So what happens when your love is shattered on the shoals of acrimonious divorce? Well, according to the tax man (aka Federal Government) -- not much. A joint tax liability waits for no man (or woman!), regardless of the current status of the divorce. Let me explain what this means, and then a few tricks to address the problem.
Okay -- here's the scenario. Wife and Husband have been married for five years. They created a joint basket business supplying eager underwater artists. The business was a success but the marriage was not. On the eve of the fifth anniversary, wife informs husband that the honeymoon is over, and serves him with a causes bellos for mensa et thoro in Virginia. All is progressing as these actions are want to do, with a large joint asset pool, including vehicles, an expensive home, and two kids. Then -- the unexpected happens.
In August of 2012, the IRS contacts the husband (nominal CEO of the basket business). They are being audited. The tax returns from 2007 - 2012 were filed jointly (1040) and include, primarily, the income from the business as the income for the couple. Additionally, although wife is listed as the only member of the basket weaving business, in fact the 1120S forms show husband as owning 49% (via K1's). The audit progresses, and it is determined there is a liability of $60,000.
Now, you would expect this debt (joint) to be considered a marital debt to be determined by the state court handling the divorce. However, the IRS is demanding payment NOW or levies will be had (now = August 2013), and the payment demanded is $60,000. Husband is no longer communicating with wife, and she has no way to get him to pay his part of this prior to the final merits hearing on the divorce, which is not scheduled for April 2014.
So, what options are out there to handle the impending debt? First, they need to be three months behind before the IRS starts rattling the lien-sabre. Interest will accrue, but nasty messages will be minimal.
The solution to this is to have the wife pay the IRS debt and then sue in state court to be re-paid...but what is husband is likely to be a no-show at the hearing, or has no money to pay?
Then the couple should file for a payment plan or reduction in the punishment amount from the IRS via a form 433A. This is a request for payment plan and abatement of collection operations. This will allow a payment plan to be implemented until a final judgment from the state judge may be had. Of course, both parties must sign. However, you can ask the court to enforce payment pendente lite or conversely require that the state court require the reticent party to agree to complete the 433A.
Interestingly, on a joint case were share with another law firm, one of their associates came up with a clever idea to get a home equity loan on the house to pay the tax debt, then sort out the home equity loan in the state court. That would work, too.
Finally, you can petition the IRS to split the tax liability by filing amended returns. This is the least palatable option as it causes significant disruption to the agreed on tax resolution.
What you must advice your client, however, is that the IRS does not care about his/her state divorce operations. A joint debt is joint and severable. Someone will pay, or both will get liens. Do not let on of the parties use a suicide-technique of just "sacrificing" themselves via tax lien to hurt the opposing party (i.e. do nothing just so that the parties will be hit with the liens). That is gross bad act, and warrants state court action to injoin.
Need help with a tax or family matter? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out messy and complex litigation matters.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
We are trial lawyers working in the VA, MD, DC region. This blog shares ideas and concepts related to the practice of law. Have a question? Ask us!
Saturday, October 5, 2013
Wednesday, September 18, 2013
IRS Form 443 -- Help, I can't pay my taxes!
So what really happens when you are waaayyy behind in your taxes? You see those ads on TV that promise to reduce your debt -- "Call us! We'll handle the IRS for you!" How true are they? What is an offer in compromise, and what it the process for contactin the IRS Field Office? Can you do this without an attorney? Are they unfriendly!? Enter the IRS form 433A.
These are great questions! And, yes, you can do much of this without an attorney. This blog post will talk about what is required to "fix" deliquent taxes. Remember, an attorney (that would be Hanover Law, of course!) can really help sort through the mess and guide you in the process. However, believe it or not (gasp) -- the IRS is rather helpful in providing pointers and tips on how to move forward. The difference with an attorney is that we can often get help faster for you, and usually talk directly to the folks that make decisions on your case. More on that in a moment.
So is there a magic button? NO
If you owe taxes, you have a serious problem that must be resolved. The IRS will not hesitate to garnish your wages or place liens on your propert. However, it is often possible to schedule payment, or even place yourself in non-collectible status, based on your income. This process requires you complete an IRS form 433A.
A 433 form asks for information about assets and income, and is designed to let the IRS know all about your personal situation. If you filed jointly, you must also have your partner sign. There was, for some time, an interesting question as to how married, gay couples, would file 433's or other IRS documents that require married couples to jointly file various documents. However, that issue now seems to have resolved in favor of same-sex couples being treated as married couples as appropriate.
Be truthful! Avoid answering questions on the phone. If you request that an IRS representative contact you, you may be asked to complete the 433 on the phone. DO NOT DO THIS, as you are apt to make errors or mis-state amounts.
Also, it is important to remember that deferred payment plans, or "uncollectable status" does not remove the IRS debt! It is stilled owed, and will still continue to accrue interest. It will, however, stop liens and garnishments.
Need help with a tax matter? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out complex IRS matters.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
These are great questions! And, yes, you can do much of this without an attorney. This blog post will talk about what is required to "fix" deliquent taxes. Remember, an attorney (that would be Hanover Law, of course!) can really help sort through the mess and guide you in the process. However, believe it or not (gasp) -- the IRS is rather helpful in providing pointers and tips on how to move forward. The difference with an attorney is that we can often get help faster for you, and usually talk directly to the folks that make decisions on your case. More on that in a moment.
So is there a magic button? NO
If you owe taxes, you have a serious problem that must be resolved. The IRS will not hesitate to garnish your wages or place liens on your propert. However, it is often possible to schedule payment, or even place yourself in non-collectible status, based on your income. This process requires you complete an IRS form 433A.
A 433 form asks for information about assets and income, and is designed to let the IRS know all about your personal situation. If you filed jointly, you must also have your partner sign. There was, for some time, an interesting question as to how married, gay couples, would file 433's or other IRS documents that require married couples to jointly file various documents. However, that issue now seems to have resolved in favor of same-sex couples being treated as married couples as appropriate.
Be truthful! Avoid answering questions on the phone. If you request that an IRS representative contact you, you may be asked to complete the 433 on the phone. DO NOT DO THIS, as you are apt to make errors or mis-state amounts.
Also, it is important to remember that deferred payment plans, or "uncollectable status" does not remove the IRS debt! It is stilled owed, and will still continue to accrue interest. It will, however, stop liens and garnishments.
Need help with a tax matter? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out complex IRS matters.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
Saturday, September 7, 2013
CBP and LPR -- what happens at a "deferred inspection"
Interesting case recently. A client called us with a not-to-uncommon problem. On the way back from visiting an ailing relative in Costa Rica, the family was stopped at Dulles International Airport (a la Virginia). The dreaded hand gesture was made by an immigration border officer to "go to line B". Deferred inspection is in your future.
When Custom and Border Patrol (CBP) takes your passport and gives you a date to return to talk to them -- that is deferred inspection.
So what happens? You get a deferred inspection when you have criminal incidents in your past that could reasonably lead to inadmissibility into the United States. Eh, you say? What is THAT!?
So first, a discussion on crime and immigration. Remember, no matter how old your criminal convictions they are still eligible for immigration review. There is no "ignore after certain date" -- although, there are crimes that are treated differently if your convictions fall before 1990 (among others). That notwithstanding, remember that CBP can review ANY crime convicted at ANY time. However, the crime MUST have resulted in a conviction.
When speaking of crimes, it is important to remember that any crime that has a detention or deferred sentence (suspended sentence) of 12 months or more is considered an aggravated felony, and constitutes inadmissibility on its face. That's bad.
Certain crimes can be waived under the petty exception for CIMT's. Remember that time when you were busted for shoplifting and served 30 days in the brig? Likely, a single offense can be ignored and you will not be found inadmissible.
When you go for your interview, bring a lawyer, and if you can afford one, bring a book. Whoops -- that was backwards, but I'm biased. You will be waiting for quite some time. While you are obligated to be on time for your 11AM deferred inspection, CBP will often stall and you won't be seen until 2pm! Or later. Can you sense my frustration? Baah.
Why do you need a lawyer? Well, a lawyer cannot change the law. If you have an aggravated felony, or you have been smuggling little children into the country, there is nothing the attorney nor the CBP officer can do -- our hands are tied, and the law says you will be found inadmissible. However, an attorney can make a good argument to NOT HAVE YOU DETAINED. CBP will contact ICE once they determine you are inadmissible. It is up to ICE -- not CBP -- whether you shall be detained (sent to jail while you wait for your immigration trial). NOTE -- that an aggravated felony cannot be bonded out. So, having your attorney get CBP to argue that you should NOT be detained (when speaking to ICE) is worth its weight in gold. CBP can make a good argument to have ICE just ignore you. You do NOT want to be detained. While this does not always work, it can ONLY work when you have an attorney.
When you leave (non-detained), you will have a court date from your Notice to Appear (NTA)and you should meet with your attorney to plan your case (see my posting on what to expect at your first immigration court hearing). If you are detained, you will be taken to an immigration detention center and "booked" directly from the deferred inspection meeting. You will then be given your NTA while detained, and need to get in touch with your attorney, who will need to come and meet you at the detention center. Do you need help with a CBP or deferred inspection? You came to the right place! We have considerable experience helping walk clients through tough situations. We'll walk through each step and help you get the best possible results.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
When Custom and Border Patrol (CBP) takes your passport and gives you a date to return to talk to them -- that is deferred inspection.
So what happens? You get a deferred inspection when you have criminal incidents in your past that could reasonably lead to inadmissibility into the United States. Eh, you say? What is THAT!?
So first, a discussion on crime and immigration. Remember, no matter how old your criminal convictions they are still eligible for immigration review. There is no "ignore after certain date" -- although, there are crimes that are treated differently if your convictions fall before 1990 (among others). That notwithstanding, remember that CBP can review ANY crime convicted at ANY time. However, the crime MUST have resulted in a conviction.
When speaking of crimes, it is important to remember that any crime that has a detention or deferred sentence (suspended sentence) of 12 months or more is considered an aggravated felony, and constitutes inadmissibility on its face. That's bad.
Certain crimes can be waived under the petty exception for CIMT's. Remember that time when you were busted for shoplifting and served 30 days in the brig? Likely, a single offense can be ignored and you will not be found inadmissible.
When you go for your interview, bring a lawyer, and if you can afford one, bring a book. Whoops -- that was backwards, but I'm biased. You will be waiting for quite some time. While you are obligated to be on time for your 11AM deferred inspection, CBP will often stall and you won't be seen until 2pm! Or later. Can you sense my frustration? Baah.
Why do you need a lawyer? Well, a lawyer cannot change the law. If you have an aggravated felony, or you have been smuggling little children into the country, there is nothing the attorney nor the CBP officer can do -- our hands are tied, and the law says you will be found inadmissible. However, an attorney can make a good argument to NOT HAVE YOU DETAINED. CBP will contact ICE once they determine you are inadmissible. It is up to ICE -- not CBP -- whether you shall be detained (sent to jail while you wait for your immigration trial). NOTE -- that an aggravated felony cannot be bonded out. So, having your attorney get CBP to argue that you should NOT be detained (when speaking to ICE) is worth its weight in gold. CBP can make a good argument to have ICE just ignore you. You do NOT want to be detained. While this does not always work, it can ONLY work when you have an attorney.
When you leave (non-detained), you will have a court date from your Notice to Appear (NTA)and you should meet with your attorney to plan your case (see my posting on what to expect at your first immigration court hearing). If you are detained, you will be taken to an immigration detention center and "booked" directly from the deferred inspection meeting. You will then be given your NTA while detained, and need to get in touch with your attorney, who will need to come and meet you at the detention center. Do you need help with a CBP or deferred inspection? You came to the right place! We have considerable experience helping walk clients through tough situations. We'll walk through each step and help you get the best possible results.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
So you're going to immigration court...what should your lawyer do?
Ah...the fun of the court room! Gotta love it!
Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a jerk. If the allegation is valid, don't get a reputation of wasting court time on goofy meaningless foot dragging. This is especially true if your fella (or lass, as the case may be) is detained.
As to relief, that's where you pull out your trusty tool box and ponder the possible options. Generally, you want to do this prior to the hearing -- however, if you had not chance to see the NTA afore the hearing, take a moment to consider. Besides, you look good staring out the window rubbing your chin as you ponder how to save your client. You go, attorney! Typical relief options are Cancellation of Removal (COR 42A or 42B), some assortment of asylums (A-W-C), family adjustment (when appropriate), stalling with a plea for Prosecutorial Discretion (truly a waste), continuance for post-conviction relief (right....usually a stall tactic for some out of court magic date when bubba suddenly becomes eligible for relief), voluntary departure (one of the least understood and quite helpful tools for folks that can later adjust and don't already have EWI's etc.), and the old favorite -- a request for peonage (rarely granted, but often illicits a grin for those that know you have just asked to violate a host of immigration laws and the US constitution...but hey, if you have nothing else...)
When you really have hit the "duh...why am I here?" problem, and this is the first MCH...punt! Ask for a continuance to consider your options. Usually, you get one pass. Use it wisely.
Also, prior to requesting relief, but after a reading of the allegations (and any challenges thereunto), you'll have a chance to plead for bond, if your alleged evil alien monster is not already detained. Now, save yourself some grief, and the expectation crushing blow to your client's dying mother who just happened to attend your first MCH -- if your client has an aggravated felony (affectionately known as AgFel's). Don't know what constitutes an AgFel? Ping the law firm, and I'll send you a nifty cheat sheet (although as I have posted this prior -- I warn you that some of my more learned colleagues challenge some of the agfel definitions included on my sheet of cheating...but I'll leave that for your free time to hunt my alleged errors :). Regardless, with an AgFel, guess what? Your guest alien will not be getting out of the pokie. Don't even ask. Your client has "detained" stamped on his forehead. If you want to see if you can avoid that...TALK TO ICE BEFORE BEFORE BEFORE BEFORE (ahem...did I mention, um, "before"?) the judge has your case. The judge is compelled to keep your client detained if she has an AgFel. However, ICE can do whatever they want before EOIR takes the case. This is really important for CBP (custom and border patrol) ops (that would be LPR's that are snagged at the border for having a nefarious AgFel past that, for some reason, was allowed to be ignored for years and only now makes the evil heathens). If someone contacts you about a CBP "deferred inspection" grab them vigorously, and make SURE he or she takes you to the interview. You can beg and plead with the CBP officer to ask ICE to let your client walk -- even with AgFels. Once your client is non-detained -- judge can't revoke that, so it is possible to have a doomed, er..client out even with an AgFel. So...see if you can cajole ICE to play nice. Good luck with that, by the way :)
Let's see.. oh, and what about other MCH's? Well...they are just status hearings (a federal term for a continued case on the criminal docket). Usually you'll have one more after you plead relief so that you might have a glorious opportunity to, before all the assembled sad faced immigrants who, in court do find themselves, present a completed application of whatever relief thou hast otherwise requested in this, you first MCH.
The real fun is trying to prepare your client for their actual hearing on the merits (called an "individual calendar hearing" in immigration court parlance -- and by the way, if you are a client reading this LEARN AND DO NOT DO THESE THINGS). It is quite common to get hearing dates that are quite literally years out from the MCH (for non-detained). Your honest hard working client(s) will wander away...move to different states...go back to their home country, get DUI's (unbelievably...this is the number one charge for most of the folks that come to our office...an endemic problem in the Hispanic community of Northern VA...is there an ADA claim there somewhere? I'm game if anyone wants to help)...or, their story will change, the facts will be all wrong, and when trial comes, they'll not have provided anything you need. Remember! You are now a stunning paragon of justice and imminent speaker on all matters immigration -- so no worries (laughing)...you will persevere. On at least one in ten. (laughing again).
Court is a lot of fun, and the challenges of immigration court are really the same for all court cases -- facts and foundation. Get'um right and the relief you seek is indeed a pearl of great worth within your grasp.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a jerk. If the allegation is valid, don't get a reputation of wasting court time on goofy meaningless foot dragging. This is especially true if your fella (or lass, as the case may be) is detained.
As to relief, that's where you pull out your trusty tool box and ponder the possible options. Generally, you want to do this prior to the hearing -- however, if you had not chance to see the NTA afore the hearing, take a moment to consider. Besides, you look good staring out the window rubbing your chin as you ponder how to save your client. You go, attorney! Typical relief options are Cancellation of Removal (COR 42A or 42B), some assortment of asylums (A-W-C), family adjustment (when appropriate), stalling with a plea for Prosecutorial Discretion (truly a waste), continuance for post-conviction relief (right....usually a stall tactic for some out of court magic date when bubba suddenly becomes eligible for relief), voluntary departure (one of the least understood and quite helpful tools for folks that can later adjust and don't already have EWI's etc.), and the old favorite -- a request for peonage (rarely granted, but often illicits a grin for those that know you have just asked to violate a host of immigration laws and the US constitution...but hey, if you have nothing else...)
When you really have hit the "duh...why am I here?" problem, and this is the first MCH...punt! Ask for a continuance to consider your options. Usually, you get one pass. Use it wisely.
Also, prior to requesting relief, but after a reading of the allegations (and any challenges thereunto), you'll have a chance to plead for bond, if your alleged evil alien monster is not already detained. Now, save yourself some grief, and the expectation crushing blow to your client's dying mother who just happened to attend your first MCH -- if your client has an aggravated felony (affectionately known as AgFel's). Don't know what constitutes an AgFel? Ping the law firm, and I'll send you a nifty cheat sheet (although as I have posted this prior -- I warn you that some of my more learned colleagues challenge some of the agfel definitions included on my sheet of cheating...but I'll leave that for your free time to hunt my alleged errors :). Regardless, with an AgFel, guess what? Your guest alien will not be getting out of the pokie. Don't even ask. Your client has "detained" stamped on his forehead. If you want to see if you can avoid that...TALK TO ICE BEFORE BEFORE BEFORE BEFORE (ahem...did I mention, um, "before"?) the judge has your case. The judge is compelled to keep your client detained if she has an AgFel. However, ICE can do whatever they want before EOIR takes the case. This is really important for CBP (custom and border patrol) ops (that would be LPR's that are snagged at the border for having a nefarious AgFel past that, for some reason, was allowed to be ignored for years and only now makes the evil heathens). If someone contacts you about a CBP "deferred inspection" grab them vigorously, and make SURE he or she takes you to the interview. You can beg and plead with the CBP officer to ask ICE to let your client walk -- even with AgFels. Once your client is non-detained -- judge can't revoke that, so it is possible to have a doomed, er..client out even with an AgFel. So...see if you can cajole ICE to play nice. Good luck with that, by the way :)
Let's see.. oh, and what about other MCH's? Well...they are just status hearings (a federal term for a continued case on the criminal docket). Usually you'll have one more after you plead relief so that you might have a glorious opportunity to, before all the assembled sad faced immigrants who, in court do find themselves, present a completed application of whatever relief thou hast otherwise requested in this, you first MCH.
The real fun is trying to prepare your client for their actual hearing on the merits (called an "individual calendar hearing" in immigration court parlance -- and by the way, if you are a client reading this LEARN AND DO NOT DO THESE THINGS). It is quite common to get hearing dates that are quite literally years out from the MCH (for non-detained). Your honest hard working client(s) will wander away...move to different states...go back to their home country, get DUI's (unbelievably...this is the number one charge for most of the folks that come to our office...an endemic problem in the Hispanic community of Northern VA...is there an ADA claim there somewhere? I'm game if anyone wants to help)...or, their story will change, the facts will be all wrong, and when trial comes, they'll not have provided anything you need. Remember! You are now a stunning paragon of justice and imminent speaker on all matters immigration -- so no worries (laughing)...you will persevere. On at least one in ten. (laughing again).
Court is a lot of fun, and the challenges of immigration court are really the same for all court cases -- facts and foundation. Get'um right and the relief you seek is indeed a pearl of great worth within your grasp.
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
Tuesday, June 4, 2013
PODR - ICE Detention with a Final Order of Removal
Front-line immigration law work (affectionately known as "in the trenches" law) usually involves taking crazy situations and attempting to find some nuance -- a subtle interpretation of an obscure memo or regulation -- to give an otherwise hopeless situation a glimmer of "possibility." One are ripe for such plucking is the post order environment. "Post Order" refers to the period after a removal order has been entered, but before a client has been transported to a holding camp, and then off to the country of deportation. Post Order Deportation Relief (PODR) are the tactics used to attempt to jam that process based on ICE not moving forward in a timely manner. PODR does not grant any benefit to your client, only prevents them from being vacuumed out the exit door prematurely.
There are four steps to PODR:
1. 30 Day automatic review by ICE
2. The 90 Day Letter
3. The 180 Day Letter
4. The habeas corpus filing
Governing regulations are Zadvydas v. Davis, 533 U.S. 678 (2001), 8 C.F.R. §241.4(d)(1) (30 day ICE Review with criteria), 8 C.F.R. § 241.4(h)(2) (90 day ICE Review), 8 C.F.R. § 241.13 (6 months review by ICE Headquarters) .
However, what happens when the alien does not cooperate with ICE in the deportation action? This usually involves refusing to provide a passport, refusing to get travel documents, or other indications of non-compliance with ICE requests found of the I-229a form. Watch for this when the client has a viable asylum claim after an order of removal has been entered. Refusal to cooperate is grounds for ICE to maintain a client in custody regardless of duration (8 C.F.R. § 241.4(g)(ii)). However, impossibility is a meaningful defense to a charge of non-cooperation. A detained alien cannot get a passport, and requesting travel documents to a country that "abused" the client is illogical. Verify also that the deportation country has a treaty with the United States to accept back their removed citizens.
We are currently arguing on behalf of a detained immigrant who has not cooperated with ICE. An example of the 180 day letter is below:
MEMORANDUMM
10 APR 2013
TO: Headquarters Post-Order Detention Unit, U.S. Department of Homeland Security Immigration and Customs Enforcement, 801 I Street, N.W., Suite 900, Washington, DC 20536
IN RE: 180 Day Detention Letter, Mr. Detained Alien, A# 123 12 3432
1. We request that ICE take the following information into consideration in reviewing Mr. Detained Alien's custody status. We believe that he qualifies for an order of supervision. He is presently under a final order of removal and has been in detention for more than 6 months immediately preceding the writing of this memorandum. MR. DETAINED ALIEN HAS COMMITTED NO CRIMES.
2. It is unlikely that he will be deported to Nigeria in the reasonably foreseeable future due to the failure of the Nigeria embassy to provide travel papers, and the lack of passport.
3. Mr. Detained Alien is not a danger to public safety. He is not a flight risk.
4. Mr. Detained Alien last entered the United States on March 8th, 2003. He was ordered removed on July 2nd, 2008. He has the following family members in the United States:
Freed Sister US Citizen Happy Island, New York
Freed Brother LPR Happy Island, New York
5. Nigeria will not accept Mr. Detained Alien's deportation because of his homosexual status. Mr. Detained Alien does not have a passport, and cannot obtain one in detention. Our attempts to work with the Nigerian embassy have failed; they have not responded to our requests for any travel documents or other information (May 2013).
6. Mr. Detained Alien has not signed any I-229(a) because he has repeatedly indicated that he will be killed, tortured or detained indefinitely if he is returned to Nigeria. He has repeatedly asked for an asylum hearing, and he has indicated absolute fear of any return. He has not hindered his counsel or family from seeking information from the Nigerian Embassy, however, as he is detained, he cannot do this himself. It is impossible for him to comply, pursuant INA 241(a)(1(C), as there is no assistance he can render while detained, and no documents he can provide. Further, the required agreements under the I-229 form would vitiate his claim of fear of return by making him seek documents that would force him to go back to a location where he has expressed repeated fear of harm. His refusal is for that reason alone.
7. Mr. Detained Alien does not have a valid Nigerian passport, nor even an expired passport, available. He cannot provide what the deportation officer continue to demand, and it is manifestly unjust to demand he deport himself to a country where his harm is imminent .
8. There is no danger to public safety in Mr. Detained Alien's release. He has no criminal record, maintained a vibrant construction business in the community, and assisted in the employment of several citizens before his detention. Attached are letters from community leaders supporting his position.
9. If released, Mr. Detained Alien will live with his brother, Isioma Akwara in Maryland.
10. NOW THEREFORE, we ask that your office issue orders permitting Mr. Detained Alien's supervised release because of (a) the inability to deport Mr. Detained Alien in the future, and (b) the likelihood Nigeria will never accept him, nor issue travel documents for his return.
Fighting for detained aliens who have removal orders is often a losing proposition. However, finding the right relief, and arguing for their relief is a very rewarding an exciting area of federal practice. Often the most challenging aspect of the PODR process is keeping the morale of your detained client at a positive, functioning level. These cases can take many, many months to prosecute. Patience and persistence are key.
Questions about someone who is detained? Give us a call or visit our website today!
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
There are four steps to PODR:
1. 30 Day automatic review by ICE
2. The 90 Day Letter
3. The 180 Day Letter
4. The habeas corpus filing
Governing regulations are Zadvydas v. Davis, 533 U.S. 678 (2001), 8 C.F.R. §241.4(d)(1) (30 day ICE Review with criteria), 8 C.F.R. § 241.4(h)(2) (90 day ICE Review), 8 C.F.R. § 241.13 (6 months review by ICE Headquarters) .
However, what happens when the alien does not cooperate with ICE in the deportation action? This usually involves refusing to provide a passport, refusing to get travel documents, or other indications of non-compliance with ICE requests found of the I-229a form. Watch for this when the client has a viable asylum claim after an order of removal has been entered. Refusal to cooperate is grounds for ICE to maintain a client in custody regardless of duration (8 C.F.R. § 241.4(g)(ii)). However, impossibility is a meaningful defense to a charge of non-cooperation. A detained alien cannot get a passport, and requesting travel documents to a country that "abused" the client is illogical. Verify also that the deportation country has a treaty with the United States to accept back their removed citizens.
We are currently arguing on behalf of a detained immigrant who has not cooperated with ICE. An example of the 180 day letter is below:
10 APR 2013
TO: Headquarters Post-Order Detention Unit, U.S. Department of Homeland Security Immigration and Customs Enforcement, 801 I Street, N.W., Suite 900, Washington, DC 20536
IN RE: 180 Day Detention Letter, Mr. Detained Alien, A# 123 12 3432
1. We request that ICE take the following information into consideration in reviewing Mr. Detained Alien's custody status. We believe that he qualifies for an order of supervision. He is presently under a final order of removal and has been in detention for more than 6 months immediately preceding the writing of this memorandum. MR. DETAINED ALIEN HAS COMMITTED NO CRIMES.
2. It is unlikely that he will be deported to Nigeria in the reasonably foreseeable future due to the failure of the Nigeria embassy to provide travel papers, and the lack of passport.
3. Mr. Detained Alien is not a danger to public safety. He is not a flight risk.
4. Mr. Detained Alien last entered the United States on March 8th, 2003. He was ordered removed on July 2nd, 2008. He has the following family members in the United States:
Freed Sister US Citizen Happy Island, New York
Freed Brother LPR Happy Island, New York
5. Nigeria will not accept Mr. Detained Alien's deportation because of his homosexual status. Mr. Detained Alien does not have a passport, and cannot obtain one in detention. Our attempts to work with the Nigerian embassy have failed; they have not responded to our requests for any travel documents or other information (May 2013).
6. Mr. Detained Alien has not signed any I-229(a) because he has repeatedly indicated that he will be killed, tortured or detained indefinitely if he is returned to Nigeria. He has repeatedly asked for an asylum hearing, and he has indicated absolute fear of any return. He has not hindered his counsel or family from seeking information from the Nigerian Embassy, however, as he is detained, he cannot do this himself. It is impossible for him to comply, pursuant INA 241(a)(1(C), as there is no assistance he can render while detained, and no documents he can provide. Further, the required agreements under the I-229 form would vitiate his claim of fear of return by making him seek documents that would force him to go back to a location where he has expressed repeated fear of harm. His refusal is for that reason alone.
7. Mr. Detained Alien does not have a valid Nigerian passport, nor even an expired passport, available. He cannot provide what the deportation officer continue to demand, and it is manifestly unjust to demand he deport himself to a country where his harm is imminent .
8. There is no danger to public safety in Mr. Detained Alien's release. He has no criminal record, maintained a vibrant construction business in the community, and assisted in the employment of several citizens before his detention. Attached are letters from community leaders supporting his position.
9. If released, Mr. Detained Alien will live with his brother, Isioma Akwara in Maryland.
10. NOW THEREFORE, we ask that your office issue orders permitting Mr. Detained Alien's supervised release because of (a) the inability to deport Mr. Detained Alien in the future, and (b) the likelihood Nigeria will never accept him, nor issue travel documents for his return.
Fighting for detained aliens who have removal orders is often a losing proposition. However, finding the right relief, and arguing for their relief is a very rewarding an exciting area of federal practice. Often the most challenging aspect of the PODR process is keeping the morale of your detained client at a positive, functioning level. These cases can take many, many months to prosecute. Patience and persistence are key.
Questions about someone who is detained? Give us a call or visit our website today!
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
Thursday, May 9, 2013
TPS for late filers -- Asylum and a new approach that might work...
We were recently approached by a charming fellow from El Salvador. He had been here illegally from 2008, and was not eligible for most forms of relief under standard INA outside-of-court options. Although, he did not have a phenomenal claim for asylum, he had been badly abused in El Salvador, which gave rise to his "escape" to America. I do believe we have some traction with a late asylum filing, but it will be tough. However, I wanted to see if there was some way to get him Temporary Protected Status -- or TPS. TPS is the golden grail for El Salvadorians without other means of adjusting.
The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our despondent state -- namely, El Salvador has been continuously re-designated, and the current extension of TPS status has been pushed to September of 2013.
Turns out, this "push" of extension to September is key. Taking the extension in mind, and reading about "late filing" we came up with an idea -- (and NOTE! This is just an idea...this is not by any means settled law -- we are experimenting with an otherwise stagnant case). 8 CFR 244.2(f)(2) states:
Of special interest to us was the provision at 8 CFR 244.2(f)(2)(ii) which seems to suggest that a late filed TPS will be accepted if there is a pending asylum application in the works.
To be clear, our test case is not in removal proceedings -- this is an affirmative asylum application filed with a request to waive the 1 year filing requirement due to extreme hardship.
We plan to file the initial asylum case within a month or so, then take said filing receipt and immediately apply for TPS.
The question is -- will USCIS accept the notice of filing of the asylum case as proof of "in asylum application status" for TPS purposes? We are prepared to argue, "yes" -- as the regulations do not clearly stipulate otherwise.
Do you have a tricky immigration problem? Hanover Law specializes in working with tough cases and clients with special immigration needs. We approach your immigration issue from all angles, and seek to explore every avenue of relief.
Give us a call or visit our website today!
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our despondent state -- namely, El Salvador has been continuously re-designated, and the current extension of TPS status has been pushed to September of 2013.
Turns out, this "push" of extension to September is key. Taking the extension in mind, and reading about "late filing" we came up with an idea -- (and NOTE! This is just an idea...this is not by any means settled law -- we are experimenting with an otherwise stagnant case). 8 CFR 244.2(f)(2) states:
(2) During any subsequent extension of such designation if at the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;
Of special interest to us was the provision at 8 CFR 244.2(f)(2)(ii) which seems to suggest that a late filed TPS will be accepted if there is a pending asylum application in the works.
To be clear, our test case is not in removal proceedings -- this is an affirmative asylum application filed with a request to waive the 1 year filing requirement due to extreme hardship.
We plan to file the initial asylum case within a month or so, then take said filing receipt and immediately apply for TPS.
The question is -- will USCIS accept the notice of filing of the asylum case as proof of "in asylum application status" for TPS purposes? We are prepared to argue, "yes" -- as the regulations do not clearly stipulate otherwise.
Do you have a tricky immigration problem? Hanover Law specializes in working with tough cases and clients with special immigration needs. We approach your immigration issue from all angles, and seek to explore every avenue of relief.
Give us a call or visit our website today!
http://www.hanoverlawpc.com
703-402-2723
Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.
Saturday, March 30, 2013
DACA (deferred action) and crime -- what happens when you have a conviction?
We recently completed a DACA (Deferred Action for Childhood Arrivals) case for a client who was convicted of simple possession of marijuana (less than 30 grams). What is involved with resolving criminal convictions for DACA applicants? You may have heard that criminal convictions are a complete bar to deferred action -- and this is largely true, unfortunately. But like every good rule, there are...exceptions. It is often worth speaking to a qualified immigration attorney (that would be us!) to determine if you meet one of the exceptions and are in fact eligible for I-821D (deferred action) relief.
To begin an analysis of whether you can apply for DACA, we will review the level of criminal activity. What is a "significant" misdemeanor as barred by the deferred actions rules?
Any offense that has a term of imprisonment less than one year but more than five days and is an offense of:
1. Domestic violence
2. Sexual abuse/exploitation
3. Firearm violations
4. Drug sales (distribution or trafficking)
5. Burglary
6. DUI/DWI
Or
any other misdemeanor where the guilty party is sentenced to 90 days or more.
When there is a criminal conviction, and the charge/sentence is not listed above, then we would write a letter to the USCIS directory recommending that your request for deferred action should be granted (called a "narrative"). To help offset any "bad" acts, we would submit proof that you attended rehabilitation classes (anger management, drug addiction, etc.) and that you have "good acts" to offset your criminal activities.
A conviction is a serious matter, and it can have terrible consequences for your immigration case. Contact us immediately for assistance if you have been arrested or have convictions on your record. We can help!
S Sean R. Hanover, Esq HanoverLawPC.com Contact Us 703-402-2723 Visit the Hanover Law firm at www.hanoverlawpc.com
To begin an analysis of whether you can apply for DACA, we will review the level of criminal activity. What is a "significant" misdemeanor as barred by the deferred actions rules?
Any offense that has a term of imprisonment less than one year but more than five days and is an offense of:
1. Domestic violence
2. Sexual abuse/exploitation
3. Firearm violations
4. Drug sales (distribution or trafficking)
5. Burglary
6. DUI/DWI
Or
any other misdemeanor where the guilty party is sentenced to 90 days or more.
When there is a criminal conviction, and the charge/sentence is not listed above, then we would write a letter to the USCIS directory recommending that your request for deferred action should be granted (called a "narrative"). To help offset any "bad" acts, we would submit proof that you attended rehabilitation classes (anger management, drug addiction, etc.) and that you have "good acts" to offset your criminal activities.
A conviction is a serious matter, and it can have terrible consequences for your immigration case. Contact us immediately for assistance if you have been arrested or have convictions on your record. We can help!
S Sean R. Hanover, Esq HanoverLawPC.com Contact Us 703-402-2723 Visit the Hanover Law firm at www.hanoverlawpc.com
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