PHAM & CLOVES, PLLC

U.S. Supreme Court’s Holding, Motion to Reopen May Be Reviewed by Federal Court of Appeals

On January 20, 2010, in a rare unanimous decision by the U.S. Supreme Court, the court held that a “motion to reopen” by the Attorney’s General, i.e. the immigration court and the Board of Immigration Appeals (BIA), may be reviewed by the federal court of appeals, the U.S. Circuit Courts of Appeals.  In Kucana v. Eric Holder, 558 U.S. (2010), the Supreme Court clarified languages of 8 U.S.C. Section 1252(a)(2)(B) of the Immigration & Naturaliztion Act (INA), as amended by the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA 1996).  the Court held that the discretionary power of the Attorney General stated in that section doe NOT include the Motion to Reopen, contradicting the Code pf Federal Regulations, 8 CFR Section 1003.2(a), and allow the U.S. Circuit Court of Appeals jurisdiction to review the BIA’s decisions in Motion to Open under the “Abuse of Discretion” standard.

Please contact the experienced Houston Immigration Lawyers and the Southwest Houston Immigration Attorneys at Pham & Cloves, PLLC if you are in deportation and removal proceedings.  There may be immigration solutions to your cases, such as applying for U.S. asylum applications, withholding of removal and Convention Against Torture, U.S. Immigration extreme hardship waivers (I-601 and Section 212-i), cancellation of removal, Texas Writ of Habeas Corpus to vacate your criminal convictions, and voluntary departure.  Our Houston Immigration Attorneys and our Southwest Houston Immigration Lawyers will work with you directly to assist in resolving your immigration concerns.  Contact our Houston Immigration Lawyers and Attorneys at 713-492-0337.

U.S. Asylum Applications and Withholding of Removal

Over the past few years, foreign nationals find it more difficult to successfully obtain asylum application approvals.  Partially, this is because of the number of fraudulent or frivolous applications that were filed by unqualified applicants and by unscrupulous lawyers.  As in many other immigration applications, this is unfortunate and it hurts all applicants, including those with genuine need for the protection of U.S. asylum law.  Nevertheless, do not be discouraged if you truly feel that you are qualified or that you and your family have a genuine fear of persecution if you were to return to your home country. 

U.S. asylum law is vast and generous, even if you entered the country unlawfully and or by means of fraudulent documents.  Often times, asylee have to use fraudulent documents and passports to escape from the country in which they were persecuted.  For the same reasons, many times the applicants cannot obtain a passport from their home country and cannot obtain a valid visa.  As such, asylum applicants may still be able to file fraud waiver applications in conjunction with their asylum applications.

Applicants who are in the U.S. or at the port of entry may file asylum applications with the USCIS.  This is often referred as “Affirmative Asylum Application.”  At the port of entry, applicants would request applications for asylum.  Applicants would then be interviewed by Asylum Officers at the Port of Entry.  If the foreign nationals present sufficient evidence to show that they may have been persecuted or have credible fear of future persecution, the person will be “paroled” into the U.S. to prepare and file the affirmative asylum application with the USCIS.  If the applications were denied by the USCIS, applicants will be issued “Notice to Appear” (NTA) in immigration court for removal proceedings.  At this time, applicants have another opportunity to file the asylum application with the Executive Office of Immigration Review (EOIR), which would be the Immigration Judge at the removal hearing.  This is often called a Defensive Asylum Application, because the application is being used as a defense to removal from the U.S.  If the immigration court deny the asylum application, the applicant need to timely file an appeal with the U.S. Board of Immigration Appeals (BIA).

The Houston Texas Asylum Lawyers and the U.S. Asylum Attorneys at Veritas Legal Group, P.C. care about our client’s immigration cases and will work had to assist you to achieve your immigration goals. Personally, I especially care about our asylum application clients.  You see, I myself was a refugee and had benefitted from U.S. asylum law. My family and I escaped from Vietnam in 1983 and came to the U.S. in 1984 under refugee status (an application for asylum is exactly the same as a refugee application). I personally experienced the benefits of U.S.’ generous asylum law and would like to assist you in overcoming your immigration difficulties. Please contact our Texas Asylum Attorneys and our U.S. Asylum Lawyers for assistance immediately.  Our Houston Asylum Attorneys can be reached at 713-492-0337.

Mechanic’s and Materialman’s Liens on Texas Homestead Property

There are only a few ways to lose your homestead property in Texas. One of those ways is not to pay the contractor that completed the work on your house. The Texas Constitution allows an original contractor (general contractor) to fix a lien on your residential homestead property under certain conditions. By properly fixing a lien on your property, the contractor can seek the property to be sold at auction and recoup the unpaid balance from the proceeds of the sale. However, forcing the sale of a residence is not simple, but requires the contractor to complete several tasks prior to perfecting the lien.

Texas Property Code §53.254 sets forth the requirements for a lien to be fixed on a residential property. First, the residential construction contract must be signed by the relevant parties before the work or labor is furnished. Second, if the homeowner is married, the contract must be signed by both parties. Next, the contract must be filed in the county court records in the county in which the real property lies. This can be done along with filing of the lien affidavit that is necessary for perfecting the lien.

If the person filing the lien affidavit is a subcontractor, special notice must be given to the homeowner. See Tex. Prop. Code §53.254(g).

Subcontractors have different notice requirements than original contractors. In order to perfect a lien on a residential property, a subcontractor must give the homeowner notice of the unpaid balance on or before the 15^th day of the second month after completion of the job. The lien affidavit must be filed on or before the 15^th day of the third month following job completion. The notice by the subcontractor must have the specific language set out in Tex. Prop. Code §53.254(g).

As you can see, fixing a lien on a residential homestead property is complex and exacting. Unless the statute is complied with, a lien can be determined to be invalid and the party fixing the lien can be responsible for the homeowner’s attorney fees and costs to have the lien removed. If you have had a lien placed on your homestead or have been threatened with one, contact a Veritas Legal Group, PC Mechanic’s and Materialman’s Lien Attorney to discuss the facts surrounding your case. You may contact a Houston Mechanic’s lien lawyer by calling 713-492-0337. Or, just simply fill out our online contact form and Houston Materialman’s Lien Attorney will contact you within 24 hours to discuss your case.

Retirements Up For Grabs

A common issue in a divorce is how retirement benefits divided are. Since Texas is a community property state, some or all of a spouse’s retirement account is subject to a one-half community interest. That is, if the spouse with the account began contributing to the account after the marriage, then the entire account is subject to a one-half community interest. If the account was instituted prior to the marriage, then the account is subject to division as to the amount contributed during the marriage only.

Retirement accounts are divided by the agreement of the parties through negotiation or by order of the court. That is the first level of division. The second level of division is with the actual plan administrator through a court order.

If the retirement vehicle (type of account) is a qualified plan” under ERISA (Employee Retirement Income Security Act of 1974) and the Internal Revenue Code Section 401(a) it eligible for favorable tax treatment and the benefits are subject to division by a divorce decree through a Qualified Domestic Relations Order or QDRO (pronounced “quadro”). A QDRO is separate order signed by the divorce court ordering the asset’s division according to the terms of the final decree.  A QDRO can be signed by the court at the same time as the final decree is signed or even thereafter.

QDROs need to contain specific language in order to be enforceable and the plan administrator will need to approve any order submitted. This can take several weeks. Some plan administrators publish their own QDRO for use by family law attorneys. This speeds the process and can reduce the fee for the QDRO. There are companies that specialize in drafting QDROs and the price for this service is comparable to a family law attorney drafting it. Sometimes it is just a matter of choice.

The contents of QDROs are generally the same. They must contain plan identifiers, the action requested, the percentage or amount subject to division, contingencies (if Payee dies before distribution, if Participant dies, etc.). Certain retirement systems have special requirements and require special language in the QDRO. For example, if a participant is an employee of the railroad or a local or state governmental agency or if the particular plan is a private retirement plan with a defined contribution or undefined, there are special QDRO requirements.

If you are unsure if your retirement plan will require a QDRO, simply contact the administrator of the plan for that answer. If you are contemplating a divorce and you have retirement benefits and are unsure how they should be divided, contact a Qualified Domestic Relations Order Lawyer at Veritas Legal Group, PC by calling 713-492-0337 to schedule an appointment for a consultation. Or, simply fill out online contact form and a West Houston Family Law Attorney will contact you within 24 hours. Remember, dividing retirement accounts can be tricky and time consuming. A consultation with an attorney will help remove the mystique of dividing such an asset.

WHICH GOES WHERE? 

When, during the divorce process, the parties try to divide debt and assets there could be some confusion about just which party is entitled to which debt or asset. Oftentimes, these issues are resolves through negotiations between the Family Law Lawyers through lawyer-level negotiations, or through mediation. In the division of debts and assets, the assets and liabilities must be characterized prior to division to determine with which party the debt or asset will rest. A debt or asset can be characterized as either community or separate. If the debt is one incurred by both parties, then each stands to be liable for the debt. If the debt is separate, then the individual incurring the debt will be liable, except for certain circumstances where one spouse incurred debt for “necessities.” Necessities are things needed every day to survive like food, shelter, medicine, etc. Credit card companies can sue a spouse who did not incur the debt, but who benefited from the purchases by accepting “necessities.”

One way to characterize debt is to determine the time when the debt was incurred. If the debt was incurred prior to the marriage, then the debt is likely to be characterized as separate. Conversely, if the debt was incurred after the marriage, then it will likely be characterized as community. However, if on spouse incurs a debt that is not for necessities and is unknown to the other spouse, that debt will likely be characterized as separate.

Debt incurred by both parties, but awarded to one spouse, is still legally owed by both spouses. That is to say that, simply because your spouse is suppose to pay a certain debt per the divorce decree, the creditor can still attempt to collect the debt from both spouses. Creditors do not consider the property division in a decree when deciding from whom to collect the debt.

If you are considering a divorce, figuring out the character and scope of the marital debt and assets should be done prior to filing suit. Knowing the amount and character of your debt early on can help the process resolve quicker. A Houston Divorce Attorney at Veritas Legal Group, PC will be able to counsel you on just how to handle the division of your assets and liabilities. To contact a West Houston Family Law Attorney at Veritas Legal Group, PC, you may simply fill out the online contact form, or call 713-492-0337 to set a time for a consultation. Being well-informed early on in the divorce process can help you reach resolution quicker and with less expense.