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How can a mediator’s past experience help them when parties hit a wall during Mediation? Maybe it’s time to get some Perspective.

We have all had experiences that have shaped us into the people that we are today. For an attorney/mediator for instance, your Litigation experience, will probably use your negotiation experiences as a template to guide parties through a mediation. Sometimes, even with a great Alternative Dispute Resolution strategy in place, you still hit a wall in which both parties seem to be stuck.

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CPLS P.A. assembles Storm Water Litigation Team to address a growing Florida concern

Living in Florida does bring mild winter weather that attracts many residents each year. With a growing job market, a growing need to develop land to accommodate the housing needs comes with additional challenges.  One of the most common overlooked problems is flooding to make a land unusable due to poorly or negligently designed drainage system that was designed and installed by another developer without consideration of other landowners or future development considerations.  When a parcel of land is not properly graded for storm water drainage, landowner loses the right of quiet enjoyment. What do you do? How do you protect your rights as a property owner and recover from this traumatic damage to your land? 

CPLS, P.A. is the forefront of this issue and has assembled a highly experienced Stormwater Litigation Team to resolve these matters and assist property owners in protecting their rights and recovering compensation to fix the damage from storm water flooding issues.  Issues from stormwater flooding have become significant enough of a problem that the Florida Bar recently published an article regarding the need to update rules in stormwater management.  

Andrew (Andy) Lannon is an experienced Litigation Attorney and holds 2 board certifications. His clients entrust him to handle even the most complex of Litigation cases.  His experiences as a Land Use and Real Estate Development Attorney makes him a powerful advocate for his clients.  He has have worked for all branches of government: federal, state and local. I clerked for Justice Quince at the Florida Supreme Court to start my career and then went to an AM Law 100 firm in Orlando. I spent 10 years at the Palm Bay City Attorney’s Office, serving as Palm Bay City Attorney for nearly 7 years. He is  double board certified by the Florida Bar in both City, County & Local Government Law and in Business Litigation, one of only 2 attorneys out of the over 100,000 attorneys in Florida with both of these certifications. Finally, he has been recognized in the top 1% of attorneys practicing in Florida every year since 2012 by Florida Trend’s Florida Legal Elite. 

Lisa Hu Barquist has made a career of handling the most complex business litigation matters. As an American Immigrant from China, she has overcome various forms prejudice and has used these experiences to “level the playing field” between parties of unequal strength.   She is passionate getting results that matter even in the most competitive of environments. I am a graduate of Yale and the University of Southern California. I have worked for 5 AMLaw 100 firms and spent 11 years at the United States Attorney’s Office in Miami and in Rochester, New York. I have 3 decades of trial experience. She is also fluent in Mandarin Chinese.

If your property is faced with catastrophic damage from storm water flooding, schedule a consultation with the Storm water litigation team by calling us at (877) 647-7887.

How you can choose the right Attorney to handle your stormwater litigation case

The person must be board certified by the Florida in City, County & Local Government Law and have worked for 5+ years as a City Attorney, County Attorney or as general counsel for a Water Management District. It is recommended that the lawyer be certified in Business Litigation, Civil Litigation or Construction Law, or alternatively, be a demonstrably seasoned trial attorney like my colleague, Lisa Hu Barquist, who was a United States Attorney for 11 years. Finally, the person must have an experienced stormwater expert witness on standby to prepare a report detailing who is to blame for your stormwater problem and testify to its veracity and accuracy in a Court of law.

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Immigration Now: Immigration Bill & Changes to Asylum

Si desea leer esto en español, haga clic aquí.

Immigration Bill

President Biden sent an immigration bill to Congress which includes the following:

  1. Five-year pathway to permanent residence for undocumented immigrants present in the country on January 21, 2021, followed by a three-year wait for naturalization.
  2. Eliminating the three- and ten-year bars that prevent many individuals from returning to the US for 3 or 10 years because of previous unauthorized stays in the country.
  3. Requirement to provide counsel to children and other vulnerable individuals placed into immigration proceedings who cannot afford a lawyer.
  4. Emphasize smart technology for border management, including the modernization of border infrastructure at ports of entry.

If passed, this bill would open the possibility of obtaining legal status to millions of individuals that currently reside in the country, as well as to family members of many US citizens and lawful permanent residents.

Asylum Seekers subject to Migrant Protection Protocols will be Allowed Into the Country

During the Trump administration, asylum seekers at the Southern border were sent back to Mexico to wait for court hearings. The current administration stopped this practice and created a plan to allow those currently waiting in Mexico under the Migrant Protection Program (MPP) to be allowed entry into the country.

Phase One of the process will start February 19th. Individuals in MPP with a pending case will be able to find out when and where they will be allowed to reenter using an online or phone service. Upon entry, they will be placed in an alternative to detention program and released to a local border shelter for transportation to a final destination.

‘Safe Third Country’ Agreements Ended

President Biden suspended and began the process of withdrawing from the Asylum Cooperative Agreements entered into by the prior administration with Guatemala, Honduras, and El Salvador. Under the terms of these agreements, individuals seeking to apply for asylum in the US could be denied this opportunity and sent to one of the above countries to apply for asylum there. This could be done even if the applicant did not pass through any of these countries on their way to the US.

If you would like to talk to an attorney to discuss your immigration options, contact Attorney Evelyn J. Pabon Figueroa at (407) 647-7887 or epabonfigueroa@cplspa.com.

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Business Consulting

Future Pacing – Working on the New You 

“Failing to plan is planning to fail” – Benjamin Franklin

Entrepreneurial and life goals coincide in ways many other goals do not.  For entrepreneurs, their life goals are tied to their entrepreneurial dreams, and these goals take the entrepreneur and her family for the ride of their lives. At the beginning of the journey a flood of positive emotions of hope, dreams of making it, feeling of independence, and excitement engulf the entrepreneur.  In the first leg of the journey, some pain sets in as the realization of the limitations on resources set in; time, money, necessary relationships, are just three of the hurdles entrepreneurs face during this stage.  In the second stage of the journey, the entrepreneur starts to experience enhanced pain and doubt raises its ugly head. If the entrepreneur does not have a good consultant or coach to help navigate the phases of the entrepreneurial process, the doubt grows into a crippling fear, devastating the entrepreneur and, many times, family members.

Future Pacing – YOU 2.0

Skilled consultants and coaches have many tools in their tool belts to help budding and seasoned entrepreneurs.  One of the most important tool is FUTURE PACING the entrepreneur to help her create a vision of herself 10 years into the future (YOU 2.0), and helping her build a bridge from now to then.   Since the entrepreneur’s business is usually an integral part of her vision of herself, it is necessarily included in the journey from YOU 1.0 to YOU 2.0. 

The process begins with the consultant/coach helping the entrepreneur create a detail vision of YOU 2.0 self. This includes the creation of an avatar for the entrepreneur that encompasses her YOU 2.0 physical self, emotional self, spiritual self, the knowledge she has accumulated, the relationships she has, her home, her business, her skills, and everything else that she envisions herself being.  Once done, the consultant/coach helps the entrepreneur to reinforce this idea of her YOU 2.0 so that it become her life ultimate mission.  The process then turns to an assessment of the entrepreneur’s personal development matrix, so that she can take an honest look at herself.  The matrix analyzes the entrepreneur’s core knowledge, skills, abilities, disciplines, dedication, focus, beliefs, values, health, experiences, rules and relationship with herself. The result is usually a clear understanding of the entrepreneur’s personal strengths and weaknesses. This can be an eye-opening process for entrepreneurs, and serve as a “reality check.” Simply put, if you do not know where you are, it does not matter where you are going.

After the personal assessment is complete, the consultant/coach then helps the entrepreneur focus on developing a current relationship matrix. The focus here is primarily external with a focus on the entrepreneur’s relationships, finances, physical assets, other resources, opportunities, and external threats or roadblocks.

With a good understanding of the entrepreneur’s current state, the consultant/coach can then move onto helping develop a future identity, her YOU 2.0 (usually 5 to 10 years in the future).  Once this future identity is developed, and the entrepreneur has a vivid image of her future self,  she works with the consultant/coach to set reasonable and realistic goals each month and year (with yearly themes) which, once achieved, will get her that much closer to her YOU 2.0. As she travels through the process, she transforms into the version of herself she sees, and consistently re-evaluates her YOU 2.0, upgrading her model self annually, chasing her future with relentless passion.

This passion and thirst for growth and development spills over into the entrepreneur’s business and family, so they all grow together, consistently helping each other reach their YOU 2.0. 

Future pacing is just one of the planning tools offered by Business and  Executive Coaching Consultants at CPLS, P.A. as a part of our Private Corporate Counsel program. If you would like to learn more or set up a consultation, give us a call at 407.647.7887 or email me at Attorneypersad@cplspa.com.

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Inmigración Ahora: Órdenes Ejecutivas sobre DACA, prohibición de musulmanes, y muro fronterizo

Durante su primer día como Presidente, Joe Biden firmó varias Órdenes Ejecutivas que impactan el sistema inmigratorio de Estados Unidos. 

DACA

El Presidente le ordenó al Secretario del Departamento de Seguridad Nacional que tome toda acción que sea necesaria y consistente con leyes aplicables para preservar y fortalecer DACA. DACA, o Acción Diferida para los Llegados en la Infancia, fue instituido en el 2012 y defiere la deportación de ciertas personas que vinieron a los Estados Unidos en su infancia, han obedecido la ley, y estudiaron o sirvieron en el servicio militar. En adición, DACA les permite obtener autorización de empleo.

Prohibición de Musulmanes

El Presidente revocó una serie de Órdenes Ejecutivas y Proclamaciones que prohibían la entrada al país de personas musulmanas y ordenó que las Embajadas y Consulados resuman el procesamiento de visas.

Muro Fronterizo

El Presidente Biden terminó la emergencia nacional en la frontera sur, la cual fue originalmente declarada el 15 de febrero de 2019. La política de la nueva administración es que dinero de los contribuyentes no será usado para la construcción de un muro fronterizo y toda construcción debe terminar.

Si desea hablar con un abogado para discutir sus opciones inmigratorias, contacte a Attorney Evelyn J. Pabon Figueroa al (407) 647-7887 o epabonfigueroa@cplspa.com.

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Immigration Now: DACA is Back!!!!

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On December 7, 2020, USCIS started accepting first-time applications and renewals under Deferred Action for Childhood Arrivals (DACA). 

DACA requirements:

1. Applicant was under 31 years of age as of June 15, 2012;

2. Applicant came to the US before the age of 16;

3. Applicant has continuously resided in the US since June 15, 2007;

4. Applicant was present in the US on June 15, 2012, and at the time of making their request for consideration under DACA;

5. Applicant had no lawful status on June 15, 2012;

6. Applicant is in school, graduated or obtained a certificate of completion from high school, obtained a GED certificate, or is an honorably discharged veteran of the U.S. Armed Forces or U.S Coast Guard;

7. Applicant has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors; and 

8. Applicant does not pose a threat to national security or public safety.

If granted DACA, the applicant will be deferred from removal and receive employment authorization for a 2 year period. The applicant will also receive advance parole documents, allowing the applicant to re-enter the US after travel abroad. 

If you believe you meet the above requirements, you should talk to an immigration attorney to determine if DACA is appropriate for you.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at 407-647-7887 or epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Using post-conviction relief to help you in your immigration case.

What happens when someone has a conviction for a crime that makes them inadmissible or deportable and relief is not available? Is the person out of options? Again, the answer to this question depends. In some cases, the person might be able to use post-conviction relief to help them in their immigration case.

Post-conviction relief is a request that is made to the court where the conviction was entered to vacate, set aside, or correct a judgment or sentence. The process in each state and in federal court will vary. In Florida, a person has 2 years after losing their appeal to file their request for post-conviction relief, except in 4 instances.

If a person with a criminal conviction that is facing immigration consequences because of the conviction, files a request with the court of conviction to vacate, set aside, or correct the judgment or sentence and the court grants the request, the person may then be able to use this in their immigration case. A careful review of the record of conviction and what happened during the criminal case will be necessary to determine if a request for post-conviction relief is available.

Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief, including post-conviction relief, available to the person.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Do I have options?

Part II

What happens if a person is inadmissible or deportable because of the commission of crime? Is the person out of luck? It depends. Sometimes the person will be out of luck and unable to enter or remain in the US. But other times, the person might have a relief available that will allow them to enter or remain in the US. Last week, we discussed two relief options and this week we will discuss two additional relief options available for someone that has committed a crime and is inadmissible or deportable from the US.

Relief Option: Cancellation of Removal

Cancellation of removal is available to a person that is inadmissible or deportable if the person:

1. Has been a lawful permanent resident for 5 or more years

2. Has resided in the US continuously for 7 years after having been admitted in any status

3. Has not been convicted of an aggravated felony

A person that meets the above requirements will still not be eligible for cancellation if:

a. The person is inadmissible or deportable for security grounds, including export violations

b. The person has ordered, incited, or assisted in the persecution of others

c. The person has previously received relief from deportation or removal in the form of suspension of deportation, cancellation of removal, or a waiver under INA 212(c)

Relief Option: Nonimmigrant Visa Waiver under INA §212(d)(3)

This waiver is for a person that is looking to enter the US as a nonimmigrant (e.g., tourists, temporary workers). The application is made at the consulate or at the port of entry. When it is made at the consulate, the consular official will make a recommendation, but it is the US Citizenship and Immigration Services office who makes the final decision.

The following factors are considered when deciding an application for a nonimmigrant visa waiver:

1. The risk to society if the person is admitted

2. The seriousness of the person’s immigration or criminal law violation

3. The nature of the person’s reasons for wishing to enter the US

A waiver for a non-immigrant visa may be available even for crimes that would prevent an individual from obtaining an immigrant visa.

The granting of these waivers is discretionary and the person may meet all the requirements in paper but still be denied by the immigration officer as an exercise of their discretion. 

Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief available to the person.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Do I have options?

Part I

What happens if a person is inadmissible or deportable because of the commission of crime? Is the person out of luck? It depends. Sometimes the person will be out of luck and unable to enter or remain in the US. But other times, the person might have a relief available that will allow them to enter or remain in the US. This week we will discuss two relief options available for someone that has committed a crime and is inadmissible or deportable from the US. Next week, we will discuss 2 other relief options.

Relief Option: Adjustment of Status

  • Adjustment of status is the process in which someone becomes a lawful permanent resident while in the US. 
  • If the crime is a ground of deportability, the adjustment of status may act as a waiver of this ground.
  • If the crime is a ground of inadmissibility, the adjustment of status will not act as a waiver pf this ground and the person will not be able to adjust status
  • All negative information, arrest records, and other criminal activity, must have been revealed to the immigration officer for their consideration at the time the person applied for adjustment of status
  • The officer in their discretion may decide that the person is able to adjust status to that of a lawful permanent resident.

Relief Option: Waivers under INA §212(h)

Waivers under INA §212(h) are used to “forgive” grounds of inadmissibility for crimes involving moral turpitude, prostitution, crimes that were not prosecuted because of immunity, and single offenses for simple possession of 30 grams or less of marijuana. 

There are three different scenarios in which the waiver may apply:

1. The 15-year waiver is available to waive inadmissibility due to prostitution type offenses or crimes involving moral turpitude that occurred more than 15 years before the application for a visa, admission, or adjustment of status. The individual must show that they are not a danger to the community and have been rehabilitated.

 

2. The extreme hardship waiver requires a qualifying relative who is the US citizen or lawful permanent resident spouse, parent, son, or daughter of the applicant. The person will need to show that the qualifying relative will suffer extreme hardship if the application is not granted and the person is removed. 

3. The battered spouse or child waiver requires that the spouse causing the damage be a US citizen or lawful permanent resident. this waiver does not require a qualifying relative or the showing of extreme hardship.

The granting of these waivers is discretionary and the person may meet all the requirements in paper but still be denied by the immigration officer as an exercise of their discretion. 

Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief available to the person.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Plagues, pandemics, Magna Carta and 2020 . . .

The Magna Carta created jury trials, grand juries, and abolished “trial by ordeal” in 1215.  A century later, the Black Plague swept all of Europe. Thus “A Jury of Our Peers” has been the hallmark of justice for more than 4 centuries before the founding of these United States. Today, a new worldwide pandemic is challenging our notion of liberty.

A client asked recently whether we were seeing a recession due to the COVID-19 pandemic. Truthfully, many lawyers are busier than ever, though not necessarily with new work. Each court in each different county or circuit has set up specific procedures for handling cases. Some courts, immediately set up video conferencing for hearings; others took a bit more time to explore options. Orange County is in the Ninth Circuit while Seminole County is in the 18th Circuit. Each has a different procedure and both vary in how they handle hearings.  

Criminal courts in all areas had largely instituted video conferencing for first appearance years ago, but with a pandemic the larger problem is how to provide safe and secure access for those arrested to meet privately with their attorney. All courts in Florida, the Supreme Court, District Courts of Appeal, Circuit and County Courts have been wrestling with  how to assure the safety of the public, how to prevent exposure from those infected, how to protect the rights of those accused of crimes and how to protect the due process to assure fair and just hearings. Jury trials are being scheduled but may not occur until 2021 or later. This places our entire judicial system in peril.

Family attorneys began using Collaborative methods is not always easy, but using a team concept and keeping decisions about your family within your control makes collaboration effective in Central Florida. Using Zoom meetings, for coaches, clients and professionals to work out all the details before even filing can allow a much more controllable process and keep the outcome well within your needs.

Divorcing spouses often have difficulty trusting one another, and unfortunately our courts’ adversarial proceedings in litigation tend to further erode openness and trust by encouraging spouses to fight not only for their own interests but also against the interests of their spouse. When Collaboration occurs, the family’s needs are addressed by professionals and the spouses do not have to “trust” the litigation. They only have to trust the professional who are the guardians of the process. The Collaborative Process works, even in pandemic times and 2020.

Pandemics lead to change. How much change occurs depends on your choices and may be impacted by the choices of those around you. Wash your hands; wear a mask; take care of yourself and others. Peace.

Attorney Aubrey Ducker is a partner at CPLS, P.A., and a member of the Firm’s Family and Elder Law Practice Groups.  Contact Attorney Ducker today at aducker@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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Crime & Immigration

Other Crimes: Deportable


In addition to convictions for the commission of crimes involving moral turpitude or aggravated felonies, convictions for the commission of any of the following crimes can make someone deportable from the US:

1. High speed flight from an immigration checkpoint

2. Failing to register as a sex offender

3. Violating any controlled substance law, except for simple possession for one’s own use of 30 grams or less of marijuana

4. Firearms violation

5. Domestic violence offense, stalking, child abandonment, child abuse, or child neglect

6. Any alien convicted of visa or passport fraud

In addition, a person involved in alien smuggling is deportable regardless of whether there is a conviction or not. Smuggling must have occurred prior to or at the time of the person’s entry or within 5 years of they entered.

Each crime in the above list is carefully defined by immigration law and court opinions, therefore to determine whether a crime that sounds like one of the above will cause someone to be deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of having committed a crime meet with an experienced attorney to discuss their options.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Crimes Involving Moral Turpitude: Deportable

A few weeks ago, in a prior blog, I mentioned that a conviction for or an admission to having committed a crime involving moral turpitude (CIMT) makes a person inadmissible to the US. Today, we look at the instances in which a CIMT will make a person deportable from the US after they have already been admitted. (CIMT definition)

There are two different instances in which CIMT’s will make someone deportable. In the first instance, the person has to have been convicted of committing a CIMT within 5 years after the date of admission and the crime must be one for which a sentence of one year or longer may be imposed. Keep in mind that it is not necessary for the person to actually be sentenced to one year or longer for the conviction of the CIMT to make the person deportable.

In addition, any person that has been convicted of 2 or more crimes involving moral turpitude is deportable.

Notice, that an admission to the commission of a CIMT will not make the person deportable. 

Let’s consider the following situations:

Maria entered the US as a lawful permanent resident in 2003. In 2009, she was convicted of committing a CIMT in 2007. The crime she was convicted of had a maximum sentence of 5 years. As a result of a plea deal, Maria was sentenced to 6 months in prison. Maria is deportable.

Esteban is a lawful permanent resident. In 2003, he was convicted of committing a CIMT. Ten years later, Esteban was convicted of committing a CIMT. Esteban is deportable. 

Determining whether a crime is a CIMT and will make someone deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of committing a crime meet with an experienced attorney to discuss their options.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Aggravated Felony: Deportable

Aggravated felons are deportable from the US. The immigration act includes an extensive list of crimes that will cause someone to be deportable. Some of the crimes included are the following:

1. Murder, rape, or sexual abuse of a minor

2. Illicit trafficking in controlled substance, including a drug trafficking crime

3. Illicit trafficking in firearms or destructive devices or in explosive materials

4. A crime of violence, but not including a purely political offense, for which the term of imprisonment is at least 1 year

5. A theft offense, including receipt of stolen property, or burglary offense for which the term of imprisonment is at least 1 year

6. An offense relating to child pornography

7. An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 or relates to tax evasion in which the revenue loss to the Government exceeds $10,000

8. An offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year

The list of crimes that will be considered an aggravated felony is very detailed. However, it is still important to keep in mind that, to determine whether a crime is an aggravated felony, it is necessary to compare the state statute of conviction with the federal laws. The classification of a crime as an aggravated felony by a state does not necessarily mean that the crime is an aggravated felony for immigration purposes.

A conviction is necessary for the person to be deportable.

 Determining whether a crime is an aggravated felony and will make someone deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of committing a crime meet with an experienced attorney to discuss their options.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Other Crimes: Inadmissible

In addition to crimes involving moral turpitude and controlled substance violations, the following crimes can make someone inadmissible to the US:

  • Any person convicted of committing two or more offenses for which the combined sentences to confinement were 5 years or more
  • Any person coming to engage or who has engaged in prostitution within 10 years of the date of the application for admission
  • Any person who commits or against whom there is reason to believe has committed alien smuggling
  • Any person who commits or against whom there is reason to believe has committed or will commit money laundering

A conviction is only necessary in the first instance. However, a person can be denied admission because of reasons 2 through 4 above without a conviction. The officer’s belief that the person has committed these crimes is enough to deny admission. What’s even more troubling is that the officer’s belief of future commission of a crime can also cause the denial of admission.

Let’s consider the following situations:

Maria was convicted of committing two crimes and was sentenced to 3 years imprisonment for one of the crimes and to 4 years imprisonment for the other crime. Maria would be inadmissible because the combined sentences add up to more than 5 years.

Several years ago, during a trip to the US, Juan was arrested and charged with prostitution. The charges against Juan were dismissed and he returned to his home country. Recently, Juan traveled to the US with a tourist visa, but the Customs and Border Protection officer denied his request for admission because the officer believed, based on Juan’s prior arrest, that he was coming to the US to engage in prostitution.

Determining whether a crime will cause someone to be inadmissible to the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been charged or convicted of, or has admitted to committing, or could be suspected of having committed a crime, meet with an experienced attorney to discuss their options.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

Controlled Substance Violation: Inadmissible

A non US citizen is not admissible to the US if they fit one of the following categories:

  • The individual has been convicted of violating a law relating to a controlled substance 
  • The individual admitted to violating a law relating to a controlled substance
  • The individual is known to have been an illicit trafficker in any controlled substance
  • There is reason to believe the individual has been an illicit trafficker in any controlled substance
  • The individual received a financial benefit from a spouse or parent who is an illicit trafficker

Not all drugs are considered a controlled substance, only those included on the federal list of controlled substances, which can be found at 21 USC 802. For this reason, it is possible for a state controlled substance violation to not be considered a controlled substance violation for immigration purposes in certain circumstances.

Note that a conviction is not necessary and an individual seeking admission to the US may be denied the benefit if the officer knows or has reason to belief that the individual is or has been an illicit trafficker in any controlled substance. This is used to deny applications for admission by individuals that have been arrested for a violation of a law relating to a controlled substance regardless of the outcome of the case. Let’s consider the following situation:

Esteban is traveling to the US with a tourist visa. At the airport in Orlando, the Customs and Border Protection (CBP) Officer finds out that Esteban was arrested during a prior trip to the US and charged with trafficking in a controlled substance in federal court. The charges in Esteban’s case were dismissed.

The CBP officer can still determine that the arrest was enough to give him a reason to believe that Esteban has been an illicit trafficker in a controlled substance and deny him admission to the US.

Determining whether a crime is a controlled substance violation requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been charged or convicted of, or has admitted to committing, or could be suspected of having committed a crime that could potentially be a controlled substance violation, meet with an experienced attorney to discuss their options.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Crime & Immigration

What does it mean to be removable?

Any person that is not a US citizen can be subject to removal from the US if they are found to be inadmissible or deportable.

Who is inadmissible? 

Any person seeking admission to the US that is not allowed to because it is determined that one or more ground of inadmissibility applies is inadmissible. Sometimes this includes lawful permanent residents or green card holders.

Grounds of inadmissibility cover the following areas: Health, criminal, national security, immigration violations, and economic.

Who is deportable?

Any individual that was inspected and admitted to the US but that is now removable due to one or more grounds of deportability. This includes lawful permanent residents or green card holders.

Grounds of deportability cover the following areas: Persons that should not have been admitted to the US, immigration status violations, economic, national security/political, unlawful voting, and criminal.

Let’s consider two different scenarios:

Javier is a national of Chile and is traveling to the US with a tourist visa. At the airport in Orlando, the Customs and Border Protection officer finds out that Javier has a criminal conviction for trafficking in a controlled substance. Javier’s conviction is a ground of inadmissibility and he is denied admission to the US. Javier returns to Chile on the next available flight.

Armando, a lawful permanent resident, is conviction for attempted murder and sentenced to 10 years in state prison. Armando’s conviction is a ground of deportability and he will be placed in removal proceedings.

During this series, we will focus on the criminal grounds of inadmissibility and deportability, but keep in mind that there are many other reasons why someone would be denied admission to the US or would be deported after being granted admission.

Video: What does it mean to be removable?

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Top 5 Things to Know when Choosing a Mediator

1. Experience Matters

When choosing what mediator may fit best with the issues in your family law case, it is important to find a mediator with a proven record of success in resolving cases.  Most mediators are chosen as a result of the relationship they have built with the attorneys in the community.  If you have retained an attorney for your family law case, then it is likely your attorney has several mediators they have worked with in the past and would likely recommend a mediator based on their past experiences with that particular mediator.  If you do not have an attorney, or your attorney is not familiar with proven mediators, then it becomes even more important to do your homework and research as much as you can about the mediators in your area who may be the right fit for your case.

2. Legal knowledge matters

It is important to know that to be a family law mediator in Florida does not require a law license. In fact, there are qualified professionals, such as psychologists, counselors, and other mental health experts, that have been certified by the Florida Supreme Court in family law mediation, just like attorneys. So depending on the issues in your case it is possible you will want to consider using someone that has a non-legal background.  If financial or other legal-intensive issues are not the top priority, but rather if deciding child-related issues are of the utmost importance, then it may make sense to use a mental health professional that is sensitive to the issues involving children and co-parenting.  If, however, there are complex financial or legal issues, then having a non-attorney mediator may not be your best option.

3. Demeanor matters

Having a mediator that respects the parties, their positions and the attorneys is very important to having a successful mediation.   If one party feels that the mediator is not acting in a neutral way, or has the appearance that they are favoring one side over the other, then it is likely that would have a negative effect on the mediation and it would be unlikely that the case would resolve by way of mediation with that particular mediator.  It is of vital importance to have a mediator that you feel comfortable with, is open to hearing both sides and does not choose sides during a mediation.   

4. Location matters

Believe it or not, sometimes the location of the mediation itself can determine whether or not a mediation will be successful. Mediations can occur just about anywhere, including an attorney’s office or a more neutral location, such as the mediator’s office.  In some cases, parties may not be comfortable going to mediation at the opposing attorney’s office, so it is important to consider these issues when scheduling your mediation.

5. Costs Matter

One of the first questions I usually get from my clients is, “How much is mediation going to cost?”  In order to gauge the costs, it is important to understand that there are two types of mediations, a courthouse mediation and a private mediation.  Usually, the difference between the two comes down to how much money the parties make.  If the parties make less than $100,000 in combined gross income, then they would qualify to have a reduced cost mediation offered through the courthouse and would pay a total of $60 to $120 for a three-hour mediation.  If the parties’ combined gross income is greater than $100,00, then they would need to find a private mediator to mediate their case, and those costs will generally run anywhere from $100 to $350 per hour, with usually a two or three-hour minimum.  When it comes to mediation and private mediation, in particular, it is important to remember that if you do resolve your case through mediation, then the costs you spend for that mediation would be a drop in the bucket compared to what you might spend for a full-blown trial to litigate all of the issues in your family law case.

Attorney Russell J. Frank is a partner at CPLS, P.A., and a Florida Supreme Court Certified Family Mediation who focuses his practice areas on family and marital law.  Contact Attorney Frank today at rfrank@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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Will Alimony Reform Ever Come to Florida?

The hope of alimony reform seems to surface in Florida each year, much like the famous groundhog who comes out each year to tell us his weather predictions, however; in Florida the forecast for alimony reform always seems to be the same, “not this year.”  Once again, there is a discussion in Tallahassee about overhauling Florida’s alimony system, which most observers say would include the elimination of permanent alimony, but like Groundhog Day, the patterns of the past seem to be on repeat.  

Under current Florida law, alimony comes in several different forms, including:  (1) Durational – lasting for a specific term of years; (2) Rehabilitative – which is designed to help a receiving spouse obtain the skills and education necessary for them to be self-supportive in the workforce; (3) bridge-the-gap – intended to last only for two or three years to help a spouse transition back into being fully self-supportive; and (4) Permanent – which would last until the death of one of the parties.  Unfortunately, there is little structure set in these laws that provides uniformity in alimony awards throughout the state, or even within counties, as alimony remains largely discretionary, meaning that the Judges can individually choose not only if they will award alimony, but they will also decide the amount of alimony and how long it should last.  

While there are specific statutory factors that the Courts must consider in their alimony determinations, there is no set mathematical equation to help assist the Judges in their determination of alimony amounts and duration, as there is with child support calculations.  For child support, Florida law utilizes a mathematical formula, using the parents’ incomes and the amount of time the children spend with each parent, taking into consideration health insurance and child-care related costs, to get to an end number of support that would be uniform regardless of where in Florida your case is decided.  Many believe that a similar analysis needs to be applied in alimony determinations.  

Some of the issues that have prevented the passage of alimony reform in the past have little to do with the underlying issues of permanent alimony, but rather are centered are other issues, including: (1) How to treat existing alimony payments and specifically if alimony reform laws would be retroactive, which many fear would create uncertainty in existing alimony orders and send an influx of cases back to the Courts; (2) The possible inclusion of timesharing provisions, including, as has been tried in the past, the creation of a presumption of equal, 50/50 timesharing between parents; and (3) the fear that the elimination of permanent alimony may work to shift the costs of support from a former spouse to the State, with the thinking on this being that if permanent alimony is eliminated, then a spouse who may have been eligible for permanent alimony under our now existing laws could then have to apply for government assistance to make up for any alimony they may have lost out on, which would in turn increase the costs to the State.   

While discussion of alimony reform in Florida continues, until some of these issues raised above can be adequately and sufficiently addressed, we may not see any substantive reform actually get passed.  Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law.  Contact Attorney Frank today at rfrank@cplspa.com to discuss any family or marital legal issues you may be experiencing. 

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Qui Tam Provisions and Civil Investigative Demands under the Virgin Islands False Claims Act

Virgin Islands statutes controlling fraudulent claims upon the government need strengthening.  The False Claims Act (“FCA”), promulgated in July 2014, in 14 V.I.C. § 843, is intended to impose liability on those who defraud the Virgin Islands government. 14 V.I.C. § 843.
 
 
Criminal penalties under the FCA are fines not exceeding $500, imprisonment not exceeding two years, or both. Id.   Civil penalties include treble damages to the government for three times the damages the government sustained. 33 V.I.C. § 3503(a). Civil penalties are to be between $5,000 and $10,000 for each false claim. Id.  
 
 
Specifically, the FCA provides criminal sanctions for whoever knowingly “makes or presents any claim upon or against the Virgin Islands government.” 14 V.I.C. § 843(1)-(4).  It also applies to whoever “knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact,” “makes any false or fraudulent statements or representations,” “or makes or uses any false bill, receipt, voucher, roll, account, claim, certificate, affidavit or deposition knowing the same to contain any fraudulent or fictitious statement or entry.” Id.   
 
 
According to 33 V.I.C. § 3503, the FCA provides civil penalties for each false claim for which the person: 
“(1) Knowingly presents or causes to be presented a false or fraudulent claim for payment or approval;
(2) Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim;
(3) Conspires to commit a violation of this section;
(4) Has possession, custody, or control of public property or money used or to be used by the Government and knowingly delivers, or causes to be delivered less than all of that property;
(5) Is authorized to make or deliver a document certifying receipt of property used or to be used by Government and knowingly makes or delivers a receipt that falsely represents the property used or to be used;
(6) Knowingly buys, or receives as a pledge of an obligation or debt, public property from any person who lawfully may not sell or pledge the property;
(7) Knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids, or decreases an obligation to pay or transmit money or property to the Government;
(8) Is a beneficiary of an inadvertent submission of a false claim, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the Government within a reasonable time after discovery of the false claim; or
(9) Is the beneficiary of an inadvertent payment or overpayment by the Government of monies not due and knowingly fails to repay the inadvertent payment or overpayment to the Government.”
 
 
An attorney general or a qui tam relator can bring this action. A qui tam relator is a person who “may bring a civil action for a violation of [the Virgin Islands False Claim Act] for the person and for the Government in the name of the Government if any Government funds are involved.” 3 V.I.C. § 3504(b)(1). An entity or person filing a qui tam action is known as a qui tam plaintiff or a private attorney general. In the Virgin Islands, if the government intervenes, the qui tam plaintiff receives anywhere between 15-25% of the proceeds of the civil action or settlement, and 33-50% if the Government does not proceed. 33 V.I.C. § 3504(f)(2)-(3). The defendant, however, may be awarded attorney’s fees if the defendant prevails, “and the court finds that the claim was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.” 33 V.I.C. § 3504(g)(9).   
 
 
claims files
 
 
Fashioned after the federal False Claims Act, how exactly does the Virgin Islands False Claims Act fare in the face of today’s disasters? Virgin Islands False Claims Act, Bill No. 30-0262, p. 15 (Jan. 30, 2014).  See DOJ, False Claims Act: A Primer, FRAUDS FCA Primer (this primer aims to explain the FCA’s most significant elements). Congress enacted the act to stop suppliers of goods to the Union Army from defrauding the Army. Id. “President Abe Lincoln urged the enactment of the federal False Claims Act, which was also known as “Lincoln Law,” as a legal tool to help local governments that were reluctant to prosecute such cases.  The law encouraged whistleblowers to assist in the prosecution of fraud and other similar cases via a qui tam action. . . .” Id. Since then, to prevent fraud, Congress made major amendments in 1943 (cutting award for qui tam/whistleblower provisions), 1986 (increasing award for qui tam/whistleblower provisions), 2009 (signing into law the Fraud Enforcement and Recovery Act), and 2010 (signed in the Patient Protection and Affordable Care Act).  From 1986 to 2009, the recoveries for federal FCAs were over $24 billion. DOJ, Justice Department Recovers $2.4 Billion in False Claims Cases in Fiscal Year 2009; More Than $24 Billion Since 1986: FY09 Recovery is Second Largest on History  (Nov. 19, 2009).  
 
 
Hurricane Katrina Flood In New Orleans
 
Of particular importance is the 2009 amendment, as it comes after Hurricane Katrina a disaster not unlike Hurricanes Irma and Maria.  Within the 2009 amendment lies 31 U.S.C. § 3733, civil investigative demands, which requires a recipient of government funds to produce documents when the Attorney General believes the person has information related to an investigation. 31 U.S.C. § 3733(a)(1) (2009) (the 2009 amendment got rid of the requirement that agencies demonstrate a substantial need in order to share information with qui tam relators). The Attorney General’s authority to request this information can be delegated and this information maybe shared with qui tam plaintiffs. Id. at 15-16.   
 
 
The 2009 federal FCA amendments that give the Attorney General civil investigative demands are not present in the Virgin Islands FCA. Compare 31 U.S.C. § 3733 with 33 V.I.C. §§ 3501-3509. Currently, the Virgin Islands FCA contains no provision requiring recipients of government funds to produce documents when the attorney general believes that person has information related to an investigation. See 33 V.I.C. §§ 3501-3509. After a natural disaster, there is chaos and less transparency, especially because the public’s access to information is severely limited. The Virgin Islands can greatly benefit from enacting this amendment.
 
If you believe someone has defrauded the Virgin Island’s government, Please let us know. Come see us at CPLS, P.A. Or contact Attorney Jalicha Persad at 407-647-7887 or email her at jbpersad@cplspa.com
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Which probate process? 

“For our light and momentary troubles are achieving for us an eternal glory that far outweighs them all. So we fix our eyes not on what is seen, but on what is unseen, since what is seen is temporary, but what is unseen is eternal.” -2 Corinthians 4:17-18.

With a heavy heart, how do you focus on probating the estate of your loved one in the Virgin Islands? Why should you spend energy on probate? Well, probate comes with its benefits. The probate process provides evidence of title transfer, protects creditors, and distributes the loved one’s property after the creditors are paid.

In the Virgin Islands, a few processes can be used to probate an estate. The processes are summary administration, disposition of estate without administration, ancillary administration, administration of a testamentary estate, and administration of intestate estate. Provided below is a broad overview of the prerequisites for each process.

Summary Administration:

The summary administration process is the quickest. The value of the estate must be below $100,000. Look at the property’s tax bill to get an idea of what the property may be worth. This process may be pursued with or without a will. If there is a will, the will needs to provide for the executor (or administrator C.T.A.). Further guidance can be found at 15 V.I.C. § 167, 15 V.I.C. § 191, and Virgin Islands Rule of Probate and Fiduciary Proceedings 22.

Disposition of Estate Without Administration:

Here, the heirs agree to take on the loved one’s debts (or the loved one had no debts). This process may be pursued, according to 15 V.I.C. § 191 if there is no will. Further guidance can be found at 15 V.I.C. § 191 and Virgin Islands Rule of Probate and Fiduciary Proceedings 23.

Ancillary Administration:

This process is pursued if the loved one lived outside the Virgin Islands but owned property in the Virgin Islands. The will is ordinarily first probated in accordance with the laws of the jurisdiction in which the person lived. Next, the ancillary probate process begins. There are two types of ancillary administration – 1) recognition of a foreign will and 2) ancillary probate with administration. Virgin Islands Rule of Probate and Fiduciary Proceedings 24 can provide further guidance.

Administration of Testamentary Estate:

This is the administration of an estate where the loved one left a will. This process is used when the processes above cannot or should not be used. Virgin Islands Rule of Probate and Fiduciary Proceedings 3 may be used for further guidance.

Administration of Intestate Estate:

This is the administration of an estate where the loved one did not leave a will, and the above processes cannot or should not be used. Virgin Islands Rule of Probate and Fiduciary Proceedings 4 may be used for further guidance.

Probating the estate of your loved one can have many benefits. Speak to an attorney about which probate process may be right for you.

It’s important to speak with an experienced attorney to discuss your specific case and circumstance. Come see us at CPLS, P.A. Attorney Jalicha Persad is a member of the firm’s Estate Planning Practice Group. Contact Attorney Jalicha Persad at 407-647-7887 or email her at jbpersad@cplspa.com

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Post-Conviction

Pros & Cons of Hiring a Lawyer v. Doing It Yourself (Pro Se)

Like in all other areas of law, individuals always have the option of representing themselves instead of hiring a lawyer. However, just because they can, it doesn’t necessarily mean that they should. Here are some of the pros and cons that should be considered when deciding whether to hire a lawyer or not.

HIRING A LAWYER

GOING PRO SE

PROS

  • Experience
  • Legal education & training
  • Legal knowledge
  • Familiarity with the court system
  • Legal research resources available
  • Access to other lawyers to consult with
  • Access to witnesses and other individuals with knowledge of the case
  • Relationship with investigators who can assist in finding evidence that supports your case
  • Easy access to court records

CONS

  • Financial Cost: Attorney’s Fees
  • The lawyer has more control regarding when the motion is filed

PROS

  • Financial: No payment of attorney’s fees
  • You have absolute control regarding when the motion is filed

CONS

  • No legal training
  • No legal education
  • Lack of experience handling legal matters
  • No access to lawyers to consult with
  • Limited legal research resources
  • Limited to no access to witnesses & other individuals with knowledge of the case
  • Limited to no access of court records

If you would like to talk to an attorney to determine if post-conviction is available to you or your loved one, contact Attorney Evelyn J. Pabon Figueroa at (407) 647-7887 or epabonfigueroa@cplspa.com.

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The Time is Now

We are certainly living in a different time right now.  Sheltering in place, social distancing, and wearing masks.  And as many areas begin to reopen and relax restrictions, life will start to look much like it did before.  One of the places that are not reopening and may not be for a while are the Courts.  Since these are places where large gatherings are common, these may be the last to resume operations.

For many, the closure of the courts has had no effect.  For others, this has had a huge impact.  Those in the middle of a divorce have had their cases put on hold indefinitely.  When the courts do reopen at some point, there will be a backlog of cases already the system such as those whose scheduled hearings and trials were canceled as well as those that need to be scheduled. The partial or full resolution of the cases will be delayed indefinitely.  Those who have just decided to move ahead with their divorce cannot begin their cases until the courts have opened.  When the courts do restart, these cases will be the last to be heard due to the backlog of existing cases when this pandemic began.

For those who are beginning their divorce journey and even the ones that are already in the process, there are alternative paths than using the courts to resolve their case.  Mediation with or without attorneys is one option. The spouses can utilize this dispute resolution opportunity whether their divorce has been filed in court or not.  There is a significant reduction in cost if attorneys are not used.  The most significant benefit of mediation is that the parties and only the parties decide the outcome of their case instead of a judge. Who best to know how to resolve their divorce issues effectively? Another benefit is that the parties decide when to meet and not allow the courts to dictate the speed or lack thereof of their case.  The parties also decide when to end their case.  Frequently, their case takes significantly less time to come to a resolution than if their case was in court. Many times, their cases can be resolved in one meeting. The swiftness, direction, and outcome of their case are totally in the hands of the parties who use mediation to resolve their divorce.

The time is now to move ahead with your divorce even though the courts may be closed. Mediation is one option to resolve your case.  Next week, I will focus on another opportunity to resolve your divorce without using the courts.

As a Certified Family Law Mediator, I have facilitated and worked with many couples toward a successful outcome of their divorce through mediation.  Having previous experience as a CPA allows me to provide additional support in developing financial options with them. 

If you’d like more information on how to move forward with your divorce or any other family law matter contact Attorney Anthony Diaz today at adiaz@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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Modification of Child Support Payments Due to Covid-19

As almost every aspect of our lives continues to be impacted by the Covid-19 pandemic, many people are finding it hard to make ends meet as they wait for the economy to re-open.  This is particularly true for those that must still try to manage on-going Court ordered financial obligations such as child support.  I have received a lot of questions lately from parents eager to learn about whether they can modify their existing support payments due to loss of income during Covid-19, and while the general rule in family law cases is that child support can be modified, people seeking Covid-19 related modifications may face certain hurdles.  

Florida law permits the modification of child support obligations, either up or down, based on a substantial, unanticipated, long-term change of circumstances.  In most cases, child support modification requests are based on a reduction in a parent’s income usually caused by a change in or elimination of employment.  If such a change in employment has occurred, then the proper avenue to pursue is to seek a modification through the filing of a Supplemental Petition for Modification.  In such a petition, the parent seeking modification must fully state the reasons as to why they can no longer make their Court-ordered support payments, including indicating when the income reduction started and how long the situation may be expected to last.   

There are two main issues with requesting child support modifications during the Covid-19 pandemic that I can see.  The first issue is whether or not a parent’s reduction in income would constitute a long-term change or a change that is more permanent in nature, versus a temporary reduction in income that has the potential, in the near future, to go back to pre-Covid 19 levels.  This is evaluated on a case-by-case basis and determined by the industry in which a paying parent works, including the ability of that industry to get back going again.  For example, if a parent is furloughed from their employment, but expected to return to work by June, then it may be difficult to argue to the Court for a modification of your support obligations.  If however, you work in an industry, or at a job that may not bounce back quickly, or at all, then your chances of obtaining a modification of your child support amounts would be greatly increased.   

The other main issue that could arise, depending on the county in which you live, is how to access to Court system during Covid-19.  Back in March, the Florida Supreme Court issued orders that effectively closed courthouses throughout the State for all but essential court proceedings through the end of May.  Under the guidelines provided by the Florida Supreme Court, the lower courts throughout Florida are to try to continue court services and proceedings using whatever technology is available to them.  This means many non-essential hearings, such as child support issues, may be able to be heard telephonically or even by video until the Courts reopen to the public.  

Each county is handling these issues slightly differently, with some counties moving full steam ahead with video and telephonic hearings, while others are only hearing essential matters, so if you have questions about your child support during Covid-19 it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances.  Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law.  Contact Attorney Frank today at rfrank@cplspa.com to discuss any family or marital legal issues you may be experiencing. 

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Estate Planning in The New Normal

Great news!  If you look at some models, the peak for coronavirus deaths in Florida has already passed, and we have flattened the curve. The Institute for Health Metrics and Evaluation, suggests we passed the peak for new deaths on April 2, 2020, with 77 deaths that day. The White House has used these Metrics before, and I believe this all sounds promising for we Floridians. See  FLORIDA POLITICS

We here at The Center for Professional Legal Services, CPLS P.A., where I practice estate planning and probate law, are ready to serve you. We have a team that can go in the field to safely handle the execution of your estate planning documents, or you can travel to our office and remain in another room and have our witnesses watch through the glass to complete your estate plan documents.  As of now, we are unable to accept electronically signed Wills, as that law is not set to start until July 1, 2020.  But we can do everything else.

We are open to the public; however, we are not meeting the public face to face, just yet.  It has never been a better time to get your estate planning documents in order. Come see us at CPLS, P. A., downtown Orlando Office, it’s important to speak with an experienced attorney to discuss your specific case and circumstances. Attorney Hallie Zobel is a member of the firm’s Estate Planning Practice Group. Contact Attorney Hallie today at hzobel@cplspa.com give her a call, at 407-647-7887.

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Immigration Now!

USCIS Policy Update regarding False Claim of Citizenship

On April 24, 2020, U.S. Citizenship and Immigration Services (USCIS) announced it is updating its policy in order to follow the Board of Immigration Appeals’ (BIA) decision in Matter of Zhang. This decision held that false claims of U.S. citizenship do not need to be knowingly made to make a non US citizen (USC) deportable under the Immigration and Nationality Act (INA). This will also apply to the false claim to U.S. citizenship ground of inadmissibility. 

Under the INA, a non USC is inadmissible or deportable if they falsely claim to be a citizen of the United States for any purpose or benefit under immigration law or under other federal or state law. A waiver may be available for some individuals.

Under the change in policy, is not necessary for the government to show that the individual had the intent to claim to be a USC. This could have been done without knowing that they were falsely claiming to be a USC.

Non USC’s should consult with an immigration attorney before applying for immigration benefits in order to consider the possibility that this ground of inadmissibility or deportability could apply to them. This is especially important for those individuals that have signed Form I-9 as part of the hiring process and might not have realized that the employer selected the USC option.

If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Post-Conviction

I Pled Guilty, Can I File a Motion for Post-conviction Relief?

You were charged with committing a crime. After consulting with your attorney and based on their advice, you pled guilty. The judge sentenced you, but it was not the sentence you were expecting. Now what?

If you are in Florida, you can file a motion for post-conviction relief or, as it is sometimes referred to, a 3.850 motion. With this motion, you are asking the court to vacate your guilty plea and order a trial. 

Florida rules provide reasons that can be used to support your request, but, because you pled guilty, the reasons that you can argue are a lot more limited. And you only have 2 years after losing your appeal to file this motion. If you do not file the motion on time, you will lose this option, making the possibility of vacating your plea and getting a trial, much more difficult.

If you or a loved one pled guilty and wants to vacate their plea, contact Attorney Evelyn J. Pabon Figueroa at (407) 647-7887 or epabonfigueroa@cplspa.com to discuss your case and decide if post-conviction relief is available to you.

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The Importance of Timesharing during a Pandemic

We are certainly coping with interesting times these days that call for different ways of living. This especially holds true for those who are timesharing with the other parent. Co-parenting during or after a divorce can be challenging in itself. Couple that with coping with COVID-19 adds enough stress that can derail even the best of timesharing. What are some ways to co-parent and timeshare during this period and why is it so important?

  • Keeping the timesharing the same as much as possible.  When outside circumstances get our attention especially ones that stressful, it’s easy to focus on what you’re going through and not as much with your children. Imagine how they must be feeling if we as parents are fearful. Work with the other parent to keep this time as normal as possible especially with your timesharing. Children look for consistency during this time and change will contribute to their focus on the pandemic instead of the certainty of being with each parent.  That being said, make sure you follow any guidelines or orders from the Court and your state and local governments as it relates to the pandemic and remaining safe.
  • Most children are home and many parents are as well.  There are many homeschooling opportunities that are happening while the schools remain closed during this time. It’s important for each parent to make sure that the child’s homeschooling is kept current. It’s common for there to be different parenting styles when it comes to homework. During normal times, this can be a source of friction between the parents and needs to be addressed. As the children are being given assignments either online or other ways instead of being in school, both parents need to work together during their timesharing to make sure these assignments are completed and reviewed.

  • As children are at home instead of being in school, there are many opportunities for distraction. It’s easy for children to think they’re on vacation during this time which you can’t blame them right? This is a perfect opportunity for parents to spend time during the week with their children in ways that aren’t possible when school is in session.  Block out certain times during the day just for fun. I see many parents walking and riding bicycles with their children.  These are priceless moments to form lasting memories with our children. The rituals that are created now can be maintained when school is back in session and become new ways of bonding with your child.

Being in this pandemic is stressful with uncertainty for children and especially while during timesharing with the other parent. We can still create a safe environment for them during this time. Working together with the other parent to keep timesharing and co-parenting the same as much as possible will allow our children to move through this time easier and will less stress. Isn’t that what we want for them and us as well? Stay safe and healthy.

If you have additional questions or concerns Contact Attorney Anthony Diaz today at adiaz@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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Immigration Now!

PPP Loans & Foreign Owned Companies

The Payroll Protection Program (PPP)  is a federal loan program to assist small businesses in covering payroll and other specific costs. Small businesses apply for a loan and, if they meet certain requirements, they can request for forgiveness of the amounts owed.

When the PPP came out, the loan application included a question addressing whether the applicant was a US citizen (USC) or a lawful permanent resident (LPR). This was interpreted by many to mean that small businesses owned by non USC’s or LPR’s did not qualify for these loans. However, the actual law did not impose this requirement. In April, the loan application was amended and the question regarding immigration status was removed, making the form consistent with the wording of the law. 

What this means is that PPP loans are available for small businesses owned by non USC’s or LPR’s. Of course, non USC or LPR small business owners have additional factors to take into consideration when deciding whether to apply for a PPP loan. Some of these factors include:

  • Public charge issues: Will the administration consider the forgiveness of the loan when deciding public charge issues in future applications for immigration benefits?
  • Forgiveness of loan and the requirement that a petitioning company be able to sustain itself and its employees
  • Is there a benefit to applying for the loan and not seeking forgiveness (e.g., lower interest rates, no personal guarantee requirement)? 

Non USC or LPR small business owner should consult with their immigration and business attorneys in order to consider whether applying for a PPP to stay in business is in their best interest.

If you have questions about your immigration case,, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.

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Post-Conviction

You’ve Been Convicted of a Crime and Lost at Appeal, Now What?

You were charged with committing a crime. At the trial you were found guilty and sentenced. You filed an appeal and lost. What do you do next? If you are in Florida, you can file a motion for post-conviction relief or, as it is sometimes referred to, a 3.850 motion.

With this motion, you are asking the court to vacate, set aside, or correct your judgment or sentence. Florida rules provide reasons that can be used to support the request and in the motion you will argue that these reasons are present in your case.

You only have 2 years after losing your appeal to file the motion, except in the following situations where you have additional time:

1. The sentence exceeds the limits allowed by law.

2. There is new evidence.

3. A new fundamental constitutional right has been established.

4. You retained an attorney to file the motion for post-conviction relief but the attorney did not file the motion.

If you or a loved one has been convicted and lost the appeal, contact Attorney Evelyn J. Pabon Figueroa at (407) 647-7887 or epabonfigueroa@cplspa.com to discuss your case and decide if post-conviction relief is available to you.

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Post-conviction Relief: Attorney’s Fees & Costs

You have been convicted of a crime, lost on appeal, and are considering filing a motion for post-conviction relief. But, before you decide to hire the attorney, you have questions about the fees and costs. Many attorneys will charge you a flat fee that is high enough to cover the representation from the initial investigation phase to the hearing phase. My approach is a little different.

Before I review and investigate your case, I do not know if there are arguments that support a motion for post-conviction relief and, if we decide to move forward with the filing of the motion, I won’t know if a hearing will be scheduled until a few months after the filing. Because of this, I divide my fees into two phases:

Initial Phase: I will charge you a flat fee that will cover the review of the file and the investigation into what happened at the trial level in order to determine possible arguments in support of the motion. After this is complete, I will discuss my findings with you in order to decide if we are moving forward with the motion.

Motion/Hearing Phase: If, after we discuss my findings, you decide to hire me for the second phase, we will enter into a new flat fee agreement. Part of the flat fee will be earned at the time the agreement is signed and the other part will be deposited into our trust account. If the judge schedules a hearing on our motion, the amount that was deposited into the trust account will be transferred to our operating account and treated as earned. But, if the judge makes a decision without a hearing, this amount will be returned to you.

Costs: Sometimes we will need to pay outside parties for their services in relation to your case (e.g., ordering the transcripts of court events at the trial level, depositions). In these cases, you will be responsible for making these payments. We will contact you to discuss the amount being charged before we agree to any services/amounts.

Contact Attorney Evelyn J. Pabon Figueroa at (407) 647-7887 or epabonfigueroa@cplspa.com to discuss your case and decide if post-conviction relief is available to you.

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An Unintended Consequence

Recently, a husband and wife were having a disagreement over how to discipline their child.  This escalated into a full blown argument.  Voices were raised and tensions were heightened.  Unfortunately, a physical altercation ensued and the police were called.  One of the parents was arrested and charged with battery and a domestic violence injunction was issued.

Sadly, this happens everyday everywhere.  What made this incident different? This occurred during the times we live in now – the COVID-19 pandemic – a disease that plays no favorites and has affected everyone in some way or another.  All of us are on edge – we may have lost our job with bills that can’t be paid and uncertainty on when they will be able to.  We may have family or friends that were infected and their health in doubt or sadly have passed away.  Most if not all of us are sheltered in place or ordered to stay home which feels isolating at best.

All of these stressors that we are all dealing with were also affecting these parents.  What separated them from most of us is that they were going through a divorce.  What made this situation more difficult was they were still living together.  You see both parents lost their jobs as a result of the pandemic.  Neither parent was financially able to live independent of the other.  They were forced to live under one roof, shelter in place with no income and also struggle with the end of their marriage.  It was not surprising that these events created a perfect storm that end in physical violence.

Living with this pandemic is stressful even in the best of circumstances.  It has physical, financial, and emotional costs.  But combined with the stressors of divorce, it resulted in an unintended consequence and now the parents are forced to deal with the criminal justice system.

What would be helpful in this situation? Reaching out for support from family and friends and engaging a counselor to help in keeping the peace throughout the divorce.  During this time, its imperative that both parents have legal counsel that are supportive and cooperative in helping both of them achieve a fair and peaceful outcome.  If resources are an issue which is not uncommon during this time, a mediator can be engaged to help the parents reach an equally fair result. 

We are navigating through unchartered waters.  It can become rough and choppy during a divorce.  Make sure you have the proper guidance, direction and support to guide you during this perfect storm.

If you have additional questions or concerns Contact Attorney Anthony Diaz today at adiaz@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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How to Move Your Family Law Case Forward During Covid-19

If you currently have a pending legal matter during Covid-19 then most assuredly, you have already been informed, either by the Court or an attorney, that Covid-19 will likely cause a delay in your legal case.  In some areas of law, that may not be a big deal, such as where a large bank has their foreclosure case against a homeowner delayed, but in other areas of the law, such delays can have very real and long-lasting implications.  One of these areas of law is family law.  While most Courts throughout the state remain open in some capacity, some courts are only hearing emergency matters, so if you had a hearing or trial cancelled as a result of Covid-19, you may be wondering how and when your case will move forward.  

While each county in Central Florida is taking slightly different approaches, many Courts in Orange and Osceola Counties remain open to hear family law disputes, however, the ways in which those hearings are being conducted are changing rapidly.  Many courts throughout the state are now utilizing video conferencing capabilities, whether it be through Skype, FaceTime, Zoom, Microsoft Teams, Webex or another video conferencing platform, and the Court has adjusted, on the fly, in order to try to keep cases moving.  

In trying to provide parents some guidance during these uncertain times, local Courts are issuing temporary orders during Covid-19 addressing timesharing issues.   Some Courts have ordered that regularly scheduled timesharing should try proceed as normal, with each parent being reminded to be more cognizant of additional precautions that may need to be taken during exchanges.  Other Courts have taken a more strict approach to ensuring that stay-in-place orders remain adhered to by permitting a parent with majority timesharing to keep the children until such stay-in-place orders are lifted.  In that scenario, the parent who is being denied in-person visitation should receive more frequent telephone and video vitiations while the stay-in-place orders remain in effect, and it is also likely in many cases that a parent who is denied timesharing as a result of Covid-19 will be awarded make-up timesharing to make up for any time that they may have lost with their children.  In fact, there are local orders that state if a Court finds that a parent may have been unreasonably withholding access and contact with a child during Covid-19, then the rules of contempt would still apply and it’s possible that parent could be held in contempt of court for unreasonably restricting access and timesharing.  

If you have questions about access to your children and timesharing during Covid-19 you will want to contact a family law attorney who is familiar with the many Administrative Orders coming out from the Florida Supreme Court and local courts to ensure you know how your specific county is dealing with timesharing issues during these uncertain times.  If you feel that you are being denied reasonable access, or are not sure how timesharing should proceed for your family, it may be necessary to contact a family law attorney in order to ensure you are complying with Court orders and taking the necessary steps to keep your children protected from Covid-19.      

Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law.  Contact Attorney Frank today at rfrank@cplspa.com to discuss any family or marital legal issues you may be experiencing. 

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EVICTIONS DURING COVID-19

DEFENDING COMMERCIAL EVICTIONS DURING COVID-19/CORONAVIRUS PANDEMIC

Small businesses, perhaps more than any other enterprises, have been slammed hard by the present abrupt, catastrophic economic decline. Landlords holding leases on the premises where the vast majority of small business entrepreneurs operate are serving, or threatening to serve, eviction notices. 

Due to the combination of “stay at home” directives and general fear of contracting the deadly Covid-19/coronavirus, in-person customers for goods and services have dropped to near zero. The inevitable consequence is inability of small  business owners to meet the financial demands of their lease. It is not uncommon for the leases under which small business owners operate to not contain any reference to anything other than eminent domain or fire damage as justification for nonpayment of rent. In leases prepared prior to the business conditions which now exist, little, or no, attention has been given to what is now upon us, an economic disaster of proportions not seen since the Great Depression between 1929 and 1939.

BUT THERE IS HOPE!

Door open to new better world after coronavirus COVID-19. Hope for the future.

We at CPLS, P.A. (The Center For Professional Legal Services)  have taken the initiative for our clients.  Although there is a paucity of Florida law addressing “economic disaster” as an affirmative defense in an action for breach of contract we have found some cases which should be of help in establishing such defense in light of today’s economic conditions. 

The affirmative defense of impossibility of performance has been defined as

 “…(referring) to those factual situations, too numerous to 

  catalogue, where the purposes, for which the contract was

 made, have, on one side, become impossible to perform.” 

A major issue inherent in the “impossibility” defense is lack of foreseeability of the event upon which reliance is made. In Florida, hurricanes of certain intensities and cyclical declines in real estate values have been held to be foreseeable events in existence at the inception of the contract, thus defeating the “impossibility” defense. 

The root cause of the crash of commercial inactivity is a combination of widespread fear of contracting a deadly, highly contagious, viral disease for which there is no known cure coupled with governmental directives for the general public to self-quarantine in an effort to prevent proliferation of the disease. I suggest it is safe to argue the ensuing nationwide near total discontinuance of traditional economic activity was not foreseeable.

The concept of force majeure  is not to be confused with “Act of God”. Act of God  means “…only an unforeseeable act exclusively occasioned by the violence of nature without interference of any human agency.” A force majeure  is “(a)n event or effect that the parties could not have anticipated or controlled.” Black’s Law Dictionary, Seventh Editiion1999. 

Reservation of “Act of God” as an affirmative defense for  nonperformance  must be contained in the underlying contract in order to be available. It appears as though, in the absence of express exclusion in the underlying contract, force majeure is more likely to be successful.   

It would seem Hurricane Andrew, which swept through Florida in 1992, qualifies as an act of God as contrasted with the huge earthquake which occurred in Haiti., the latter being more clearly a force majeure.

For further information or answers to your questions, contract Attorney

J. Leonard Fleet, Esq. at jlfleet@cplspa.com



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Never Say Never

In my years of practice, I have had many clients who begin the divorce process looking at what is not working and how they can avoid the worst possible outcome.  This mindset developed many years before and continued through their marriage.  In resolving their divorce, this way of thinking is not very useful in achieving a mutually beneficial result.  In working with those who may believe their cup is half full, exploring where these beliefs came from is important but ultimately empowering them to feel that they have choices in any circumstance is the key.  Knowing that choices are available during the divorce process creates a sense of strength that helps the couple understand that they are the ultimate decision makers in resolving the end of their marriage.

Choosing Collaborative Divorce is the best solution for those who not only want to decide the issues that need to be resolved but to do it civilly, peacefully, with dignity and without the anger, emotion and fear of the unknown that goes along with traditional divorce litigation ultimately decided by the Court.  Attached is a good article explaining the Collaborative Process of Divorce.  Resolving divorce collaboratively gives the couple an opportunity to move on with their life in a positive way and not having to live in never-never land again.

If you are interested in never saying never again, you are open to the world of possibilities with Collaborative Divorce. Please call my office to find out more about how to divorce with dignity and understanding with a process that makes it easy to believe in forever knowing it can be that way.

This process works, this process is for you, there is a better way…This is Collaborative Divorce!

Click here to read Working Divorce: Using Collaborative Law Can Make for a Win-Win Divorce for All by Cicily Corbett

If you have additional questions or concerns Contact Attorney Anthony Diaz today at adiaz@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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CHARITABLE GIVING TUESDAY

According to Wikipedia, Giving Tuesday was initially started in 2011 and called Cyber Giving Monday. It was created by the non-profit Mary-Arrchie Theater Company and then Producing Director Carlo Lorenzo Garcia urging donors to take a different approach to filling up an online virtual cart with goods.[2] The push was moved to Tuesday the following year as to not compete with Cyber Monday by the 92nd Street Y and the United Nations Foundation as a response to commercialization and consumerism in the post-Thanksgiving season (Black Friday and Cyber Monday). To be logical, it seems that we should have Giving Tuesday before Black Friday, when people have a lot more money to give, right? What about giving Thursday?

There are thousands of worthy charities to contribute to, right here in Central Florida. Did you know that Florida has incorporated approximately 12,000 nonprofits per year every year for more than ten years? This is hard to believe.  

One of my favorites is the lovely project which can be found at www.thelovelyproject.org. They operate out of a church on the west side of Orlando.  The Lovely Project is a Non-Profit Organization that exists to empower girls by providing them with tools, education and peer-mentorship for living a purposeful, productive life. The mission is for every young girl to grow into a woman who will create positive impact on the world around them. 

According to a series of Gallup polls, more than 80 percent of Americans support one or more charities each year. Although tax considerations play a role, charitable planning for the purpose of eliminating or minimizing one’s tax burden is typically not the primary motivator for most estate planning clients. We represent clients of all economic status, who want to get their legal affairs in order.  I am delighted to see that the majority of Americans do give!  

Considering setting up a thorough estate plan this holiday season, as the ultimate gift for your family. Come see us at CPLS, P. A., downtown Orlando Office, it’s important to speak with an experienced attorney to discuss your specific case and circumstances. Attorney Hallie Zobel is a member of the firm’s Estate Planning Practice Group. Contact Attorney Hallie today at hzobel@cplspa.com to present the greatest gift for your family and loved ones. 

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Thanksgiving 2019

When we reach this time of year, our attention naturally moves to what we are thankful for. Many families have an annual ritual of going around the dining room table and everyone stating what they are thankful for.

There is a little book entitled “A Simple Act of Gratitude: How Learning to Say Thank You Changed my Life”, written by John Kralik. John Kralick was an attorney in Los Angeles, California, who was down on his luck in 2007.  He came upon the great idea to write 365 thank you notes in the coming year, to focus on what he did have, and be grateful, from the heart. He sets a believable example of how to live a miraculously good life.

Maybe this time of year is the right time of year to focus on the good, the positive, the gratitude.  I will go ahead and start.

I am grateful for my legal education, and all the attorneys whom I have had the privilege of practicing law with, in and around Orlando Florida.  I am grateful for the wonderful legal staff that I have worked with over the years, who have taught me more than I have taught them, if we were keeping score. Last of all, I am grateful for my former law partner, Merrell, whom I have learned so much from over the years, while laughing all the way along the path. Happy Thanksgiving. 

Considering setting up a thorough estate plan this holiday season, as the ultimate gift for your family. Come see us at CPLS, P. A., downtown Orlando Office, it’s important to speak with an experienced attorney to discuss your specific case and circumstances. Attorney Hallie Zobel is a member of the firm’s Estate Planning Practice Group. Contact Attorney Hallie today at hzobel@cplspa.com to present the greatest gift for your family and loved ones. 

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The Gift of Planning

What is the greatest gift you can give family, children, a loved one? Some would answer spending time with them, some would answer love, some would answer money, some would answer a college education. 

What about a carefully thought out estate plan, contemplating who will be in charge when you are gone, or designated persons for medical and financial decisions while you are alive?  It seems like an odd gift, doesn’t it? But I cannot think of a more important one.  According to the website Caring.com, only forty-two percent of U.S. adults have a Will. I would bet it is even less than that.

Famed rocker Eddie Money died this year. According to Celebrity Net Worth, Money may have been worth about $20 million at the time of his death. He is survived by his wife and five children, but the directives of his Will are not yet clear or haven’t been discovered.  Gosh, I certainly hope that he had a Will, to protect his estate from unnecessary taxes.  His estate will be subject to the federal estate tax for 2019, and depending on what his estate plan is, it depends on what has to be paid. Supposedly, Money sold over 5 million albums during his career.  Wow, and factoring in royalties, the estate value could be difficult to quantitate.

Considering setting up a thorough estate plan this holiday season, as the ultimate gift for your family. Come see us at CPLS, P. A., downtown Orlando Office, it’s important to speak with an experienced attorney to discuss your specific case and circumstances. Attorney Hallie Zobel is a member of the firm’s Estate Planning Practice Group. Contact Attorney Hallie today at hzobel@cplspa.com to present the greatest gift for your family and loved ones. 

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Out of Time

One of the most common themes during a divorce is the feeling that everyone is running out of time. In mediationusually, it is scheduled for a set amount of time. If it doesn’t settle there, the case is scheduled for trial which is again a set amount of time. Divorce cases in litigation have a start and endpoint and like an hourglass, the sand keeps trickling away. However, these cases do not have been resolved in this manner. Doesn’t it make more sense to allow the couple to dictate and decide how much time is needed to resolve their divorce? There must be a better way and its called Collaborative Divorce. 

The Collaborative divorce process is truly geared toward the needs of the divorcing couple. With their attorneys and neutral professionals, meetings are arranged usually two hours at a time to carefully and calmly explore the different options available to them. The first meeting is to begin discussing each of the individual needs and goals that are spelled out in the divorce agreement. There is no fixed time-frame in which to finalize a resolution. From experience, the collaborative process is much quicker and more efficient than fighting it out in court.

Although there are no deadlines, collaborative cases resolve quickly for a number of reasons. The emotion that usually exists during the divorce process is quelled through the presence of a neutral facilitator. With the couple‘s emotions kept at bay, they can focus more objectively exploring and communicating their needs in how the divorce will be finalized. This helps move the process along much easier than litigation. When the divorcing couple feels like there is a deadline such as a trial or mediation, the pressure of making a decision in that time frame with all the emotion involved tends to immobilize them thus blocking the path to resolution that is best for each.

Using the collaborative process to resolve divorces is a more effective way to make sure those involved don’t feel left out. Unlike going to court, collaborative divorce leaves people without a doubt on how their cases will be worked out. You always know what’s going on and your case never goes on far too long. You’re never out of time. This process works, this process is for you, there is a better way and this is Collaborative Divorce! And as always in-joy the appropriate theme song! Click here and enjoy Out Of Time

If you have additional questions or concerns Contact Attorney Anthony Diaz today at adiaz@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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Immigration Now:

New Merit-Based Immigration System


Last week, President Trump proposed another change to our immigration system. The President’s immigration proposal would focus on merit instead of “chance.” The proposal creates the “Build America Visa,” which would select immigrants based on a point system and features three high-skill categories:

1.Extraordinary talent,

2.Professional and specialized vocations, and

3.Exceptional academic track records.

Through this point based merit system, the number of legal immigrants selected based on skill or merit would increase from 12 percent to 57 percent. By focusing on merit instead of “chance,” admissions based on family relationships would potentially decrease.

In addition to the above change, the White House indicates that this proposal will prioritize the immediate family members of US citizens and permanent residents over other family based relationships. In the same statement, the White House refers to immediate relatives as spouses and children. Therefore, leaving parents of US citizens out of the definition of immediate relatives and possibly making the wait for admission longer. 

If you have questions about your immigration case here in Florida, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Groups. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any family or marital legal issues you may be experiencing.

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I DIDN’T GET THE STOCK?–Ex-Wife Still Treated as Shareholder of Administratively Dissolved S Corp

04 / 09 / 2019

Bonilla v. United States, 2109 U.S. Dist. LEXIS 47853 (D.Conn. March 22, 2019)
Family Law/Business Practitioners/CPAs Must Remain on Alert!!!!
Issue:  Can a wife in a divorce be taxed on a company awarded to her if the corporation is administratively dissolved years prior to the divorce and the stock certificates have yet to be transferred into her name?
Yes, says a Federal court.  Under the concept of “beneficial ownership” a federal court says.  It doesn’t matter that the S corporation was administratively dissolved years prior or had stopped filing tax returns.  It had received K-1s from a partnership, and it was addressed to the husband’s company, but used the wife’s address after their divorce.  The lawyers sent the K-1s for this S corporation, which was the husband’s 100% owned company.  The fact that the stock certificates had not been transferred over to the wife as a result of the divorce decree ordering him to do so did not matter!  Beneficial ownership had vested with the wife, under the divorce decree.
*******************************************************************
Here are the facts of the case. 
Bobby Bonilla is famous.  Bobby Bonilla played major league baseball.  Bobby Bonilla was married at one time to Migdalia Bonilla.  They were divorced on May 22, 2009 by way of a decision in Connecticut Superior Court.  In a 2009 divorce decree, the court ordered that ownership of certain companies Bobby Bonilla owned had to be divided up equally within 30 days. 
One of the companies owned by Bobby Bonilla was one called Bobby Bo Investments, Inc., which as of February, 1994, he was 100% owner, the sole shareholder, officer, director, and President.  However, the Florida Division of Corporations administratively dissolved Bobby Bo Investments, Inc. on August 25, 1995.  It was never reinstated.
Nearly a year later, Ms. Bonilla filed a Motion for Contempt, claiming that Bobby Bonilla had not yet done this.  At a hearing in May, 2010, Mr. Bonilla’s counsel represented to the court that Bobby Bonilla was willing to give his ex-wife all of the companies other than Bobbie Bo Investments, Inc. (“BBI”), a Florida corporation.  Mr. Bonilla’s counsel filed a moton to amend the 2009 decree as part of an effort to keep BBI.
On December 14, 2010, the court held a hearing at which time it was discussed that no transfers of stock certificates for BBI had occurred.  At the hearing, the parties agreed that Ms. Bonilla “will actually be the owner and “will have ownership of” BBI.  The burden to effectuate a transfer of the interests was placed on Ms. Bonilla’s counsel.
Despite being administratively dissolved, BBI in fact held Bobby Bonilla’s interest in a LLC company known as Performance Imaging.  For many years, BBI contributed money to Performance Imaging, but did so from Bobby Bonilla’s personal income.  Bobby Bonilla first invested money into Perfomance Imaging in 1996, contributing $100,000.  Perfomance Imaging had other “investor members” and K-1s were issued each year to them.  Perfomance Imaging never made income distributions to its members, nor has it covered members’ tax costs.
The K-1s for Performance Imaging as issued to BBI liste it as having a 69.51 percent interest in profits, loss, and capital. 
BBI did not even file S corporation tax returns in the years 2009, 2010, or 2011.
On September 16, 2010, Ms. Bonilla received the BBI Performance Imaging K-1 via e-mail.
On September 30, 2011, Ms. Bonilla’s attorney sent Performance Imaging a copy of the 2009 divorce decree and a transcript of the Decembrer 2010 hearing, and her address.  The address listed for BBI on these Performance Imaging K-1s for the years 2010 through 2016 are Ms. Bonilla’s residence.  Each year, Ms. Bonilla forwarded these K-1s to her accountant.
For the 2010 tax year, the BBI Performance Imaging K-1s reported business income of $908,871.
For the 2011 tax year, the BBI Performance Imaging K-1 reported busienss income of $61,112.
The IRS conducted a TEFRA audit of Performance Imaging.  (A TEFRA audit was mandated because Performance Imaging was a LLC, with a S corporation as one of its members).  As a result of this TEFRA audit, the IRS determined that Performance Imaging’s ordinary business income was understated, and should have been $1,122,706, but Ms. Bonilla did not report ANY portion of BBI’s portion on her 2010 and 2011 tax returns.  
The IRS came in, and automatically increased Ms. Bonilla’s ordinary income by $780,393, and $55,117, equal to 69.51 percent of Performance Imaging’s corrected 2010 and 2011 ordinary business income.  These adjustments resulted in assessments of tax by the IRS against Ms. Bonilla of $235,783 and $19,291 for the 2010 and 2011 tax years.  When fees and penalties are added, Ms. Bonilla owed to the IRS $323,164, $21,871.74 for the 2010 and 2011 tax years.
Ms. Bonilla eventually pays these tax liabilieis on April 11, 2016, and then files a claim for refund, which the IRS administratively then denies on October 3, 2016.  While the Government eventually conceded that $372,023 of the $780,393 increase to Ms. Bonilla’s income for the 2010 tax year was incorrect, and directed the IRS to abate the  tax, penalties, and fees levied against Ms. Bonilla to this extent, they refused to abate the amounts any further.  
This led to the Federal refund suit. 
One of the first arguments raised by the Government was that the “variance doctrine” precludes the court from reviewing Ms. Bonilla’s claim BBI could not have acquired an interest in Performance Imaging because BBI had been administrative dissolved and that any agreement reached at the December 2010 hearing resulted in an unenforceable agreement “to agree.”
The court looked at Ms. Bonilla’s administrative claim.  In that claim, she specifically argued that against the IRS’ determination that she was the owner of BBI (and not contesting issues related to the TEFRA audit of Performance Imaging).   However, the administrative claim made no mention of BBI’s ability to obtain an ownership interest in other companies–and specifically, made no mention of the argument that administrative dissolution itself barred BBI from holding an interest in Performance Imaging.  Therefore, the Federal Court ruled that it was without jurisdiction to rule on the merits of that particular argument.
Ms. Bonilla’s administrative claim did not expressly make the argument that the divorce proceedings court decree was an unenforceable “agreement to agree.”  However, the Federal court noted that her stated view in her claim was that the divorce proceedings were insufficient to transfer ownership of BBI from Bobby Bonilla to her.  In other words, whether or not an effective transfer of ownership took place was the focus of her administrative claim and Ms. Bonilla took issue with the IRS over its finding that she was the owner pursuant to the divorce proceedings.  Thus, the court found that this was not a substantial variance from the arguments put forth in the administrative claim.  Thus, the Federal court found that it did have jurisdiction to address this particular argument.
The Federal Court held that there was no genuine issue of material fact as to whether the parties intended to enter into an agreement to resolve all outstanding divorce issues at the December 2010 hearing, including in particular, ownership of BBI.  With a court approved stipulation and order, this was sufficient and deemed akin to a judgment obtained through litigation. 
Ms. Bonilla then argued that she should have been awarded summary judgment because the IRS “improperly determined her ownership interest in BBI without first issuing a statutory notice of deficiency.”  This she could not do becasue the question before the court is limited to whether a genuine issue of material fact exists as to whether Ms. Bonilla overpaid her tax.
The court then turned to whether Ms. Bonilla was entitled to summary judgment on the arguments that BBI, as an administratively dissolved corporation, could not transfer its shares to her, that Ms. Bonilla was never issued any BBI shares under Florida law or the UCC, and Ms. Bonilla was not a beneficial owner of BBI in 2011 or 2011. 
The Government contends that summary judgment should be awarded in its favor because irrespective of whether Ms. Bonilla received legal title to BBI shares, she was a beneficial owner of BBI in 2010 and 2011.  
The Federal Court agrees with the Government.  First, the Federal court finds that pursuant to the divorce decree, ownership could be transferred, and that the Government is right–for federal tax purposes, stock ownership is determined by beneficial ownership, not legal title.  Second, that there is no genuine dispute of material fact that Ms. Bonilla was a beneficial owners of BBI during the tax years in question.  The Federal Court looked at whether it was required to apply the factors set forth by the Tax Court in Dunne v. IRS, T.C. Memo 2008-63.  The Federal Court then established that it is not bound by Dunne, that it was state law that was to determine whether a taxpayer has a beneficial ownership interest.  Since the divorce decree issued in May 2009 ordered that BBI was to be divided equally by the parties within 30 days from the date of the decree, it was after expiration of these 30 days that Ms. Bonilla had an enforceable interest in a 50% interest in BBI.   Then, in December, 2010, when the parties entered into an enforceable agreement, later incorporated into court order, that resolved all outstanding issues in the divorce, such that beneficial interest in all of BBI rested with Ms. Bonilla as of December 14, 2010.  
As an aside, the Federal court points out that Florida courts have held that one may be a beneficial owner of stock, notwithstanding the lack of legal title to the same.  Smallwood v. Moretti, 128 So.2d 628, 629 (Fla. Dist. Ct. App. 1961); Phillips v. Zimring, 284 So.2d 233, 235 (Fla. Dist. Ct. App. 1973); Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1145 (Fla. Dist. Ct. App. 2008).
By their ruling, the Federal court thus held that the beneficial owner of shares in an S corporation is liable for the taxes owed on her pro rata share of the corporation’s income, regardless of whether distributions are made.  See 26 C.F.R. Section 1.1366-1(a).  Here, three is no genuine issue of material fact that the Connecticut divorce vested beneficial ownership of BBI in Ms. Bonilla, as to half of the company, at least 30 days following the 2009 Divorce Decree and, as to all of the company following the December 2010 hearing.  Thus, Ms. Bonilla was responsible for the taxes owed on her pro rata share of BBI’s income in the 2010 and 2011 tax years.” 

If you have any questions or need assistance with K-1 or 1099 issues, T. Scott Tufts is able to address these and can be reached , please contact Mr. T. Scott Tufts Senior Tax Counsel at CPLS, P.A., 407-647-7887.

How to Choose a Mediator

The right of self-determination in mediation, and the parties’ first attempt at collaboration, starts from the decision to mediate (if not mandated by an agreement, order, or statute), and from the act of choosing an appropriate mediator.  Their right to self-determination on the issue of choosing a mediator, whether that choice is based on cost, qualification, experience, ability, effectiveness, or on any other basis, is critical to framing the mediation and to their hopes of success. Therefore, it is very important that the mediating participants are comfortable with the choice and that they are confident that the mediator of choice will be able to help them resolve their dispute in an effective, compassionate, and thoughtful way, and at a reasonable price.  If there is any degree of discomfort, regardless of the reason, it is the right decision to look for another mediator.   Here are some of the issues the mediating parties should consider as they consider who to choose as their mediator:

The mediator should have more than one tool in his/her tool belt.  If he/she only has a hammer, then he/she may only see nails.  For example, your mediator should be knowledgeable and skilled at various conflict resolution models, including, but not limited to the following:

The Thomas-Kilman Conflict Resolution Model – The mediator should understand the conflict between negotiating parties’ desire to satisfy their own interests and concerns, and the interests and concerns of their counter-part. This requires an understanding of the five basic conflict resolution styles used, the pros and cons of using them, and how to help the parties navigate from one to the other. The five styles are: 1) Competition; 2) Avoidance; 3) Accommodation; 4) Compromise; and 5) Collaboration.  A skilled mediator will be able to recognize the style being used and help the parties move from Competition to Collaboration, which dramatically increases the likelihood of reaching an agreement at mediation.

The Conflict House Model – The mediator should understand how to help the parties have difficult conversations in a constructive way without alienating each other with trigger words or acts, attacks, micro-aggressions, etc…  Using this model, a skilled mediator will be able to help the parties, and their lawyers, set a constructive and positive tone before the mediation starts in a confidential pre-mediation conference. Done effectively, on the date of the mediation, the parties can avoid derailing the mediation, and the opportunity to reach an agreement, at the beginning of the process.

The Empathy Model – The mediator should understand how to help the parties recognize their inherent empathy for the other parties, and build on that empathy and understanding.  If done effectively, throughout the process the increased empathy will help the parties focus on the critical underlying interests, as opposed to positions. This also accelerates the potential for an agreement.

The Value Creation Model – The mediator should understand how to help the parties use the information they know about each other, and that they learn during the mediation process, to create a value proposition that will help the mediating parties do the jobs they have to do regarding the conflict, reduce the pains experienced, and increase the opportunities for the mediating parties to get the gains they want.

The Speed of Trust Model – The mediator should understand that trust has several waves, including self-trust, relationship trust, organizational trust, market trust, and societal trust, and how to help the parties demonstrate: 1) their integrity while acknowledging the other side’s integrity; 2) their intent in a constructive way while seeking to understand the other side’s intent without attacking or feeling attacked; 3) their capabilities and the other’s side’s capabilities, and hone in on the relevance; and 4) the ability to produce results on both sides, which is critical to an effective mediation agreement.

The Behavioral Model – The mediator should understand how his/her behavior and the behavior of the mediating participants affect the mediation process, and consciously work towards modeling the right behaviors, and encouraging the same with the mediating parties. Here is a list of the behaviors:

                        Taking Straight

                        Demonstrating Respect

                        Creating Transparency

                        Righting Wrongs

                         Showing Loyalty

                        Delivering Results

                        Getting Better

                        Confronting Reality

                         Clarifying Expectations

                         Practicing Accountability

                         Listening First

                         Keeping Commitments

                         Extending Trust

                         Inspiring Trust

The Action Plan Model – The mediator should understand how to help the parties create a reasonable and workable action plan.

The Transformative Model – The mediator should be able to help the parties transform from feeling victimized to feeling empowered during the mediation process. This is critical, as mediation is based on self-determination.  A good mediator will understand how to help the parties transition from the feeling of being a victim to the feeling of empowerment, which helps them move from competition to avoidance, to accommodation, to compromise, then finally to collaboration, which may mean that the mediator has to be skilled at helping the parties move through the 5 steps necessary to get there. 

The mediator should have a high degree of emotional intelligence. The mediator should be able to regulate his/her own behavior in such a way as to take a leadership role during the mediation, understand how to regulate his/her relationship with the parties and their counsel, and help the parties regulate their relationship so that they do not alienate each other, but work constructively towards a common resolution.

The mediator should have relevant and extended experience as a mediator. A novice mediator, including a mediator who is transitioning into mediation as a second career (such as a retiring attorney or retiring judge), usually does not have the knowledge, skills, experience, and abilities to be as effective as a mediator who has been mediating for several years.   In their professional life cycle as a mediator, they are, in essence, baby mediators. While these mediators may have the core subject matter knowledge and experience, they still need to develop their mediation knowledge, skills, and abilities to be effective.  Ideally, the mediator should be entering the prime of his/her professional career as a mediator.

A mediator with some gravitas can be useful. An experienced attorney, a retiring attorney or retiring judge may have the gravitas built up from their years of experience and/or former profession, which can be helpful to instill a sense of confidence in the parties and their lawyers. This gravitas can be especially helpful in cases where the parties are looking for “parental” guidance in the processor will rely on the mediator for an evaluative approach.

Consider the value of using a mediator that will give you the best chances of resolving your dispute before going to court.  Paying a “good” mediator a higher rate before litigation can save tens of thousands of dollars in litigation costs.  A day of mediation can cost the parties approximately $2,000.00 each with an experienced mediator who charges $500.00 per hour, whereas prosecuting and defending a lawsuit usually ranges, at the low end, $25,000.00 in lawyers’ fees, plus costs (including another mediation before trial).  Litigation costs can easily exceed $100,000.00, depending on many factors, before a final resolution.  In addition to the financial costs, there are emotional costs, lost opportunities (opportunity costs), and loss of time, and relationship loss, which can compound the “expense” of litigation.

When lawyers in a case choose the mediator the lawyers should fight the urge to use a colleague or friend as a mediator because of their personal or professional relationship, and should, instead, focus on the above factors, and other relevant factors such as subject matter expertise.

For more information on how to choose the right mediator for your case, how to become a mediator, or how to develop the knowledge and skills you need to be effective in mediation, please email me at attorneypersad@cplspa.com.  I am also available to mediate your cases.

Inmigración Ahora: Proyecto de Ley Inmigratoria & Cambios en el Programa de Asilo

In English

Proyecto de Ley Inmigratoria

El Presidente Biden envió un proyecto de ley inmigratoria al Congreso de Estados Unidos que incluye lo siguiente:

  1. Una vía para que inmigrantes indocumentados que se encuentren en el país el 21 de enero de 2021 obtengan la residencia permanente luego de 5 años, seguidos de una espera de 3 años para poder obtener la ciudadanía.
  2. Eliminar la prohibición de admisión a Estados Unidos por 3 o 10 años como resultado de haber estado en el país sin autorización.
  3. Proveer asistencia legal a menores de edad y otras personas vulnerables que se encuentran en procedimientos en la corte de inmigración.
  4. Enfoque en tecnología inteligente para el manejo en la frontera, incluyendo la modernización de la infraestructura en los puntos de entrada al país.

Solicitantes de Asilo serán admitidos al País

Durante la administración del Presidente Trump, las personas que estaban solicitando asilo en la frontera sur de Estados Unidos eran enviados a México para que esperaran por sus vistas en la corte. La administración actual terminó este programa y creó un plan para permitir la entrada al país a aquellas personas que están en México esperando por su vista.

La primera fase del plan comienza el 19 de febrero. Aquellas personas que están en México en espera por su cita pueden verificar cuando y donde van a poder entrar al país a través del servicio telefónico o en línea creado por la agencia.

Cancelación de los acuerdos con Guatemala, Honduras, y El Salvador

El Presidente Biden suspendió y comenzó el proceso de cancelar los Acuerdos de Cooperación en Asilo con Guatemala, Honduras, y El Salvador. Estos acuerdos proveen que aquellas personas que están buscando solicitar asilo en los Estados Unidos pueden ser enviadas a unos de estos tres países para que soliciten asilo ahí, en vez de en Estados Unidos. Esto aplicaba a toda persona, aunque no hubiesen viajado por ninguno de esos países en su travesía hacia Estados Unidos.

Si desea hablar con un abogado sobre sus opciones inmigratorias, contacte a Evelyn J. Pabon Figueroa al (407) 647-7887 o a epabonfigueroa@cplspa.com.

Immigration Now: Executive Orders on DACA, the Muslim Ban, and the Border Wall

Si desea leer esto en español, haga clic aquí.

During his first day in office, President Biden signed several Executive Orders that affected immigration in the US. 

DACA

The President instructed the Secretary of Homeland Security, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA. DACA, or Deferred Action for Childhood Arrivals, instituted in 2012, deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military. It allows eligible individuals who pass a background check to request temporary relief from removal and to apply for temporary work permits.

Muslim Ban

The President revoked a series of Executive Orders and Proclamations that banned the entry into the US of individuals from primarily Muslim countries and ordered the Embassies and Consulates to resume visa processing.

Border Wall

President Biden terminated  the national emergency at the southern border, which was originally declared by Proclamation 9844 of February 15, 2019 (Declaring a National Emergency Concerning the Southern Border of the United States).  The policy of the new Administration is that no more taxpayer dollars will be diverted to construct a border wall and all current construction on the wall shall be paused.

If you would like to talk to an attorney to discuss your immigration options, contact Attorney Evelyn J. Pabon Figueroa at (407) 647-7887 or epabonfigueroa@cplspa.com.