Author Archives: Lance Malcolm, Esq.

About Lance Malcolm, Esq.

I am a litigator with a broad array of legal experience. I hold a Bachelor of Arts degree from the University of Florida (2006), and earned my Juris Doctor from Loyola University College of Law, New Orleans in 2012. During law school, my passion for social justice was honed by two summers as a legal clerk working in Criminal Defense. First selected as a participant in the Orleans Public Defenders Office’s ‘Summer Internship’ program, and then in private practice, I worked extensively on a gamut of criminal defense matters including Appellate and 4th Amendment cases. I also bring more than 3 years of plaintiff-side experience having worked on high-profile product liability and medical malpractice suits, as well as personal injury. Among my honors received in law school, I earned Top Paper in Trial Practice.

Pennsylvania Changes Rules of No-Fault Divorce

It’s been a while in coming, but as of October 4th, 2016, the waiting period for a no-fault divorce in Pennsylvania has been reduced from two years to one.  Signed into law by Governor Tom Wolf, the practical effects of the legislation are substantial.  As a practitioner, for instance, I can attest to bemusement clients understandably felt and expressed when they learned that, absent the cooperation and mutual consent of the other spouse, the client had no recourse but to wait two years for his or her divorce decree.  I have also heard the aggravation felt by judges and court administrators in reviewing chronically backlogged dockets, which invariably weighed-down by divorce filings taking the full two years to conclude.  Therefore, halving the statutory wait-time will no doubt force a much needed sense of rapidity to what inherently must feel like an interminable process.  Indeed, many people, including qualified professionals working in the divorce field, had roundly criticized the previous two-year period as nonsensical and/or counter-productive.  At least tacitly, one of the supposed purposes of the heretofore two-year wait time was to encourage parties to reconcile.  However, contrary to such salutary rationale, there has not been much in the way of empirical evidence showing that the wait period achieved that purpose.  To the contrary, as indicated by Doylestown attorney, Mary Cushing Doherty, in her interview with the Morning Call – “…what we’ve learned is that a long mandatory separation period doesn’t help people reconcile…Sometimes the people who were benefiting were manipulators…sometimes they were lawyers dragging out [billable] hours.”  Other commenters have pointed out that to the extent the wait time encouraged rapprochement, there is little logic to believe that one year is not sufficiently long enough for parties to work on their relationship.

I agree.  As a legal action, the purpose of divorce is generally not intended to cause acrimony but rather facilitate the “orderly and just dissolution of a marriage”, as aptly stated by PBA President Sara Austin.  No-fault divorce under Pennsylvania law is intended to be a natural corollary to mutual no-fault divorce (Sec. 3301(c) of the Pa. Divorce Code, requiring only a 3-month waiting period).  In either iteration of divorce, the clear and stated objectives have everything to do with addressing issues of child custody (where applicable), disposing of joint assets, liabilities, other purely economic concerns.  Fault-divorce, which is contingent on a spouse alleging some wrongdoing as a basis for divorce, is rarely ever resorted to as it generally deemed irrational for failing most any cost-benefit analysis. See Sec. 3301(a) of the Pa. Divorce Code.

Sponsored by Luzerne County State Representative, Tarah Toohil, the specific legislative amendments effected by Act 102 are essentially two-fold.  Most significantly, of course, the legislation makes change to Sec. 3301(d) of the Pa. Divorce Code, which had previously articulated the two-year wait period.  However, also of note, the Act also amends Sec. 3323 to include language mandating that courts now consider the economic protections of minor children before granting a bifurcation (i.e. a final divorce decree pending resolution of other matters related to the separation).  This other aspect of Act 102 is consonant with statements made to the press by Representative Toohil: “Divorce is always difficult, especially for the children who may be involved… By reducing the waiting period to one year, the emotional trauma is far less for children whose family situation is being decided more quickly. In addition, the shorter waiting period allows the couple’s financial situation to be resolved more quickly and at less expense, so they can tend to their children’s well-being.”

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ATTENTION: The 9th Circuit amends the 2nd Amendment…

The last time I checked, neither state government nor the Courts had any power, real or imagined, to amend the U.S. Constitution.  A recent ruling from the 9th Circuit, however, suggests maybe I need to check again.  In a decision that confounds common sense, plain reading of the Constitutional text as much as it creates a legal non-sense, a divided 9th Circuit upheld Cal. Penal Law §25400 and §25655, which generally makes it unlawful to conceal carry firearms in public AND limits a license to conceal-carry to a finding of “good cause” by the issuing sheriff.  Peruta v. San Diego, 2016 WL 3194315 (9th Cir. June 9, 2016).

The procedural history of this case is itself dubious.  First, it should be noted that Peruta technically consisted of consolidated cases wherein plaintiffs challenged essentially the same local (county-level) iteration of §25400 and §25655.  The named plaintiff, Peruta, brought a Second Amendment suit against the County of San Diego.  Interestingly also, this case was the 9th Circuit’s rehearing and reversal of its own decision in Peruta I (742 F.3d 1144 (9th Cir. 2014)) wherein an en banc panel of the 9th had previously found good cause requirements unconstitutional.  The Sheriff of the San Diego, after Peruta I, declined to appeal for a rehearing, but that’s where the state of California intervened – prompting a hearing before the full Court – Peruta II.  San Diego county’s iteration of the good cause requirement defines such as…

…a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.  Simply fearing for one’s personal safety alone is not considered good cause.

The other case – Richards v. Prieto, Cnty. of Yolo, involved the named Plaintiff, Richards, bringing suit on the same grounds as plaintiff Peruta, but against Yolo County’s own version of the good cause requirement.  Amazingly, the County of Yolo does not bother to even define good cause (as if the concept wasn’t vague and arbitrary enough under California state law), rather the County instructs its residents that there are certain circumstances which, definitively, do or do not give rise to good cause.  Among those circumstances:

Victims of violent crime and/or documented threats of violence [yep]

Self protection and protection of family [nope]

Business owners who work all hours in remote areas and are likely to encounter dangerous people and situations [yep]

Personal safety due to job conditions or duties placed on the applicant by their employer [nope]

In a written opinion of truly amazing acrobatics – The 9th Circuit somehow sidestepped the very plain language of the Second Amendment, and also putatively avoided going as far as (explicitly) finding that the Second Amendment ensures no right, whatsoever, to publicly possessing a firearm for self-protection(“That question was left open by the Supreme Court in Heller, and we have no need to answer it here.”)  The problem is, California law also forbids open-carry, pursuant to Cal. Penal Law §26350.  Therefore, as a practical matter now, a private citizen cannot legally possess firearms in public for the purpose of self-protection.  Oh well, the catch-22 there was clearly not a concern for the Court.  Isn’t the narrow grounds approach to jurisprudence refreshing?

Irrespective of whether the reader belongs to the so-called textualist school of judicial philosophy, or that of the living Constitution, the ruling has to be seen as a baffling one.  I could have sworn that the Second Amendment states, in relevant part, “…the right to keep and bear arms shall not be infringed.”  Webster’s Dictionary includes the following definition of the word “bear” as including “to produce” and/or “to bring forth”.  Further, the Constitutional Convention’s inclusion of “bear” after stating “keep” rationally indicates that keeping and bearing are not one in the same thing – that the latter is an additional right, not to be confused with the former.  Sure, the Court engaged in an expansive quest for historical precedent to state’s prohibiting public carrying of weapons, but precedents can be found from the reverse side as well.  The writer finds it indicative of the weakness of the Court’s opinion that a majority of the 9th Circuit’s historical assessment looked to monarchical English history, first and foremost.

Well there you have it, the 9th has effectively taken the “bear” out of “…keep and bear arms…” – an amendment, as I see it.  Who needs Congress or a Constitutional Convention when you have overreaching judges.

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United States v. Texas

Here at the Prince Law Blog, we have been committed to providing continued coverage of what is quickly proving to be among the most definitive cases of the SCOTUS’s current calendar year – United States v. Texas.

The last we blogged, the United States had promptly appealed the split decision of the 5th Circuit Court of Appeals, which itself had upheld a U.S. district court injunction against the President’s executive action known as DAPA (Deferred Action for Parents and Lawful Permanent Residents).

SCOTUS granted certiorari, and oral arguments were heard yesterday…and the world waits with baited breath.

One thing is certain, the current post-Scalia dynamic of the Court will have an exceptionally large bearing on the result.  According to creditable accounts of yesterday’s arguments, there were many pointed exchanges between counsel and Justices all seeming to portend a stark split among the justices (the 4 liberal-moderates on one side; the 3 conservatives on the other).  Therefore, most of the pundits are especially fascinated with the line of questioning from the potential swing voter(s), Roberts and Kennedy.  Also, it should be noted that a 4-4 split decision would NOT result in a precedent, meaning the decision of the 5th Circuit would remain in place.

To briefly recap, the questions before the Court are as follows:

  • Do the (26 plaintiff) States have standing to challenge the Administration’s exercise of deferred action/prosecutorial discretion? More specifically, does the state-borne cost associated with providing drivers’ licenses to beneficiaries of deferred action qualify as an injury or harm under normative jurisprudential standards?

 

  • Does the DAPA program go beyond the powers conferred to the Executive by Congress? In other words, is DAPA merely an extension of the President’s right to enforce immigration law or is it indicative of the President purporting to create new law (therefore invading the Congressional province)? Relatedly, has the President violated the Take Care clause of the Constitution by abdicating his duty to “faithfully” carry out immigration law.

 

  • Must DAPA be considered void for not technically following the Notice and Comment requirements of the APA?

 

As this blogger sees it, the most unfortunate aspect of this case, as I mentioned previously, is that the outcome might yet be influenced (if not hijacked outright) by sheer bloody-minded politics.  Instead of a reasoned, purely legal and/or textual assessment of a) the powers of the Executive branch in the context of setting immigration policy; b) whether an administration’s immigration policy can even be challenged in court; c) the lengthy history of the Executive branch’s use of prosecutorial discretion and deferred action programs and other non-extraneous factors, the furor here seems more to be about conservative outrage that the current Administration has made a decision that they do not agree with in principle.

It is a pity that, when it’s all said and done, no points might be given to the Administration for taking initiative in tackling, as best it knows how, arguably the biggest socioeconomic and humanitarian issue in the United States today.  Is it realistic or even decent governance to expect the more than 4 million persons present without legal status can be expected to continue to live in the shadows perpetually?  Do we really imagine that we can simply deport all these people without enormous cost, both financial and social?   In this bloggers humble opinion, this case is about politics making an issue out of pragmatism, and attempting to coopt the law in that effort.  Where Congress has failed to act, the President apparently has.  Now leadership is branded as lawlessness.  Go figure.

The folks at Scotus Blog, typically thorough fashion, have done a wonderful job putting together a United States v. Texas “symposium” – a series of discussions having a diversity of learned viewpoints on the case.

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LINK TO IMMIGRATION LAW SEMINAR

Hello all, I recently blogged about Prince Law’s launch of a new, interactive, seminar format, through JITSI.

As promised, here is the link to the Seminar: jitsi.princelaw.com/plo 

Please join me at 6:00 PM this evening for a short but informative seminar on Family-based Immigration Benefits.  Hope to see you there!

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Join Us, 04/08/2016, for Live Immigration Law Video Seminar!!

On behalf of Prince Law Offices, P.C., I am pleased to announce that the firm’s attorneys will be utilizing new technology to host informative live video sessions devoted to the various areas of practice we cover: Firearms Law, Workers’ Compensation, Immigration, Civil Rights, Social Security, Corporate Law, Energy Law, Criminal Law, Wills Estates, Family Law, and Civil Litigation.

Please join us for the pilot launch of these sessions, next Friday, April 8th at 6PM, where I will be leading a 1/2 an hour discussion on Immigration Law issues related to Family Immigration benefits, including application requirements, filing fees, time-frames, and new developments in the law.

The program we shall use is called  JITSI,  a new open-source platform which will permit our participants’ full interaction with the seminar including video and voice access by which to share comments and questions.  There is no cost to attend.  Further, there are no limits on the number of possible participants so please, by all means, tell your friends, colleagues, family members, etc., about this exciting new program.

Please note in advance that the purpose of these seminars is to provide general information concerning the previously mentioned areas of law, and not to respond to or offer advice concerning individual legal issues.

At 5:45PM on April 8th, I will post the link for interested parties to join me in the Immigration Law seminar.

Stay tuned for the link and I hope to see you on the 8th.

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The Other Crisis

The Situation

Previously on this blog we have brought you coverage of Europe’s deepening refugee crisis.  An unprecedented event, that Crisis will surely have lasting impact beyond Western and Southern Europe, where waves of humanity escaping the Syrian War and other destabilizing events of the Middle East and Northern Africa continue to seek entry.  Indeed, despite our geographical separation from that event, the people of the United States have nevertheless been keenly aware and interested in what has credibly been described as the worst displacement of people since World War II.  For good or bad, the European crisis has further been a hot-button topic this campaign year with fears abounding about the United States accepting a role in placing numbers of refugees from the affected regions.

Crucially though, there is an equally serious, be it relatively lower-level, humanitarian crisis which has been underway for the better part of the last decade. Unlike the Syrian refugee crisis, this other crisis hits much closer to home and has affected all our lives in far more immediate ways. What I refer to is the sharp influx of migrants, especially women and/or unaccompanied children from Central America, seeking asylum in the United States. More specifically, the United States has seen a five-fold increase in the number of asylum seekers arriving from a handful of especially troubled Latin American countries. These countries consist of what is known as the “Northern Triangle” region of Central America: El Salvador, Guatemala, and Honduras.

According to the Council for Foreign Relations, nearly 10% of the residents of the Northern Triangle countries have left for the United States. In 2013 alone, some 2.7 million people born in either El Salvador, Guatemala, or Honduras were living in the United States. A number up from the estimated 1.5 million in 2000. Far and away, these migrants have cited continuous and systemic violence in their countries as the primary reason for seeking entry into the United States by unlawful means. And apparently so compelling are these abuses that some 82% of women arriving from this region pass the Credible Fear assessment utilized by USCIS/DHS to determine qualification for asylum

The identifiable causes of the rampant violence in each country are diverse, but common themes include gang activity, drugs, vestiges of civil war, and cultures of political corruption. Arrivals from the Northern Triangle invariably relate harrowing tales of torture, extortion, rape, domestic abuse and other maladies of societies gone horribly wrong. Honduras has long been considered the murder capital of the world with a reported murder rate of 91.6 murders per 100,000 people. In 2015, the reported homicide rate in El Salvador more than doubled making it, currently, the most violent country in the world not at a state of war.

 

Why do they come?

A part of my previous blog was dedicated to pointedly rebutting the notion that refugees leave their places of turmoil due to anything other than a last resort. What we discover when looking at the growing Latin American refugee crisis is much the same – becoming a refugee is virtually never perceived by such person as an option. That is similar to the statistical evidence available on the Syrian refugees, data overwhelming point to several confounding facts: i) refuges risk the trip to a foreign country forewarned of the dangers inherent in such a journey; ii) make the trip forewarned of a possibility of immediate deportation and/or detention and iii) with the foreknowledge that they may never see family and loved ones again. In the case of Latin American refugees from the Northern Triangle countries seeking safety in the United States, the foregoing awareness is especially well-founded. Beginning in January of this year, the DHS has stepped up immigration enforcement specifically against newly arrived (i.e. post-2014) members of Northern Triangle nationals present in the United States, including expediting the removal process. Thus the message from U.S. Immigration has been loud and clear – venture to the U.S. at your own risk.

What is strange though is that the evidence suggests that the intended recipients of the message have gotten it yet continue to seek out our borders – why?

Statistics from U.S. asylum interviews of women from the Northern Triangle countries reveal that more than ¾ stated they knew that overland journey to the U.S. would be dangerous or involve risk of life or bodily harm. A DHS study conducted on this refugee phenomenon in 2014 concluded “Salvadoran and Honduran children…come from extremely violent regions where they probably perceive the risk of traveling alone to the United States preferable to remaining at home.” A 2014 Latin American Population Opinion Project (LAPOP) of Hondurans stating an intention to risk undocumented immigration to the United State indicated that 86% believed that the journey would be more difficult than in previous years. 80% of that same reporting group indicated that they believed the chances of deportation upon arrival in the United States had increased in comparison to previous years.

What all this demonstrates is that there is an inverse relationship between policies of deterrence and undocumented migrant travel from the Northern Triangle countries to the U.S.. Put another way, the exodus continues irrespective of the clear and present dangers posed to refugees.

Solutions?

Anyone who proposes to have the singular answer to the question of how to humanely yet effectively stem the tide of a major refugee crisis should, in my opinion, be handed the Nobel Peace Prize, head some internationally renowned think tank, or both. What I’m saying is, I don’t purport to hold any definite answers. However, in light of what is increasingly becoming obvious of the United States’ failing and misguided strategy of aggressive deterrence, I think it may be time to turn our efforts towards supporting elements of stability and prosperity within the countries spawning the crisis. Refugees simply don’t come from places with working democratic systems of government, effective branches of law and justice, or from places with respectable standards of living. To put this point in context, according to this instructive CNBC article, the cost of building just 1 mile of fencing at the U.S. Southern border averages between 2.8 and 3.9 million dollars. If the United States funneled that same money into, say, nonprofit organizations working within many of the Northern Triangle countries, committed to improving the lives of women, children or towards supporting progressive political reform, wouldn’t that be tax payer dollars better spent?

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EB-5 Investor Program Shake-up?

Last week Tuesday and Wednesday, February 2nd and 3rd, Congress held hearings on proposed changes to the United States’ Visa-Investor program, EB-5.

The popular program was launched by Congress in 1990, as part of the omnibus Immigration Act of that year. Essentially, the program’s purpose is intended to stimulate and strengthen the economy by giving foreign businesspeople a pathway to permanent residency and eventual citizenship in exchange for a significant investment, in the form of a business venture. The program has grown in the ensuing decades but not without controversy, including numerous allegations of fraud and other impropriety – leading to several overhauls in that time, in the 1990s and 2000s. The last set of official changes made to the program were in 2009 where processing of applications were centralized in the California Service. It should be underlined that the program is not permanent; however, it has consistently been reauthorized.

Nevertheless, a number of important players in the making of U.S. Immigration policy, including the Secretary of the Department of Homeland Security, and several members of the Senate Judiciary Committee, have refocused our collective attention on persistent problems with the program.

The Congressional hearings discussed changes intended by the “EB-5 Integrity Act of 2015”, which include scrutiny and modification of: Investment Amounts, Targeted Employment Area Definitions, Job Creation Requirements, Processing Changes, Documentation Requirements, Source of Fund Criteria, and Regional Center Oversight and Compliance. A possible counter-point though – in exchange for many of these prospective changes aimed at reigning-in ongoing problems with the program, the proposed Senate Bill would actually make the program permanent, eliminating the Congressional reauthorization.

The current iteration of the authorized EB-5 program has the following general requirements:

1) $500,000 for investments in a Targeted Employment Area (TEA) – either rural or high employment.

2) $1,000,000 for non-TEA investments.

3) Creation and maintenance of at least 10 full-time jobs for qualifying U.S. workers within 2 years.

As a practical matter, the vast majority (some 90%) of EB-5 investors utilize intermediaries designated as Regional Centers. To make a rough (and I hope not too crude) an analogy, these Regional Centers are like hedge fund managers or investment bankers, who work with the prospective investor to fine-tune and submit a proposed business plan or prospectus.

The proposed changes are widely considered to implicate significant and impactful changes to the program, including the number of interested and/or successful applicants. The application process is long, complex, and document-intensive. Persons considering the program are invariably advised to consult and utilize qualified attorneys.  This would especially be the case if any of the proposed changes are legislated.

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