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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