Total Pageviews

Sunday, December 20, 2015

VA Bankruptcy -- a warning to those filing for the Homestead Exemption

Just a quick post here -- remember that you must file your notice of homestead election (VA) with the circuit court in the County were the debtor resides. This must be done by the fifth day after the meeting of creditors. See VA Code §34-17. If you fail to do so, the trustee will file to disallow your exemptions, and you'll be stuck arguing about the applicability of farm tools (the only thing excluded from the mandatory filing requirement!).

Conversely, the exemption of wages from the debtor's bank account is not subject to a homestead filing. The maximum allowable deduction from a debtor's personal account, when the monies therein stem from payments for work done, is 25% (limit of max garnishment in VA). Be prepared to argue "source of funds." See VA Code §34-29.

The format to file with the circuit court is:

NOTE: There is a difference between personal property and real-property. Be sure to indicate the filing when making it -- or use both if combining different exemptions!


See VA Code §34-14 (Personal Property)

HOMESTEAD DEED FOR PERSONAL PROPERTY
Name of Householder ____________________________________________

Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1?

Address of Householder _________________________________________

Name(s) and age(s) of dependent(s) _____________________________

County/city in which householder resides _______________________

Description of property claimed as exempt and its value
________________________________________________________________

Number of homestead deeds that have been filed by the Householder
________________________________________________________________

Exemption amount previously claimed on prior homestead deeds
________________________________________________________________

List the jurisdictions where previous homestead deeds were filed
________________________________________________________________

________________________________________ (Signature of Householder)

STATE: COUNTY: This document was acknowledged before me by _______________________ or _______________________.

Signature of Notary:
Printed Name of Notary:
My commission expires:
My commission ID:


See VA Code §34-6 (Personal Property)

HOMESTEAD DEED FOR REAL PROPERTY
Name of Householder _______________________________________________
Name of title holder of record (if different) _____________________
Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1?
Address of Householder ____________________________________________
Name(s) and age(s) of dependent(s) ________________________________
County/city/state in which real property claimed as exempt is located
___________________________________________________________________

Description of property claimed as exempt _________________________
___________________________________________________________________

Value of property described above _________________________________

Number of homestead deeds that have been filed by the Householder
___________________________________________________________________

Exemption amount previously claimed on prior homestead deeds
___________________________________________________________________

List the jurisdictions where previous homestead deeds were filed
___________________________________________________________________

________________________________________ (Signature of Householder)



STATE: COUNTY: This document was acknowledged before me by _______________________ or _______________________.

Signature of Notary:
Printed Name of Notary:
My commission expires:
My commission ID:


Do you have a question about bankruptcy law? We practice in many different Federal jurisdictions -- we would be glad to chat with you about your questions and your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Overstaying Your VISA: duration-of-stay (D/S) stamp on the I-94 offers a way out

Just a quick footnote. I was speaking with a client today about her son who was out-of-status and had been since 2013. She was an LPR, but he was bum out of luck. Or was he? He arrived in the US with his parents in 1997 under the J2 category. Duration was "D/S". Everyone else adjusted, however, he did not. What relief does he have?

Turns out, he has quite a bit. Because he never received any notice from USCIS, or a judge, that the duration was expired, he is out-of-status, but has not accrued unlawful presence. What, you say!? The actual USCIS memo dealing with this is entitled: "Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (the Act)" written by then Executive Associate Commissioner for the Office of Field Operations, Michael A. Pearson (2000). In pertinent part, it reads:

(2) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the period of stay authorized by the Attorney General is unlawfully present and becomes subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants. (A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the period of admission authorized by the Service expires, as noted on the arrival document issued at the port-of-entry. (B) Nonimmigrants Admitted Duration of Status (D/S). Nonimmignants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.


Use this information to jam unlawful presence arguments when applying for various USCIS status changes for D/S candidates.

Note that D/S is valid even if served an NTA, as only an immigration judge can stop the duration of the stay - i.e. a mere notice of filing does not trigger a break in lawful presence. Remember, though, that lawful presence is not the same as legal status.

Do you have a question about immigration law? Contact us at 703-402-2723 or 1-800-579-9864. We are here to help!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Monday, December 14, 2015

Types of Asylum and how to claim them

A fellow practitioner asked me a question today, and I think it merits explaining in the blog:
Do you know what the process is for seeking relief at a USCIS asylum hearing for relief under the Convention Against Torture? We have a hearing on December 29 at Arlington.

This is a great opportunity to discuss the different "tiers" of asylum relief. The following is taken from the IJ Bench Guide referencing asylum (Benchbook)

1. The first is straight-up asylum. That requires only a showing of a “well founded fear” of future persecution – not a very stringent showing. The fear is based on being part of a protected group, having suffered some kind of persecution or loss (or a well founded fear of future prosecution), and now the fear. An asylum applicant may demonstrate that he is a “refugee” in either of two ways. First, he may demonstrate that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). Second, he may demonstrate a well- founded fear of future persecution on account of a protected ground through credible testimony that he subjectively fears persecution and that his fear is objectively reasonable. In mixed motive asylum cases, the REAL ID Act of 2005, requires an applicant to prove that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for the claimed persecution. Section 103(a)(3) of the REAL ID Act of 2005 , Div. B of Pub. L. 109-13, 119 Stat. 302,303; In J-B-N & S-M-, 24 I&N Dec. 208 (BIA 2007).

2. “Withholding” is the next rung. That requires a showing of a “clear probability” that the applicant will suffer severe harm if returned home. Where asylum (rung 1) can be somewhat objective, withholding and CAT are both objective and are based on the actions of the home country. As with asylum, a threshold determination must be made as to the credibility of the applicant for withholding of removal. INA § 241(b)(3)(C); see also INA §§ 1208(b)(1)(B)(ii) and (iii). A claim for withholding of removal is factually related to an asylum claim, but the applicant bears a heavier burden of proof to merit relief. For withholding, the applicant must demonstrate that, if returned to his country, his life or freedom would be threatened on account of one of the protected grounds. INA § 241(b)(3). To make this showing, the applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal. Cardoza-Fonseca, 480 U.S. 421. The applicant’s credible testimony alone may be sufficient to sustain this burden of proof. 8 C.F.R. § 1208.16(b). If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal. 8 C.F.R. § 1208.16(b)(1). There is no discretionary element. Therefore, if the applicant establishes eligibility, withholding of removal must be granted. INA § 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim.

3. The final rung is “CAT”. Here, the applicant must show that the government will kill them, or members of society that the government cannot control, will kill them, if they return. There must be a showing of protected group, usually some form of proof as to past prosecution, and the clear likelihood that death or severe harm will follow. The applicant for CAT relief bears the burden of proof. 8 C.F.R. §1208.16(c)(2). As with asylum adjudications, the applicant’s testimony, if credible, may be sufficient to sustain the burden of proof without corroboration. Id., see also Matter of Y-B-, 21 I&N Dec. at 1139. However, if the applicant’s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding may provide a sufficient basis for denial of CAT relief. In assessing whether the applicant has satisfied the burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including evidence that the applicant has suffered torture in the past; evidence that the applicant could relocate to a part of the country of removal where he is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information on country conditions. 8 C.F.R. § 1208.16(c)(3)

In answer to your direct question – because your fella qualifies for asylum, and that claim is the easiest of the three to prove, and further, because the protected classes in CAT (rung 3) are the same as in asylum (rung 1), an application for asylum necessarily covers the CAT claim. The major difference is this – asylum is discretionary. However, if your fella can prove he will be killed or severely harmed (tortured) if he returns, USCIS cannot return him. Note, though, that a grant of CAT is only a deferral of deportation. It grants no rights, and you cannot adjust out of it. Asylum is a much better option.

Do you have an asylum question? Call us! We can help! 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Federal Court filing deadlines/timeframes

This is a handy chart for determining filing deadlines for Federal Court actions. Original source: Civil time computation rules.

Federal Rule of Civil Procedure Time Period to Respond
   
FRCP 6 ( c ) -motion and notice served 14 days
prior to the hearing  
supporting affidavit served 7 days
   
FRCP 12 answer due 21 days
answer to counterclaim/crossclaim 21 days
reply to answer ( if ordered)  
if court denies a Rule 12 motion, answer 14 days after notice
due  
if court grants more definite statement motion within 14 days
answer to more definite statement 14 days after
   
motion to strike a defense to be filed 21 days
   
FRCP 14 filing third party complaint without 14 days
Court leave to file  
   
FRCP 15 amendments for pleading with no  
responsive pleading allowed within 21 days
response to amended pleading within 14 days
   
FRCP 23 Class action appeal filed with circuit within 14 days
   
FRCP 27 notice of hearing served on adverse 21 days
party  
   
FRCP 32 limit on use of depo taken with less than 14 days
short notice  
Objection to written question waived if not within 7 days
served  
   
FRCP38 jury demand no later than 10 days  
after last pleading directed to the issue no later than 14 days
filing demand for additional issues within 14 days
   
FRCP 50 judgment as a matter of law 30 days
   
losing party's new trial motion 30 days
   
FRCP 52 motion to amend findings 30 days
   
FRCP 53 objections to report of special 21 days
master  
   
FRCP 54 (d) clerk tax costs notice to pty 14 days
FRCP 54 motion to review clerk's taxation 7 days
   
FRCP 55 - hearing for entry of default  
jgm against minor or incompentent pty 14 days
   
FRCP 59 ( c ) motion for new trial no later than 30 days
   
opposing affidavits 14 days
court sua sponte order new trial 30 days
motion to alter or amend judgment 30 days
   
FRCP 62 automatic stay 14 days
   
FRCP 65 TRO expiration 14 days
   
   
move to dissolve no change
   
FRCP 68 Offer of Judgment 14 days
acceptance 14 days
   
FRCP 71.1 Service of answer in condemnation  
cases 21 days
   
FRCP 72 Objections to R & R 14 days
Response to Objections 14 days
   
FRCP 81 Serving answer to removed case within 7 days
or after initial service 21 days
or after summons 21 days
filing of jury demand in removal 14 days
   
   
Supplemental Rule B  
maritime garnishee answer 21 days
Supplemental Rule C  
filing notice of right or interest 14 days
filing of answer after filing statement 21 days
of interest  
Release of property after bond posted 14 days
Supplemental Rule G  
answer filed 21 days
   

Are you facing a Federal lawsuit? Call us! We have considerable experience handling complex litigation in federal, bankruptcy, and federal administrative cases. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Thursday, December 10, 2015

Regulations on Inadmissibility Criteria

This is a quick and dirty handy cite list for inadmissibility codes and regulations for immigration applications and proceedings:
INA § 212(a)(2)(A)(i)(I) Crime involving moral turpitude
INA § 212(a)(6)(A) Present without permission (one EWI, then stayed)
INA § 212(a)(6)(B) Failure to attend removal proceedings
INA § 212(a)(6)(C)(i) Willful misrepresentation of a material fact to get an immigration benefit
INA § 212(a)(6)(C)(ii) False Claim of US Citizenship
INA § 212(a)(6)(E) Alien smuggling
INA § 212(a)(7)(B)(i) Passport: none or expired
INA § 212(a)(9)(A) Previously ordered removed
INA § 212(a)(9)(B) 1 year unlawful presence, followed by illegal reentry (10 year bar)
INA § 212(a)(9)(C) Entry without inspection after immigration violation (perm bar)
INA § 212(a)(2)(D)(i) Prostitution: has engaged in prostitution within 10 years of application
INA § 212(a)(2)(D)(ii) Prostitution: has tried to procure a prostitute within 10 years of application
INA § 212(a)(1)(A) Health condition creating danger to self or others
INA § 212(a)(1)(A)(iv) Drug Abuser
INA § 212(a)(4) Public Charge

Special thanks to Ms. Sara Dunsky, Esq., an accomplished member of my AILA (American Immigration Lawyers Association) group, who posted this handy consolidated list. Well done, Ms. Dunsky!

Do you have an immigration question? Give us a call -- we can help! 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Wednesday, December 9, 2015

HB1, EB, and Employer sponsored greencards -- can they charge you for the service?

A recent post on a legal bulletin board asked about the intersection of immigration and employment law. It is worth noting that this type of case is far too common, and extremely disturbing. While an employee should be mindful of his/her loyalty to the company that sponsored him/her, you cannot be made a slave. To wit:

My previous company applied for my green card and made me sign a contract that if I leave the company within a year of receiving my green card, I would be responsible for the immigration attorney fees up to $15K. I worked for the company for 5 years. I left the company after 4 months of receiving my green card. The reason of my leaving was due to the company changing my job responsibility significantly (also my colleagues' in my team) 6 months prior to my departure. At least 2 colleagues of mine left around the same time and my supervisor was laid off. The company suspended my entire final paycheck plus cashed-in PTO ($4K). This put me in a very difficult situation. I used my entire savings to pay my rent and expenses of family (unemployed wife and 2 toddlers). On top of that, they pursued to get an additional $5K via a payment plan. After arguing that I left because they changed my role and that I would have stayed otherwise for many more years, they said they'd only ask for $2500 to close the deal. I have not been responding to their calls/letters for 2 months. On their last letter they implied a potential upcoming lawsuit, if they don't receive the $2500 by January 1st.

In this instance, you need to contact us immediately. This is absolutely unacceptable. You have two issues. At its heart, this is an immigration issue. The green card (LPR status filed through an I-140) belongs to you. The company is not permitted to hold you hostage in anyway for the card they procure. That is called indentured servitude, or peonage, and makes them liable for serious civil consequences. As for a contract breach, if the basis for the "deal" is void ab initio, any actions they take cannot be found legal.

I might also add that deductions from your paycheck must be looked at very carefully. Deductions are, generally, only legal if they fall under a very narrow band approved by the state. While you could technically agree to reimbursement of employer paid expenses (at the I-140/I-485 level), it does not sound like you agreed to this, and it certainly does not appear that they had a statutory basis for deducting the money. I would absolutely fight this and I would demand damages and costs.

I would add that the provisions making the company liable for PERM cert, HB costs (for your initial hiring), legal fees, etc. can be found at 20 C.F.R. 656.12. An agreement for the I-140/485 costs could be had with the employer, but they can't take the money from your pay absent a very clear agreement from you to do so, and further, ensuring you don't at least fall below minimum wage. Deductions from your pay are controlled by statute in the jurisdiction you are located in -- DC rules are found under Title 7, Chapter 9, Wage regulations (see: Section 915, at DC Wage and Hour Laws).

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Wednesday, December 2, 2015

Work Permit while In Asylum Proceeding

I was recently contacted via our website with the following question:

I am an Attorney in Des Moines Iowa. My paralegals were at the Las Vegas conference. You presented at that conference and you mentioned that you can get EADs for clients in proceedings with a defensive asylum. No attorney in the Omaha court has been able to get EADs. Do you have a legal basis so that I may challenge the Judge on this issue?

Answer:
You are required to file a copy of the Asylum application with USCIS after you submit it with the court (as you know). That starts the clock. At that point 8 CFR 208.7(a)(1) applies. That reads:

(a) Application and approval. (1) Subject to the restrictions contained in sections 208(d) and 236(a) of the Act, an applicant for asylum who is not an aggravated felon shall be eligible pursuant to §§ 274a.12(c)(8) and 274a.13(a) of this chapter to request employment authorization. Except in the case of an alien whose asylum application has been recommended for approval, or in the case of an alien who filed an asylum application prior to January 4, 1995, the application shall be submitted no earlier than 150 days after the date on which a complete asylum application submitted in accordance with §§ 208.3 and 208.4 has been received.

Further, see INA 236(a)(3) indicates that work permits are permitted for folks in removal procedures if they would otherwise be permissible outside of the removal procedure (this triggers 208.7(a)(1)). As long as your fella is not an agg fel or otherwise precluded on bad-acts grounds, you're hot!

Remember, you file the I-765 with USCIS, not the Court.

The code to use on the EAD application is (C)(8).

Do you have immigration question? Contact us! We can help. From adjustment of status to tough immigration court defense, we have you covered. 703-402-2723 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Sunday, November 15, 2015

Sexting and Exchanging Pictures

Attribution: http://thephilfactor.com/tag/sexting/
Sex and children...always a testy topic. However, there was a rather probing question asked on a recent lawyer board, and while answering it, I thought it would be good to add this to the blog. It is an interesting question, and certainly a timely one. There have been several reports of students "sexting" to each other, and in several instances, this has led to felony and/or misdemeanor charges for the transmitting of underage materials across wires (i.e. phone to phone, or on the computer). With the prevalence of instagram, snapchat, and other social media "insta-gratification" apps, the ability to snap a quickie and send it often overcomes common-sense; and frankly, some of the arcane laws still on the books, penalize the very children they are meant to protect (there has to be irony in that somewhere). We are looking to defend a sexting case in DC or VA, and would be interested in speaking to anyone going through this now.

Question: If I am 17 and I sent nude pics to a girl who is 21, what happens? She sent nude pics of herself first and then asked me for pics in return. I sent them and now she threatens to report it. My face was in none of the pics so it can't really be proven they were of me.

On to your question. She can absolutely get a protective order against you for sending underage photographs to her via phone. And stop this nonsense about "they can't see my face." Unless you used someone else's phone, it came from your phone, and arguably...it's you! If you DID use someone else's face, then you're in a heap more trouble, because you are transmitting under-age material on another person's phone without permission. And if they did give you permission, then you're both in trouble...you get the idea.

Essentially, transmitting underage pictures is a no-no. She could seek a protective order against you, or worse accuse you of child pornography (VA 18.2-374.1:1). Her sending you pictures is arguably contributing to the delinquency of a minor (see generally VA §18.2-371 -- note, you didn't have sex with her, but she did contribute to corrupting you, which arguably falls under 18.2-371). Additionally, if she sent pictures and sought to entice you into engaging in sexual activity (depends on the pictures, and the communication), she could also be guilty of §18.2-374.3(B) (enticing a minor). The government might throw in a VA §18.2-370 (encouraging a minor to participate in filming or exposing himself; however, this is more of a stretch, as it usually needs to involve some kind of gain on the part of the bad actor). As a rule though, prosecution of females for sending pictures to males, when the female is over 18, is not as common.

In DC, the relative code is DC Code §22–3010 (enticing a minor) and 18 U.S. Code §2252 (child pornography). There are others, of course, but these are the two most relevant to this topic.

Feel free to reach out if you have additional questions. If you think you might be charged with anything related to child pornography, sexting, enticing a minor, or similar crimes, you absolutely must reach out to us immediately. No matter how understanding the police or detectives may be, speaking to them without an attorney is death to your case.
Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Saturday, November 14, 2015

Appealing a visa denial from a consulate or embassy

Recently, a colleague of mine asked for help with a non-immigrant visa that was denied at the consulate in Islamabad. Now, I have written in the past about B1/B2 denials, and how to overcome them. If you need help with that, give me a ring or email us. But what about other types of visas? In 2014, we had a rather special case, which will serve to illustrate this topic well.

A client, we'll call him Bob, came to us regarding his nephew, Sal. Sal was denied entry into the United States on a diversity visa (this would have led to a green-card, or legal permanent resident status). His denial was based on the alleged use of khat. We filed to have that determination overturned. While it was successful, it turns out, he was not eligible to come to the US for other reasons (don't get me started on, "things that your client conveniently forgets to tell you that later screw-up your case"). I thought, however, because my colleague asked for guidance on how to appeal an embassy or consulate denial, I would post my answer here. To wit:

The proper application is to request the consulate/consular officer reconsider the application per 22 CFR §42.81(c) which reads:
c) Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

Need help with writing the appeal? Give me a ring! Happy to assist in reviewing or drafting the documents for the embassy. You send it to the non-immigrant email address for the given embassy, and I made a point of contacting the ombudsman at the State Department as well.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Sunday, November 8, 2015

Do you have to pay taxes on divorce settlement amount?

I recently answered a question on a legal bulletin board, and I thought the topic was relevant for our broader practice audience.
I recevied 444,000 as a divorce settlement; I am liable for the taxes on this amount?

Short answer: probably.

More complex answer: Did you already have this money in your accounts? If so, then probably not. Dividing money already accounted for on previous tax year filings is not taxable again. However, withdrawing money from pensions, or drawing a gross "alimony" settlement at once...yes. So, as always, it depends. Alimony payment may be deducted from the payor (the one who pays), and is taxable to the payee (the one who receives).

Your divorce settlement or order should always include language that states:
"Any and all taxes related to the payment of any sum under this agreement is the responsibility of the party receiving such funds and will be fully deductible by the payor to the maximum extent permitted by law."

In fact, this statement doesn't cover any new ground. However, it ensures that you don't mistakenly miss something that will end up causing litigation later (i.e. someone thought that the cash-out of the IRA would be taxable to the payor, not to the individual receiving the money...etc.).

If ye olde taxes are due, to minimize impact (ouch), you need to speak to a tax advisor -- either a CPA or a lawyer. Now, your divorce attorney ought to have spoken with you about this before taking a lump sum settlement. So, check with him or her, first. However, anytime you have a potential taxable event of $50,000 or more, you need to be very careful. Such large, one time actions, tend to draw the attention of the automated checking systems at the IRS. $444K? Almost surely would.

If you need help reviewing a divorce decree or settlement agreement, contact us! You need to have those documents professionally reviewed, and a strategy developed to address that type of potential income.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Saturday, October 31, 2015

Technique to beat a felony in a mixed felony/misdemeanor case

An interesting case was recently decided in Virginia that has potential implications across all jurisdictions. It is more a strategy than anything else, and certainly the concept is not new. But it worth recalling from time-to-time, that the basics are still alive and well -- even to beat a murder charge.

It is fundamental criminal law that each and every element must be proven by the state "beyond a reasonable doubt." (See Patterson v. New York, 432 U.S. 97 (1977), although this case also stood for the proposition that the state is not required to disprove defenses in order to convict. That's the topic of a different discussion, however). One strategy to defend a case is bifurcation -- split the elements across multiple crimes, then get one of the crimes dismissed. If successful, you have knocked out an element of the underlying felonies, and the entire government case falls apart.

That's what happened in this recent VA case. The case, Commonwealth v. Davis, was decided 29 October 2015. Davis was accused of first-degree murder, maliciously shooting into an occupied vehicle, use of a firearm in the commission of a felony. Oddly, he was also charged with reckless handling of a firearm, a misdemeanor. This is odd, because it opens the State for a drubbing. Remember - if the defense can beat a misdemeanor that contains a required element of the underlying felonies -- it's over, folks. In a brilliant bit of legal maneuvering, the defense smashed the State's case for the misd (slang for "misdemeanor", and pronounced "miss-dee"), prior to the hearings regarding the felonies. This was done by accelerating the hearing for the misd gun charge. The misd was dismissed by the Court, and because possession of a firearm was an element of the felonies, they all collapsed at the preliminary hearing.

Unfortunately for our good friend, Davis, VA has a provision that allows for a direct indictment even after a prelim fails. Some of us think this is a double bite at the proverbial criminal apple, but alas, it 'tis what it is. So, they direct indicted him on the felonies. Of course, that couldn't work either. If the judge cleared him of the underlying misd gun charge (dismiss), to attempt to charge him with a gun crime stemming from the same set of facts constituted double jeopardy and was not permitted.

In summary:
The Court of Appeals reversed Defendant’s convictions and dismissed the indictments, holding that the Commonwealth was collaterally estopped from prosecuting Defendant for murder or attempted murder after Defendant’s acquittal of reckless handling of a firearm. The Supreme Court affirmed, holding that because Defendant’s misdemeanor acquittal and subsequent felony convictions were based on the same issue of ultimate fact, the felony convictions were barred by the prohibition of double jeopardy.


The Takeaway: When the government tries to charge both misdemeanor and felony charges, target the misdemeanor and stall on the felonies. Get the misdemeanor dismissed or beat it at trial - you need a substantive disposition in your favor. Nolle prosequi won't do it, as it is not a determinative disposition on the underlying charges. Once you have victory on the misd, kick the felony. It can be challenging to force the misd before the felony, but you need to work angles to get it done. You don't need a prelim to challenge the misd -- so move quickly to bring that to court. Note that federal court rarely lists all charges pre-indictment, so knocking some aspect of the case out by resolving a misd prior to indictment may be of dubious value; but it can have devastating consequences at the preliminary hearing.

View Case On: Justia Google Scholar

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Wednesday, October 14, 2015

O1 determination ignored for EB1 - what the heck!

Recently, I was asked to help on a last minute EB-1 appeal. After researching the case, we came across the fact this individual had already been approved for an O-1 visa -- for 10 years! The AAO adjudicator told the client that he was lying and that the USCIS finding that he was eligible for an O-1 was wrong. Based one...nothing.

This is the section of the appeal we wrote concerning this point.

4. In the instant case, Dr. XXX was previously awarded an O-1 visa as an individual of extraordinary ability in the arts or sciences. See, initial AAO Appeal Decision dated 26 Jan 2015, page 4. While there is nothing requiring USCIS to approve petitioner because of a prior approval, ere is a strong precedent to remain consistent with the application of law and fact. In the appeal decision dated 26 Jan 2015, the Appeals Examiner repeatedly sites to errors of law and fact in the original adjudication of the O-1. There is simply nothing provided to support the utter and complete discount of the prior grant of “extraordinary” status. While this, itself may not be enough to cause an EB1 to be valid, it is unreasonable that such a prior decision should not:
a. Be useable by the petitioner as a demonstration that, when all the factors are taken in the aggregate (See, Kazarian at 1117; Visinscaia v. Beers, 4 F Supp 3d 126, 131-132 (D.D.C, 2013) he meets the extraordinary standard, and
b. As evidence of either:
i. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
ii. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

Either of these 8 C.F.R. §204.5(h)(3), or both, are appropriate for an O-1 designation because for 4(b)(i) above, the O-1 visa is a recognized document awarded only to those who have extraordinary ability; for 4(b)(ii), the O-1 visa constitutes affirmative evidence that the United States has recognized the extraordinary nature of the petitioners abilities in the arts, sciences, or other professional field.

5. It should also be noted that the O-1 visa is only awarded to those individuals who, other than entertainers or artist, meet the extraordinary standard no less stringent that EB-1. Extraordinary ability in science, education, business or athletics means “a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field of endeavor.” 8 CFR 214.2(o)(3)(ii). By USCIS awarding Dr. XXX an O-1 visa, they have previously validated the fact he has risen “to the very top of the field of endeavor.” Indeed, Dr. XXX held this visa for 10 years.

6. The Appeals Examiner argues that the AAO is not bound by USCIS determinations at a lower level, and therefore, the AAO is free to ignore the prior O visa awarded to the petitioner. See, page 4, last paragraph.

7. This is in error, as it creates an impossibly chaotic system where decisions of USCIS are randomly overturned, without any express reason, by the AAO. As here, the Appeals Examiner simply determined the O visa was in error, and gave absolutely zero supporting justification for that holding.

8. The Appeals Officer further cites to Glara Fashion Inc. v. Holder, 11 CIV. 889 (PAE) 2012 WL 352309 *7 (S.D.N.Y. 2012). However, this case only gives the AAO the right to modify earlier USCIS holdings when there is a clear error at law in the prior decision, and that law has been articulated to the petitioner (who has had a chance to rebut the same). Further, Glara Fashion states, from the government’s own brief, that “aribtrariness” may be inferred from an inexplicable departure from a previous agency holding. (See, Glara at 20). Nothing was submitted that showed clear error, and even if the Appeals Officer had seen a clear error of law, Dr. XXX would have had the opportunity to rebut the error and argue the case before a finding that his O visa was given in error. See, 8 C.F.R. 103.5(5)(ii) which states: Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.

Do you have a question about a visa, or EB/O extraordinary qualifications? Give us a call before you need to pay for an appeal! 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Federal Appeals: Discretionary Appeal under 28 U.S.C. §1292(b)

This is a quick article outlining the process for interlocutory appeals in the midst of a federal lawsuit. When the court has ruled on a summary judgment, or partial summary judgment, an appeal may be requested. It is not automatic, and the District Court must approve. Note that appeal work is tricky. There are subtle nuances. A final decision as to liability (i.e. summary judgment as to liability) but not to damages, is not a final decision within the purview of Rule 54(b) and therefore can not be taken under that rule. Mr. Jeremy Doernberger, an associate at Anukem Law in Maryland, did an excellent review of this recently. If you are considering a Rule 54(b) appeal, a good case at bar is Bell Microproducts, Inc. v. Global-Sync, Inc., 20 F. Supp. 2d 938, 942 (E.D. Va. 1998). However, what if you do not have a final judgment -- that is, you have judgment as to liability, but not as to damages? Rule 54(b) won't work, and you are left with....

28 U.S.C. §1292(b)

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

This code section is the great catch-all for any appeal taken as a to matter that really has no home...it's not a final disposition, but it impacts the case. As always, any appeal taken during the course of the litigation requires District Court approval, and it is not likely to be forthcoming. However, if you have a dispute at law (that means an argument about how certain legal principals were applied to the facts, or whether given legal principals should apply at all), it can be be a handy way of framing an issue before the District Court. The District Court is always free to "reconsider" it's prior decision and change holding on a summary judgment or interlocutory matter, and a 28 U.S.C §1292(b) motion may be just the ticket to get it done.

How to file:

To file a 1292(b) motion, you need two parts. First, you need to file a motion in district court for "leave" to appeal the matter in question. While not strictly required, it is a good idea to include in the motion a section detailing the cause and thrust of why the appeal is warranted. For maximum effect, don't attack the decision of the judge en face, instead show how there is a genuine question of law.

Concurrently, you must file with the Appeals Court within ten days of the underlying District Court decision that gave rise to the appeal. This can be confusing, and there is conflicting holdings on whether you must file for leave to appeal in the Appeals Court AFTER the District Court certifies the matter for appeal (10 days from that order), or 10 days after the entry of the District Court order against which the appeal is sought. Answer: 10 days from the order against which the appeal is sought. This process is called "lodging." No fee is paid, but the right to appeal is preserved in the event the District Court does certify the appeal. Only then will you be required to pay the appeals fee and the Appeals Court will then consider the matter. By the way, you enter your appeal through CM/ECF via the utility option. You won't receive any notice of acceptance until after the clerk manually reviews the filing -- this can be very confusing if you are filing at the last moment (ahem).

The filing with the Appeals Court must include a copy of the underlying order from which the appeal is drawn, or the appeals case will be rejected. Similarly, you must include a corporate statement and certification that you have conferred with opposing counsel when filing the appeal. DO NOT miss those two attachments, or your filing is toast.

Do you have a question regarding a federal appeal? Give us a ring! We have considerable experience in federal court and would be glad to discuss your case. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Sunday, October 4, 2015

Bankruptcy, Chapter 13, and getting your stuff back....

I am in month 41 of a 60 month chapter 13 plan. The trustee has just paid off my car. I want to sell it but I am informed by my lawyer that I won't get the title till the 60 months is complete. He says I just have to leave it sit and continue to pay expenses for it? Really?

Ah ha! The perennial problem of "It's mine, dammit....but not really! It actually belongs to the trusty trustee!" See, during a bankruptcy, your assets (say, for instance, that pesky car) are actually controlled by the trustee, who's job it is to ensure everyone get's paid under your plan, and that any "value" in you estate is properly allocated to the creditors that own you until the end of the 5 year period. To wit: the car, while paid off, is still an asset of your estate, which makes it controlled by ye olde trustee. What your lawyer didn't tell you was that he can file a request with the trustee to abandon the asset (i.e. drop it out of that part of the estate that belongs to you) and give it back to you. You'll need to argue that it has limited to no value that the trustee could use to pay other debts with, but if you can do that, you have a chance to convince the trustee to abandon the property. See Rule 6007 which reads:

Rule 6007. Abandonment or Disposition of Property

(a) Notice of Proposed Abandonment or Disposition; Objections; Hearing. Unless otherwise directed by the court, the trustee or debtor in possession shall give notice of a proposed abandonment or disposition of property to the United States trustee, all creditors, indenture trustees, and committees elected pursuant to §705 or appointed pursuant to §1102 of the Code. A party in interest may file and serve an objection within 14 days of the mailing of the notice, or within the time fixed by the court. If a timely objection is made, the court shall set a hearing on notice to the United States trustee and to other entities as the court may direct.

To be fair, it is not likely the trustee will go to the effort to do this...but you could ask your lawyer to file a request, and you are certainly entitled to do so.

If you have a questions about bankruptcy or civil cases, give us a ring! We'll be glad to review your case or discuss how you may move forward. 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Thursday, October 1, 2015

So you want to travel to the United States while your I-130/I-485 is pending? See how...

It is possible to travel to the US while your application is pending. There is a very important distinction: if you are already in the United States, and your sponsor (that's the person who filed the I-130) has filed a one step application (I-130/I-485 combined), you can only leave the US once you have an approved I-131 (advanced parole). See, 8 CFR 245.2. If your sponsor filed for consular processing (that is, filed just the I-130 while you are outside of the country), then this article applies to you! The following is an excerpt of a filing I recently made on this topic. In support of a B2 visit not effecting an adjust of status application, use the following:
  1. A copy of the front part of the passport is at Exhibit 3.
  2. This trip was approved under non-immigrant classification B2 (See, Exhibit 2); her stay on this trip was authorized through October 29, 2015. She maintains a valid visa through March 2016.
  3. While traditional not considered a dual intent visa category, travel to and from the United States, while an immigrant visa is pending is not precluded under 8 C.F.R. §245.2 or 8 C.F.R. §204.2. Specifically, 8 C.F.R. §245.2 allows travel during pending adjustment when a an immigrant is properly paroled or admitted into the United States.
  4. “With respect to the question of issuing a nonimmigrant visa to an alien registered on an immigrant visa waiting list, whether as the spouse or child of a permanent resident or on any other basis, the Department has long recognized the concept of ‘dual intent.’ The Department’s position in this respect has for many years been that an alien who is registered for immigration or who otherwise shows an intent to immigrate to the United States may nonetheless be issued a nonimmigrant visa if the alien can establish to the satisfaction of the consular officer that he or she intends in good faith to make a temporary trip to the United States and depart upon completion of his or her temporary trip.” U.S. Dep’t of State, Cable 92-State-193038 (June 17, 1992). See, 9 FAM §41.31 and 8 C.F.R. §214.1 and 214.2 regarding B1/B2 visas, application criteria and permissions associated with entry of those classifications.
  5. At no time during their trip to the United States did [client] intend to stay in the United States (See, 9 FAM §41.31 at N3.1). She maintained a permanent residence [country] (See, INA §101(a)(15)(B)).
  6. USCIS (and previous INS) rulings support the position that individuals may come to the United States during the pendency of their I-130 and even pending I-485. See, Instructive Memorandum, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 1996).
  7. Finally, the Court has held that dual intent is permissible. See, Matter of H-R-, 7 I. & N. Dec. 651 (Reg. Comm'r 1958)(The fact that the applicant previously expressed a desire to enter the United States as an immigrant--and may still have such desire--does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant” for purposes of adjustment.); See also Matter of Wellhofer, 12 I. & N. Dec.


We ask, therefore, that the B2 visitation of [client] be recognized as properly issued by the consulate in [home country], and properly completed upon her return on [date of return].

Do you have an immigration question? Give us a ring at 703-402-2723 or 1-800-579-9864. We would be glad to discuss your case and see what relief you are eligible for.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Monday, September 7, 2015

When husband and wife fight -- who has rights in a jointly owned business?

We practice family and civil/corporate law VA, MD and DC. An excellent, and not uncommon question, was asked of us recently regarding family disputes over a 50/50 owned husband and wife company.

My husband and I started an #S-Corp business 25 yrs ago. We are both 50% invested -- he is the president, and I am the vice president and treasurer. Can he block me from bank accounts (which he has done since Jan 2015)? He also terminated my job. Is this legal? We are still living together and married.

There is a common presumption that ownership = #management of the business. While most often this is the case, it is only because no one challenges the presumption. In fact you can own the company, and not have any right to participate in day-to-day operations. Put another way, consider the business you both started as a stock investment. Like any other stock, you enjoy the profit and dividends, but not necessarily the right to tell the CEO what to do.

Having said that, the controlling document that determines what your husband can, or cannot, do is called the "Article of Incorporation" (in an #LLC it's called an "Operating Agreement"). That document can only be updated or changed with the consent of the corporate board -- in this case, you and your husband. Because I imagine you have not given consent, likely the original Articles are still controlling. Get those Articles and read them. It will say therein who may do what in terms of (a) owning shares in the business, and (b) controlling day-to-day operations of the business.

As to the bank records -- that's another kettle of fish. This gets confusing because a bank is a third party -- that is, someone who must rely on an officer of the company to tell it what it can or cannot do. First, check that the bank account is a corporate account, and not a personal account. If he opened a personal account, then you have more serious issues. However, if the account is corporate, and in the name of the business, your problems are solved by bringing the Article of Incorporation, and a copy of the state annual filing showing you as an officer (vice president). That should be sufficient to compel the third party (in this case, the bank) to place you on the list of authorized users with rights to deposit and withdraw from the account. Of course, that depends on what the Articles say....

Bottom line, though, is that your husband has to understand the "nuclear button" option. If he is unable to work with you, then you need to split the company. As a 50% owner, you have legal entitlement to 50% of the company. Although he may get "scared" and attempt to take the money and hide it, or destroy the business in spite, in the end, the law is clear -- as a fiduciary of the company (that means a person in whose care the business is trusted), he cannot squander (waste), or destroy the value of the company, or embezzle funds from the company. For a general explanation of these terms, see Section 13.1-690A of the Virginia Stock Corporation Act (VSCA) and 13.1-1024.1A of the Virginia Limited Liability Company Act (VLLCA) which imposes a duty of care and fair dealings. DC and MD have similar codes.

Presumably, this has nothing to do with your marriage. However, it is naive to think that such tension would play-out without dire consequences to a relationship. That last paragraph would almost certainly involve court action. Our law firm just won a long fought LLC court case in DC predicated on the destruction of a company owned by two brothers. Family and business...when it goes bad...goes really bad.

If you need help with this, or you don't have Articles at all (whoops!), then give us a ring. We'd be glad to help.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Sunday, September 6, 2015

Remember -- you can't bargain away the obligations of an I-864 sponsor

I was recently asked about and I-864 (Affidavit of Support), and how it could be extinguished.
Can you have a signed & witnessed indemnification that you cannot sue or require financial support from a person who legally sponsored your green card application?

In answer:
No. The I-864 form is a commitment between the sponsor and the government, not the sponsor and the individual sponsored. Because there could conceivably come a time when the government compels the sponsor to pay for the person sponsored, you cannot waive that requirement (it is against public policy.)

See: 8 CFR 213a.2

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Lili O'connell, Esq.
Charles Hatley, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Saturday, August 22, 2015

When Non-Practitioners Make Interesting Observations -- OR don't critique if you aren't swimming in the pond.

From time-to-time, I read a post or blog article by a so called "expert" in the field of legal business. The article, entitled, Going Solo Does Not Automatically Make You An Entrepreneur, by Susan Cartier Liebel was a recent example, and it just rubbed me wrong.

Now, for those of you that read my blog, you may recognize that I usually limit my posts to technical aspects of the law...a list of "how-to's" from immigration law to first degree murder. This article is a little different, as it hits the core of our practice. How do you run a legal business?

Ms. Liebel did get it right when she extolled law schools to teach more about entrepreneurship. However, she got it wrong when she indicated that:
Solo and small firm practitioners for the most part are not entrepreneurs. They are self-employed.

[Wrong!]

What Ms. Liebel has missed is that to survive in the current "service industry" environment, you must be an entrepreneur. There are few if any solo-practitioners (a term she uses to mean a non-entrepreneur luddite) that survive even a year in private law. This does not include feeding from the breast of the government (i.e. lawyers who are paid by the government to provide services to indigent clients -- a steady and constant payment stream). Either you learn to find clients and push the envelope of "employment strategy", or you perish.

Interestingly, though, that's okay! The field is bloated with lawyers who are looking for clients to just appear. A good culling process is welcome. Remember -- your lawyer should be good interfacing with clients and developing business just as aggressively as defending you.

It would be great to have more training in law schools about running a business -- that is absolutely true. But to say most solo-practitioners are just self-employed...that's nonsense. Spend a day in the trenches, Ms. Liebel! If you think that any law firm (solo or otherwise) can survive for more than a "minute" without being entrepreneurial, you are exceptionally wrong.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

What happens at a credible fear hearing before an immigration judge?

Credible fear hearings refer to the process of an immigration officer or judge reviewing the statements of an individual who is seeking asylum in the United States. Generally, these hearings are first conducted at the port of entry by a custom and border protection (CBP) agent, or an immigration and custom enforcement officer (ICE). Based on the determination of the CBP/ICE officer, an initial credible fear determination is made. If a credible fear of return to the asylum seekers who country is established with the officers, generally the individual is permitted to enter the United States and remain at large until their hearing is conducted before a judge on the merits of the asylum application.

However, if the CBP/ICE officer determines that there is no credible fear of returning to the asylum seekers who country, the asylum seeker is detained. At this point he/she may request a judge to review the CBP/ICS determination. This review process is called a "credible fear hearing" and is conducting before an immigration judge. A couple of pointers to remember:

  • A credible fear hearing must be requested, it is not automatic.
  • Your client will be detained for the entire pendency of the credible fear hearing process, and likely thereafter.
  • Only ICE has jurisdiction to release your client during or after a credible fear hearing, not the immigration court or judge.


The law on the matter is contained in 8 CFR:
Credible fear standard: A Credible fear of persecution means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (restriction on removal) under INA § 241(b)(3). The credibility of the alien statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

Credible fear of torture: means there is a significant possibility that the alien is eligible for withholding of removal (restriction on removal) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

[taken from the "EOIR Immigration Judges Handbook"]

How does a credible fear hearing work?

First, you don’t submit evidence at a credible fear hearing – in fact, the judge may not even speak to you as the attorney on the case. You are an observer of the process only – this is a conversation between the judge and your client. On a practical note, usually the judge will speak to you and ask you what is going on. It’s faster and easier that way. But don’t be alarmed if the judge completely ignores you. Take good notes!

Representation: Prior to the credible fear review, the alien may consult with a person or persons of the alien's choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien's behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

[taken from the "EOIR Immigration Judges Handbook"; See generally INA 235(b)(1)(B), 8 CFR 1003.42]


You need to prepare your client thoroughly. The client will be able to speak to the judge and will be able to testify. The discussion will be about the credible fear interview itself. The judge will ask things like: why are there inconsistent answers, etc. He/She will be using all the CBP/ICE forms, so be sure that you have a copy of the credible fear interview and each step of what your client did and said. Your client should have been given a copy of that. If there are translation issues (as there often are; most translation for the initial credible fear at the port of entry is done over the phone), be sure to brief your client on bringing that up to the judge.

Conduct of hearing: A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer's decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.

[taken from the "EOIR Immigration Judges Handbook"]


If the judge finds credible fear, that he/she will set a next status date (called a master calendar hearing) at which point you will turn in the I-589 and supporting initial docs. Thereafter, it proceeds according to a regular defensive asylum process.

Technically, the judge cannot release your client, as she is deemed an arriving alien, not subject to parole from the court. There are two general rules here… in some jurisdictions, such as York, and sometimes Arlington, the judge will give bond anyway, and DHS rarely objects. That is technically a violation of the code. If the judge does not (and do not be alarmed if that happens…he/she should NOT do so), you can file to have ICE give a bond. In many jurisdictions, ICE will release your client once a credible fear determination I positive. Bond usually runs about $5K. Be sure to submit a bond package, showing where your client will live and with whom, when asking ICE for a bond. It is entirely up to the DO (deportation officer) in charge of your client.

No jurisdiction by regulation: By regulation, an Immigration Judge does not have jurisdiction to conduct bond hearings involving:
  • aliens in exclusion proceedings
  • arriving aliens in removal proceedings
  • aliens ineligible for release on security or related grounds
  • aliens ineligible for release on certain criminal grounds


An asylum seeker who requests asylum at a port of entry is an arriving alien.

See: 8 CFR 1003.19(h)(2)(i)


Is there an appeal if the credible fear is denied by the judge?

No right to appeal, however, generally, you can bring a request for DHS to give one final review before deporting your client. See 8 CFR 1208.30(g)(2)(iv)(A).

Do you have a question regarding immigration law or detention hearings? Give us a call! We can help --- 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Monday, August 17, 2015

IMMIGRATION LAW - What defines a brief, casual, and innocent departure from the US? Or, how to avoid being deported for breaking continuous residency.

We just filed a response brief for a client that had left the country when he was under TPS (temporary protected status). His original country of origin was El Salvador. The problem, of course, is that when you are in the US under TPS, you are not permitted to depart without first completing an I-131 (advanced parole). The term of art in immigration parlance is, "continuous residency." Like many "specialty status" situations, departure without prior permission results in termination of status and deportation. However, there is an out. Those absences that are, "brief", "casual", and "innocent" may be excluded from consideration of a break in continuous residency.

Definitions: (from 8 CFR §244.1)

Continually Physically Present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section.

Continuously Resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

What constitutes a defense to a violation of the continuous residency requirement? This is true of both TPS and other residency requirements for various applications through USCIS (for example, citizenship applications, etc.). Under a ruling by the AAO (Administrative Appeals Office - the office responsible for adjudicating appeals related to most forms and USCIS based decisions), the following definition is the answer:

[T]he phrase brief, casual, and innocent absence, as defined in 8 C.F.R. 3 244.1, means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

(AAO Decision, December 14, 2005, EAC-03-30-51246)

When writing a brief in support of an individual who has traveled outside of the United States during a period of required "continuous residency," be sure to cite to the AAO's factors, one-by-one, and how they relate to your client. Additionally, provide evidence of the short duration of the trip, the nature of the trip, and individuals who can confirm that the travel was indeed, brief, casual, and innocent. Mere testimony or sworn statements of your client will not be enough.

Do you have an immigration question? Let us help! Call us at 703-402-2723 or email admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.