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

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

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

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

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

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