, I'll try to tackle this using the Federal Rules of Evidence. For an excellent, searchable summary of the Federal Rules, see LII Rules of Federal Evidence. That should make this answer applicable to most locations. However, always check your local rules for evidence or procedure.

Sunday, July 6, 2014

DUI, OWI and DWI in Virginia and DC. What is the law?

So what is a DUI?

Well...a DUI (driving under the influence) is a criminal offense. Generally, there are two types of alcohol related charges.

AbbreviationNameDescriptionCode
DUIDriving under the influenceVaries. However, generally this charge requires proof that the alcohol content in an individual's blood is .08 or higher.VA Code 18.2-266; DC Code 50-2206.11

Friday, July 4, 2014

Avoiding Divorce -- Can I be made to sign something I don't want to?


I don't want a divorce...can I duck it?

Well, maybe. The question is, do you want to spend your life hiding under a rock?

In order for a divorce to be had in Virginia, DC, or Maryland, one of two things must happen (this assumes there is no acceptance of service, or agreement to waive service).

Wednesday, July 2, 2014

Why Everyone- Even The Guilty- Deserves To Be Defended

I had an interesting discussion today with a colleague of mine who practices personal injury law. Now this fella is a great attorney, and I have a lot of respect for his approach and his ethics. However, as seems to always be the case when we discuss law issues (I know -- shallow group, we lawyers), he is dumbfounded on how my firm can practice criminal law. More precisely, I was explaining a recent "win" we had on a sexual assault case. This made him angry. After all, didn't we just get a rapist to go free? That's right folks -- we won a complete dismissal of all charges on a class "A" felony count for first degree sexual assault (for those of you not privy to legal jargon, a class "A" is the worse type -- life in prison or the death penalty).

It would be easy to say we do this for the money -- for surely, defense of serious criminal matters is not a cheap proposition. It would be easier to say we do it because, "every person deserves his/her day in court -- and someone has to stand by them."

Wednesday, June 25, 2014

Wisconsin Voter ID Law Struck Down-What Could That Mean For Virginia?

Could this effect the future of Virginia's Voter ID law?
Starting on July 1, 2014, Virginia will begin implementing a controversial “voter ID law.” (VA code §24.2-643(B)) It is considered to be one of the strictest ID laws in the nation. According to the law, only those who have a photo ID will be allowed to vote.

Tuesday, June 17, 2014

Statutory Rape and the Age of Consent

(image from http://commandercheesecake.tumblr.com/post/26772882033)


From a recent question posed to the Firm on an online forum:

Question: I'm dating a 16 year old and I'm 22. We go to the movies, etc. If her parents consent to our relationship, is that okay? Can I be framed for his?

Sunday, June 15, 2014

NFA and Trusts -- a good question!

Should I setup a trust now?

An old schoolmate of mine asked about gun trusts. I thought it was a good question, given the timeliness of what is happening with new rules and the ATF, so I'm including it as a general post. Open to comments, and glad to discuss!

Saturday, June 14, 2014

Protective Order Violations -- and steps to fight back

In DC, what code controls protective orders?

Let's start with the basics. The following DC Code sections apply to your case: 16-1004, 16-1005, and 16-1006. Generally, a temporary order is given to anyone who claims abuse; a hearing will then be held to determine if the temporary order should be made permanent (CPO). Violation of a protective order results in (among other things):

Wednesday, June 4, 2014

DUI Cases - so you did not provide a breath sample (no blow)?

At Hanover Law, we defend a variety of criminal cases -- including DUI's. When it comes to drinking, it is not uncommon to have a client indicate they refused to do a breath test. I wanted to take a few moments today to discuss breath tests, and the requirements for testing. What happens if you don't blow into "the little tube", and how do you defend these cases?


Friday, May 23, 2014

Martial Arts Contracts and Breaking Out...

Giving the "chop" to a monthly revolving contract at a local martial arts studio

From time-to-time, Hanover Law is asked to give an opinion on civil actions in VA, DC, MD. A "civil action" is a lawsuit between two private parties. Usually a contract breach or suit for harm caused by some infraction or breach of duty. A great question was recently asked about revolving payment contracts for services at dance studios, martial arts studios, etc. I've included it here so everyone can benefit from the answer.

Tuesday, May 20, 2014

Revenge Porn in VA

Show me the pictures!!

(or not!)

A recent request made to Hanover Law asked for information related to unauthorized disclosure of naked pictures. Is this permitted in VA, and can you do anything about it?

Our Answer:

Saturday, May 17, 2014

I am mad -- they took my money!

You can take this International Shoe and stick it right up your tailpipe!

Folks, you need to read this in its entirety. There is a lot here -- and it covers a very common situation related to commercial suits.

Here's the story (from a upset citizen, addressed to us):

Wednesday, May 14, 2014

Does my employer have to pay my holiday pay when I leave?

Generally, you are entitled to all benefits you earned during the course of your employment. To fully answer this question, though, we would need to see what the employment handbook reads. While the employment handbook does not trump VA law, it can explain what the employer is contemplating.

However, in answer to your question, the code section in question is VA Code 40.1-29. While the employer is not required to pay holiday, personal, or sick days, once they agree to do so as part of your employment package, it becomes part of your wages.

Sunday, May 4, 2014

My boyfriend is getting rail-roaded on custody matters. Help!

Sometimes, a little tough love is the best advice. Mr. Sean Hanover answered a question regarding family law in a recent legal forum --

Question:

[NOTE: This question is not edited -- and for those of you who are tempted to write in a similar manner -- read on!] This question is for my boyfriend he has a daughter she stays with her mother who does not work lives for free does not drive and she gets child support from him there is no legal arrangement she will only allow him to see his daughter but, once a month.

Sunday, April 27, 2014

DUI from other states -- what effect on my license?

Sean Hanover was asked a question regarding out-of-state DUI charges. His answer my be useful to others with similar questions.

Question:

I have DL from DC but got a DUI recently in CA. Will the DUI affect my driving record or will my license be revoked because of the DUI in CA. How/where do I find out if there is no warrant on me and the vehicle?

Wednesday, April 23, 2014

Divorce and Sponsoring Another Immigrant Spouse

Divorce and remarriage under USCIS -- sponsoring another spouse:

In family processing, with a USC spouse, as long as the immigrant arrived on a valid visa (and can prove this -- inability to prove this is a mess and the subject of much consternation, gnashing of teeth and occasionally litigation), her overstay will not impact filing during the I-130/I-485 process. She is at risk, of course, of getting tossed out on her "behind" PRIOR to the filing of the I-130. However, once the I-130 is floated in the system, she is fine (from a deportation standpoint). Be sure to file the I-130, I-765, and I-131 along with the I-485. That's a work permit (I-765) and advanced parole granting the right to leave the country (and return!) during the pendency of the adjustment process (I-131).

Wednesday, April 16, 2014

But the child's not mine! What do I do?

We answered a question about a shocking "child is not mine" revelation in a recent forum about custody and family law. It is repeated here:
I have been married for 5 years to my wife. During that time (on 06 Jan 2012) we had a daughter. I just took a dna test and found out she is not mine. What can I do? How can I end this marriage?

Monday, April 14, 2014

Stopped by CBP - Deferred Inspection

Deferred Inspection with CBP


In this instance, there are a couple of considerations. You should expect to be placed in removal proceedings. It does not sound like you will be charged with an aggravated felony. First, this does not appear to be a crime of violence, and secondly, as you described it, it sounds like you received straight probation. As such, under sec. 1101(a)(48)(b), this probably wouldn't be an aggravated felony anyway (called "agg-fel" in our parlance).

Now, if this is NOT an aggravated felony, you might qualify for various types of relief when put into removal proceedings.

Saturday, April 12, 2014

What should I do before my Sentencing Hearing?

So I am going to be sentenced...what should I do?


Often, after a plea, defense (and prosecution) will "reserve allocution" at sentencing. That means that each reserves the right to argue about what sentence you get. The basis for sentencing is the "guideline" -- and there are two types, state sentencing guidelines and federal sentencing guidelines. Generally, you can find these online.

What can you do?

Saturday, April 5, 2014

Ukraine and Asylum - what if you are already here?

Ah -- the Ukrainian pains of asylum.


A couple of pointers about applying for asylum when you are already in the US. First, affirmative asylum (that's the kind you apply for when you aren't in the hot seat, i.e. in front of the immigration court!) must be done in the first year you are in the country. Sadly, the government does not want nor approve opportunistic "squatting" in the US -- hanging out here in the States until something bad happens at home, and then...poof! Asylum time! So, as for affirmative asylum, you have a great shot if you're in the first year of your presence a la United States. Otherwise...nada. See 8 U.S. Code § 1158 for information on asylum and the process of applying.

Friday, April 4, 2014

I-864 and Form Questions

What is annual income?


While chatting on Avvo, a question was asked about how to complete the I-864 income questions (Part 6).

Our Response

Ah -- the question of the I-864. Look on the bright side -- you are not trying to get multiple sponsors! Or self sponsoring...or any other more complicated fumbles that cause heartache on this form.

Sunday, March 30, 2014

Padilla and Post Conviction Immigration Relief in VA -- WE WANT YOUR CASE!

Padilla and Virginia -- we're looking for a good case! Do you have one?


In immigration related matters, the controlling case is Padilla v. Kentucky. This case indicated that if the judge did not review the immigration consequences of a plea, and further that the defense attorney did not advise the defendant of the impact a plea may have on him immigration status, that the case should be re-opened. This process is collectively known as "post-conviction relief."

Friday, March 28, 2014

Sex Crimes -- mixing minors and mayhem

Hanover Law answers questions on a variety of topics, and one recent inquiry stood out in our criminal discussions. In VA, what is statutory rape and what are other possible charges for sex with minors? Seems like a bizarre and slightly embarrassing question. However, if you have a teenager or young adult who is experimenting with sex, it is good to know what the risks might be.

Question:
I am 20 years old and have a child with an 18 year old. When we had sex, I was 19 and he was 17.

Criminal Indictment -- what is it?

So What's an Indictment anyway?



The term "indictment" (pronounced in-dite-ment) is used to indicate the process where a grand jury finds sufficient evidence to charge a person for a specified felony offense. The prosecutor must bring evidence and witnesses to the grand jury in order to convince the jurors that the charges are "real" and substantiated. The term for this is "taking the case to the grand jury", and under the constitution, this must be done in a speedy manor (Sixth Amendment to the Constitution). States have considerable leeway to decide what constitutes "speedy", and if the accused is not detained, the definition becomes even more broad. But generally, detained = ~100 days; non-detained = ~9 months. If this period elapses with no action on the case, a motion can be made to acquit the accused for want of prosecution.

For example, possession of 5 grams of marijuana is a misdemeanor offense, not a felony. Therefore, there would be no grand jury. However, possession of 1lbs of marijuana, with distribution charges and felony crossing state lines, would absolutely be taken to a grand jury.

Remember this -- a criminal conviction for drug abuse, no matter how minor, will have devastating consequences for your life and future job prospects (remember that little box you have to check indicating a conviction?). Do you have a drug charge? Let us help you immediately. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Tuesday, March 25, 2014

IRS Tax Deficiency

So You Have A Tax Bill....



Generally, you are not going to jail for not paying a minor tax bill. Less than $50,000 is considered quite minor on the books of the IRS. This, however, should not confused with the IRS not making your life a living hell. Oh, no!

They will. There are three stages to IRS wrangling.
  • The first stage is a notice that is mailed to you. This notice, commonly called a deficiency notice, will indicate you have an outstanding liability, why you have the liability, and what steps you can take to immediately fix the liability and avoid further IRS intervention. Often, the IRS is incorrect in its calculations, or you have misfiled something. When that happens, you can submit a modification to earlier filings or challenge their finding.
  • If you do nothing, the second stage occurs. You are notified of the IRS's intent to levy your wages, and bank account. You may also receive notice of liens placed against your property. You definitely need to defend against this, as the interest and penalties can be stunning.
  • The final stage is seizure and foreclosure of assets and property. In this event, the IRS actual sells off your property to pay for the tax debt.

There are several methods for stopping or challenging each step. If you have a moment, read our blog (at www.hanoverlawpc.com) and look-up the article we wrote on IRS form 443. Do you have a tax question? Call us! We'd be glad to help. 703-402-2723


Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Tuesday, March 18, 2014

So you want a divorce...now what?

So my friend Amy came to to talk to me about family law problems. Her husband had walked out rather unexpectedly. They owned a home in Virginia, and her children were mostly grown and gone. She was really annoyed that Mike was gone for the last few weeks, and asked our Firm what she should do. I answered her question thus:

Sounds like it might be time to file for divorce. If he has been absent for more than 30 days, you have a strong case for desertion. That gives rise for an at-fault divorce. As you have no young children at home (all 18 or older), you should be able to get a standard, no-fault divorce in 6 months (must be separate and apart). However, if you prove cause, you may be able to get it sooner. The law dealing with these matters, and others discussed in this post, can be found at VA Code §20-79.

Speed, however, is not the salient reason for filing a for-cause divorce. In fact, the advantage is one of positioning. During the opening volleys of the divorce engagement, you will file what is known as a "pendente lite" hearing request. Often, this is filed at the same time as the initial complaint for divorce.

The more "bad" acts you can prove (such as desertion giving rise to the for-cause divorce) the more cogent your pendente hearing arguments will be. Arguments often brought up at the hearing include: sole use and position of the marital home, spousal maintenance and support during the pendency of the divorce (the final amount, if any, will be determined at the conclusion of the divorce trial), child custody and support (not entirely relevant to your question), and use of shared resources (such as vehicles, savings accounts, medical plans, etc.).

There are several intervening steps that can be used to effect a legal separation without filing a divorce. Without knowing your situation more thoroughly, it is unclear if a divorce as mensa et thoro (legal separation as opposed to divorce) would be useful in your instance.

If you would like to talk about how to go about getting the best outcome for your situation -- namely, should you file now or wait the 30 days for your best desertion filing -- give us a ring at 703-402-2723 or email us at admin@hanoverlawpc.com.


Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Saturday, March 15, 2014

Access to Employee Records

While answering questions on a review board, I came across a request for information on employee records. I responded by citing to a Virginia CLE document covering the same topic -- see below!

Blocking Access to Employee Records

A recent Virginia CLE had a great write-up on this topic. I'll share excerpts from it here:


Are Virginia employees entitled to a copy of their personnel files?

No, with respect to employees of private sector employers. Most employees mistakenly believe that because a file has their name on it, it is their file. In fact, a personnel file is like any other company record and, unlike many other states, including Massachusetts (Mass. Gen. Laws Ann. ch. 149, § 52C) and California (Cal. Lab. Code § 1198.5), Virginia does not have a statute requiring that private sector employers permit employees access to their personnel file information. Thus, a private sector employer may refuse to give an employee a copy of or even access to the employee’s personnel file.

...

Public sector employees do have a right in Virginia to review their files. See Va. Code § 2.2-3705.1 (pertaining to exclusion from FOIA rules. “The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: .... 1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof.” ...

May an employer put negative documentation in an employee’s personnel file without telling the employee or giving the employee a copy?

Yes. Many human resources professionals have been taught erroneously that negative personnel documentation cannot be placed in a personnel file unless a copy is furnished to the employee first. There is no prohibition against a private sector employer in Virginia placing negative personnel documents in an employee’s personnel file without having first given a copy to the employee or having told the employee. This misconception probably arises from fundamental notions of fairness, with some employers believing it would not be “fair” to place such documentation in the employee’s file without having first given the employee a copy. ...


This was taken from the Virginia CLE bulk-email entitled: "Did You Know? Is an employee entitled to a copy of his or her personnel file?" sent on 14 March 2014. For a complete copy of the email and relevant information, visit Virginia CLE, at: www.vacle.com

Do you have a question about employment law? Give us a ring! We can help -- 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Thursday, March 13, 2014

Harassment and Extortion

They Took a Video of WHAT!?

What do you do if someone is threatening to do something (say, post a video) against you unless you pay them money, or give them something?

There are really three avenues here. The first is criminal law. You can swear a warrant out against the offending individual. The code section is VA Code 18.2-59 and reads in pertinent part:

"Any person who (i) threatens injury to the character, person, or property of another person, (ii) accuses him of any offense...and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony."

Saunter down to the local magistrate office (usually at the adult detention center, but contact the non-emergency police number, and they can provide the proper address for your locale) and bring proof of the threat.

A moment to digress here -- as this applies to both criminal and civil (below). In order to move forward, you must have some proof that the person is threatening you. Your case will fall flat if there is not some extrinsic (that means other than you) evidence to support your allegation. Did he call you? Did she text you? Is it on facebook or email? Think this through -- you will need to provide evidence of the purported wrongdoing ere the police or the Court can help you.

In this situation, the second approach is to obtain a civil injunction against the person. This essentially states that the individual is injoined (stopped) from doing some act by Court order. If they do it anyway, they will be heavily fined or even put in jail. The Virginia Code has many different section dealing with protective orders and civil injunctions. See for example, 19.2-152.9 and 10 which state in part:

The court may issue a protective order pursuant to this chapter to protect the health and safety of the petitioner and family or household members of a petitioner upon (i) the issuance of a petition or warrant for, or a conviction of, any criminal offense resulting from the commission of an act of violence, force, or threat or (ii) a hearing held pursuant to subsection D of § 19.2-152.9.

You would injoin the wrong-doer from threatening you and from posting any video or other private material.

Remember, you cannot stop someone from posting an already public video, although you can argue that that public material, purposely misused or misconstrued against you, is grounds for harassment (leading you to file a protective order).

Thirdly, if the individual actually published the offending material, and you were harmed by it, then you could also sue for slander and/or libel (essentially the same effect, just differs on how the material was published). This is a civil action (called a "tort"), and you can obtain a significant judgment if found credible by a jury.

Are you suffering from harassment, or extortion? Don't put up with it! If you are in the DC, Virginia, or Maryland areas, contact us -- we can help. 703-402-2723

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Wednesday, March 12, 2014

So I messed Up -- What do you do when you are the bad actor in a divorce?

From a recent discussion on the family law forum:
Question to Hanover Law:

My husband was cheating on me for fifteen years before I found out. Then I left the home after he became abusive to me in front of our children. I was gone for a while, so when I returned he had divorce papers served on me. Only for the divorce and no money was involved; the papers said that they were for divorce only and no settlement was involved.

So I Left....

Answer:

Generally, leaving the home without securing a separation agreement, protective order, court order, or some form of agreement opens you up to a claim of desertion. This is made worse by leaving the kids with the alleged "abusive" spouse. Would you leave your kids with someone that hurt you? That does not make a lot of sense.

Usually, the Court will find that when one parent left, absent extenuating circumstances, the person abandoned the family.

This results in grounds (at least in VA and DC) for a "for cause" divorce. This type of divorce grants a more favorable status to the complaining spouse in terms of property settlement, pendente lite support (that's support and benefits given to one spouse during the course of the legal proceedings).

What happens if you did this?
  • First, you need to get all your information together. In this case example above, the person left because of infidelity and mental abuse...so document it. If you can show that the other actor was also bad, it will go a long way in mitigating the impact of walking out on the family.
  • Secondly, you need to get a divorce attorney that is experienced in tough, possibly negative situation divorce. You can overcome an accusation of desertion, but it takes careful planning and work.
  • Thirdly, track the money -- who was using the credit cards and the bank accounts. This is important is any allegation of wrong doing.
  • Finally, be very clear on why you came back and that the absence was of a short, fixed duration.

Do you need help dealing with a difficult divorce? Are you the bad actor? You need to get good, honest, candid legal advice. When you're ready to talk about fighting for your rights, and overcoming challenging circumstances -- call us. 703-402-2723.


Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Who will hear my child support/custody case?

A question of jurisdiction and venue:

I was recenlty asked the following question in an online forum:

I live in Virginia and my husband and I separated 7 years ago. We have a child custody agreement but no child support agreement; I want to file for child support and to change the custody agreement but I don't live in the county where it was filed. Should I file for the custody case to be transfered to the county I will be filing for child support? Should I transfer it first and then file for support?


Venue vs. Jursidiction...just how does this work?


Answer:
Great question! We lawyers talk about jursidiction and venue all the time...well, more appropriately, jurisdiction. Rarely is venue an issue in a divorce/child support case. The proper location for divorce is circuit court. The proper venue for custody and support issue is Juvenile and Domstict Relations Court (J&DR), a subset of circuit. There you go -- venue solved.

The question is -- did you appeal you original J&DR determination? An appeal from J&DR goes to Circuit -- so you need to make sure the case is really still in J&DR.

That notwithstanding, any J&DR court in VA has jurisdiction to hear the case. If your ex does not want you to bring the case where you are now, he can file a "forum non-conveniens". Usually, that is reserved for jurisdiction arguments, but it can be argued for venue, too -- but only if filed timely after you bring the suit.

Your case for hearing it local to you is further bolstered if the child (children?) live with you now. But this is just icing on the cake (or a handy way of smushing a forum-non-conveniens filing).

The code section for Virginia dealing with venu is: VA CODE §8.01-257 (venue, generally). Dealing with children and J&DR matters: VA CODE §16.1-243(b).


Need help with figuring all this out? Give us a ring! We'll be glad to chat with you further. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Sunday, March 9, 2014

Waivers and Adjustment of Status for Refugee/Asylee Cases

A Clever Waiver for Humanitarian Refugees and those holding Asylum

Adjustment of status for individuals granted asylum or refugee status can be tricky. Because they have no sponsor in the US, they have no easy means of converting from "legally here" to "lawful permanent resident" or LPR. In the code there exists a provision for just this case -- INA 209. Under INA 209, any refugee admitted under the 50,000 person cap as a humanitarian refugee pursuant to INA 207, and any individual granted asylum under INA 208, may apply for LPR status after 1 year (See, INA 207(a) & (c), INA 208(d)(3), and INA 209(a) & (b)).

However, what if the individual applying for adjustment has a criminal history? Typically a 212 or 601 waiver would address these problems in an I-130/I-485 context (including removal proceedings) -- however, that cannot be done when the refugee or asylum holder cannot return to his/her home country to await adjudication of the waiver. Grid lock.

The resolution is found in INA 209(c). The code specifically permits the waiver of criminal conduct for asylee/refugee applicants -- with a few provisions. In 2005, USCIS issues guidance on the application of 209(c). An excerpt dealing with what may, and may not be waived is included here:
Section 209(c) of the Act prohibits the Secretary from waiving the following grounds of inadmissibility:

  • Section 212(a)(2)(C) of the Act relating to drug trafficking;
  • Section 212(a)(3)(A) of the Act relating to security grounds;
  • Section 212(a)(3)(B) of the Act relating to terrorist activities;
  • Section 212(a)(3)(C) of the Act relating to foreign policy considerations; and
  • Section 212(a)(3)(E) of the Act relating to Nazi persecution and genocide.

The Secretary may waive any other ground of inadmissibility under section 212(a) of the Act for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (Interoffice Memo, Aytes, HQPRD 70/23.10, 31 Oct 2005)

While there are provisions that allow USCIS to enter a waiver sue sponte when reviewing an I-485 for refugees/asylees, this counselor strongly recommends that an I-602 always be included with any filing where a waiver is required. The 602 form requests USCIS waive any precluding events or history. The more serious the crime, the more information must be provided to prove the "equities" of the case -- the balance in favor of granting the waiver vs. the seriousness of the crime warranting denial. Writing the waiver brief to accompany the 602, and providing all relevant information and supporting document, is critical. Be sure to speak with a competent attorney who has experience writing 601 or 212 waivers -- much of the content will be similar. The advantage to a 602 waiver, however, is that the presumption is in favor of the immigrant for all but the most serious offenses.

More information on the application of 209(c) can be found in the case Matter of Jean, 23 I&N Dec 373 (AG 2002). This case is interesting in its own right -- the Attorney General took a direct interest in the 209(c) case after BIA applied too liberal a standard in granting 209(c) waivers. Any immigrant convicted of particularly serious crimes, or those involving violence or weapons, should read this case very carefully. Would you like help adjusting your status from asylee/refugee to lawful, permanent resident? Do you have a criminal history that might prevent you from adjusting? Talk to us! We have years of experience working with folks just like you. We can help! 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Saturday, March 8, 2014

Legal Custody - a quick example

From a recent question/answer session on family law:

Question:

How does Legal Custody work?
My sister is divorced, and she and her ex-husband have joint legal custody of their 7 year-old son. He has attended a blue-ribbon private school for the past two years, and he is thriving. He absolutely loves his school, which he attends with his cousin, who is his very best friend.

His father wants to switch him over to public school, and has provided only a few (and in the mother's and my opinion, ridiculous) reasons to do so. The mother is the one who takes their son to school, picks him up, does all the volunteer hours, attends school functions, aids with homework, etc. The father has done NOTHING concerning the child's education so far, other than paying all the tuition the past 2 years (in lieu of the $300/month child support that is in the separation agreement, I might add!). The mother is willing to pay the ENTIRE tuition herself.

Can he force her to send her child to an inferior public school under these conditions?

Answer:

Legal Custody Explained
Force the matter? Perhaps. The controlling issue here is not who pays what, but rather who has legal custody. Decisions regarding education, religion, medical matters, etc. are controlled by the custody agreement -- under the title "legal custody". If mom has "sole legal custody", then she can dictate precisely where, when and how the child will engage schooling. If the matter is joint, than dad has a say, too.

In the end, mom can probably just keep the kiddo in the school. If dad is unhappy, he will have to file to enforce his view. If he has joint custody, he only needs to argue the equities of the different schools. If mom has sole legal, then he has to first prove he should have a say, and only then, if the court agrees to modify "sole" to "joint", can he argue the equities of the schools.

As to the equities of the school -- the child's two year history with the school, relationships with peers, and academic success are all key. These are strong arguments.


If you have any questions regarding legal custody -- give us a ring! 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Sunday, March 2, 2014

IRS Section 1244 - Claiming Worthless Shares

What happens when you invest in a company -- large or small investment -- and the company goes belly up? Usually, you are limited to claiming a max of $3,000 against regular income (unlimited against capital gains). But what if you invested much more?

Enter 1244!


Tax code 26 USC §1244 deals with the deduction for worthless stock -- either because of mismanagement or simple bad luck. Known as "1244 stock", qualified deductions under this regulation are not limited to the capital gains deduction cap ($3K outlined above), but rather have a much higher deduction of $50,000 for individuals, and $100,000 for married couples.

To qualify for "1244" status, a company, whose stock is now worthless, must meet the following requirements:

1) The taxpayer has to be the original holder of the stock (can't inherit it, or buy it from someone else).

2) Taxpayer must be a real person (i.e., not a trust, estate, company, etc.)

3) The stock must originate from a company whose gross value (based on the value of the shares themselves) does not exceed $1 million ("small business" test). There are some qualifiers here -- stock issued for amounts invested over the $1 million threshold do not qualify for 1244 stock status (In the easiest example, if each share is worth $1, the first million shares would qualify for 1244 status; each share purchased thereafter would NOT qualify for 1244 status. If investor X held 600,000 shares (at $1), and investor Y held 500,000 shares (at $1), some portion of each set of shares would not qualify for 1244 treatment. The code states that which shares are 1244 shares should be declared if the gross investment is above $1 million; there is a formula if that fails, but it is beyond the scope of this article); also, there are computation differences when more money is put into the company, but no new shares are issued.

4) The company issuing the stock must be "largely an operating company." This is defined variously in the code, but the controlling cases are Bates v. United States, 581 F.2d 575 (6th Cir. Ohio 1978) and Crigler v. Comm'r, T.C. Memo 2003-93 (Tax Court 2003).

Most companies/taxpayors will pass the first three tests, and the last one will be a complete miss.

In Bates, the Court explains the "largely an operating company" concept. There, the plaintiffs attempted to claim $100,000 in "worthless" stock losses. BIC, the company in Bates, had never sold any product, although it worked closely with another company, National Cleveland, to develop a machine tool business, and had even sent an "employee" (who was actually the son of the owner and was never paid) to work with the other company. There was considerable development work done on ideas and prototypes. However, nothing was ever finished or produced. The Court held:

Congress created a significant tax advantage in enacting § 1244, but it was intended to have narrow application. It was not intended to provide a vehicle for favorable tax treatment of losses suffered on passive investments or investments in large enterprises. Its purpose was to offer an incentive for investment of new funds in small businesses. Other provisions limit the size of corporations which may issue section 1244 stock. The purpose of § 1244(c) (1)(E) was to prevent a mere investment entity or holding company from qualifying.

and further:

The second issue presents little difficulty. BIC never engaged in any business operations. It invested most of its resources in National Cleveland. This investment resulted in the employment of Arthur Bates by National Cleveland. Nevertheless BIC was nothing more than a holding company or vehicle for investment. (Bates at 580)

There are many ways to show that the company was largely operating, even without sales. The Court did explain that:

If National Cleveland had paid BIC for the services of either Alfred or Arthur Bates or if there had been some agreement specifying that the services were performed for National Cleveland on behalf of BIC the case would be much stronger for the taxpayers. (Bates, 580)

Other examples might be a business plan, investment in marketing and actual marketing leads, prototype deliveries and actual test deployments. In a receipt tax case Hanover Law handled, none of these factors occurred. In fact, it appears that while a few sales calls were made, and some material was produced, the thrust of the sales and marketing was fabricated (a great deal of fraud and misdirection). The moving of funds overseas further obfuscated the playing field and suggested this company was nothing more than a "holding company." The IRS is very very strick on when stock may be claimed as a 1244 writeoff. Our company did not qualify.


How do you claim "1244 shares" status on your tax return?


Complete Form 4797. 1244 losses are claimed at line 10. See: Form 4797 instructions.
Complete Form 8949 if your loss exceeded $50K (individuals) or $100K (married filing jointly). See Instructions for Form 8949

Do you have a tax question? Give us a ring or send us a note! We'll be glad to review your question and see how we can help. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Friday, February 28, 2014

Ducking Service -- can I hide from a lawsuit?

Question:

Can I hide?
How important is it to have the parties' names spelled correctly on the complaint and other documents? An unhappy individual is attempting to sue my small corporation and me personally. If my name is John Smith and the corporation is ABC Inc. but the named defendants are John Smyth and ABCs Inc., could eventual default judgments be enforced against the correctly named parties? “John Smyth” has been "served" by posting at an incorrect address and the sheriff has been unable to locate a registered agent for the non-existent corporation, but I noticed in courthouse records that the plaintiff recently gave the sheriff a new address for an uninvolved person bearing my registered agent’s name. (Does the sheriff ask “Are you John Doe, registered agent for ABCs Inc.” or does the sheriff merely ask “Are you John Doe?”)

I know the State Corporation Commission FAQ specifically says that ABC Inc. is distinguishable from ABCs Inc., but I don’t know if the same principle applies to individuals. I’m debating whether or not to respond, despite the misspellings.

Answer:

Do names matter?
The answer is -- sort of. A typo is not going to invalidate a suit. If the Court can determine who was meant, then the name itself will not be a bar. Often, when a defendant is unknown, a suit will be brought in the name of Jane or John Doe, and only after discovery will the actual parties be named.

However, of more importance is service. Unless there has been service on the defendant, corporation of individual, the suit cannot go forward. There are ways to serve a party by publication, but this is much more difficult, and generally frowned upon.

You should be careful, however. In almost every circumstance, the Virginia Corporation Commission requires that every company, other than a sole proprietorship, have a registered agent in Virginia who is authorized to accept service on behalf of the company. If you don't have that, the person trying to sue your company can serve notice on the Corporation Commission itself, and this can, in most instances, act as sufficient service to move forward in the suit. Not to mention, you can get in hot water for not have a registered agent. Not advisable.

Also, in Virginia, other than in small claims, a corporation may only be represented by an attorney (in small claims, attorneys are not permitted in VA).

So -- as to personal service for a suit naming you -- probably can be avoided by ducking service. As to your company -- probably cannot be avoided without defaulting. Best to get an attorney and head that one off at the pass. By the way, an attorney can represent your company, but not be authorized to accept service on your personal behalf. Hence, you could still remain anonymous. At least until you had to come to court for your company...

If you need further help with company, corporation, or personal service questions, feel free to give us a ring at 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006