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 desponde...
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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 violation... Guardian Ad Litem (GALs)By Shara HerrToday I had the chance to speak with our Family Law attorney, Stephen Salweirak, discussing the topic of GALs and their importance in difficult Divorce/Child Custody cases involving neglect or abuse of children. What is the role of a GAL? In some cases, especially those involving abuse or neglect, the children involved have rights and interests they are unable to protect on their own. The GAL provides the voice for these children, protecting their safety and needs and finding the best options specific to the case. Good GALs will not only interview the child in their home environment, but also take them out of their typical environment so the child is able to speak freely about any neglect/abuse in the home. They may also interview teachers, other child care providers, family members and anyone else that would have relevant information about the child’s best interests. These attorneys are appointed...
So you are a witness...
For some people, there is great anxiety in appearing in court. This is especially true if the case in question revolves around you personally. Always a challenge! However, as trial attorneys, we have learned a few tricks that make appearing in court easier. Specifically, what the heck happens when you "go on the stand" -- this article will talk about immigration court, and state court specifically (criminal law, and family law), but it applies to any hearing where you are in adversarial proceedings. The key thing to remember about testifying is -- everything you say can and will be used against you. It is the job of opposing counsel (or the state, in criminal cases) to try to learn everything he/she can about you, and then use that information against you, or against some individual in the trial. Remember, you are speaking under oath. That means, if you lie, bad things can happen to you. Perjury is the act of lying under oath (to perjurer one's self...
New Provisional Waiver -- I-601A. Key for EWI I-30 Processing
The long awaited issuance of the state-side 601A waiver is over! The new regulations go into effect 04 March 2013. This is great news to many individuals waiting for 601 waivers in order to proceed with their I-130/I-485 processing packages.HistoryPerhaps a brief explanation is order for the rest of us! Many immigrant family members find themselves with a serious problem. They realize that, although they qualify for sponsorship by an LPR spouse, because they entered the country illegally, they are no allowed to convert from non-immigrant status to LPR status without first obtaining a waiver (called an I-601) allowing them to be forgiven for entering, and remaining in, the country illegally. Living in the US illegally triggers a 3 or 10 year bar, depending on how long you remained here illegally (1 year = 10 year bar). You cannot be sponsored until you have spent that time outside of the country. In order to avoid the...
IRS -- Stopping Collections and the awesome 433A (or 433F) form
Ho Ho Ho! It's getting right around the end of the year now, and that means the dreaded specter of taxes! Everyone is ready, right!? Well, perhaps. But if you are like many of our clients, you're more worried about the past than the future. Past IRS tax debt can be a monster. In this article, I'll discuss one tool in the arsenal of tax attorneys -- the 433! IRS form 433 is a collections information form, and completing it, along with substantiating documentation, is the first step to getting things "right" with the IRS. So..what exactly is this IRS 433 form? Glad you asked! In the days of yore, the IRS was little interested in whether you had money or not. If you did not pay your taxes, the Service would just "swoop" in and take everything. Furniture, cats, small children -- all your money, bank accounts, etc. There was extremely little they would not touch, and absolutely no mercy. If you did not pay your taxes, you were considered a fraud, and very little effort ...
A Primer on Divorce -- the three key areas and samples
Folks -- we get a lot of phone calls on divorce. Most people come very angry and often confused as to what steps are required to get a divorce. That is not altogether a bad thing -- divorce should only be undertaken if there is no chance of reconciliation or there is danger to one or both parties. That having been said, I wanted to provide a brief overview on divorce, what you can expect to discuss with your attorney, and provide a sample separation agreement (this is from VA, but it is very similar for DC and MD, too). There are three areas to divorce, and one special cavaet. The three areas are: 1. Separation Agreement: Covers property and marital assets obtained during the course of the marriage. This includes things purchased separately, but during the marriage (i.e. the car is only in husband's name, but it was purchased during the marriage -- it is still joint property in a joint property state (MD, VA, DC). Ditto on the house only in the wife...
A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief
I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth. After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012. I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprise...
Marriage Fraud and INA 212 - or 237(a)(1)(H)
Marriage fraud is more common than most folks think. Application for US Citizenship and green-card status (LPR) is a long, painful road. Marriage offers a relatively rapid acceptance into the USC/LPR ranks, and is therefore extremely tempting from a fraud persepctive. To defeat a claim of marriage fraud, some of our clients have actually attempted to to bribe their respective former spouse to recant his/her statement to USCIS that the marriage was fraudulent. Usually, it is the sworn statement of one or the other spouse that gives rise to a fraud claim. Of course, our law firm starts singing loudly at that point and covering our ears..one can never condone such conduct (perpetuating fraud and all). However, if the original nay-sayer DID recant, you would have a legal argument… That having been said, if you really want to fight a marriage fraud, you really need to attack the original marriage and show that the spouse currently being charged with marriage fraud was...
Clarification on Double EWI -- follow on to the post from June 2012
I was contacted by a fellow practioner today regarding double EWI's. She had an excellent question, and I thought I would display my answer here. You are right about the need to accrue 1 year unlawful presences before you’re really “in the soup” with a double ewi. The catch-22 is that if you cannot prove the time you entered and left, the presumption is that you did accrue the requisite time and the double ewi becomes a bar. Fancy, eh? Wait until they pull that on you at court! It usually goes like this…Client stopped by police for driving on expired tags (or whatever)Asked when she came to the US – she says 2001.ICE later interviews her and she tells them she has been going back and forth across the border “for years”.The last time she crossed was in 2003 when she decided to “stay for good…too dangerous to make the crossing anymore.” Uh oh.Presumption is that between the first EWI in 2...
CBP Code Stamps (Codes found in passports -- immigration law)
From time to time, we get requests to dechiper scrawl found on I-94 forms, passports, or even handwritten notes on visa pages. I am including in this brief post the codes that are often associated with those scribbles, and what they mean:(As a footnote, credit is due to Mr. Robert Rone, an attorney in Mobile, Alabama, and Ms. Meighan L. Vargas, another attorney specializing in immigration law. While they did not come up with the codes (obviously!), they did format them in these nice tables I am displaying here.) CBP is an abbreviation for "customs and border patrol", and it refers to the officers that inspect incoming aliens upon arrival in the US. From the CBP website: After the successful completion of processing the applicant, a CBP officer stamps the applicant’s CBP Form I-94, Arrival and Departure Records, and the passport. The CBP Declaration, used at air and sea ports of entry, may also be stamped by the CBP officer. The CBP officer reta...
I-94 and -Humanitarian- Notation in Immigration Law
I was recently answering questions on AVVO, an attorney inquriy board that, in part, specializes in immigration questions. An interesting question about I-94 forms and humaitarian/refugee parole was asked. First, you need to understand the purpose of an I-94. The I-94 is often (but not always) given when an immigrant enters the country through a boarder crossing or inspection point. The actual name of the form is "arrival/departure record". It should be noted that many immigrants do NOT get this, and its absence does not per se cause a denial of any benefit (although it does shift the burden of proving legal entry onto the immigrant). Most commonly, folks come to the United States under a B2 visa. This visa, known as a visitor visa, entitles the bearer to remain up to 6 months in the country. The actual amount of time the visa holder may stay is -- you got it! - marked on the I-94. There are also certain codes entered on the I-94 that tell CBP (custom and board patrol officers...
Duty of Fiduciary Care -- Duty of Loyalty (business law)
While the Firm is quite adapt at handling immigration cases, and frankly, many of our clients are aliens, illegal or otherwise, we also have a vibrant business law practice. We recently filed in Superior Court (Washington, DC) for a client suing a former business with which he was associated. While the case is interesting on its own, just for the relationship between the plaintiff and defendant(s), the matter at focus in this blog is one cause of action brought forth in the complaint -- Duty of Fiduciary Care (and as a subset, duty of loyalty). What are these concepts..what do they mean? When an executive or key employee is entrusted with operations at a company (corporation, partnership, or LLC), they have a duty to place the wellbeing of the company above their own gain. They cannot "sell-out" the company, and they cannot purposely fail to take action that would benefit the company or keep the company in the same position it currently holds -- just so that they pro...
Gang Asylum-Withholding Cases (second post)
In my previous posting, I shared relevant case law governing BIA decisions in gang related asylum/withholding I-589 cases. I now turn to a discussion on how to argue the actual case. For security and privacy purposes, the name of the petitioner is removed. However, this material can be used as a tool for organizing a logical appeal brief. For brevity sake, footnotes have been excluded. Contact me for case information located in the footnotes. A. CRITERIA 1: Immutable characteristic In the December 2007 Executive Office for Immigration Review, Immigration Law Advisor, the article, Gang Violence and Asylum: The Problem of Defining a Particular Social Group by Ms. Katherine A. Smith, discusses the immutable aspect of gang membership. She argues: ...[O]ne view is that a group consisting of former gang members meets the immutable characteristic test because former membership is a characteristic of the past that cannot be changed. For example, in Sepulveda v. Gonzales, 464 ...
Gang Asylum-Withholding Cases
Our firm recently submitted an I-589 asylum/withholding appeal for a client that was involved in gangs while living in Guyana. Our BIA appeal centered on what is considered a "social group" for purposes of withholding. We argued that, "former gang members who have publically renounced their gang affiliation and taken substantive steps to effect the renunciation" are a discreet social group warranting protection. This is the first of a two part posting on the topic. This first post covers current cases (we are located in the 4th (Federal) Circuit -- The 4th Circuit has upheld BIA’s definition process for social groups. Citing to the same cases outlined in the text below, the Court stated: “Neither the relevant statute nor its associated regulations specifically define the term "particular social group." We therefore defer to the BIA’s reasonable interpretation of the term.” (citing to Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir. 2009)). Lizama v. Holder, 629...
Assignment -- what the heck is that? (contracts)
A former client of ours revisited our shop this week, and asked for help in modifying an employment agreement. Nothing unusual about that -- but the requested paragraph was rather interesting. He asked us to modify/update his Assignment terms.In contracting, the terms "Assignment" refers to the right of one or more of the parties in the contract to "assign" (give their rights, privileges, or duties to another) their portion of the contract to a third party. Why would anyone want to do that? Restatement (2nd) of Contracts, chapter 15, deals with assignment of both duties and rights under a contract. Assignments are generally important to folks for two reasons (most common -- this is not exclusive): (a) death of a party and the liability of the estate, and (b) right of sale of the contract (such as a business). If one party to an agreement dies, who is responsible for fulfilling the obligations or receiving the rights/privileges of the contract? Gener...
Defense to Traffic Stops (no license/etc.)
We have a section of the firm that specializes in criminal law, and a frequent cause of action in this group is (are) traffic stops. Now, for your average ticket, this is not an issue. But what if you are stopped and then fined for having an expired license? For driving without a license? For driving on a suspended license? Even some DUI issues fall into the questionable area of: Do police have the right to stop you for no reason other than to check your credentials or who is in your car? I spoke with an associate of Hanover Law, Mr. Stephen Salwierak. He is the attorney that handles most of our litigation in Virginia, and often runs into illegal stop questions in traffic matters. He provided a brief explanation out of a recent case filing he made in Fairfax. (from Mr. Salwierak)Without violating Fourth Amendment protections, an officer may conduct a brief, investigatory stop when he has a reasonable, articulable suspicion that criminal a...
Motions to Re-Open in Absentia Decisions
Many of our immigration clients come to us with serious problems -- often with imminent threat of deportation looming over their heads. I thought I would take a moment to discuss how to re-open a case where a decision was made against you in absentia (you weren't at the hearing). When a client has been found deportable in a prior removal hearing, an order of removal will be issued by the judge, and the immigrant should be deported. However, it happens frequently that immigrants who should be removed are left languishing in the United States. One reason this happens is failure of the ICE or DHS representative to properly serve the alien with a notice to appear, or if served, with a trial date he/she needs to be present at. This is especially true when the alien does not have an address to mail notice to, or the address given was not properly understood and no notice was ever received by the alien. The take away from this: To be a valid form of service, the alien ...
I want my money! What do I do? (What to do when you are not paid)
This has been an interesting week for civil trials at Hanover Law. A common theme was - "I want my money, bitXX!" (ahem). Namely, how do you collect money owed to you for work done? First, let me caution you that obtaining a lawyer to go after money that is owed to you is often not a good idea. We attorneys tend to charge a minimum of $1500 to go to trial, and unless you can expect to get at least double that, a civil suit to collect money is likely a bad choice. A good attorney will always discuss whether a suit makes sense for you -- and be sure to ask about fees and the likelihood of success. Oddly, hand-in-hand with this, we have had to turn down clients that absolutely wanted to sue, even if they would lose money doing it. Revenge and anger are poor motivators for legal action. NOT because they can't be legitimate and proper, but because they tend to cool llloonnnggg before trial is ever had. As such, the client wakes up 6 months into the battle, only...
Lost Entry Document (non-EWI proof!)
Occasionally we get an immigrant/alien in our office who was admitted to the United States legally, but is still considered EWI (entry without inspection) by the government. For those new to the immigration law arena, EWI is a criminal act. A double EWI can lead to a permanent bar from the US, and a single EWI can bar any change of status while in the US, and prevent entry (via visa) into the US for up to 10 years. Theses are serious consequences! The burden on proving lawful entry into the US rests with the alien. He/She must show a valid I-94 stamp or document in his/her passport to rebut the presumption of illegal entry. What happens if you enter the US and don't get an I-94? Happens all the time. Most common example is Canada. Cars are frequently passed through the border crossing with only a cursory glance at ID or passports -- especially if one of the members in the vehicle is a US Citizen. Entry through a valid border -- even if just waived thru by the CBP (cust...
Stopping Deportation - Difference between CAT and ASYLUM type relief
Admittedly, this is an odd title for a blog post. However, the focus of this entry is tactics -- and it is not just limited to removal proceedings. Specifically, this post will cover the difference between ASYLUM and WITHOLDING relief/submissions and CAT/TPS claims. The key difference between the two groups is focus. A CAT (Convention Against Torture) and TPS (Temporary Protective Status) claim focuses NOT on the client or alien, but rather on the state of the country from which he/she comes. What are the conditions of the home country? Would the alien likely be tortured or killed if they returned? Is the country listed on the TPS register (State Department)? Whether the fear or torture is reasonable or not, or whether this particular alien is well founded in his or her fear has much less weight. A brief note about TPS and CAT: TPS is not so much a defense, as it is a request by an alien, already present in the US, to be allowed to stay while conditions i...
EWI -- Entry without Inspection
There was an interesting question on the AILA Boards recently (America Immigration Lawyers Association). The question dealt with an individual who had entered the U.S. twice via EWI (or just "EWI" which is pronounced "eee-weee"). The individual was married to a U.S. citizen, but in a nutshell, the question could be distilled to: What is the effect of double EWI on an I-130 application for change of status when the illegal is married to a U.S. citizen? The problem is that a double EWI is an automatic permanent bar to U.S. citizenship -- or, in fact, any entry into the U.S. at all. That means no visa, no LPR, no spousal waiver -- nadda. See INA code section INA 212(a)(9)(C)(i)(I). To analyze this problem, we first must discuss what the heck an EWI is. EWI means you entered the U.S. without going through a custom's "portal", such as an airport, border crossing, etc. In some instances, such as Canada/U.S. border, where the citizen is Canadian or U.S., this is really ...
TAX: Failed to file proper Sub-S Election? IRS Proc. 2003-43
So...you are frustrated! Your sub-s company receives an IRS Notice and an IRS Letter from your accountant apologizing for an odd problem -- it appears that your IRS form 2553 (Election by a Small Business Corporation) was not received in time for this years taxes. Despite having filed the taxes timely, and sent appropriate K-1's, the IRS is now considering the company as a standard "C" corporation. This has devastating consequences for taxes and the treatment of corporate income. You are not alone. Misfiled, lost, or not-filed elections are quite common in small business. If the IRS processes your company as a "C" corporation instead of an "S" corporation, the most obvious result is that pass-thru income is no longer a valid tool in your corporate tax tool-box. The firm itself will now owe taxes on the net income earned by the company. Individuals who received distributions from the company will still owe taxes on the amount earned. This is the cursed "double taxation" ...
Defamation and Slander
Everybody has experienced this -- someone has spread rumors or nasty comments about you or your activities to others. When does this conduct rise to the level of defamation? Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation. To prove a case of defamation, the plaintiff must show: 1. The offending party acted intentionally, and2. The offending party's statement was publicly uttered (i.e. it was published or spoken), and3. The offending party's statement was false, and4. The offending party's statement caused some ec...
How to win a B2 visa application interview
How to win a B2 visa application interview:This post really applies to individuals who have been denied a B2 visa in the past. For a full list of US Consulate criteria for passing a visa interview (for non-immigrant visas -- all types), see www.hanoverlawpc.com/immigration_visa_tests.php. Of course this list is NOT a substitute for talking to an immigration attorney (that would the Hanover Law firm). Additionally, this has NOTHING to do with out-of-status, or illegal immigration. This only applies when you are attempting to get a visa at an overseas US consulate. Non-immigrant visa application questions you should have answers to (specifically for B1, B2, but actually for ALL non-immigrant visas): Family Situation1. Discuss any living, immediate, family members (brothers, sisters, mother, father, children, spouse, etc.) Specifically, name, age, living addres...
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