BIA -- remember to STAY REMOVAL during Appeal

Happy Holidays to everyone -- and I hope this posting finds folks setting enjoying the season, and a warm fire. As I contemplate the thought of Christmas, I am reminded of the many clients we have that may not be with there loved ones. One method of ensuring that our friends who have been denied relief in immigration court is through a BIA appeal. However, it is very important to remember that once an appeal is filed, a stay of removal must be requested before the stay will be granted. Stays are granted as a matter of course when an appeal is filed.

What are the steps to a BIA (Board of Immigration Appeals)filing? There are several routes, however, today we speaking only of an appeal from an immigration judge's decision. Generally, you have 30 days to appeal a decision of the Court. You must note your appeal at trial. Appeals are divided into three categories: (a) procedural deficiency, (b) abuse of discretionary (defined as a misapplication of fact or denial of objection), and (c) discovery of substantive information that was not available at trial but materially effects the outcome (this is rare, but can happen in immigration cases).

To effect a good appeal, you must get a copy of the Court hearing. Generally, this is accomplished by having your attorney contact the clerk of the Court that held the hearing, and request a CD that have the audio transcript of the trial. This is important! Both (a) and (b) above require a thorough and comprehensive understanding of the issues that were raised at trial. Even if you were the trial attorney that conducted the first case, you still need to have a copy of the transcript to cite to errors or omissions.

The appeals package consists of a cover letter, the appeals request (EOIR-26), notice of appearance before the BIA (EOIR 27), filing fee, and a motion to the Board to STAY REMOVAL. This last is critical -- forget this, and your client will be sent packing long before the Board can make a decision. It is not necessary to submit a full appeals brief when you initially file, however, you must indicate on the EOIR-26 that you intend to submit a brief. The Board will send you "orange sheets" -- these are forms that show the briefing schedule and due dates for all aspects of the appeal. That will arrive about 30 days (sometimes sooner) after your filing.

A note about the stay of removal. Generally, a stay is automatically granted once the request is received. HOWEVER -- if your client is detained, he/she will REMAIN detained during the pendency of the appeal. Be sure to discuss this aspect with the client BEFORE you file. A full appeal may take over a year -- during which your client will be stuck in the pokey. This makes for very unhappy clients if they are not briefed prior to agreeing to an appeal. Once the BIA has control of the case, you may petition for a bond reconsideration -- however, it will be based on the initial bond hearing that was held before the IJ (immigration judge), so be sure to get a copy of that transcript and be ready to argue the merits of reconsideration. I have yet to see a request for bond reconsideration by BIA be granted at this stage (appeals), but it may serve to placate your client to at least try (you never know...).

In future articles I will cover strategy on how to write an appeals brief in full, covering each of the three points (a, b, and c) outlined above. Below you will find a sample stay of removal request to submit when filing your BIA appeal.

Sean R. Hanover                                                                                  DETAINED

Hanover Law, PC

888 16^th St. N.W. Ste. 800

Washington, DC 20006

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

IN THE MATTER OF                                IN REMOVAL PROCEEDINGS

CLIENT X          

RESPONDENT                                          FILE NO.:  AXXX-XX-XXXX

MOTION TO

STAY DEPORTATION PENDING HEARING ON THE MERITS

Comes now your petitioner, through counsel, and requests this honorable tribunal

grant a stay of deportation pendant the appeal process with BIA.

1.  Mr. X requested to re-open his underlying removal order in San Antonio Texas immigration court, based on lack of notice, was denied.

2.  An appeal was properly and timely filed with BIA in accordance with EOIR procedures.

3.  A stay is appropriate given the likelihood of success on the merits, and the expenses imposed on the government to transport and retrieve Mr. X for trial on remand.

4.  For the foregoing reasons, petitioner requests BIA exercise its discretion and grant a stay pendant the appeal process.

I ask for this:

Client X

Through Counsel:

Sean R. Hanover, Esq

Principal Attorney

Hanover Law, PC

888 16^th St., NW Suite 800

Fairfax, VA 2006

703-402-2723

SeanHanover@hanoverlawpc.com

CERTIFICATION OF SERVICE

I certify a copy of this motion was served on DHS Office of Chief Counsel at 8940 Fourwinds Drive, 5^th Floor, San Antonia, TX 78239.

Sean R. Hanover, Esq


Do you need help with a BIA appeal?  MOVE QUICKLY!  Timing is very important.  Contact us immediately for a free discussion on the matter, and a review of your case.

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.

Model Witnesses -- a review of a trial strategy book.

This is a different Blog approach. For my posting this week, I thought I would review a book I recently purchased. I have several upcoming jury trials, and thought I would see if there were any good resources on trial tactics that perhaps I had not seen before. Never hurts to pursue new reading material!

I decided on Model Witness Examanations, by Paul Sandler and James Archibald (Third Edition -- 2010). Not sure if there was a fourth edition, however, this work was recommended to me by a fellow practitioner so I thought I would give it a go.

This is a very interesting work -- first, it provides concrete examples of how to conduct a direct (and cross) examination of a witness under different circumstances and for different purposes. Secondly, it sites rules and cases heavily, providing a strong basis for the example and supporting "reasons" for the rules.

However, there are two significant detractors, and I am unclear why the book does a poor job of addressing them. They seem fundamental to the topic. First, the author makes no attempt to explain what a practitioner should expect if he/she actually used one of the sample approaches in trial. While the examples are generally sound, you ought to bet that opposing counsel will protest and object vigorously -- and Mr. Sandler does little to address what these objections will be. Oh, there are half-hearted attempts to indicate what might be said, and how a judge would rule, and there are some warnings (for example, "Whether the police officer in this pattern can testify to a hearsay declaration by an absent witness might present a problem." - pg. 8), but truly little is discussed about the "jam" effect of opposing counsel objecting and completely throwing the questioning line of thought. And to think a judge would actually site to Rules is just ridiculous. They (judges) rarely do --and often judge get's it wrong, too. For example, helpful might be: "When you use this line of questioning, you should expect objections in the form of objection...."

Tied closely to the first detractor, I did not like how the author brought forth various forms of testimony on one hand, but failed to give examples on how opposing counsel might rehabilitate a witness (or challenge an expert) on the other. Essentially, there are two sides to every case -- and there was not enough examples of for/against positions and how to guide questions on each side (on the same topic). That would have really assisted in developing good case management strategies. As we often teach new associates -- take the position of the opposite side -- thus will you be ready for any argument.

Overall, the work was intelligently written, clearly well researched, and helpful. It will find a nice place in my litigation library. However, with just a few more tweaks, it could truly have stood out as an exceptionally useful training tool.

Do you need a book, article or paper reviewed? Would you like a seminar or class on a particular legal topic? Let us know! We've been doing this for a few years, and would be glad to share our experiences as trial attorneys.

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 abused spouse and the I-360 - VAWA

An interesting crossroads between Family Law and Immigration Law is the I-360 -- Petition for Special Immigrant Visa. While this form can be used for a couple of purposes, by and away the largest utilization is for VAWA purposes -- Violence Against Women Act (VAWA). Fortunately, this Act applies to both men and women, so do not be confused by the gender in the title. The I-360, in the Family Law context allows an abused immigrant to self-apply for a green card (LPR status) if the marriage that brought him/her to the US was broken due to violence, abuse, or fraud by the his/her partner.

Under normal I-130/I-485 procedures, in order to apply for a green card (LPR status), once married, the sponsoring spouse (citizen or LPR) must submit supporting forms to show that the immigrant is lawfully married, and that the marriage is not a sham. This involves, among other things, the requirement that the sponsoring spouse attend the LPR interview for the immigrant.

In the 1980's there came about an explosion in mail order brides -- and with this, the attendant exploitation of foreigners coming to the US for the first time to meet their "mates." Women would all too often be trapped in a relationship, unable to obtain legal status (and often with her passport taken), and therefore unable to leave. Report of rampant abuse, prostitution, and horrid conditions led to the passage of the VAWA (those section regarding immigration)in the early 1990's.

Key aspects of VAWA -- you must show abuse (mental or physical); it must be documented. The marriage must be concluded (i.e. divorce must be underway), and the original marriage must be valid (the person petitioning for the I-360 cannot have caused the fraud to have occurred if it did).

While awaiting final adjudication of your application, you can also receive a work permit, and any pending immigration action is frozen (i.e. deportation actions if your spouse refused to attend your LPR interview).

If you have a question about VAWA, divorce, spousal abuse, or family immigration activities, CALL US! We can help -- we've been doing this for years, and have considerable experience on helping women (and men!) who are in an abusive situation.

By the way -- spousal support is often possible if the I-864 was filed by the now abusing spouse. Be sure to speak to us about this -- as it could be critical to getting money until you have a job. I-864 litigation must take place in FEDERAL COURT, not the court where you get a state divorce. This is tricky, so talk to an attorney first! 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 Useful "Q" Visa -- another way to work in the US

I recently had the pleasure of writing an article or two for use in the AILA Paralegal Handbook. For informaton on ordering or learning more, go here: Paralegal Manual. For an overview of material covered by the book, go here: Table of Contents.

An area I covered for the book included Q visas. This handy visa is an excellent work-around for finding a legitimate means to bring over a foreign worker for a short duration work experience. I've included an excerpt below.

There are two forms of exchange visas issued by the United States. The first, and most common, is the J visa. Less common is the Q. This under-used visa category offers unique opportunities for the immigration advocate to bring foreign aliens into the US in a manner that allows them to work, as well as learn, for a period of 15 months.

In a Q visa, the definition of cultural exchange is much broader than that of the J. 8 CFR 214.2(q)(3)(iii)(A) - (C) describes the requirements of a "cultural" engagement under Q. Essentially, this includes a requirement that the cultural aspects of the visitor be displayed to the general public (museums, schools, parks, or other public forums), and that the cultural aspects themselves include things such as (a) cultural heritage of the alien's home country, (b) structured instruction on particular aspects of the alien's country, (c) language, (d) history and heritage, etc.

Section 214.2(q)(3)(i) and (ii) explain the requirements for an employer to be involved in the program. These include the creation and maintenance of an exchange program (usually a program which shows the connections outlined in this section), and accessibility of the program to the public (214.2(q)(3)(iii)(A)).

The Q visa is uncommon, largely because it is unknown. However, the clever practitioner will recognize that almost any educated foreigner can be presented as a cultural exchange ambassador. With some thought, and creative sponsorship, it is possible to bring individuals to the US who may work, present on their home country, and remain in the country legally for 15 months. Finally, there is no bar from converting from the Q visa to another status.

Do you need help getting "legal" in the US, or determining how to come to the US to work? Contact us! It is often much cheaper to fix a problem before it happens. Like many visas, a "Q" visa requires a sponsor and proper planning. However, with a little forethought, you can work and operate legally in the US. Further, you can convert into a Q visa if you are already here. A consultation may be just the ticket to avoiding illegal overstay or finding the perfect segway into employment with a qualified organization.

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.

DUI -- and the five day rule

Recently had a couple of DUI's that seemed to have come to me after they had attended their initial hearing. This is just a reminder about seeking to have your license re-instated prior to your hearing date. In order to do so, you must file with the DMV to have a preliminary hearing within five days of having your license taken by the police for a DUI. This is known as the "five day rule."

A mere arrest for DUI is not a conviction, and an argument to have your license re-instated pending a trial on the merits will usually be permitted. Remember, though -- you must contact the DMV within 5 days of getting the DUI or jurisdiction on the license question is permanently transferred to the courts.

Need help with a DUI or OWI? 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 drunk driving, operating while impaired, and drug cases.

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.

TRO (Temporary Restraining Order) and Injunctions in Civil Cases

I had an interested day in Court today. We won our case -- the surprise was the amount of evidence and the depth of the hearing. Usually a TRO -- slang for a temporary restraining order -- is almost universally granted pending a full hearing on the matter.

In this case, we represented the respondent -- the individual being accused of taking actions that should be "stopped." How did we beat this case? The key is understanding what is requried for a TRO.

First, a discussion of the process. When a petitoner brings a complaint of harassment, threats, or assault, that is not family related, the Court will schedule an initial TRO hearing. Additionally, the court will schedule a full injunction hearing for about 90 days following the TRO hearing date. The full hearing is conducted in front of a judge, using strict rules of evidence.

A TRO requires that the petitioner (the person bringing the case) show:

(1) that there is a substantial likelihood he [or she] will prevail on the merits; (2) that he [or she] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him [or her] from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order.

(In re Estate of Reilly, 933 A.2d 830, 834 (D.C. 2007))

When defending these cases, first, focus you need to prepare your respondent. This requires carefully preparation to demonstrate that he/she is reasonable, even tempered, and presents well at court. Practice! Your client MUST be smooth and clear in his/her presentation.

While the level of proof required for an initial TRO is minimal, it is STILL present. Mere allegations are not enough for the petitioner to succeed. Therefore, you should be prepared to rebut any witness that might be brought by the petitioner -- strike the credibility or the knowledge of the witness. Isolate the petitioner -- her word against his word is not enough to convict. It is frequent that the petitioner (especially wilely plaintiff's attorneys) will try to get petitioners to claim "fear of harm" and that "he/she is facing immediate, irreversible harm". CHALLENGE THIS. There must be some corrobration to support the position. It must be credible.

You should, generally, expect to lose the initial TRO hearing. This is common -- the Court is inclined to grant this just to be safe. However...and this is VERY important - you want to setup for the scheduling conference for the full injunction hearing. The scheduling hearing will be set at the TRO hearing, and is usually one to two weeks after the TRO hearing. Regardless of the outcome, either party may continue with the full hearing.

By asking the proper questions at the TRO hearing you setup the record to challenge (or refute) the petitioner's position. At the full hearing, the petitioner will have a much more strenuous time getting a permanent order.

Note -- for the TRO, come prepared to ask questions of the opposing witness. You will have a chance to put on a case, no matter how low the bar for an initial finding may be. THIS WILL BE ABOUT CREDIBILITY.

Need help with a restraining order? 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 TRO/injunction issues.

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.

Tax Liability and Divorce

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.