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Wednesday, December 21, 2016

How to resolve an outstanding arrest warrant

Today's post is rather short. A question that we often run into in criminal law deals with warrants. This recent question on a law bulletin board we participate on is typical:
I have a parole violation warrant an would like to know how I should turn myself in. How do I do this?

Great question! There are generally three methods for resolving an outstanding warrant.
  • (1) you are picked up by the police
  • (2) you turn yourself in to the local police stations
  • (3) you hire an attorney to make a motion on the docket of the local court, and ask that the arrest warrant be withdrawn (recalled, vacated, or dismissed) and a return date be given.


As you might imagine, option 1 is not desirable, as that almost always results in jail. In DC, I would always get an attorney to file on the docket (option 3). You don't want to sit in jail awaiting a hearing date on your parole violation. This is especially true if you believe they may revoke parole. In that case, you'll sit in jail until the actual parole violation hearing, likely you will not get another bond pending the trial on your parole violation (although, you can).

The term "return date" is legal jargon. It means a new date when you appear in Court for the judge to rule on the arrest warrant, and then to set the appropriate term of your continuing parole and/or violation hearing. Be cautious of the Bail Reform Act that can cause serious problems if you violate a return to court order. If you think that may have happened, you need to contact counsel immediately, as such a violation could result in up to 5 years in jail.

If you need help with getting your parole violation and arrest warrant resolved, give us a call! 703-402-2723.



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.
1-800-579-9864
admin@hanoverlawpc.com

Saturday, December 3, 2016

What the HECK!? A story of co-worker harassment gone wild

Sometimes, conflicts spin out of control, and can get disruptive and even dangerous. Image from http://quotesgram.com/img/avoid-conflict-quotes-funny/3303875/


What happens when you work with a person that goes off the rails? Do you have to put up with it? Listen to this recent story posted on a law bulletin board we monitor:
I have learned that several people in my office are extremely concerned about the erratic behavior of a colleague and no one is sure how to handle the situation. This colleague has a unique personality and in the 2-3 years he has been employed everyone has been sensitive to this and generally people do not discuss it; however, on a few occasions we have speculated that he may be on the autism spectrum. This seems important now because we are not sure whether his escalating behavior is benign or if it may be extreme even for him. A couple of months ago, a new person who has a supervisory role over him was hired, and they immediately had poor chemistry. She claims only to interact with him on a business level, disregarding his behavior, and he plainly is disrespectful to her and speaks to her in a condescending tone. On one occasion approximately six weeks ago, she told him he needs to behave in a professional manner and that she wouldn't allow him to speak disrespectfully any longer. He went to his desk and sent her an email telling her to be more professional and respectful and then told a colleague to handle a meeting he was supposed to staff because he was enraged and had to go home. Shortly thereafter he did not go to an annual out of town meeting that all staff are required to attend; the reasons behind this were handled confidentially and staff only have vague rumors as an explanation. Since returning there has been no discussion of it. Upon returning, the supervisor discussed above and another colleague received emailed "reprimands" from this man that told both to behave more professionally and respectfully. The other colleague had not been involved in the personal dispute prior and she has kept her distance from this man since she received the reprimand. (Both women are organizationally senior to the young man who "reprimanded" them.) Prior to the 2016 presidential election, the young man taped photos of one of the presidential candidates and Adolf Hitler to his office window facing out toward employees, which disturbed several people who previously had chosen to ignore his disruptive behavior. Following the election, he replaced the photos with five posters that illustrate the four horsemen of the apocalypse and satan in the center. He has reduced his socialization with staff overall but has escalated his aggression toward the two women discussed above during this period. The vice president in charge of his department evidently did ask him to take down the apocalyptic images after two weeks. She has privately disclosed to the CEO that she feels this employee could be a potential threat to her safety and to others', but she said she is concerned about retribution if she disciplines him because she is worried his mental health and his sexuality may be used as the basis for a discrimination claim should she dismiss him. I am seeking professional advice about the appropriate measures. Despite the bad blood between the two individuals involved, everyone's concern is this young man's erratic behavior, which feels vaguely threatening and which has at least four women feeling fearful and "walking on eggshells" to avoid triggering potential violence.

This is more a narrative than an actual question. You need to tell your employer to contact an employment attorney immediately. Hanover Law both defends and prosecutes civil cases related to EEO and reasonable accommodation issues. Have your manager contact us now. I should note that the person who is acting erratically can sue both the employer and the manager herself. Delicate situations like this require ironclad processes and response. The law does NOT require that you tolerate abusive or disruptive behavior. However, it DOES require that you ensure all procedural safeguards have been met before taking action. The EEO defines harassment as follows:
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:
  • The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim.

See: EEO Harassment Guidelines


I would also refrain from any public comment of your employment issue (such as the outline you provided). If anything, that could be found later and used against you (to show your "true" feelings about the person). The important step here is to get counsel and discuss this privately. Your employer and the manager (supervisor) in question should do this without delay.

I should also note that by NOT taking action, the employer may be creating a hostile working environment for the remaining employees -- especially the other employees that he is accusing of being rude, and otherwise making them feel very uncomfortable. You cannot ignore this type of conduct.

Give us a ring at 703-402-2723 or 1-800-579-9864. You can also email us at admin@hanoverlawpc.com.

BDSM and public lewdness in front of children. WHAT!?

Every once in awhile, we get a wing-dinger of a question. This rates right of up there! However, it does bring into question what constitutes free speech, and what constitutes lewd conduct. The question:
Let's say that you are into the BDSM scene. This fetish involves you engaging in spit play, where as a submissive you hold you head back, open your mouth and let your dominant spit a liberal amount of saliva down your throat as part of a spit fetish, and you do it outdoors in full view of women and children who don't want to see it are you guilty of indecent exposure. Or how about you perform such an act at a party at your house with women and children present are you guilty of indecent exposure?


Of course, spitting in someone's mouth may not be your cup of tea, but is it illegal? Two considerations here -- (1) what conduct falls afoul of public displays of sexuality, and (2) does doing this in front of children cause a problem?

As to the first point, probably not. While sexuality in public constitutes indecent exposure and probably disorderly conduct, spitting, while fully clothed, into another person's mouth is probably not going to cause a problem (assuming assent, of course). In DC, the code section for this is DC Code 22-1312 entitled "Lewd, Indecent, and Obscene Acts". It reads:
It is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act as defined in § 22-3001(8). It is unlawful for a person to make an obscene or indecent sexual proposal to a minor. A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, imprisoned for not more than 90 days, or both.


So what is a sexual act? Good question! The code section is clear on this, too. A sexual act must involve the touching or stimulation, even through clothing, of the sexual organs. Specifically:

DC Code 22-3001
(8) “Sexual act” means:
(A) The penetration, however slight, of the anus or vulva of another by a penis;
(B) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or
(C) The penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
(D) The emission of semen is not required for the purposes of subparagraphs (A)-(C) of this paragraph.

(9) “Sexual contact” means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

Although disorderly conduct laws (DC Code 22-1321) could be cited to show you were causing a disturbance in the public thoroughfare, it is doubtful this would actually be brought to trial. Likely, public spitting in each others mouths, no matter how distasteful to others this may be, will not be illegal.

However, we have a problem concerning the children. Here, the code is a little different. Any act designed to arouse a sexual gratification in a child is prohibited. Notice the subtle shift in emphasis. This is to prevent children from being exposed to pornographic videos, or being made to watch sexual acts -- even if that are not touched. The code for this can be found at DC Code 22-3010. In part, the code reads:

(a) Whoever, being at least 4 years older than a child or being in a significant relationship with a minor, (1) takes that child or minor to any place for the purpose of committing any offense set forth in §§ 22-3002 to 22-3006 and §§ 22-3008 to 22-3009.02, or (2) seduces, entices, allures, convinces, or persuades or attempts to seduce, entice, allure, convince, or persuade a child or minor to engage in a sexual act or contact shall be imprisoned for not more than 5 years or may be fined not more than the amount set forth in § 22-3571.01, or both.


Your actions of spitting into your partners mouth is arguably sexual in nature (you described it as part of your BDSM relationship). Doing so in public could well have the consequence (intended or otherwise) of causing sexual arousal or enticement to a minor who, like you, may find such domination and abject subjugation erotic. This is a problem under 22-3010.

Remove the child component, and probably the worse you could get is disorderly conduct, and even then, that would likely be dropped. Do it in front of children, and you could find yourself facing up to five years for attempt enticing a minor or child under 22-3010. Note that whether you perform in front of children in your house or in the middle of Independence Avenue, makes no difference. This crime is not location centric.

Do you have a question regarding criminal law? Give us a ring! First consult is free -- and as you can see, no topic is verboten! 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.
1-800-579-9864
admin@hanoverlawpc.com

Sunday, November 20, 2016

I want to get money from my abuser -- can I make him pay if I get a protective order against him?

We don't usually get questions about prosecuting domestic abuse issues -- most people hire us to defend them against accusations! However, I did receive a question recently from a potential client who wanted to know more about what could be awarded at a DC (or Federal) protective order hearing. So I thought I would share the information and answer her question!
My friend was physically and verbally assaulted by her boyfriend. She had the cops remove him from her apartment (he was not on the lease in the first place). She is interested in filing a protective order, but wants to know whether it can go beyond just preventing him from further contact with her.

First, get better taste in men. Those that punch you are probably not good boyfriend material. Just sayin'. That aside, let's talk about how protective orders work.

D.C. Code §16-1004 - 16-1005 govern CPO - Civil Protective Orders (which is the more formal term for "protective order").

When you file in DC for a protective order, you ask what relief you are seeking and provide evidence of harm by the abuser. You must show how the abuser has committed some act of violence against you (or criminal act: including threats, assault, harassment, etc.). You must show EACH element of the alleged harm. When you go to Court, the judge will complete (or you will settle with the opposing side) an order regarding your motion for a protective order. A section on that "order" includes payment of home expenses, attorney fees, etc. Note, however, generally, a person cannot be forced to pay rent unless they are on the lease and have been paying already.

This is the third page of a petition for a civil protection order. Note the section where you can ask for money, rent, attorney fees, and damages. Download the full CPO petition


When going to Court, it is important to provide evidence of the abuse, and why it would be fair to have the "abuser" pay anything. There is a difference between an order to "stay away" and making the individual pay on going rent payments. That will require a compelling reason. Generally, the Court won't cover your attorney fees unless the abuse was particularly bad.

The ticket to success in protective custody hearings (held on the first floor of the Courthouse on 500 Indiana Avenue) is settlement. Most folks don't want a protective order on their record. To avoid that, they will consent to a settlement that could well include rent payments. However, make sure you chat with an attorney before agreeing to anything. Settlement heaven -- but it can be very dangerous if the individual you are dealing with is genuinely dangerous. Work through your attorney, and let us handle the negotiations. At the Courthouse, if you can't afford an attorney, there is an attorney negotiator that will meet with the parties, individually, for free.

Do you have a question regarding protective orders? Call us! We can help you. Note that handling child abuse allegations are much different, and the advice above does not apply. Call us immediately if there are any allegations of child abuse.

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.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, November 17, 2016

Getting an Arrest Warrant dismissed - how to quash

The errors in my warrant of arrest are that they put the wrong address and phone number for me, so I was never contacted or interrogated in regards to the charge. I was actually filing charges against my ex, when someone at the police station told me about the charge 8 months after the alleged incident. SMH. I'm filing a motion to dismiss. What should I cite to really make a strong argument for a motion to dismiss? There's so many flaws on the prosecution's side. Plus the police officer put the wrong date for the alleged incident on the police report. There is a different date for the alleged incident on the police report and the warrant of arrest.

Generally, you won't be successful on quashing an arrest warrant, no matter how defective. However, once your arrest is processed, you can then challenge the charges, etc. at your initial detention hearing. In VA, you will be seen by the magistrate when you are initially "booked." A bond will be set (unless your crime is particularly notorious), and once paid, you will be released with a return court date. That return date is called an arraignment, and it is at that point you can challenge the arrest.

The discrepancy between the police report, and the arrest warrant is fertile ground for examining the detective or police officer during a preliminary hearing. However, if this is a domestic violence charge (assault on a family member, for example), then you won't have a preliminary hearing, as most DV charges are misdemeanors. Although in VA, you can get a jury trial in just about every criminal instance, a preliminary hearing is limited to felony charges only.

A motion for judgment of acquittal (that's the federal term), or motion to strike charges, usually does not succeed when there is any evidence of an underlying crime -- and it sounds like there was a police report that did list the accurate times, dates, people. In those instances, the court will want to hear from the aggrieved party for the specific reason of not wanting to dismiss a valid case based on a clerical error, or police typo. The question is: was their an underlying offense? Put a different way, if the Court was to dismiss the information (that's the piece of paper that lists the misdemeanor charges) because it had the wrong dates, etc., the prosecutor could just refile, based on the police reports, with the correct dates. It would waste the Court's time, your time, and the police officer's time.

Is there an instance when an arrest warrant can be quashed, or set aside? Absolutely. When the arrest warrant has the wrong person named, or the wrong crime charged. Those are the two most common causes for setting aside a charge. The fact there is an incorrect date, or that you were not interviewed would not, per se, invalidate a warrant. They are certainly not required to speak with you or seek your permission before obtaining a warrant. And a date can be a typo.

When the arrest warrant fails to cite a specific element of the crime (i.e. show probable cause that the crime was committed through an arrest affidavit), that can be used at the preliminary hearing to show failure to demonstrate an element of the crime, which in turn negates the charge. However, that is usually easily overcome by the officer on the stand.

To properly move forward, you need an attorney. You simply lack the training to recognize the best tactic, as this is your first time through the system. No one get's this right the first time! It sounds like you need to turn yourself in, get processed and release on bail or your own recognizance, and then kick this charge when you're in front of the judge. Give us a ring! We can help with this.

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.
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, November 15, 2016

How to release an immigrant from detention if the underlying case is dropped

A bit of a mouthful for this blog title -- but it is a surprisingly common topic. What steps do you follow if the case is terminated in Immigration Court, but the client is still detained. This usually happens when there is a joint motion to close (terminate) proceedings, but the Court has not yet ruled on the case. When the next status hearing (called a Master Calendar hearing in Immigration Court parlance) is several months away, or the Court has not yet set a status date, the idea of staying detained when the government has moved to close the case is...galling.

From a fellow practitioner in New Jersey:

I have a case of first impression and I hope you can give me some guidance. OCC [Ed: Office of Chief Counsel -- another name for opposing counsel in an immigration case] just terminated proceedings against my client because his conviction is no longer considered a crime of violence. His next hearing date is December 13, 2016 at Elizabeth, NJ.

My question is: can I get him out sooner since OCC is terminating or must my client wait an additional month in detention (seems counter-intuitive but this is the Government) for the hearing I which the judge will release him?

That isn’t handled by the Court – early release would be through ICE (Immigration and Custom Enforcement - or ICE - is responsible for detaining aliens; although the Court can set bond in certain cases, ICE always has jurisdiction pursuant to ). I would petition his DO (deportation officer). Generally, they want the bed space. Do the following:

  • Write a formal letter to the DO stating the reason for releasing your client early
  • Include a copy of the Government's motion to terminate
  • Include a copy of your G28 (if you have not already)
  • Include a copy of the policy memorandum governing release (see here: policy)

And then nag the hell out of the DO guy (or gal). If the DHS counsel is willing to sign on to your letter, get that signature, too. The main kick, though, is through the DO.

Do you have a question regarding immigration procedure, court, or policy? If so, call us! You can reach us at 1-800-579-9864 or email at admin@hanoverlawpc.com. You can also visit our website, www.hanoverlawpc.com for additional information on immigration laws, policies, and procedures, as well as issue related to criminal, family, and business (civil) law.

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.
1-800-579-9864
admin@hanoverlawpc.com

Saturday, October 1, 2016

Driving under the influence of drugs - immigration consequences

What happens if you are convicted of a DUI (driving under the influence) based on drugs. An interesting discussion. If you have digested a drug, are you in possession of that drug for immigration purposes?

Steve presented the following scenario on Friday:
A client of ours, pled to that DUI (Xanax) in Arlington. He’s been LPR for 12 years, and the only things on his record are a Reckless Driving and the DUI, both from 2016. He wants to know about naturalization. My thought on this is that his only potential question has to do with Good Moral Character, and he should probably get some help explaining that he is a person of good moral character when he submits his N-400.

Here are Steve's discussion points:
a. First of all, don’t travel outside of the US right now. He can totally get picked up on the way back in.
b. Get everything associated with the DUI (ASAP, Restricted OL, etc.) taken care of and get clear of “court supervision,” which will be done in about 12 months.
c. Once he is fully clear of the DUI matter, get his ass into our office so we can help him get to work on his N-400. I wonder if you think he should even wait a little bit longer to apply to naturalize than I am suggesting.
d. Do you know if a LPR with convictions could wind up in Removal Proceedings by getting the attention of USCIS with the submission of a N-400?

My answer:
So the bottom line is this: a drug conviction is a permanent bar to naturalization, and a cause célèbre for deportation – even for an LPR. The code that deals with this is INA § 237(a)(2)(B)(i) (deportability). Admissibility is covered under State Manual on approving entry visas (see also: INA 212 drug convictions dealing with admissability).

Xanax is a schedule IV controlled substance as defined by 21 U.S.C. 802. Apparently, it is has low probability for abuse. Also, an argument can be made that a DUI is not a drug offense per se, and if there is no inquiry into what type of DUI it was, it may be possible to submit a disposition paper without mentioning xanax at all (the N400 adjudicator does not generally inquire into the substance of the offense if a disposition is provided). To constitute a drug offense, the statute is clear - you must be convicted of possession or distribution. There is nothing saying that ingestion constitutes possession under Federal Law.

As for good moral conduct, Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, held that one DUI conviction that results in a year of probation does not bar a good moral character finding. I’m not sure if the 4th Circuit has followed suit, but probably. You should expect a denial, followed by an appeal. It is important to show rehabilitation and regular ameliorating actions.

Do you have a question about DUI's, drug possession, or naturalization? Ask us! You may reach us at 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.
1-800-579-9864
admin@hanoverlawpc.com

Petty drug exception - admissions vs. deportability. NOT THE SAME.

Here's the scenario:
Steve was working with a client in VA state court. He asked for advice on the immigiration consequence. He said: There was a client of mine who was charged with Possession with Intent to Distribute (Marijuana) in Fairfax. We got the charge amended to straight Possession and plead guilty. He did a couple of weekends in exchange for the amended charge. He recently traveled out of the country (against our advice) and upon his return, was given a date to meet CBP out at Dulles. Bad news. I’ve already told him that he is almost certainly going to get a NTA, and possibly detained. I have a possible solution for him: The cop really liked the client, and was a huge help in getting the charge amended. There was also not very much pot at the time of the arrest. If I can get a statement from the cop that would get this within the de minimis range, we might even be able to head this off at the CBP level. Even if that didn’t work, we would have that for his defense in the eventual Removal Proceedings.

My thought is to go with him out to Dulles in November. Because he already paid us to defend him in the criminal case, and because he is very likely going to have to pay us to represent him in Removal Proceedings, I was thinking XX for the CBP meeting only. (Removal Proceedings is a whole new ball of wax.) I can try to get some help from the cop to see if we can kill this and keep our guy in the country and out of Farmville.

This is a great case to discuss the difference between INA 237 (deporability when in the US) and INA 212 (inadmissibility) concerning the petty exception.

Because the client is a returning alien, his entrance into the United States is controlled by INA 212 (restrictions on admissibility) as opposed to INA 237 (deportability once in the US). The petty exception is quite different. In 237, the exception covers marijuana at 30 grams or less. In 212, no drugs are permitted – the petty exception covers only CIMT’s whose max sentence is 1 year or less, and whose actual sentence (served or given) is 6 months or less. Because possession is not a CIMT, the petty exception under INA 212(a)(2)(A) won’t work. Because our fella is an LPR, there is a different type of waiver available for drug convictions. It actually applies to any drug conviction, not just 30 grams or less of marijuana.

The exception is found under INA 212(h). There are requirements for this, though, and I’m not sure he’ll meet them. In this case, he would have to have been an LPR for at least 15 years, or he would need to have an immediate family member who would suffer an extreme hardship. For petty drug offenses, these waivers are granted fairly routinely. However, he will have to sit in immigration court, and he will have to go to a trial. Extreme hardship will require the case to be prepared and litigated, and as you know, DHS will argue against it as a matter of course.

A frank discussion with the client will explain all this to him, and prepare him for the process. You won’t be able to head this off at the CBP level. They lack the statutory authority to approve (well, that’s technically not correct – acting on behalf of the Attorney General, a CBP officer could waive him in. Not likely, though). He need us to spearhead a 212(h) on his behalf.

Do you have a question about admissibility or CBP? We can help! Contact us at 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.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, September 22, 2016

How do I expunge a conviction in Washington, DC?

A great question was asked of a potential client today, and I thought I would share the answer:
I have been convicted in Washington, DC of violating a Temporary Protection Order. I am currently appealing this. If I loose this on appeal, can after this process I have this conviction sealed or and expunged?

In DC, code section 16-802,16-803, and 16-804 control the answer to your question. For the complete text, go here: Chapter 8 - sealing records. However, your question is tricky because it may (or may not!) involve a criminal matter (that's what's covered under 16-802 and 16-803). Not all protective orders are criminal, and some end in civil contempt or an agreement between the parties. As to expungment of a criminal finding, see generally 16-803(c):

(c) A person who has been convicted of an eligible misdemeanor or an eligible felony pursuant to the District of Columbia Official Code or the District of Columbia Municipal Regulations may file a motion to seal the publicly available records of the arrest, related court proceedings, and conviction if:
(1) A waiting period of at least 8 years has elapsed since the completion of the movant's sentence; and
(2) The movant does not have a disqualifying arrest or conviction.

The waiting period may be jointly waived by the prosecutor (that means you file a motion and the prosecutor agrees to waive the period of waiting), See 16-803(e). This is important! Often a lawyer can get an agreement with the Attorney General's office to waive the statutory waiting period.

Generally, however, intrafamily violence convictions, and violations of protective orders that relate to family members, cannot be expunged because intrafamily offenses are not eligible misdemeanors. List of ineligible offenses (see 16-801(9)):
  • Intrafamily offense as defined under D.C. Code § 16-1001(8)
  • Driving while intoxicated, driving under the influence, or operating while impaired under D.C. Code § 50-2201.05
  • Any misdemeanor offense for which sex offender registration is required under Chapter 40 of Title 22
  • Criminal abuse of a vulnerable adult under D.C. Code § 22-936(a)
  • Interfering with access to a medical facility under D.C. Code § 22-1314.02
  • Possession of a pistol by a convicted felon under D.C. Code § 22-4503(a)(1)
  • Failure to report child abuse under D.C. Code § 4-1321.07
  • Refusal or neglect of guardian to provide for child under 14 years of age under D.C. Code § 22-1102
  • Disorderly conduct (“peeping tom”) under D.C. Code § 22-1321
  • Misdemeanor sexual abuse under D.C. Code § 22-3006
  • Violating the Sexual Offender Registration Act under D.C. Code § 22-4015
  • .... and many others. Each offense will indicate if it is "expungable"


Because you potentially have an intrafamily offense, it may not be possible to get this conviction expunged. I would suggest you call us and discuss the particulars of your case. Many aspect of expungment can be waived if the prosecutor agrees/consents to the filing. That means a good lawyer can make all the difference! Call us at 1-800-579-9864 or 571-572-8567.

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.
1-800-579-9864
admin@hanoverlawpc.com

Friday, September 16, 2016

Can my family hire me as an immigrant in the United States?

So I was in the office today, and received an email requesting assistance with the following question:
I would like details about a green card. I have family who are citizens here. They own a business, can they sponsor me for a green card? I am in the US now.

I thought I would share the answer - probably not. Most non-immigrant work visas require you to be in status before you can switch to them while you are in the United States. If the person who asked the question was here legally on a visa that permitted changing classifications, then yes, he could apply for several of the visas that permit some kind of work -- F, H, L, EB, E, Q, J, etc. However, if he has no status (as the individual who asked the question did not), then you cannot be "sponsored" while you are in the US. A "visa" means, right to enter. You cannot receive a right to enter if you are already here. With some exceptions (such as a one step application after marriage), the law requires you to be outside of the country in order to obtain a visa -- unless you are changing status between visas, or certain special classifications such as "U" visas, etc. Absent those special circumstances, in order to get a work visa, as previously mentioned, you need to be in status -- i.e. legally here in the US already, under a visa that permits changing classifications.

To petition to change classifications, you would need to file an I-539. This form allows you to switch between visa categories when permitted. Typically, for example, if you were pursuing an H1 visa, your employer would file all the required documentation. Once approved, you would than file the I-539 to "switch" into H visa status.

Do you have a question regarding immigration law? Give us a ring! We have many years of experience handling even the most difficult situation. It is always smarter to speak to an attorney before you make a mistake! Call us at 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.
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, September 14, 2016

Can my employer fire me for being away on jury duty?

We answered a question about jury duty, and I thought it might be helpful for others:

Must an employer pay the salary of employee who lives in DC, and is required to serve on a jury at DC Superior Court, even if they work in Maryland or Virginia?

In regards to your question about whether Maryland or Virginia law applies to DC as it does to an the respective states, the simple answer is "no." The reach of the MD/VA law only covers hearings that the MD/VA Court can control or enforce. Because DC is outside of Maryland's or Virginia's jurisdiction, it cannot control the behavior of individuals attending, or not attending jury in those jurisdictions. There is no "jury consideration" reciprocity between jurisdictions.

However, if the individual is exempt, neither MD nor VA recognize a legal payroll deduction for jury time, so payment would have to be made (subject to being offset by anything paid to the employee by the Court). Hourly employees are not required to be paid in any jurisdiction, however, neither exempt nor hourly employees can be terminated because of jury service.

If the employer terminates the employee due to jury service, said employer will run afoul of the US Federal Labor Laws. This would potentially give rise to a federal case of employment discrimination. The Department of Labor specifically forbids termination due to jury duty, and reclassifies exempt employees who are "docked" jury time as as non-exempt (this has the potential of costing the employer a considerable amount in unpaid overtime and hourly wages).

A succinct summary is here: Society of Human Resources Summary. See also: 28 USC 1875 which reads in "(a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States."

Have you been threatened with termination or legal action because of jury or court duty (including being a witness)? If so, call us immediately! We can help stop the threats and preserve your job. Contact us at admin@hanoverlawpc.com 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.
1-800-579-9864
admin@hanoverlawpc.com

When you are accused of hitting your child -- assault on a family member.

When does hitting your child (intentionally or unintentionally) lead to legal problems? A question was asked on a legal bulletin board yesterday, and we responded with an explanation of DC law. This information is worth sharing on the blog, as it is a topic that has seen an upswing in recent months.

If a child was pushed to direct them in the room in which they were asked to to their chores and they slipped and hit their face on the carpet and caused rug burn, can a parent be charged for assault on a child or possibly lose custody of their child?

This matter is serious. In response to your question -- yes, you can be charged with assault. Assault is the unwanted touching (or imminent threat of touching) of another without privilege and without consent. DC Code 22-404(a)(1) covers the charge, which carries a maximum sentence of 180 days. In your example above, you shoved or pushed the child. That would be sufficient to show a touching. The degree of the injury makes you look bad, but in fact, does not rise to the level of an aggravated assault, so is not entirely relevant to the charge (only the sentence). It is still a simple assault. To rise to the level of 22-404(a)(2), you would have to show serious injury or intent to cause the same.

The assault occurred when you shoved. I would be concerned about a DCPS investigation regarding treatment of the child in the home, as likely this was reported as a result of a teacher or some other individual seeing the rug burns or bruise on the face. Generally, when DCPS gets involved in a case like this, you can expect a safety plan, and the requirement that you attend parenting classes and anger management classes. There is a diversion program that avoids a formal finding of abuse, but still requires a safety plan. However, often you will need a lawyer to ensure that program is triggered.

In terms of custody, it would be entirely likely to see an opposing side (i.e. an ex partner or spouse) use this type of conduct to show the child is unsafe in the home, and move to have custody changed. The DC family law code governing custody determination is at DC Code 16-914. Specifically, the judge can find a "rebuttable" presumption (meaning that the assumption is against you, but you can still argue), if:

There shall be a rebuttable presumption that joint custody is not in the best interest of the child or children if a judicial officer finds by a preponderance of the evidence that an intrafamily offense as defined in § 16-1001(8), an instance of child abuse as defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977...

If DCPS finds there was a violation, and you are not placed in a diversion program, that constitutes child abuse/intrafamily violence, and will be used against you in court. Same effect if you have a criminal conviction for assault on your own child.

If you should be charged, or threatened with this, reach out to us to get help with this quickly. Mistakes made at the initial stage (i.e. you making statements to the investigator, or police) can be a critical problem down the road. Be very careful here.



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.
1-800-579-9864
admin@hanoverlawpc.com

Sunday, September 11, 2016

Naturalization and Crimes Involving Moral Turpitude

I was recently given the following fact pattern, and asked about what, if any effect, it would have on naturalization. This is a good question, and it illustrates the limits of petty exception rule quite well:

Dear Sean: I have a potential client who has a conviction for Theft. He pled guilty and got 1 yr. Deferred Adjudication. The crime has a max sentence of no more than 1 yr. imprisonment. However, his deferred adjudication (i.e. they will drop the charges if he maintains good behavior for one year and performs certain community service obligations) was sentenced in excess of 6 months. The actual term of imprisonment was 100 days in the county jail (i.e time served pending the sentencing of deferred adjudication).

Based on this, is he eligible for petty offense exception? Should he wait to file for naturalization until he has some good equities?


Thanks for the question! The petty exception rule, for naturalization, is triggered by 8 CFR 316.10 (requirements for naturalization), and enumerated under 8 CFR 212(a)(2)(A)(ii)(II). The rule states:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if- ... (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

So, for the petty exception, you need a couple of things.
1. The maximum sentence must be one year or less.
2. The sentence given must be 6 months or less, regardless of time actually served.

For example, if the crime had a maximum sentence of 1 year, and your client was given 1 year with all but thirty days suspended, he would not be eligible.However, if the crime has a maximum sentence of 1 year, and your client was given 30 days, all 30 suspended, he would be eligible. It is for this reason that a sentence of under one year is so important when dealing with petty criminal matters.

I agree with your assessment. He pled and was given what appears to be 1 year jail sentence, all time suspended as part of a deferred sentence. That’s still a conviction for immigration purposes. See, USCIS Policy manual.

Also, your fella may be placed in removal proceedings; this is a heightened risk if he committed the crime during the five year look back period. See paragraph H in the USCIS Policy manual

I am unclear whether this happened more than five years prior. You mention it might – but then give an August 2016 date. If it is more than 5 years prior, you could probably apply if you have really really strong equities to support rehabilitation. However, that a CIMT is a bar to cancellation, too. If he is placed in removal proceedings, he would have serious issues. Make sure you have a defense strategy such as 212(h) or something similar to stop the removal process if he is placed before the judge.

Do you have questions about immigration or criminal law? Call us! We would be glad to review your case and discuss options. Good legal advice is critical in the immigration arena. 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.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, August 11, 2016

Evidence and opening statements in Immigration Court

A colleague asked me about the rules of court, regarding evidence in immigration proceedings. I thought I would share the answer here:

I have a CAT only IH coming up. I want to introduce a news article that I feel is relevant. Can I refer to the article in my opening statement?

Sure you can! You need to submit the article, and any other evidence you want to use, 15 days in advance -- unless for good cause you can’t do that. At the beginning of the hearing, the judge will review the evidence, and admit/deny as appropriate (almost always admit in CAT – it becomes a question of weight, not admissibility). In a state or federal court, the opening statement is limited to facts. However, if you had a pre-trial exchange of exhibits, you could certainly cite to a “fact” in your exhibits, too. You would do that (and in immigration court, too!) by saying something like this: “Not only will my client testify that giant green elephants are the cause of his fear, the evidence will show that as of 31 February 2016 (date of the article), the citizens of Ubuland are afraid of the government, and believe that they will all be killed by the green elephants with the governments agreement or even assistance.”. In state or federal court, you need to lay a foundation and provide authentication for evidence, before it can be admitted. Usually, you can file a motion in limine regarding certain documents, such as newspaper articles, in order to have the Court recognize the authenticity and foundation of new print prior to trial. That is not required in immigration court.

In an immigration context, you can even bring in hearsay in the opening, closing, and throughout the trial.

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

Thursday, August 4, 2016

Criminal Past? How to handle it when sponsoring someone for immigration benefits.

What happens when you have a criminal past, but want to bring your family into the United States? That of course, depends on the crime. Conviction of a crime against minors is a particularly serious form of criminal past that present a serious bar to immigration in the US. I recently answered a question about this on one of our legal boards:
I have an AWA case. The Director denied it, of course, after we responded to an NOID (notice of intent to deny). The denial stated that the only option was an appeal to BIA. Help! Is that right? So happens that the only grounds/reason that they gave for denial is now moot and we have conclusive proof to rebut those grounds that was obtained after filing/deadline. I would like to submit a motion to reopen and reconsider. Can I do that?

In my experience Adam Walsh immigration cases are only every appealable to the BIA, and then only win when the alleged crimes do not constitutes crimes against minors. I have never seen the BIA reverse based on equities or the fact the petitioner is no threat to the intending immigrants. As you also pointed out – after acquired evidence is not reviewed by BIA if it was not submitted timely.

In this case, I would not pay the filing fees for an appeal, given the likelihood of failure. I would re-file with the new information and get approved ab initio. There is nothing barring a new application. Will also most likely be faster.

No harm in an appeal – you can always re-file thereafter. Just not likely to be successful (in my experience).

No, as to your question for a motion to re-open…I don’t believe such a thing exists for Adam Walsh act cases. There is only an appeal to BIA on whether the law was properly applied, as the decision of the Director on the matter of facts/equities is final.

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.
1-800-579-9864
admin@hanoverlawpc.com

Saturday, July 23, 2016

Someone threatens to show your nude pictures...what do you do?

A great question was asked about how to handle a threatening letter involving pictures. I answered the question, and thought I would share the results here. The question was:
if I find naked pictures of me in an envelope and an anonymous note threatening to show these to my boss what can I do?

Absolutely there are things that can be done. First, you have to decide if you want to take this a civil route, or a criminal route. Although it does not appear there was a demand associated with the threat, generally when you are threatened with an "impending" action, the suggestion is that there is something you can do to avoid the event (i.e. the pictures being revealed). You've heard the term "blackmail" -- well your envelope and the implicit demand are where the term "black mail" comes from.

If you pursue this criminally, you will file a police report and demand action under VA Code 18.2-372-376. I cite VA code because the individual asking the question mentioned she was in VA - obviously, each state has a similar statute or statutes. This code section deals with criminally obscene materially (in this case, an attempt to publish nude and lascivious photographs for the purpose of profit). If you pursue this under a civil action, you will seek a restraining order to prohibit any act by the wrong-doer. Once awarded a restraining order, you will then sue under violation of privacy and intentional infliction of emotional distress theories, citing to the protective order to avoid summary judgment.

Both of these actions should be taken under the guidance of an attorney. DO NOT let yourself be bullied. Give us a call and 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.
1-800-579-9864
admin@hanoverlawpc.com

Friday, July 22, 2016

When is a DUI an aggravated felony? When it involves a child.

I subscribe to an immigration lawyer group, and a great question was asked about DUI's. I thought I would share this. The question dealt with whether a DUI was a CIMT. Oh, and the person was also convicted of child endangerment. My answer follows:

I’m not a CA attorney, of course, but in terms of CIMT issues, the hallmark is “willful” conduct. This is not always determinative, but it is a good place to start your inquiry. Looks like “willful” is an element of CA penal code 273a(a) which reads:
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

The term has meaning beyond mere intent. Willful means knowing of the risk or impact before-hand, and choosing to pursue it regardless ( “purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury” Tighe v. Diamond, 80 N.E.2d 122 (1948)). Willfulness in the criminal context is almost always considered a moral breach, making a crime with this element a CIMT. I also believe this is a felony?

If the DUI included placing the child in danger, that is definitely a CIMT.

The question of whether child endangerment is a CIMT when in conjunction with a DUI is answered in Hernandez-Perez v. Holder, 569 F.3d 345 (8th Cir. 2009). “While Hernandez–Perez is correct that a “simple operating a motor vehicle while intoxicated” conviction would not qualify as a crime involving moral turpitude, the aggravating factor here is present in the child endangerment statute's requirement of a conscious disregard of a substantial risk to a child in his care.” Id at 348.

Again, you see the willful component. That’s the kicker.

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.
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, July 19, 2016

DOD Security Clearance -- or EEO Violation? What happens when you are denied a job because you don't get a clearance?

A potential client contacted us with a very frustrating problem. He was a retired disabled veteran looking to get a federal job. He received an offer letter, but could not be placed until his clearance came through. His clearance ended up being lost in "limbo" and the job offer was revoked. He was angry and sought to sue the government for discriminating against him. Our answer:

Unfortunately, however, you are in a bit of a pickle. The government designates certain positions as requiring a clearance. The level of clearance, and the nature of the clearance, are strictly up to the government. However, your ability to pass a background investigation is always a contingency requirement of employment in such a cleared position. The Service cannot control whether you pass or do not pass your background investigation. Their termination of your job offer is entirely in line with both the law and precedent. You won’t get any traction there. Quite literally the Service has no control on your clearance process, and has no choice but to let you go when you can't get a clearance.

You have a little more clout with the clearance process itself. There is a vehicle to appeal a denial, or seek information on the status of your clearance, and that would be the first area you should concentrate on. However, working with DOHA -- Defense Office of Hearings and Appeals – is a tricky and complicated process. They handle all DOD related security matters – including those such as yours which usually end up with a SOR – Statement of Reasons – for why they are not moving forward.

You could petition DOHA for a review of your clearance, and if approved, re-apply for the position. However, that is the only legal avenue you have open in this case. Additionally, such an appeal may be denied outright, as you no longer have a reason to hold a clearance, and such appeals are expensive – starting at around $4500.

We have considerable experience with EEO cases -- and also with clearance cases! Do you have questions about Directive 5220.6, Guidelines/Mitigation factors, or Statement of Reasons? We can help! Don't be caught without a lawyer where you job, and credibility, are on the line. Call us immediately at 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.
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, June 7, 2016

How to address a false US Passport

I had a colleague send me a question recently, and it is worth posting the an analysis of the problem:

Facts: Client is an adoptive child of a US citizen. A travel situation came up where she needed a US passport. We sent her to the passport office and filed an N600.

She was denied for the passport because turns out she did not become an LPR until she was 19. We sent a letter withdrawing her N-600, and started work on an N400. Later, we received another call from the passport agency saying that they would issue her the US passport. The passport was then approved, and we didn't think anything more of it.

Fast forward two months, we just received a denial from USCIS for the N-600. We are at a bit of a loss. Client has already used passport.

If client returns to the US, surrenders the passport to DOS, and files an N400, do you think an argument can successfully be made that she in good faith believed she had acquired US citizenship, or do you think she will be permanently barred?


So here is the basic rule of thumb:

1. If you supplied the correct information to DOS and
2. Dept. of State issued you a passport based on that information and
3. You reasonably relied on that passport to travel, THEN
4. You have not broken any laws if they later withdraw the passport and inform you that you do not have citizenship

The problem arises as to why they gave you the passport in the first place. It is well established law that an LPR child (under 18) must reside with and receive principal support from a USC parent, in the US, to obtain citizenship automatically. See 8 CFR 320.2. Generally, they should have spent at least one year here with their parent in order to prevent RFE’s regarding the degree of support or care (i.e. less than 6 months, the child was receiving primary care from someone else for that year). That’s not a hard-and-fast rule, but a good practice tip.

If she knew she did not meet the criteria above, than she could arguably be held to have violated INA 237(a)(3)(D) -- fraudulent claim of United States Citizenship to derive a benefit under State of Federal law. Here, she would not be an arriving alien, but rather one who was hear legally and just violated the rules. As long as there was no willful or knowing intent, she should be able to avoid a 237 charge.

However...if she re-enters using the passport, then INA 212(a)(6)(C) applies (false claim to USC when entering the US). The key to a fraud/willful misrep is just that – it has to be knowing and intended.

Does she still have her old passport with the I551 stamp? If so, have her come back using that. If her citizenship was revoked on error by the US, then she would resume her LPR status. Use that status to re-enter to avoid a 212 charge.

You also need to get all documentation from the “passport agency” as to how they submitted the documents, and who actually approved the application. Additionally, how was it denied once and then magically re-approved? You need a thorough understanding of that process. This sounds like some kind of Notario hookey-pookey stuff on the part of the passport agency.

Having said that – you are in a rather interesting situation. The Department of State is a separate agency, wholly distinct from USCIS. A denial of the N600 does not automatically deny the passport. However, her knowledge that she does not qualify would make her relying on that passport to pass CBP a fraudulent act – not for DOS (apparently they still believe it is valid), but rather for USCIS. She can’t use that to enter as a citizen.

Do you have a question about immigration law? Give us a call! 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.
1-800-579-9864
admin@hanoverlawpc.com

Saturday, May 21, 2016

Can you get a jury trial on a VA misdemeanor?

From a Comment Board I am a member of:
Do I have the right for a jury trail for a class 1 misdemeanor in Virginia? Also, what legal process can I do when some one comments perjury to get me arrested?


Great questions! VA has a two step judicial system for misdemeanors. The first step is called the "district court". It is not a court of record, and it does not have a jury. You can read about this in the Virginia Constitution at Article I, Section 8 which outlines the process for misdemeanor hearings in district court. If you are dissatisfied with the outcome of the district court case, you can request a hearing de novo in Circuit Court. That's step two! Circuit court is the next level up from district court. Circuit Court is a court of record, and when appropriate, you can request a jury trial.

Jury trials are appropriate when the case is not "petty". Generally, the Supreme Court has ruled that means >180 days in jail is possible. Although Virginia technically allows a jury trial for all offenses (even that parking ticket!), as a practical matter, it will be extremely difficult to get a jury trial for anything below 180 days. Check with your local court for procedures on this, as you don't want to make the Court and the judge angry by demanding the ridiculous.

Because a class 1 misdemeanor carries a maximum of 1 year in jail and/or a sentence of $2500, you would be eligible for a jury for most 1st class misdemeanors in VA (such as what you asked about). Note, however, that juries are not always advisable. In VA, if you elect to proceed with a jury trial (or the Government decides to demand it -- in VA, the prosecutor can ask for a jury trial, too!), the jury provides the recommended sentence to the judge. The jury is not permitted to suspend time, making the maximum and minimum penalties for a particularly crime the absolute guideline as to what your sentence will be. A judge, however, may suspend time, or craft a solution that fits the particular facts of the crime.

As to your question regarding perjury, when the trial is over, you can go after the perjurer for submitting a false police report. Remember, though, this won't work if you merely say the person lied about you. He-said-she-said is not enough, and often unless you have compelling evidence of mistruth (for example, you can prove you were in Florida when they accused you of breaking into their house in Virginia, and they knew it), the Courts won't entertain the action.

Do you have questions about false reports or jury trials? Ask us! We're happy to discuss your case. 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.
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, May 18, 2016

Appeals -- summary judgment and evidence

When considering a summary judgment, the standard for review at the appeals level is "de novo" -- this is well established. However, what, if any, restrictions exist as to what evidence may be presented outside of what was originally show to the lower court. How "de novo" is de novo. It is worth a brief discussion on the point. Hanover Law recently filed a responsive brief on just this topic, and I expect the appeals court to issue a ruling in, uh, about three years. However, I thought I would share my research for others dealing with the same topic.

The standard for summary judgment is outlined in McFarland v. George Washington Univ., 935 A.2d 337 (D.C., 2007): This court reviews "the grant of a motion for summary judgment de novo." Joyner v. Sibley Memorial Hospital, 826 A.2d 362, 368 (D.C. 2003). "[T]o be entitled to summary judgment, [GW] must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law." Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C. 1994) (en banc) (citing Super. Ct. Civ. R. 56 (c)). Although we view the evidence in the light most favorable to the party opposing the motion, "[c]onclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment." Hollins v. Federal National Mortgage Association, 760 A.2d 563, 570 (D.C. 2000) (citation omitted).

As a footnote, "conclusory allegations" are generally defined as those made by the party him/herself. You can't submit an affidavit purporting to be fact, when it contains only the statements of the party.

"Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered." Hahn v. Diaz-Barba, 125 Cal. Rptr. 3d 242 (Cal. Ct. App. 2011). This last one is critical, as it is as hard to find statements regarding evidentiary restrictions on lower Court's orders, in appeal decisions, as it is to pull hens teeth.

Do you have a question regarding appeals? We can help! We're experienced trial and appeal court litigators, and would be delighted to discuss 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.
1-800-579-9864
admin@hanoverlawpc.com

Notario Fraud - a discussion on what to do (this one is different!)

In the immigration community, you commonly hear about Notario's scamming innocent immigrants in the US. Often, the Notario is a not trained in law at all, and for a large sum of money, files the wrong papers and causes no end of trouble for the immigrant. Of course, this is not always the case. Some Notarios are quite competent and very public in their assistance to the immigrant community. Regardless, there is no such thing as a "notario" in the US. Each and every one of them is unlawfully practicing law (usually really badly).

So, what happens when a notario comes to you with an immigration issue? What happens when the bad-guy comes looking for assistance? We do considerable work in the immigration and criminal defense sectors. I had a chance to discuss this with a good colleague of mine, Mr. Franchesco Martinez, Esq (not a Notario!) from North Carolina. He brought up this case, and I thought a wider audience could benefit from our question and answer parley:

The substance of the questions are as follows:

I have a PC who wants to see if he still has a GC, wants to know if naturalization is possible, and wants to know if he has any deportation orders. I know this sounds broad, but PC has no idea what to do now. PC was in Federal prison - the family member who spoke to me mentioned "Convicted of Notario Fraud" in a very brief sentence. Apparently, the potential client was in jail for four years.

I want to read up on the effects of Notario Fraud. Is general "fraud" all I have to consider? Does anyone have a good, go-to, online source for "notario fraud"? Would a FIOA be beneficial to answer if PC still has a GC or if a deportation occurred while in prison or sometime thereafter?


First, a couple of basic principals. When things look weird, always get a FOIA. There you go.

Secondly, never trust you know everything you need to know about the client's chargeserr…more politically correct: client’s have trouble remembering things).

Thirdly, a green card (LPR) can only be revoked by a judge. However, a federal judge could technically revoke status – so, you need a copy of the sentencing papers from federal court. If there is nothing in the FOIA return about an immigration determination, than guess what? He still is technically an LPR. However…

The mere status as “one who is an LPR” really doesn’t do much without the credentials. An I-90 would be very risky in this instance, as it requires biometrics.

This seems obvious, but…no, he can’t travel. Ever. If he gets picked up on a return trip from overseas, he will be held without bail. Period. Basta. Ende da storio.

So – as for notario fraud, such a thing does not exist to my knowledge. There is no charge for “notario” – that is a term used in a foreign countries to denote an official empowered by the state to conduct certain legal business. In the US, the charge would be unauthorized practice of law, coupled with a possible fraud count. Any description of “notario” would be in the arrest affidavits describing the nature of the offense, not the charge itself. Again, do nothing without court papers in hand, so the advice to get information is spot on.

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.
1-800-579-9864
admin@hanoverlawpc.com

Thursday, April 28, 2016

ETHICS: When you need to let a client go...

A great question was asked about requirements of an attorney to maintain a client who was misbehaving. I responded as follows:

I have a current client who submitted an EAD application, against my explicit advice, through the help of his sponsor. Client was released on bond and is relying on the sponsor who is a well known individual in the community but who is not an attorney. I told the client that I would like to review any submission to USCIS before it is sent. I knew he was not eligible for employment authorization because he was not paroled and his asylum application has only been pending for 30 days, and I explained that to him until I was blue in the face! Client kept insisting that the sponsor knew what he was doing because he has “been doing this for 20 years.”

So, client went ahead and sent it anyway, then brought the documents to me afterwards. The information on the EAD application was not correct, including his current address and his basis for qualification. The sponsor also filled out the G-28 even though he is not an attorney or an accredited representative (I looked it up to make sure).

Client is in removal proceedings and I’m afraid that this type of application may result in a discretionary denial of his asylum application

I had a similar situation in a family law case in VA. Client decided to file a protective order against her spouse, didn’t tell us, and then refused to explain what the protective order was for – only that she was “told” to file it by a “good friend” who was a clerk at the Court. Completely wrecked our representation in Court and our attempt to work out a solution with the other side. Moral of the store – we fired her.

I teach new attorneys at my firm that (a) the client tells us what they want – what the end objectives are, and (b) we tell them what law and tactics we will use. If they don’t like the law/tactics, then they can go somewhere else. But the client cannot tell us what law/tactics to use, or try to strong arm the legal process themselves. Ever.

Your client is not cooperating with you, prejudicing his case, and potentially opening you up to false representation to the Court. Further, they are mocking your ability to strategize and actually move the case along in a proper manner. That would (and has in the past) infuriate me.

I would explain to him that he is paying good money to have you lead him through the immigration jungle. If he does not intend to follow your advice, you will refund any remaining monies in IOLTA (or operations) that have not been used and allow him to continue on his own.

Do you have questions about ethics or client management? Contact us! We're glad to chat. 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.
1-800-579-9864
admin@hanoverlawpc.com

Sunday, March 27, 2016

Garnishment: Federal Pay and Child Support (or garnishment issues)

This may be helpful for individuals working on child support cases, or answering/challenging a demand for payment or garnishment pursuant to a valid judgment. In both situations, when considering Federal income such as SSI, military pay, retirement, federal pensions, contract payments or other income with its ultimate genesis in the Federal Government, the following chart will be helpful: Federal Garnishment Grid. This originates from the Commissioner at Commissioner's discussion of permissible garnishment actions against Federal income. Ultimately, the most common code section dealing with Federal income and all forms of garnishment is 5 CFR §581.104.

An area of often overlooked income "jamming" is contract income for government work. Unless the individual is paid directly for the work services provided, contract payment to a business or other entity is not subject to garnishment. This is a powerful tool for small businesses working with the government. If you own such a business, be sure to speak with an attorney to verify your company is properly setup and wholly independent of you as an individual. See 5 CFR §581.104(g) -- personal services are NOT exempt, but general contract payments are.

Also, note that while some forms of disability payments are attachable, generally, income that is not derived from work or prior work for the government, is not attachable. Therefore SSI income, or disability income not related to service related action is not attachable. See 5 CFR §581.104(b) and 5 CFR §581.104(j).

INCOME

Remember, that even where income is concerned, garnishments cannot exceed:
  • 25% of disposable weekly income, or
  • the amount the debtor's disposable income exceeds 30 times Federal Minimum Wage, whichever is less
(see 15 USC §1673(a))
NOTE: This does not apply to child support or alimony, where withholding can be any amount ordered by a Court, but generally not exceed 50% for individuals with other obligations, or up to 65% for single, non-obliged child support/alimony payors. This is all explained at 15 USC §1673(b). This can get right complex, so be sure to contact us if there is a question of multiple deductions, obligations, and other considerations. We have considerable experience in handling complicated support issues. Thee exemptions discussed in this article also apply to child support and alimony.

When jamming collections, it is important to (a) delay the action as long as possible (except in support or alimony issues), and (b) seek to categorize the income under a permissible exemption. This takes specialized skill, and frankly, it is not always possible. Careful planning is required to ensure the maximum number of exemptions are considered. Do you have a question about income exemption and garnishments?

Do you have questions about income garnishment avoidance, jamming, or alimony/child support issues? Contact us immediately! Time is of the essence. 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.
1-800-579-9864
admin@hanoverlawpc.com

Can you renounce foreign citizenship to avoid deportation?

No. Although, it would be interesting to see if you renounced your citizenship at your home embassy and then were placed in removal proceedings, what effect that would have. Most likely, the government would determine your renunciation was not effective and send you home. It would be an interesting case.

Renunciation of citizenship must be done prior to an immigration event, for renunciation to have any effect. For example, you must renounce your native citizenship prior to illegally entering the US. Otherwise, even if you later renounce your foreign citizenship, the illegal immigration event (entry without inspection, for example), occurred when you were a foreign citizen, so you will be deemed a citizen of the country from where you came. Designation of a country of deportation is regulated under 18 USC §1231(b). (b)(1) controls arriving aliens; (b)(2) controls all other aliens. Specifically, the order of priority for deportation is as follows (18 USC §1231(b)(1)(C) and 18 USC §1231(b)(2)(E) -- (E) is used here, as it encompasses all conceivable legal scenarios):
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States. (iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien’s birthplace when the alien was born.
(vi) The country in which the alien’s birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.


There are certain countries were deportation is not practical or possible. For example, Sudan, individuals who arrived from Vietnam before 1995, etc. In those specialized cases, you need to contact us immediately, as certain procedures must be followed to ensure you are not sent home regardless of treaty regulations.

Generally, as a matter of best practice, you do not want to designate a removal country in Immigration Court, as it may limit options under (b)(1)(C) and/or (b)(2)(E) above.

Do you have an immigration question? Contact us! Your first consultation is free, and we're glad to 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.
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, March 22, 2016

Lessons from the Criminal Bar -- making up a sentence and crafting probation

A couple of hard learned lessons from criminal court in DC.
  • Certain criminal activity doesn't have a sentence associated with it. When that happens, go for misdemeanor 180/$1000. This is especially true for inchoate crimes (attempt, conspiracy, etc.).
  • Crimes that stem from the same event should always be argued as concurrent sentences. Remember the rule - if it stems from the same event or facts, treat it as one clump. See? That rhymes.
  • Always prep your client with the plea proffer before the prosecutor reads it to the judge. If you don't do that, expect all hell to break lose. It's also malpractice. The proffer is a key area to negotiate, as the facts often lead up to the degree or severity of the sentence. An example will help with this:
    BAD PROFFER:
    The man went to the house and stabbed his wife in front of his child.

    GOOD PROFFER:
    The man received a text from his ex-wife to come to the house and watch their children. When he arrived, an altercation ensued when the ex-wife saw sexually explicit email and pictures on his phone. During the course of the altercation, the man stabbed his wife. He was unaware that his son was observing the event.

    Which of the two above would be easier to argue at sentencing? Review and negotiate all proffers of substance.
  • When discussing probation, always be specific as to the level of probation required. Does the Court permit phone contact or no supervision? If so, make sure that is written in the agreement.
  • Always make sure your client has a home address before probation get's a-hold of her.


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.
1-800-579-9864
admin@hanoverlawpc.com

Monday, March 14, 2016

Rule 68 and how to stop petty copyright cases

I belong to the Electronic Frontier Foundation (EFF). This great organization focuses on helping "little people" who find themselves at the butt end of a nasty lawsuit due to first amendment or copyright problems. You can find them at www.eff.org. Now, I should note that not every "little guy" is innocent, and sometimes, a copyright violation is just that -- oops, I stepped in it! But that doesn't mean that a mistake has to cost you your entire business. In this blog, I wanted to share one way of jamming internet "copyright enforcement" lawyers. It won't stop you owing something for your copyright violation, but a trivial payment is significantly different than $5000 or $10000 which is often the demand amounts from these trolls.

Welcome, my "homies", to the dreaded Federal Rule 68. Most states have an analogous rule, although almost all copyright violations are brought as federal action to make them seem scary. Which, I might add, is often successful, and is a rather good tactic. But I digress!

Let me give you the example of the McCleary's. Obviously, I have changed the name - but the fact pattern is the same. Mr. and Ms. McCleary own a small internet music review and production company. They play at various cover concerts, and maybe earn $20 to $25K per year from their newsletter, productions and sales, and cover engagements. Recently, they were contacted by Evil Empire Lawyers who stated that one of the pictures in their blog from seven years ago was actually a copyrighted picture of an artist, and it was used without permission. It was seen a whopping 177 in the last 7 years. Violation of copyright image laws (the image is legal (i.e. not a violation of the first amendment or invasion of privacy), but its use is restricted by rights) has fines up to $30,000 (if willful, up to $150,000) plus the cost of attorney fees. See 17 USC 504(c) which reads in part:

(c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.


Now, as you might be saying -- if the Court believes the violation was not willful, and finds that the act was trivial in nature, what's the fuss? A fine of $1000 or so is not likely to cause complete ruin. The problem, folks -- is attorney fees. The judgment may be for $750, but the attorney fees could be considerably more. The filing of a complaint in federal court can cost upward of $5000 between costs and attorney fees. Image if this continues for a year of litigation? A trial? You get the idea.

Here is where Rule 68 comes in. Because the internet law firms enforcing the copyright only get paid if the court awards them money (at a trial) or 33% of a settlement, they will always threaten a trial to scare you, and hope you fight. If you threaten them with a Rule 68 motion, you will cripple their will to fight. Here's why -- Rule 68 says that if you make an offer, and the final judgement is LESS than the offer you made, the internet law firm cannot collect attorney fees from the date of the offer. ALWAYS MAKE A RULE 68 OFFER (if you violated) when filing your initial answer to any complaint.

RULE 68:

(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.

(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability is Determined. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time—but at least 14 days—before the date set for a hearing to determine the extent of liability.

(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

Always consult with a competent attorney to determine what the amount to offer should be. A review of copyright rules and liabilities is required as well.

Do you have a question about copyrights or federal court? Call us! The consultation is free - 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.
1-800-579-9864
admin@hanoverlawpc.com