Dallas Bar Association
HEADNOTES Focus Immigration/International Law
June 2017 Volume 42 Number 6
Michelle Alden Named DVAP Director Bar None XXXII Presents support of volunteer attorneys. The program provides free legal assistance to over 4,000 The Dallas Volunteer Attorney Program low-income families with civil legal needs (DVAP) is pleased to announce that Michelle each year. Alden has been selected as its The director runs DVAP’s next Director. Ms. Alden, a daily business, including fund10-year employee of DVAP, curraising for the program, managrently serves as the managing ing a staff of 13, and oversight of attorney of the Dallas Volunteer the organization’s budget. Attorney Program, one of the Before practicing law in preeminent pro bono programs Dallas, Alden earned her B.A. in the country, serving thousands in English with high honors from of low-income people in the DalThe University of Texas at Auslas area each year. tin and her J.D. from The UniMs. Alden will succeed Aliversity of Texas School of Law, cia Hernandez who assumed the where she served as an editor role of Executive Director of the of the Texas International Law Dallas Bar Association on JanuJournal. ary 1, 2017. She is a Fellow of the Texas Michelle Alden The Dallas Volunteer AttorBar Foundation and a Life Fellow ney Program is a joint program of the Dallas of the Dallas Bar Association and Dallas AssoBar Association and Legal Aid of NorthWest ciation of Young Lawyers. Ms. Alden is an Texas which was created to address the legal active member of the Junior League of Dallas needs of the poor in Dallas. DVAP is an orga- and enjoys performing in the Dallas Bar Founnization dedicated to increasing and enhanc- dation’s annual Bar None variety show, which ing pro bono legal services to the poor in Dal- raises funds for the Sarah T. Hughes Diversity las through the recruitment, training, and Scholarship Program. STAFF REPORT
Focus
Immigration/International Law
Immigration and Employer Compliance BY LUIS CAMPOS
The enforcement and urgency of immigration law has once again burst into public discourse. Historically, its significance has fluctuated, depending on the nation’s political, economic, and cultural circumstances. Two January 2017 Executive Orders have announced the nation’s priorities, narrowing attention to border security and territorial integrity, as well as public safety and interior enforcement. (These Orders should not be confused with the colloquially termed travel ban orders, which have been vigorously challenged and are currently in litigation.) And while the narrative of the new Orders seems focused on the supply side of immigration, that is, finding and removing undocumented persons, their effect on the demand side of immigration should not be overlooked. Specifically, Sec. 6 of the Order Enhancing Public Safety in the Interior of the United States “ensures the assessment and collection of all fines and penalties that the Secretary is authorized … to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.” Moreover, Sec. 7 mandates the hiring of 10,000 additional enforcement and removal officers. Employers should be on notice. As quick primer, Section 274A(b) of the Immigration and Nationality Act requires employers to verify the identify and employment eligibility of all individuals hired in the United States. The Form
I-9 is the mechanism for documenting verification. Immigration and Customs Enforcement (ICE) is the primary body for worksite enforcement and is thus charged with conducting I-9 inspection audits. Receipt of an ICE Notice of Inspection merits serious attention. In recent years, individual companies have been fined hundreds of thousands of dollars for noncompliance. And in many cases, fines were imposed for simple paperwork infractions (See United States v. Hartmann Studios, Inc., 11 OCAHO no. 1255 (2015)). Worksite enforcement was not uncommon in past years. Under the Obama Administration, ICE announced inspection initiatives to protect critical infrastructure. ICE also targeted employers who violated civil employment laws and criminal laws such as document fraud and alien harboring. And while the current administration has not announced similar directives, the cryptic language of Sec. 6, coupled with the push to hire additional enforcement officers, suggests that employers are in store for heightened scrutiny by ICE. Employers are urged to take proactive measures to review and ensure adherence to INA s. 274A(b). Having compliance strategies in place is essential, and employers increasingly undertake voluntary auditing to assess and minimize exposure. Two possible courses of action are internal I-9 audits or the external audit, through the IMAGE program.
Law Law Land BY MICHELLE M. ALDEN
Join the cast and crew of Bar None June 14-17 as they present Bar None XXXII – Law Law Land. This is the 32nd year for the Bar None variety show and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance, and make you laugh so hard your sides hurt. As much as the cast and crew love performing and making
people laugh, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship provides tuition and fees for deserving minority students each year. Students at SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M School of Law are eligible to apply for the scholarship. The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you have ever met a Hughes Scholar, you know how impressive these students are.
Support them by coming to Bar None. Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex including 32-year veteran Director Martha Hardwick Hofmeister, and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors, and numerous
behind-the-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 14-17. To purchase tickets, visit www.barnoneshow.com, or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar. org for sponsorship and ticket HN information. Michelle Alden is the Director of the Dallas Volunteer Attorney Program and a Member of the Marketing Committee of the Bar None Production Company. She can be reached at aldenm@lanwt.org.
continued on page 10
Inside 6 The Reshaping of American Immigration Policy 10 Visa Options for Working in the US 14 Pro Bono Golf Tournament 20 How to Prepare for a Government Audit of I-9s & Workforce
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
2 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2017
Calendar June Events JUNE 2-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
Topic Not Yet Available. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
WEDNESDAY, JUNE 14 Noon
“Healthcare Fraud & Abuse,” Josh Skora. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.
JUNE 16-BELO Noon
“Cyber Security & Internet of Things Insurance,” John Hardin and Skyler Howton.. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
THURSDAY, JUNE 1 Noon
Noon
Construction Law Section “Environmental Law Impacts on a Construction Project,” Jean Flores. (MCLE 1.00)*
Transition to Law Practice Committee “Top Tips for Avoiding Malpractice and the Grievance Committee,” Jett Hanna, Carrie Phaneuf, and Robert Tobey. (Ethics 1.00)*
Family Law Section Board Meeting 2:00 p.m. Law Student Professionalism Program “A Program for Law Students & Recent Law Graduates,” Keynote speaker: Hon. Catharina Haynes. Additional speakers: Wes Alost, Justice Doug Lang, and Frank Stevenson. (MCLE 3.00)* RSVP to kzack@dallasbar.org. Sponsored by Morris Harrell Professionalism Committee.
FRIDAY, JUNE 2 Noon
Friday Clinic-Belo Topic Not Yet Available. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
Christian Legal Society
Noon
Dallas LGBT Bar Association
Solo & Small Firm Section “Client Management,” Jadd Masso. (Ethics 1.00)* Juvenile Justice Committee
Real Property Law Section “Navigating the Muddy Waters of Environmental Due Diligence,” Mark McPherson and Stephanie Sunico. (MCLE 1.00)*
Public Forum Committee DAYL Judiciary Committee DAYL Young In-House Counsel Committee 5:30 p.m. Bankruptcy & Commercial Law Section “Preclusion of Claims Against Professionals in Bankruptcy,” Amber Carson, Nicole Hay and Jordan Lewis. (MCLE 1.00)*
THURSDAY, JUNE 8 8:30 a.m. 8th Annual Child Welfare Conference (MCLE 7.00, Ethics 3.00)* To register, go to www.dallasbar.org or contact mgarcia@ dallasbar.org. Presented by the DBA Juvenile Justice Committee.
TUESDAY, JUNE 13 Noon
Legal Ethics Committee
DBA Celebrates Law Day
Non-Profit Law Study Group 5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@ dallasbar.org.
THURSDAY, JUNE 22 Noon
7:30 p.m. Bar None XXXII: Law Law Land at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.
FRIDAY, JUNE 16 Noon
Friday Clinic-Belo “Cyber Security & Internet of Things Insurance,” John Hardin Skyler Howton. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org. Federal Bar Association/Judiciary Committee “Judiciary Appreciation Luncheon,” Panel discussion led by Chief Judge Barbara Lynn. (MCLE 1.00)* Register online by June 9 at http://cf.txnd.uscourts.gov/www2/forms/ JudiciaryAppreciationLuncheon.cfm. DAYL Lawyers Against Domestic Violence Committee
8:00 p.m. Bar None XXXII: Law Law Land at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.
DVAP CLE “The Basics of Social Security Disability Advocacy,” Maryann D’Aniello. (MCLE 2.00)* Christian Legal Society
FRIDAY, JUNE 23 6:00 p.m. J.L. Turner Legal Association
MONDAY, JUNE 26 Noon
DAYL Politically Aware Committee
TUESDAY, JUNE 27 Noon
Noon
Noon
Franchise & Distribution Law Section “Employment Update,” Farheen Ibrahim and Amy Strauss. (MCLE 1.00)*
Entertainment, Art & Sports Law Section “Risk Management and Personal Liability Counsel: Best Practices for Professional Athletes through Property & Casualty Insurance,” Jason M. Pond. (MCLE 1.00)* DAYL Assisting Lawyers in Transition Committee DAYL Foundation Board Meeting
MONDAY, JUNE 19
TUESDAY, JUNE 20
DAYL Lawyers Promoting Diversity
WEDNESDAY, JUNE 28
8:00 p.m. Bar None XXXII: Law Law Land at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.
Labor & Employment Law Section “Drafting Restrictive Covenant Agreements: Planning, Preparation, and Execution,” Jacqueline Johnson. (MCLE 1.00)*
Securities Section “Trends in Securities Litigation – 2016,” Elizabeth Brandon and Saleema Damji. (MCLE 1.00)* DAYL Membership Committee
SATURDAY, JUNE 17
Noon
Criminal/Government Law Sections “Dallas County Specialty Courts and Programs,” Janie Martin. At Frank Crowley Courthouse. (MCLE 1.00)* Courthouse Committee “The Top 10 Things Lawyers Need to Know About E-Filing,” Felicia Pitre and John Warren. (MCLE 1.00)*
3:30 p.m. DBA Board of Directors Meeting
Business Litigation Section “The Three Secrets All Great Trial Lawyers Know,” Shane Read. (MCLE 1.00)* Immigration Law Section “Social Media for Immigration Attorneys - The Nexus of Business Development and Legal Ethics in Social Media,” Teresa Martin. (Ethics 1.50)*
Pro Bono Activities Committee
Dallas Women Lawyers Association CLE
MONDAY, JUNE 12 Alternative Dispute Resolution Section “Crossing Culture Barriers: Multiple Perspectives on the Impact of Culture and Diversity on Mediation,” Akbar Kabani, Angela Mitakidis, Mishty Deb, Emmanuel Obi, and Ron White. (MCLE 1.00)* Co-sponsored by the Minority Participation Committee.
Library Committee
1:00 p.m. DWLA Board of Directors Meeting
DAYL Freedom Run Committee
Noon
Law in the Schools & Community Committee
DAYL Animal Welfare Committee
Minority Clerkship Luncheon Learn about the broad range of opportunities in Dallas. Speakers: Victor Corpuz, Amanda Costello, Sakina Foster, Glenn Hill, and Ebony Rivon. RSVP to bavina@dallasbar.org.
Tort & Insurance Practice Section “The Real Wolf,” Ted Lyon. (MCLE 1.00)*
Employee Benefits & Executive Compensation Law Section “Transgender Issues in Employee Benefit Plans,” Saul Ewing and Kevin Wiggins. (MCLE 1.00)*
Intellectual Property Law Sections “In-House Counsel, Joint Development Agreements, Patent Agents, and Privilege: New Cases & Recurring Problems,” Prof. David Hricik. (Ethics 1.00)*
FRIDAY, JUNE 9
6:00 p.m. DAYL Board of Directors Meeting
Noon
Appellate Law Section “First Amendment Update—Current Cases and Controversies,” Prof. Dale Carpenter. (MCLE 1.00)*
Minority Participation Committee
TUESDAY, JUNE 6 WEDNESDAY, JUNE 7
Noon
DAYL Pro Bono Partners Committee
Trial Skills Section “Charge It! The 2017 Changes to the Business, Consumer, Insurance & Employment PJC,” Dylan Drummond. (MCLE 1.00)*
Admissions & Membership Committee
7:30 p.m. Bar None XXXII: Law Law Land at Greer Garson Theatre, SMU Campus. www.barnoneshow.com.
THURSDAY, JUNE 15
Energy Law Section Topic Not Yet Available. Health Law Section “Forecast on Medicinal Cannabis,” Richard Cheng. (MCLE 1.00)*
DAYL Lunch & Learn CLE
6:00 p.m. J.L. Turner Legal Association
Tax Law Sections “The Department of Justice’s role in Collecting Unpaid Tax Liabilities,” Herb Linder, Ramona Notinger and Andy Sobotka. (MCLE 1.00)*
Noon
5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@ dallasbar.org.
Christian Lawyers Fellowship
Friday Clinic—North Dallas** “Healthcare Fraud & Abuse,” Josh Skora. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@ dallasbar.org.
WEDNESDAY, JUNE 21
DAYL Equal Access to Justice Committee
Publications Committee
MONDAY, JUNE 5
Noon
Family Law Section “New Frontiers in Drug and Alcohol Testing,” Jim Turnage. (MCLE 1.00)* Bench Bar Conference Committee
CLE Committee
Summer Associates Pro Bono Luncheon Speakers: Hon. Tena Callahan, Rob Crain, Ebony Rivon, Natalie Smeltzer Fortenberry. (MCLE 1.00)* To RSVP, email vallejod@lanwt. org. Sponsored by DVAP and the DBA Pro Bono Activities Committee.
Noon
Corporate Counsel Section “2017 Labor & Employment Law Update,” Jeremy Hawpe and Kim Miers. (MCLE 1.00)*
Dallas Hispanic Bar Association
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
JUNE 9-NORTH DALLAS** Noon
6:00 p.m. DAYL Aid to the Homeless Committee
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org. Municipal Justice Bar Association
THURSDAY, JUNE 29 11:30 a.m. Naturalization Ceremony at Belo Join us as we host the first U.S. Naturalization Ceremony at the Belo Mansion. Presiding Judge: Hon. Barbara M.G. Lynn. RSVP to yhinojos@dallasbar.org.
International Law Section “The International Business Environment in 2017: The View from France,” Sujiro Seam. (MCLE 1.00)*
Noon
DAYL Elder Law Committee
No DBA Events Scheduled
DAYL CLE Committee
FRIDAY, JUNE 30
On May 5, local judiciary and attorneys attended the 2017 Law Day Luncheon at which Judge Tonya Parker, of 116th Judicial District Court, was the keynote speaker. You can read Judge Parker’s speech on page 22. In addition to awards presented to the winners of the Law Day Dallas ISD art and essay contests, DAYL presented awards for Outstanding Mentor, Outstanding Young Lawyer, and the Liberty Bell Award. Judge Parker is shown with DBA President Rob Crain. If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Yedenia Hinojos at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
June 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2017
President’s Column
Headnotes
Stronger Together BY ROB CRAIN
The past few months have been filled with new experiences for the DBA. Our theme this year is Stronger Together. As initiatives and events were planned for 2017, almost all of them were designed to bring people together to discover common bonds. An exception to this theme, or so I thought, was an opportunity for members to go to Cuba. The travel ban preventing U.S. citizens’ travel to Cuba is still law. For more than a decade bar associations from across the U.S. have traveled to Cuba under an exception to the travel ban. This exception allows organized trips that engage in a full-time schedule of people-to-people educational activities that will result in meaningful interactions between the travelers and individuals in Cuba. When I was initially introduced to this opportunity, I had mixed emotions. I thought this would be an extraordinary opportunity to see our closest non-bordering neighbor, but I was also concerned about the feelings of Cuban Americans and their families who have suffered great losses. I watched as President Obama made his trip to Cuba. I was touched by the sentiment that the Castro regime would be transitioning and that positive interactions between the people of Cuba and the United States could be helpful for the next generation of relations between the two countries. [Note: Following the decision to make this trip, Raul Castro announced he would not run for re-election as the leader of Cuba, and Fidel Castro died.] I do not intend this column to be political. I do not feel I am capable of fully dissecting the complexities of the politics and emotions interwoven in the relationship between the two nations. Lecturers on the trip included a professor on U.S.-Cuban relations, an economics professor on the Cuban economy and recent economic reforms, and a Havana-based Canadian attorney who has lived in Cuba more than 20 years. We also visited with former Cuban Supreme Court Judges and Cuban attorneys. We visited an art museum, multiple galleries, a dance performance, and numerous uniquely Cuban cultural destinations. Yes, we stopped at a Cuban cigar and rum store. Our tour guide was previously a Cuban lawyer who subsequently worked at various embassies. Despite her family being Cuban, her name is Russian, as are many names given during the years of association with the Soviet Union. Christopher Columbus is credited with discovering Cuba in 1492. For most of the next 400 years, Spain maintained control of the island, though often in conflict. The history of Cuban–American relations is complicated, especially following Spain’s surrender of Cuba in 1898 during the Spanish–American War when the United States began a period of significant economic, political, and military involvement. Leadership in Cuba was transient for several decades until dictator Fulgencio Batista took control of the government. Historians describe Batista as ruling with torture, public executions, and an increasingly corrupt government. The United States supported Batista. Fidel Castro, Raul Castro, and Che Guevara led an overthrow of Batista in 1959 and then partnered with the Soviet Union until the Soviet collapse. One of the many things I failed to appreciate prior to the trip was how awful the conditions were in Cuba for most of the 1990s following the Soviet collapse. In Cuba, this is called the Special Period, when 80 percent of their imports and exports were gone, seemingly overnight, with damaging consequences to fuel and food supplies. During this time, residents counted the minutes the electricity was on, rather than off. Food rationing was tight. Although Venezuelan leader, Hugo Chavez, provided support upon his election in
1998, in some ways this period marked the first time Cuba was truly on its own. A curator of one of the museums in Cuba described the country and its art as full of contradictions. By all accounts, the people of Cuba love America and Americans. Cubans are free to watch HBO, Desperate Housewives, Grey’s Anatomy, and a multitude of uncensored American television and news programs. American culture and celebrities, new and old, are celebrated throughout the country. All of our speakers and dinner guests said Cubans are also proud of their history of standing up to the American embargo and sanctions. Of course, tens of thousands of Cubans still attempt to migrate to the U.S. every year hoping to escape poverty and find a better life. There are signs of change in Cuba with recent economic reforms allowing 202 categories of private business. Gunrelated crimes are nearly non-existent as possession of firearms is outlawed. The death penalty was last used in 2003, all other death sentences have been commuted. Tourism is climbing rapidly: 3 million visitors in 2015, 4 million visitors in 2016, and 5 million expected in 2017. Cuba needs more hotels. The airport needs expansion from the explosion of new flights. Foreign corporations from around the world are trying to capitalize on the burgeoning business opportunities, but everything still seems to hinge on when U.S.-Cuban relations will allow the travel ban and embargo to be lifted. Cuba is unique. Its proximity plays a vital role in environmental issues flowing from the Gulf of Mexico. Cuba holds energy rights in a large swath of the Gulf and Straits of Florida, but the country does not have the resources to drill. Its heritage has left architectural structures similar to Barcelona, Spain, yet many appear to have been ignored for 60 years. Political decisions have left a fleet of historic American cars on the Cuban roads with beautiful exteriors, yet their engines are held together with foreign car parts and creative ingenuity. All of these contradictions are held together by a singular force—the Cuban people, over 11 million of them. I felt more comfortable walking the streets of Havana than any other Latin American city I have visited. Their hospitality extends beyond friendliness on the streets—many Cubans use their family homes as restaurants. They speak their minds about politics and the future of their country; there was never a hint of censorship or fear of consequences for expressing their opinions, at least in casual conversations. Art and music are more prominent than most countries; professional artists and musicians hold significant stature in their communities. Poverty is rampant, yet there seems to be an optimism and hopefulness that belies their condition. In hindsight, this trip echoed our agenda of Stronger Together. Our DBA travelers better understand the Cuban condition and its people. Though small in its footprint, more Cubans better understand Americans. There is more that unites us than divides us. Cuba is changing. Economic reforms have given some Cubans a taste of economic freedom and greater prosperity. The Cuban people want more. In 2018, for the first time in nearly 60 years there will be a leader of Cuba not named Castro. It is unclear where U.S.-Cuban relations are headed. Regardless, the Cuban people are our neighbors. That will not change. My personal hope is that both countries can act more as neighbors, sooner than later. Stronger Together Rob HN
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Leon Carter, John Jansonius, Gregory Sampson, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2017. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.
NATURALIZATION CEREMONY AT BELO Join us as we host the first U.S. Naturalization Ceremony at the Belo Mansion. Thursday, June 29, 11:30 a.m. Presiding Judge: Hon. Barbara M.G. Lynn Space is limited. RSVP to yhinojos @dallasbar.org.
Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
June 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 5
6 He a d n o t e s l D a l l a s B a r A s s o ciation
FOCUS
June 2017
Immigration/International Law
The Reshaping of American Immigration Policy BY RICHARD A. GUMP, JR.
Alterations to immigration policies are accomplished in various ways. Congress holds the power to enact immigration laws, but delegates much authority to executive agencies who administer and enforce the laws and interpret policies. Presidents have influenced immigration policies for many years by using Executive Actions or Orders to bypass Congress. The courts check the other branches by determining the constitutionality of such laws or actions. The Constitution grants Congress the power to regulate naturalization— the process of becoming an American citizen. The ability to regulate immigration—the process of legally entering the country—is not enumerated, but Congress claimed that power in 1882 by asserting that the need to regulate the nation’s borders compelled control regarding who could enter from foreign countries and in what situations. The 1952 Immigration and Nationality Act, amended numerous times over the years, authorized the president to suspend immigration of persons for public health, safety, or national security reasons. Courts cite the president’s foreign policy power when upholding this authority, but temper it by prohibiting the suspension from obstructing First Amendment-protected liberties. • Only Congress can pass legislation (e.g. amending the EB-5 program or H-1B visas) and approve large spending bills (e.g. a $10 billion wall). • Regulations can only be changed through a six-month process of
notices and comments pursuant to the Administrative Procedures Act (e.g. L-1A and B regulatory amendments). • Executive Actions or Orders, and priority realignments by agency directives and memos (e.g. arrests of unauthorized aliens and prosecutorial discretion), can be changed by the stroke of the president’s pen. The “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States” temporarily paused the entry of nationals without valid visas from Iran, Libya, Somalia, Sudan, Syria, and Yemen (subject to exceptions and waivers). Refugee entries are suspended for 120 days. This order is currently under a preliminary injunction based on a First Amendment Establishment Clause violation. Two other multi-pronged orders on border security and immigration enforcement authorize a U.S.-Mexico border wall; strip federal grant money from sanctuary cities; permit the hiring of 5,000 Border Patrol agents (DHS authorized the hiring of 10,000 ICE agents); and end “catch-and-release” policies. • The DOJ oversees the Immigration Courts. Immigration and Customs Enforcement attorneys administer the policies put forth by the Attorney General and the DHS Secretary. “Enhancing Public Safety in the Interior of the United
LAW OFFICES OF RICHARD A. GUMP, JR. Rick Gump has completed his 45th year of practicing immigration law. Our firm concentrates on strategic planning for international personnel. Our practice consists of business and family visas, citizenship and worksite compliance audits for companies which may be facing an ICE investigation or engaging in a merger and acquisition. We represent all types of businesses, schools and universities, athletes, agricultural firms, investors, and individuals seeking a managed plan through the immigration maze. Mr. Gump has been selected by his peers as a Texas Super Lawyer for the past 15 years and recognized in the International Who’s Who in Business. He is one of a distinguished group of attorneys who have now been listed in Best Lawyers in Dallas 2017 and listed in Texas Lawyer’s Go-to-Guide for top notch lawyers. An active speaker and published writer, he has served as an expert witness in various immigration cases and has been a faculty member for numerous immigration conferences.
13355 Noel Rd. | Suite 1940 | Dallas, Texas 75240 972-386-9544 | www.rickgump.com
States” revoked all enforcement priorities. Intensified efforts to locate and begin the deportation process will increase detention demands. Detention and deportation will cost the U.S. billions of dollars. There have never been more immigration judges (exempt from the federal hiring freeze, Congress authorized seventy additional hires), but the immigration court backlog stands at over 500,000 cases and people spend years waiting for hearings. A 2016 study found that 520 additional judges are needed to eliminate the backlog. • States can pass laws impacting immigrants, but may not take adverse action where Congress has already regulated. Many states prevent those without status from utilizing state benefits. Voluntary 287(g) agreements with the federal government to allow state or county agents to investigate the immigration status of individuals in their jurisdiction. The Secure Communities program leverages state policing powers for federal law enforcement ends. Some communities resist participation in the program. Several pieces of immigration legislation have been introduced recently including a program to replace Deferred Action for Childhood Arrivals (DACA); an Act that creates
stricter mandatory detention rules and institutes rapid removal requirements for those with criminal backgrounds; and, an amendment of the Immigration and Nationality Act (INA) that would revise rules, salary requirements, and exemptions for H-1B employers. Other issues that we could see legislated, regulated, or pursued through executive action or order include mandatory E-Verify, a ban on sanctuary cities, modifications to work authorization for foreign graduates of U.S. universities with STEM degrees, a parole program for foreign entrepreneurs, and an increase of the EB-5 investment amounts. While changes in policy priorities can be made by the president, significant action requires the cooperation of Congress. Increased enforcement efforts may necessitate reform of the current immigration system by Congress to ensure the economic needs of employers and familial needs of U.S. citizens are met. With a Republican president and Congress, it may be possible to break the stalemate that has prevented immigration reform since the terrorist attacks on September 11, 2001. Several procedures exist for the federal government to mold our stance on both legal and illegal immigration. Only time will tell what form the many ideas and considerations concerning immigration HN will take. Richard A. Gump, Jr. is the managing partner at the Law Offices of Richard A. Gump, Jr., P.C. He can be reached at Rick@rickgump.com.
CHRISTMAS IN JULY Friday, July 21 ~ 9 a.m. to Noon
~ The Belo Mansion ~ The DBA Community Involvement Committee is coordinating a drive to benefit local charities. Items needed: men’s/women’s/children’s clothing, school supplies, toddler and baby items, household items, and canned food. Drop off is at the Belo Mansion on Friday, July 21. For more information, contact kzack@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 7
Our zealous pursuit of justice earned us the 2016 Trial Lawyer of the Year award from the Public Justice Foundation.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2017
2017 DBA 100 CLUB - Get on the LIST! The Dallas Bar Association would like to recognize the following Firms, Government agencies, Organizations and Corporate legal departments for their support of the DBA along with their commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club is a distinguished membership recognition category that consists of Firms, Law Schools, Organizations and Government agencies with two or more attorneys as well as Corporate legal departments that have 100% membership in the DBA. Recognition is given to the 2017 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs each year, networking opportunities, community projects and many other member benefits as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. How do you get on the list? To become a 2017 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2017 DBA 100 Club! If we receive your list by June 2nd, your firm will be included on the July and August DBA 100 Club recognition list in Headnotes.
Send in your list TODAY! DBA 100 Club Members as of May 12, 2017 Law Firms with 2 to 5 Attorneys Ackerman & Ramos, L.L.P. Adair, Morris & Osborn, P.C. Aldous \ Walker Alexander Dubose Jefferson & Townsend LLP Altaffer & Chen PLLC Anderson & Brocious P.C. Anderson Beakley, PLLC Andrews & Barth, PC Ashcraft Law Firm Atwood Gameros LLP Bisignano Harrison Neuhoff LLP Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Burdette & Rice, PLLC ByrdAdatto Calloway Norris Burdette Weber & Baxter-Thompson, PLLC Campbell & Associates Law Firm, P.C. Carlock & Gormley Chen Dotson, PLLC Christiansen Davis LLC Clark, Malouf & White, LLC Coffin & Bailey, PLLC Cox Bower, LLP Curtis Law Group Darrell W. Cook & Associates PC Davenport & Epstein, P.C. Davis Stephenson, PLLC
Dunn Sheehan LLP Edwards & de la Cerda, L.L.C. Elliott Thomason & Gibson, LLP Fisher & Welch, P.C. Franklin Hayward LLP Fuller Mediations Gillespie Sanford LLP Grogan & Brawner P.C. Hamilton & Squibb, LLP Hance Law Group Hollingsworth Walker Horton & Archibald, P.C. Iola Galerston, LLP Jenkins & Watkins Johnston Tobey Baruch, P.C. Kabani & Kabani, PLLC Kellett & Bartholow PLLC Kendall Law Group, LLP Kennedy Law, L.L.P. Koning Rubarts LLP Koons Real Estate Law Langley LLP Law Offices of Richard A. Gump, Jr., P.C. Lidji Dorey & Hooper Little Pedersen Fankhauser LLP Madson Castello, PLLC Marshall & Kellow, LLP McTaggart & Beasley, PLLC Mincey-Carter, PC Prager & Miller, P.C. Quaid Farish, LLC
RegitzMauck PLLC Rose Walker, L.L.P. Rosenberg Paschall Johnson LLP Russell & Wright, PLLC Sheils Winnubst, PC Smith, Stern, Friedman & Nelms, P.C. Spencer Law, P.C. Taherzadeh, PLLC The Holmes Law Firm Thomas, Cinclair & Beuttenmuller, PC Turton & Pinkerton, PLLC Walker & Long Winn, Beaudry & Winn, L.L.P. Woolley <> Wilson, LLP. Law Firms with 6 or More Attorneys Baker Botts, L.L.P. Bell Nunnally & Martin LLP Bragalone Conroy PC Brousseau Naftis & Massingill Brown Fox PLLC Canterbury, Gooch, Surratt, Shapiro, Stein & Gaswirth, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carter Scholer PLLC Cobb Martinez Woodward PLLC Connatser Family Law Cooper & Scully, P.C. Cowles & Thompson, P.C. Crain Lewis Brogdon, LLP Cunningham Swaim
Cutler-Smith, P.C. Duffee + Eitzen LLP Estes Thorne & Carr PLLC Fletcher, Farley, Shipman & Salinas, LLP Fox Rothschild LLP Godwin Bowman & Martinez PC Guida, Slavich & Flores, P.C. Hankinson LLP Hedrick Kring, PLLC Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Hoge & Gameros, L.L.P. Jones Carr McGoldrick L.L.P. Jordan Cresswell Monk Reber, PC Kessler Collins, P.C. Key Harrington Barnes PC KoonsFuller Malouf Nakos Jackson & Swinson, P.C. McCathern, PLLC McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Mullin Law, PC Passman & Jones, P.C. Peckar & Abramson, P.C. Sayles Werbner, P.C. The Hartnett Law Firm Tollefson Bradley Mitchell & Melendi, LLP Touchstone Bernays Verner Brumley Mueller & Parker, PC
Vincent Serafino Geary Waddell Jenevein, P.C. Winstead PC Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Borden Dairy Company Buckner International Capital Senior Living, Inc. Compatriot Capitol Inc. Dunhill Partners, Inc. Front Burner Restaurants, LP Gaedeke Group HighGround Advisors Klein Tools, Inc. LALA U.S., Inc. Neuberger Berman PrimeLending, a PlainsCapital Company Tenaska, Inc. Government Agencies, Organizations & Law Schools City of Irving Dallas Baptist University Dallas County Probate Court DII Industries, LLC Asbestos PI Trust Mosaic Family Services Inc. UNT Dallas College of Law Special Recognition Students of the UNT Dallas College of Law
The Dallas Bar Association 34th Annual Stephen Philbin Awards Luncheon
Tickets: $45 ($450 for tables of 10) Direct ticket inquiries to Judi Smalling at jsmalling@dallasbar.org
Learn about the broad range of opportunities in Dallas. Law Student Professionalism Program (MCLE 3.00)
Friday, October 13, 2017 Noon at the Belo Mansion Purchase tickets by 9/22 to receive the early bird rate.
Bring Your Summer Clerks to Belo
Thursday, June 1, at 2:00 p.m. RSVP to kzack@dallasbar.org Speakers: Hon. Catharina Haynes, Wes Alost, Justice Doug Lang, Frank Stevenson
Keynote Speaker David McCraw The New York Times
Summer Associates Pro Bono Luncheon (MCLE 1.00) Friday, June 2, at Noon. RSVP to vallejod@lanwt.org Speakers: Hon. Tena Callahan, Rob Crain, Natalie Smeltzer Fortenberry, Ebony Rivon
Minority Clerkship Luncheons
Recognizing Excellence in Legal Reporting
Friday, June 9, and July 7, at Noon. RSVP to bavina@dallasbar.org
®
A multi-office national law firm is seeking Attorneys for its Dallas Office. Litigation department is looking for Attorneys in the following areas: Professional Liability Defense, General Liability, Workers Compensation Defense, Construction, and Employment Liability Defense. Corporate Law, Commercial Litigation and Financial Services departments are looking for Attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus. Also seeking 1-4 year Associates. Email resume to RESUME@QPWBLAW.com
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D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s ociation
FOCUS
June 2017
Immigration/International Law
Visa Options for Working in the United States BY GARRY DAVIS
As an Immigration Law practitioner, I am frequently asked by company owners, foreign national investors, and others who want to work here, “How does someone get a visa to work in the United States?” There are several options available, but each has challenges. This article will provide a brief overview of each visa type that allows the holder to work in the United States, and the main challenge for each. The most common work visa is H-1B, which is the professional worker visa. To qualify, an H-1B hopeful must have a specific baccalaureate degree or graduate degree. The person also must be sponsored by a company that is offering a position with duties that require that specific degree. If the person does not have a degree or a degree that equates to a United States baccalaureate degree, he or she may still qualify for H-1B through work experience. The
sponsoring company must attest that it will pay the person prevailing wage for that position in the geographic area. The challenge with H-1B is we only have 85,000 visas available each year, which are filed for in April. In 2016, the government received over 200,000 applications for those 85,000 visas. The available visas are allocated through a random lottery selection process, and because of the limited numbers we have to file for the entire year’s applications in April. That means the risk of not getting one, even for someone who meets all of the requirements, is around 30 percent. Another option is the L-1 visa. This is a visa that allows an international company to transfer a key employee to a United States office of the same company. To be the same company, the offices must either be in a parent/subsidiary relationship, both owned by the same parent company, or have the same ownership. There are two types. The L-1A is for
Sign up to Volunteer at the DBA Community Day of Service Saturday, October 21, 2017 A day of community service hosted by the DBA’s Community Involvement Committee. For more information, visit www.dallasbar.org/dbacommunitydayofservice. If your firm or group has an idea for a project that you would like to organize, please contact csmith@chfirm.com, nishabyers@cooperscully.com, or kzack@dallasbar.org.
managers and executives. The L-1B is for employees with specialized knowledge. The employee must have worked for an office of the company outside the United States for 12 consecutive months in the past three years to qualify for transfer to a United States office. For executives and managers in larger companies, the L-1A is relatively straightforward. It becomes more difficult for smaller companies. The government tends to push back on these petitions when the number of employees is small, even though the law does not specifically require a certain number of employees. The L-1B can be challenging even for larger companies. The requirements to prove specialized knowledge seem to be somewhat subjective in the officer reviewing the application. Generally the government requires the person to have a unique or advanced level of proprietary knowledge of the company’s offerings. This can be very difficult to prove, even for highly technical positions or key developers in a company’s internal systems. International traders and investors may have an option for an E visa. For a person to have an E visa option, he or she must be a national of a country with which the United States has a treaty specifically allowing for E visas. Notable examples of this option are Pakistan, Canada, Mexico, the United Kingdom, and France. Notable exceptions are China and India.
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Immigration and Employer Compliance continued from page 1
Meet your challenges when they’re still opportunities.
The E-1 visa allows for the visa holder to set up a company in the United States for international trade. Half of the volume of trade must be between the person’s country of E-2 nationality and the United States The E-2 is more flexible. It allows the holder to set up a business operation in the United States with a “substantial” startup investment, and can do any kind of business the investor would like to. The term “substantial” is not defined as a specific dollar amount, which leads to a fair amount of subjectivity in the review of the application by a government official. For example, I have seen cases in which a $50,000 and $60,000 investment have been deemed to fail the substantiality test, while I personally have had an approval on a $5,000 investment. Generally, as long as the investor invests or has a plan to invest at least $100,000, the reviewing officer will consider that to be substantial for E-2 purposes. The challenge with the E visa option is that it does not lead on its own to permanent residence. There is no built-in pathway to permanent legal status. These are the typical visa types that United States immigration law provides to allow people to work in the United States, either in their own businesses or for a company sponsor.
Internal audits should be comprehensive. Auditors should review I-9s and, to the extent possible, correct mistakes. For example, missing addresses, failure to check boxes, or other absent information may be corrected—never backdating, but rather, initialing and contemporaneously dating the correction. Beyond checking the company’s I-9 files for errors and completeness, the internal auditor should prepare a list of current employees (hired after 1986) to compare with I-9 files, ensuring all employees have an I-9 on file. The auditor should also review the company’s adherence to document retention requirements, taking care to purge unnecessary I-9s—employers should recall that I-9s must be retained for three years from the date of hire or one year from the date of termination, whichever is later. The auditor should summarize findings in a report, which could serve as a guide for future execution of I-9s. Finally, it may be prudent to create an I-9 compliance policy or training program related to hiring procedures. Ultimately the company would benefit from expert advice and use of a qualified external auditor to craft and execute a successful internal audit.
Some employers seek guidance from ICE to ensure best practices. This option, known as the IMAGE program, may seem risky since it involves inviting ICE to the employer worksite. However, program participants receive IMAGE certification, a potentially strong reputational or branding tool. ICE states also that its IMAGE certification results in “avoidance of lawsuits and other legal actions resulting from unauthorized employment.” Enrollment in IMAGE requires: registration for E-Verify (internet-based I-9 employment verification system); completion of a self-assessment questionnaire; establishment of a written hiring and employment verification policy; submission to an I-9 inspection; and execution of an IMAGE partnership agreement with ICE. In exchange, ICE agrees to provide related training to the employer; not conduct I-9 inspections for a two-year period; and waive or mitigate potential fines for future infractions. In today’s climate, employers should consider the value of voluntary audits and consult a qualified attorney to evaluate options. HN Luis Campos is Counsel at Haynes and Boone. LLP. He can be reached at luis.campos@haynesboone.com.
E-Filing in Dallas County T h e D o s a n d D o n ’ t s f o r Lawyers and Their Staff Thursday, June 22, Noon at Belo | MCLE 1.00 Speakers: Felicia Pitre, Dallas County District Clerk John Warren, Dallas County Clerk RSM US LLP is the U.S. member firm of RSM International, a global network of independent audit, tax and consulting firms. Visit rsmus.com/aboutus for more information regarding RSM US LLP and RSM International.
Sponsored by the Courthouse Committee
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D al l as Bar A ssoci ati on l Headnotes 11
Sasha Monik Moreno Associate Attorney
Monica Lira Bravo Managing Attorney
Vanessa Ruiz Associate Attorney
Lira Bravo Law, PLLC specializes in family based visa petitions, citizenship, deportation and removal defense in the Dallas Immigration Court, appeals to the Board of Immigration Appeals, asylum, special immigrant juvenile status, waivers, deferred action and other humanitarian forms of relief.
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12 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2017
DBA Goes to Cuba
In April, members of the DBA journeyed to Cuba as part of a specially designed program to explore Cuba’s cultural heritage. While there the groups had the opportunity to engage with local scholars, attorneys, musicians, and artists, as well as learn about the Cuban legal system, art, history, architecture, and religion.
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D al l as Bar A ssoci ati on l Headnotes 13
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14 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2017
DBA Pro Bono Golf Classic On April 27, more than 100 golfers participated in the 25th Annual DBA Pro Bono Golf Classic at Cowboys Golf Club to benefit the Dallas Volunteer Attorney Program. All proceeds will be used to help provide pro bono legal services to low-income residents of Dallas. Thank you to our Golf Committee Co-Chairs Kyle Mandeville and Chris Robison. And a big thank you to all of our sponsors! We appreciate you!
THANK YOU TO OUR 2017 DBA PRO BONO GOLF TOURNAMENT VENDOR SPONSORS Consilio Your International eDiscovery and Managed Review Provider (469) 221-5990 www.consilio.com Crockett, McBride & Associates at Merrill Lynch Wealth Management Wealth Management Advisors | (214) 750-2114 http://fa.ml.com/crockett_mcbride DTI Court Reporting | (214) 720-4567 www.DTIGlobal.com Esquire Deposition Solutions, LLC Deposition Services | (214) 257-1436 www.esquiresolutions.com Exponent, Inc. Engineering and Scientific Consulting | (832) 325-5712 www.exponent.com Harbinger eDiscovery | (214) 935-9500 www.esquiresolutions.com Legal Directories Your Attorney Search Directory | (214) 321-3238 www.legaldirectories.com MDD Forensic Accountants Forensic Accountants | (972) 235-9547 www.mdd.com Ryan Fraud and Forensic Recovery, LLC Fraud & Forensic Recovery | (972) 934-0022 www.esquiresolutions.com U.S. Legal Support Court Reporting • Record Retrieval • Trial Services • Electronic Discovery (214) 741-6001 www.uslegalsupport.com
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D al l as Bar A ssoci ati on l Headnotes 15
DBA Pro Bono Golf Classic
DOUGLAS A. HARRISON
THE HIGHEST LEVEL OF FAMILY LAW REPRESENTATION Doug Harrison was the go-to family lawyer at Gardere Wynne Sewell and now at Connatser Family Law. To consult with this veteran attorney, call 214 306-8441 or email doug@connatserfamilylaw.com.
HARD-TO-DIVIDE ASSETS | BUSINESS VALUATION INTENSIVE CORPORATE MATTERS
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com
16 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2017
LEGAL CUP CHALLENGE “I am honored to serve as the chairman of the inaugural Dallas Heart Walk Legal Cup Challenge. Heart disease is the No. 1 killer of Americans. Let’s fight this together with a friendly challenge among the legal community. Thank you to Jones Day and Thompson Knight for joining Haynes & Boone in this challenge. Join us to help the American Heart Association’s mission of improving cardiovascular health.”
Congratulations, Jack!
Tim Powers, Managing Partner Haynes & Boone
Thank you to the firms below for accepting the Legal Cup Challenge. Haynes & Boone, LLP Jones Day Thompson Knight
Join the Challenge Today Contact Beverly Stibbens at beverly.stibbens@heart.org
Communities Foundation of Texas is proud to honor Jack Kinnebrew of Strasburger & Price, LLP as the first recipient of The Vester Hughes Award. This award honors the professional advisor that most embodies the spirit of Vester T. Hughes, Jr. through significant contributions to our mission of growing philanthropy in our region, devotion to educating clients about charitable giving, personal commitment to charitable causes, and mentoring of fellow advisors to support clients’ philanthropy.
V E S T E R T. H UGH E S , J R . 192 8 –2 017
Vester Hughes first began working with CFT in 1958, and served as the general counsel or lead tax counsel for more than 50 years. Vester will be missed by Communities Foundation of Texas and by everyone in our community.
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June 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Immigration/International Law
Impact of Newly Proposed Immigration Policies Regarding H-1B Visas BY GAGANDEEP K. SETH
The H-1B visa is an employmentbased, non-immigrant visa category for temporary skilled professional workers. U.S. employers must comply with strict requirements in order to sponsor non-U.S. employees on this visa. The purpose behind introducing H-1B visas was to bring professionally skilled workers to United States to help stimulate the economy, which they did to some extent; however, some believe that these visas take away the jobs from the skilled U.S. workers and have been misused by some U.S. employers. The H-1B visa is issued for a specialty occupation, requires theoretical and practical application of a body of specialized knowledge and requires the visa holder to have at least a Bachelor’s degree or its equivalent. There must be
a valid employer-employee relationship, which is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. Under the Immigration Act of 1990 (IMMACT), Congress for the first time imposed an annual “cap” of 65,000 H-1B visas for each fiscal year (FY). However, due to the increasing need for skilled workers, especially in the information technology and science fields, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) was enacted and temporarily increased the H-1B cap to 115,000 for FY 1999 and FY 2000. In 2000, The American Competitiveness in the 21st Century Act (AC21) was signed into law. It increased H-1B numbers to 195,000 for fiscal years 2001, 2002, and 2003, but, the number was
eventually reduced to 65,000. There is an additional 20,000 quota for qualified people who have completed a Master’s degree in the United States. Some U.S. employers are heavy users of these visas and if 15 percent or more of their employees are H-1B visa holders, these employers are tagged as H-1B dependent employers. The H-1B visa has always been politically charged topic. President Donald Trump’s campaign promised to crack down on work visa programs. On Monday, April 3, 2017, USCIS issued a memo laying out new measures to combat “fraud and abuse” in the program. The Justice Department also warned employers applying for the visas not to discriminate against U.S. workers. The USCIS announcement targets those firms, with the agency saying it will focus inspections or site
visits on workplaces with the largest percentage of H-1B workers, and those with employees who do IT work for other companies. Various bills have been introduced in Congress over the period of time to reform the H-1B visa program. Recently, there was a leak of the President’s executive order which relates to the H-1B visa. The executive order mentions raising the minimum annual salary to be paid by an H-1B dependent employer to his H-1B employees from $60,000 to $130,000, to discourage U.S. employers from hiring foreign workers. Regulations continue to be proposed and it is difficult to predict how these newly proposed regulations will impact HN U.S. employers. Gagandeep K. Seth (“Meenu”), of Duke Seth, PLLC, can be reached at gkseth@dukeseth.com.
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
JEFF ABRAMS Mediator & Arbitrator
Karen-Lee Pollak Managing Attorney
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The practice is led by Karen-Lee Pollak, who is recognized as one of the top immigration attorneys in the United States. She was recently ranked among the top Texas immigration attorneys in the prestigious Chambers USA 2016 legal directory by Chambers & Partners as “Leaders in their Field”. She has been selected to D Magazine’s “Best Lawyers in Dallas” list for four consecutive years (2014-2017), named Avvo Clients’ Choice Award winner for eight straight years (2009-2016), featured as one of Newsweek’s Leaders in Immigration Law Showcase and listed as Texas Rising Star® by Texas Monthly. “This has been a dream of mine since I immigrated to the United States. I practice immigration law to change people’s lives for the better and help them realize the American dream. I enjoy reuniting families and bringing the best and brightest minds to the United States so that they can develop their ideas and profoundly change the world.”
1920 McKinney Ave 7th Floor Dallas, Texas 75201 214.307.5510 karenlp@pollakimmigration.com www.pollakimmigration.com
18 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2017
Addressing the Burdens of Running a Law Firm BY AMY MANN
During her inaugural address in San Francisco, ABA President Linda A. Klein highlighted three main initiatives that she hopes to achieve during her year-long term. One of her targeted initiatives is to help small firms and solo practitioners connect with valuable practice management tools that can free up their time, allowing them to focus more on the actual practice of law. In her speech, Klein highlighted just how much attorneys and their staff can suffer from the day-to-day demands of running their firm. “I learned that lawyers want to do more pro bono and reduced-fee work, but they can’t. The burdens of running a law practice detract from the time they have to practice law.” She also highlighted the specific example of an attorney who reported struggling to find time to actually
practice law because most of his time was spent trying to chase down payments from clients and pay his own bills. “I heard those comments over and over again,” Klein said.
Modern Payment Solutions Unfortunately, putting bills together, invoicing, and tracking down payments can all take a serious toll on an attorney—costing them significant time, money, and other resources. If you look at an average attorney’s receivables, it can be anywhere from 30 to 90 days before they get paid for work they have already done. Such an inconsistent and unpredictable cash flow makes it incredibly difficult to run, let alone grow, a successful firm. While this continues to be a significant problem in the legal industry, legal technology is continually advancing to meet the needs of attorneys. Ten years ago, nearly all attorneys sent out
Law Student Professionalism Program
paper invoices and waited for a client to send in payment. Even once attorneys began accepting credit cards in their practices, they were dependent on traditional credit card equipment, like credit card terminals, which limited where and when they were able to accept payment. Fortunately, technology has now progressed to allow attorneys and other professionals to accept credit card payments online, providing the ultimate convenience to both attorneys and their clients. Online payments allow clients to pay their bill simply and quickly, while allowing attorneys to receive payment 33 percent faster than they would using traditional payment methods (on average). Additionally, if you can collect client card information in addition to a retainer agreement or client engagement letter, you can guarantee payment and immediately receive payment for your services—speeding up your collections and creating a reliable income stream. With the chance to collect airline miles and other rewards
Habitat House
Thursday, June 1, at 2:00 p.m. | MCLE 3.00
$80,000
Speakers: Keynote speaker: Hon. Catharina Haynes, Fifth Circuit U.S. Court of Appeals Wes Alost, Jones Carr McGoldrick L.L.P Justice Douglas S. Lang, Fifth District Court of Appeals Frank Stevenson, 2017 SBOT President, Locke Lord LLP
$60,000
RSVP to kzack@dallasbar.org
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Trust the Experts LawPay is proud to provide law firms with a simple, modern solution for accepting online payments. We guarantee complete separation of earned and unearned fees, giving you the confidence and peace of mind that your transactions are always handled the right way. As a result, we are the preferred payment partner of more than 40,000 law firms and are proud to be the only program recommended by 46 state and more than 50 local bar associations. For more information, visit our website at https://lawpay.com/dallasbar or give us a call at (866) 376-0950. HN Amy Mann is the Content Writer for Lawpay. She can be reached at amann@affinipay.com.
Support the DBA Home Project Help us reach our goal of $80,000 to build our 26th house for Habitat for Humanity. For more information, log on to www.facebook.com/DBAHomeProject or contact Co-Chairs David Fisk (dfisk@krcl.com) or Mike Bielby (mbielby@velaw.com). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Yedenia Hinojos Dallas Bar Association 2101 Ross Avenue Dallas, TX 75201
June 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 19
Immigration/International Law
Apples to Apples? International Arbitration vs. Domestic Litigation BY NICK KENNEDY
Arbitration is a crucial tool for resolving international disputes. It affords parties the certainty that their dispute will be decided by a decision-maker free from concerns of favoritism in national courts. It also allows for the parties to focus on the merits of their dispute by foregoing the lengthy discovery process in favor of extensive briefing of the case at an early stage. At the end, it promotes certainty through the finality and widespread enforceability of international arbitration awards. International arbitration is heavily “custom” driven; therefore, experience with procedures, practices and norms is key to successful representation. In addition, arbitration’s flexibility means that every case is different. Nevertheless, international arbitration typically proceeds in a relatively familiar course. Four key differences from U.S. litigation are discussed below.
1. Disclosure An international arbitration attorney must talk the talk. We do not have “discovery,” we have “disclosure.” This is not mere semantics. Disclosure is a very different animal than U.S. discovery. Disclosure’s narrow scope is a key factor in arbitration’s reputation for efficiency. First, disclosure abhors the proverbial “fishing expedition.” Disclosure is limited to documents likely to be relevant and material to the outcome of a disputed issue. It is not enough that a document have a theoretical possibility of helping one’s case. It must have a direct bearing on one of the issues in dispute. This is a much narrower standard than the familiar
reasonably likely to lead to the discovery of admissible evidence standard applied in U.S. litigation. Documents are traditionally sought by a Redfern Schedule. This is a one-stop-shop for document production (and the inevitable disputes)—a multi-column chart with each document request and the justification therefore. It also includes columns for the opposing party’s response, a reply, and the Tribunal’s ruling (if necessary). The party seeking disclosure must generally demonstrate its appropriateness in the first instance by including in the Redfern: (a) a justification for each request; and (b) reasons for believing the documents exist and are in the possession of the responding party. This differs from the U.S. practice where a requesting party seeks documents without explanation and shifts the burden to the responding party to object. Document disclosure is generally the end of the line for the disclosure process in international arbitration. Although the parties can agree otherwise, depositions, interrogatories, and requests for admission are generally not allowed.
direct testimony, the exhibits will be the documentary evidence, and the legal arguments will frame the disputed issues. Generally, each side files two Memorials—1) Claimant’s Claims Memorial; 2) Respondent’s Counter-Memorial; 3) Claimant’s Reply; and 4) Respondent’s Rejoinder.
3. Hearing Procedures The hearing often begins with a detailed opening statement from each side. Unlike trial, these statements focus on and discuss in detail the evidence already submitted, not what will be proven at trial. This often lasts several hours and is accompanied by a voluminous PowerPoint citing to and quoting the exhibits and witness statements. Second, the parties generally do not present live direct testimony. Instead, the previously submitted witness statements and expert reports are direct testimony. Live testimony at the hearing is limited to cross examination (perhaps after a brief warm-up summarizing the witness statement), and appropriate redirect.
Finally, time is often allocated evenly among the parties using the “chess clock” approach. This means that each side will be given an equal amount of time to present its case by allocating as it sees fit among the opening statement, witness examination, and closing statement.
4. Appeal The finality of arbitration is a key benefit. International arbitration awards are not subject to appeal and can be challenged in court on only a few limited, nonsubstantive bases. Relatedly, arbitration awards are generally readily enforceable around the world thanks to the streamlined and uniform enforcement procedures of the 157-nation New York Convention. Court judgments do not benefit from this uniformity or ease of use and instead are subject to a multitude of different domestic regimes that differ widely in their procedures, substantive inquiry, and time frames. HN Nick Kennedy is an associate at Baker McKenzie in Dallas. He can be reached at nicholas.kennedy@bakermckenzie.com.
2. Claims Memorials The Claims Memorial is where international arbitration’s reputation for efficiency is put to the test. A Memorial is a presentation of a party’s entire case in writing. It includes a detailed factual background, supported by documentary evidence, written witness testimony, and expert reports, followed by legal argument applying these facts. Memorials often stretch hundreds of pages. The memorials are the basis for each party’s case in chief at the hearing. The witness statements will become
8th Annual Child Welfare Conference Thursday, June 8, 8:00 a.m. to 4:00 p.m. at Belo (MCLE 7.00, Ethics 3.00)* For rates and registration information, log on to www.dallasbar.org. Presented by the DBA Juvenile Justice Committee
20 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
June 2017
Immigration/International Law
How to Prepare for a Government Audit of I-9s and Workforce BY HARRY J. JOE
Putting American Workers First is President Trump’s immigration strategy for reforming America’s legal immigration system, and for enforcement of laws that prohibit employment of aliens who are not authorized to work in the United States. The Trump Administration has prioritized for removal undocumented aliens who falsely represent that they are legally authorized to work in the United States. This sort of false representation occurs when workers add illegally obtained Social Security numbers on I-9 Employment Eligibility Verification Forms. According to the Los Angeles Times, such workers account for 8 million undocumented aliens in the United States. The Administration believes that this enforcement strategy will free up and make available to many American workers jobs currently held by unauthorized workers. This strategy calls for greater worksite enforcement through audits of the employer’s I-9s. As a result, employers should be prepared at all times to show that they are in compliance with the employment eligibility verification requirements of the Immigration Reform and Control Act of 1986. Homeland Security Investigations (HSI), a branch of the United States Immigration and Customs Enforcement agency, is responsible for enforcing the Immigration Reform and Control Act that requires all employers to verify the identity and employment authorization of every employee,
including employees acquired in a merger or acquisition, through the timely and proper completion of a Form I-9. Enforcement is conducted through audits and investigations conducted by HSI Special Agents and auditors, which are initiated through the service of a Notice of Inspection or civil subpoena. Employers are entitled to 72 hours notice before having to produce their I-9s and any other documentation that may be requested. Though not legally required to do so, employers should periodically conduct “self audits” of their employment eligibility verification processes, practices and I-9s to ensure compliance. Employers should not conduct audits in a manner that unlawfully discriminates against workers based on national origin or citizenship status. If the audit involves only a sample of the Form I-9s, their selection should be based on neutral and non-discriminatory criteria. Moreover, care must be exercised when selecting a sample of I-9s to avoid retaliatory or discriminatory audits or the perception of such an audit. The audit should be transparent with notice to all employees of the process. This includes publication or written notice that the employer will conduct an internal audit of Form I-9s, the scope and reason for the audit, and whether the audit is independent or pursuant to government enforcement action. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits issued by the Office of
Special Counsel for Immigration Related Unfair Employment Practices, United States Department of Justice. Here are some actions that employers should undertake in their preparation for a possible I-9 Audit and Workforce Investigation: 1. Locate and place all I-9s in a centrally accessible location. It is not advised that I-9s be kept in the employee’s file. 2. Ensure that there is a fully completed I-9 for every current employee including employees of an acquired company. If an I-9 was not completed or is missing, immediately complete another I-9 using the current version. Attach the new I-9 to other I-9s and include or attach any explanation you may have for the omission. 3. If the I-9 is incomplete, execute a new I-9 using the current version and attach it to the prior incomplete I-9. Do not request the employee to produce any
specific document for completion of the I-9 but do inform him or her of the types of prescribed documents that can be produced to complete the I-9. For procedures for making corrections of errors and omissions found on a Form I-9, see the Guidance referenced above. 4. As a general rule, employers should not ask an existing employee to complete a new Form I-9 if the current I-9 is not deficient. 5. Maintain a current alphabetical list of all active employees with date of hire and social security number. 6. If photocopies of the employee’s presented documents exist, attach them to their respective I-9. 7. Complete Section 3, Re-verification of Work Authorization, in each I-9 as needed. HN Harry J. Joe is a Principal at JMO Firm PLLC and can be reached at harry@jmofirm.com.
Crossing Culture Barriers: Multiple Perspectives on the Impact of Culture and Diversity on Mediation Speakers: Akbar Kabani, Moderator Angela Mitakidis, Asst. Prof. at SMU Plano Mediation Mishty Deb, LaSusa & Deb, PLLC. Emmanuel Obi, The Obi Law Firm Hon. Daniel C. Perez, Perez & Link, PLLC
Together We Dine
Monday, June 12, Noon at Belo | MCLE 1.00 Sponsored by the ADR Section and the Minority Participation Committee
On April 26 the DBA participated in Together We Dine at UNT School of Law. More than 50 students attended and several DBA members participated as facilitators, including DBA President Rob Crain, Al Ellis, Shonn Brown, Stephanie Gause-Culpepper, Sakina Foster, Ashlei Gradney, Jesse Okiror, Dena Stroh, and Scott Stolley.
June 2 0 1 7
Focus
D al l as Bar A ssoci ati on l Headnotes 21
Immigration/International Law
Ramping Up Enforcement on Antidumping & Countervailing Duties BY JENNIFER HORVATH
In the area of international trade law, antidumping duties (ADD) and countervailing duties (CVD) have increasingly become a hot-button issue for the government. Collection and enforcement of ADD/CVD owed by importers is one of the core priority issues of the U.S. Customs and Border Protection (Customs or CBP). Just last year, the government enacted an enhanced reporting and enforcement process for ADD/CVD. The new Administration also just recently released an Executive Order building upon the recent law implemented. As a brief overview, antidumping occurs when products found to be “dumped” by foreign companies in the U.S. market at prices which undercut U.S. industries manufacturing those same products. Additional duties are assessed on the specified products imported from these countries to help level the playing field and incentivize U.S. companies to buy domestic. Countervailing duties are imposed when a foreign government is determined to provide subsidies to its domestic companies, which then allow the companies to sell the products at prices lower than a U.S. manufacturer could sell the same merchandise. Countervailing duties are assessed to help make up for this margin and subsidy amount. Prior to the implementation of an aggressive enforcement act recently implemented, the government had already included ADD/CVD as a priority trade issue. The Trade Enforcement Act of 2015 was the first major
Customs law enacted in over 20 years. The Act addressed three main area, the key area being antidumping and countervailing duty evasion. Title IV of the Act deals with antidumping and countervailing duty orders and is separately titled the “Enforce and Protect Act of 2015” (ENFORCE Act). CBP has a Centralized Antidumping/Countervailing Team that only works to target suspect importers. Per Section 411 of the ENFORCE Act, the law creates a new “Trade Remedy Law Enforcement Division” within CBP to investigate and prevent trade remedy evasion. This division is the primary point of contact for evasion allegations and facilitates the exchange of evasion information between government agencies. The serious attention paid to this issue was spurred on by a Government Accountability Office (GAO) report released in July 2016, which found that more than $2 billion was lost in uncollected ADD/ CVD as of mid-May 2015. In May 2016, CBP Commissioner Gil Kerlikowske indicated that CBP will take a tougher enforcement stance on U.S. trade laws than in the past, including aggressive application of the Enforce and Protect Act of 2015 (ENFORCE). The current Administration is giving even more teeth to enforcement by Customs. Recently, Executive Order 13785, released on March 31, 2017, focused on additional means to enforce antidumping/countervailing duty laws. The Order states that importers will be assessed and if determined to be at risk for ADD/CVD enforcement, additional imports bonds may be required. Further,
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as stated in the Order, “The Attorney General, in consultation with the Secretary of Homeland Security, is required to develop recommended prosecution practices and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecuting significant offenses related to violations of trade laws.” Beyond the new ADD/CVD remedies being implemented by the government, the Department of Justice has begun to hone in on False Claims Act (“FCA”) (31 U.S.C. § 3729) cases involving antidumping/countervailing duty evasion. The FCA allows people or companies, designated a “Relator”, to file what are termed “qui tam” lawsuits against individuals or companies that directly or indirectly defrauded the Federal government. Through qui tam lawsuits, the informants or “whistleblowers” may recover triple damages on the government’s behalf. Anyone who knows of the fraud, including a competitor company may file a qui tam lawsuit. For example, in 2016, the prominent furniture store Z Gallerie LLC settled an FCA claim to the tune of $15 million due to falsely claiming its imports were not subject to an ADD order on wooden bedroom furniture from China. Enforcement of ADD/CVD orders is no longer just the province of international trade laws, but encompasses a range of federal statutes. ADD/CVD orders cover a wide range of products. In the past, the majority of the orders focused on products originating in China. However, the environment continues to change and countries with notable increases in ADD/CVD
orders include Vietnam, Korea, Turkey, Taiwan, and Indonesia. ADD/CVD orders in the last 5 years (2012-2016) for these countries represent more than 20 percent of all orders ever brought against each individual country. Taiwan and Indonesia are standout new countries, with increased orders brought in last 5 years. Notably, orders also regularly include European countries, such as the UK, France and Germany The steel industry is a key area where ADD/CVD enforcement is increasing. There already exist several orders against steel products. These orders include multiple countries and include: Oil Country Tubular Goods (issued in 2014, 7 orders against 5 countries); Non-Oriented Electrical Steel (issued 2014, 8 orders against 5 countries); and Steel Nails (issued 2015, 6 orders against 5 countries). New petitions and investigations against all types of steel products are on the rise, especially as the current Administration has broadcasted its commitment to ensuring a fair playing field for the U.S. steel industry. In this heightened enforcement arena, it is more critical than ever that an importing company be proactive in reviewing its imported products to ensure no ADD/CVD applicability and to address such issues as soon as they arise. Voluntary disclosures to Customs are an option to avoid or mitigate penalties if it is revealed that previous shipments were in fact subject to ADD/ CVD orders. HN Jennifer Horvath is a Senior Associate Attorney at Braumiller Law Group, PLLC. She can be reached at jennifer@ braumillerlaw.com
22 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2017
All Means All. Any Means Any. BY HON. TONYA PARKER
Law Day keynote address given on Friday, May 5, 2017 at the DBA Law Day Luncheon. This day and this occasion ripen for us the opportunity to search our minds, our hearts, and our jurisprudence to answer two vitally important questions as they relate to the promises of our constitution, in general, and the 14th Amendment, in particular: does “all” mean all, and does “any” mean any? Our answers to these questions are bound-up with our sense of humanity and our avowed commitment to equal justice under the law. If we believe in the covenants of the 14th Amendment, we must continue to be vigilant in scrutinizing any policy, law, or order that claims the promises of our constitution for some, while denying them to others. Especially when the denial is based on differences that, on the one hand, do not matter and, on the other hand, cannot change the eternal fact—that our shared humanity grants each of us, at our birth, the inalienable rights of life, liberty, and the pursuit of happiness. The 14th Amendment to the United States Constitution contains three major provisions: a) The Citizenship Clause that grants citizenship to all persons born or naturalized in the United States; “All” means all. b) The Due Process Clause which declares that states may not deny any person life, liberty, or the pursuit of happiness, without due process of the law. “Any” means any. c) The Equal Protection Clause which declares that a state may not deny any person within its jurisdiction the equal protection of the laws. “Any” means any. To fully appreciate the expanse of the 14th Amendment, we must revisit the dark place in our history that led to its ratification almost 150 years ago. For that, we must remember Dred Scott. In 1857, the U.S. Supreme Court was tasked, in the case Dred Scott v. Sandford, with resolving the issue of whether slaves, former slaves, and descendants of slaves were considered citizens as contemplated by the U.S. Constitution, and therefore entitled to its guarantees. Writing for the majority, Chief Justice Roger B. Taney framed the issue and then answered it with these now infamous words: “The question before us is whether people of African ancestry compose a portion of the people described in the Constitution as citizens, and are constituent members of this
sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” Chief Justice Taney continued by offering the court’s rationale for its position: “In the opinion of the court, the legislation and histories of the times, neither the class of persons who had been imported as slaves, nor their descendants, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. At the time of the Constitution’s ratification, Negros were regarded as beings of inferior order who were lawfully and justly reduced to slavery.” Two justices dissented from the majority opinion in Dred Scott. One of them, Associate Justice Benjamin Curtis, wrote what is characterized as “an angry” 70-page dissent, vehemently criticizing what he believed was Taney’s use of the court to advance a political agenda. Then Illinois Senate candidate, Abraham Lincoln, even spoke against the Dred Scott decision in the famous LincolnDouglas debates of 1858. It would be easy, then, for us to join the critics of the Dred Scott decision, and simply dismiss the majority opinion as pro-slavery racist rhetoric (which you may still do), but the history of our country is complicated and it commands us to look more critically at the rationale offered for the court’s holding. When we look closely at that rationale, we see that much of it is Chief Justice Taney expressing incredulity in the notion that our framers intended to include, as citizens and persons, the very slaves many of them subjugated to property at the time they wrote the Constitution. Of the 55 delegates to the constitutional convention, historians report that 49 percent of them owned slaves. And so there is an ugly truth about portions of Justice Taney’s rationale which, frankly, we do not like to speak aloud— some of the framers, in fact, did not intend to include slaves or their descendants among the citizens and persons covered by the Constitution. And that fact is as irrefutable as it is ugly. Fortunately, this ugly fact does not end the discussion and our nation’s story. Many historians believe the Chief Justice gave too much deference to the intentions of the framers in interpreting provisions of the Constitution. I agree with those critics. What seems obvious to me is that the men who drafted that awesome document were, to a large extent, scribes. Scribes of timeless words inspired by a divine and prescient force much larger and
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more righteous than even they were. Many of their lives, at least in part, standing as contradictions to the bold concepts they enshrined. The principles imbedded in our Constitution live and breathe, making the spirit of the law greater than the letter, and the letter of the law even greater than the intent and human limitations of those who wrote it. When the 14th Amendment was adopted in 1868, it not only overturned the Dred Scott decision, with its citizenship clause making clear that slaves, freedman, and descendants of slaves were entitled to U.S. citizenship, it also actualized a concept written in Declaration of Independence almost 100 years prior. The passage speaks to just how far our democracy should and will go to protect our inalienable rights. It reads: “...to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness.” The 14th Amendment to the U.S. Constitution is the vehicle through which people have been able to fight for recognition of their civil, fundamental, and due process rights. It is the vehicle through which the court has been able to apply the Bill of Rights to states. For these reasons, it has played the most prominent role in transforming our democracy from one that merely “holds certain truths to be self-evident” to one that requires the government to make them true and demonstrate their truth in the eyes of the law. In this way, the 14th Amendment gives citizens the right to use one branch of our government, the judicial branch, to litigate against the other branches of our government when those branches attempt to unjustly curtail or deny constitutionally protected rights. What a Constitution. What a Country. Despite the greatness of both our country and our Constitution, and perhaps because of it, we have spent the last century and a half litigating under the 14th Amendment. And the cases and controversies that have made their way to our highest court have run the spectrum. We have had cases where the court has made clear that through the 14th Amendment the restrictions on the power of the government which are contained in the Bill of Rights, apply to all levels of government, not just the federal government. And therefore, states cannot infringe on certain of those guarantees including rights of privacy, free speech, and religion. These cases include cases like: • The court’s 1925 decision, Gitlow vs. New York, where the Court determined that it could review whether a New York statute, used to convict Gitlow for his anti-government writings and teachings, violated the First Amendment to the U.S. Constitution. • And cases like court’s 1961 decision in Mapp v. Ohio, where there Court said evidence that Ms. Mapp possessed obscene material in violation of a state law had to be excluded from her trial because the manner in which it was collected was unlawful under the 14th Amendment’s due process clause and violated her Fourth Amendment right to privacy. More than a dozen times in the last 120 years, the court has had to speak to the fundamental right of marriage. From the 1888 Maynard v. Hill decision where the court described marriage as “the most important relationship in life” to the 1967 Loving v. Virginia case where the court struck Virginia’s law prohibiting interracial marriage, holding that “the freedom to marry is a vital personal right essential to the orderly pursuit of happiness.” And, of course, the court’s 2015 decision in Obergefell v. Hodges where the court struck state laws precluding the licensing and recognition of same-sex marriages, holding that such laws violate both the due pro-
cess and equal protection clauses of the 14th Amendment. The Court has repeatedly had to address racial classifications by states and state institutions. In Brown v. Board of Education, the court overturned Plessy v. Ferguson and the separate but equal doctrine, ruling that regardless of “quality of the [different] facilities” separation based on race is inherently unequal and violates the 14th Amendment. In Regents of the University of California v. Bakke, the court held that the use of racial quotas is as unconstitutional as racial segregation. The U.S. Supreme Court has also addressed the rights of people who are undocumented or who are not lawfully in the country. In the 2001 Zadvydas v. Davis, the court held that “due process of the 14th Amendment applies to all aliens in the United States whose presence may be or is lawful, unlawful, temporary, or permanent.” Two decades prior, in Plyer v. Doe, the Court ruled that the State of Texas could not enforce a law that prohibited illegally present children from attending grade school, as other Texas children were required to attend. The Court ruled: “the illegal aliens who are challenging the state may claim the benefit of the equal protection clause which provides that no state shall, ‘deny to any person within its jurisdiction the equal protection of the law.’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term…and the undocumented status of these children does not establish sufficient rational basis for denying them benefits the state affords to other children.” The language of the 14th Amendment itself makes clear that all means all as it relates to the citizenship of those born or naturalized in the United States. Offensive terms like “anchor baby” used by some to refer to others, does not change this fact. The cases enumerated here and others like them, covering the last 150 years of our jurisprudence, make clear that when it comes to due process and equal protection of the laws, any means any. When we engage in or tolerate the practice of carve-outs from words as clear and simple as words like “all” and “any,” we must acknowledge to the point of embarrassment, really, the extent to which we have to contort ourselves to do it. And we have to be honest about the fact that making carve-out from the promises of the 14th rolls us back in history to the very environment that led to its creation in the first place. Remember, Dred Scott. Carve-outs are often really being done for two reasons: 1. First, because on some level we have convinced ourselves, as Chief Justice Taney did writing for the majority in Dred Scott, of falsehoods about our inherent worth and value, relative to that of our fellow man; and 2. Second, because we are more tolerant of the sins of our forefathers in the way they acquired and developed our precious land, than we are tolerant of the sins of some of our present day brothers and sisters in how they migrate from perilous circumstances to our shores. Whatever the reason we attempt to make carve-outs from the promises of our Constitution and the persons to whom they apply, when we do it, we risk turning the principles which undergird our democracy into empty and meaningless platitudes. In a few minutes, we will leave this hall and return to our communities, our political, social, religious, civic, and educational institutions, where, because we are the lawyers, we rightly will be looked upon as the leaders. And those who are sheep to our shepherd will turn to us in rooms much smaller than this and, perhaps in a whisper, they will ask: “as it relates to the issues of our day, what says our Constitution?” It is my sincere hope that as lawyers we will answer them, not in low voice or in a voice that quivers, but in a voice that resounds: “our Constitution says, all means all and any means any.”
June 2 0 1 7
D al l as Bar A ssoci ati on l Headnotes 23
Classifieds
June
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OFFICE SPACE
Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers five conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@englishpllc.com or 214.528.4300. Coit/Churchill - Office share opportunity with small established law firm. Large corner window office with separate support staff custom built work station. No lease; 60 day moveout notice required. Includes shared
reception area-two conference roomskitchen, two 5-drawer lateral cabinets, DD phones, Wi-Fi, fax, copier/ printer/scanner/postage meter at passthru cost, 24/7 security and tenant access, free gym, free large meeting room, 1 underground executive parking space, 1 secured upper level parking, free visitor parking. Contact Renay @ (214) 292-2614. Three offices on McKinney, with two secretarial areas (1530 sq. ft.) available at 4054 McKinney Avenue. Monthly rate of $2,500.00 per month. Call (214) 520-0600 Uptown - Executive Office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour. Stop Looking!! Your next office in Downtown Dallas is available now for immediate move-in. Active law firm has very modern, newly built offices for rent in a “turn-key” executive suite arrangement (secretary station also available for a little extra) in Class A building with restaurants, Starbucks, conference center, Wi-Fi Lounge and 24/7 security. In-office amenities include receptionist, telephone, Wi-Fi access, conference rooms and a stocked kitchen (unlimited coffee, soda and snacks; lunch is sometimes provided). Get it all for one price (parking and postage extra). You will enjoy a great working environment. Call Kathleen at (214) 965-9999. Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. North Dallas – Galleria. Attorney offices available with law firm located in Galleria towers. Amenities include conference room, secretarial station, kitchen, parking garage, photocopy/ scanner/postage/facsimile and related amenities. Contact Scott at (972) 7891162. McKinney Avenue Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600 Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
floors throughout. Shared conference room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240. North Dallas. Law Firm – Merit Tower Office Space - For Lease: Contemporary office space, 12222 Merit Drive, offers five conference rooms, receptionist, Internet service, lobby, library, fully equipped breakroom, parking, workout facilities. Available 5/1/17. Email Amy at arobinson@englishpllc.com or (214) 528-4300. Lee Park Area - executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information. North Dallas/Farmers Branch - Law firm has several offices for lease. $400/ month per window office. Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (214) 532-8892 or ilene@texasinjurylaw.com. Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265.
POSITIONS AVAILABLE
Downtown Defense Firm – Experienced Associate. Downtown midsized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking and subrogation (both workers’ compensation and ERISA). Must have good communication skills, solid writing ability, be able to work independently and with others, and have experience working with insurance companies. Great opportunity for a motivated, self-starting individual. Please submit resume and salary requirements to dwoodard@downsstanford.com. Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/or our general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees. See our website at www.pamlaw.com or contact Steve Palmer or Rebecca Manuel at (214) 242-6444. Civil Litigator - Boutique construction law firm seeks experienced civil litigator with trial experience. Strong writing skills required. Compensation negotiable. Send cover letter and resume in confidence to: oaklawnfirm@ aol.com. Join Growing Dallas Firm. Growing downtown Dallas Firm seeks other experienced lawyers to join us. Enjoy
going to work in a firm with collegial partners, profitable business, better technology and even stylish offices. Opportunities include working remotely, in the office, or both. Better compensation model, better technology, better opportunity. See our recruiting website and video at careers. emmertparvin.com. Office Sharing - Dallas, TX. Law firm seeking experienced attorney with transaction and litigation background. Furnished office with a window. Will provide overflow work, conference room, kitchen, break area, and free parking. If you are interested, please call Charles at (214) 522-4900. Dallas Firm Seeks Litigation Attorney. Small, AV rated, downtown insurance defense litigation firm seeks a full-time attorney with a minimum of 5 years of litigation experience. Personal injury and first party bad faith experience required. Applicant should be highly motivated, a team player, Computer literate, work well without supervision, and possess excellent research and writing skills. Fax resume and salary requirements to Administrator at (214) 748-1421 or e-mail to jtbdal@ tx.rr.com. Midsize full service law firm in downtown Dallas with 135 year history of excellence seeks an attorney, licensed in Texas, with 5 - 10 years of experience in the areas of employment and labor law. Preferred experience for this position should include experience with employment discrimination laws, TWC, FLSA and FMLA as well as litigation experience in employment matters. All inquiries are confidential. Please email resume to jpolzer@ canteyhanger.com. Personal Injury Defense Attorney Position. 5 years minimum experience in personal injury defense litigation. Other requirements: Do not be afraid of hard work. You have to be able to laugh at yourself, but never at others. Lose the ego. Treat staff like you would treat your best client. Be willing to do things our way. Don’t throw people under the bus. The Bassett Firm provides competitive salaries and benefits. Interested applicants send resume to nmenchaca@ thebassettfirm.com.
SERVICES
Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www. ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Kirk Leitch or Brenda Phillips at 1-800-760-9890 or 214-720-9890 for a friendly and quick analysis and response. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@ dallasbar.org.
24 H e a d n o t e s l D a l l a s B a r A s s ociation
June 2017
Celebrating
TRADITIONS Old & New An Oldie but a Goodie: BAR NONE XXXII: LAW LAW LAND JUNE 14-17 Described as â&#x20AC;&#x153;entertaining, hilarious, and often irreverent,â&#x20AC;? Bar None is an annual variety show sponsored by the Dallas Bar Association and Dallas Bar Foundation. Written, directed, and performed by members of the Dallas-area legal community, Bar None celebrated its 30th Anniversary in 2015. The show raises funds for the Dallas Bar Foundation's support of the Sarah T. Hughes Diversity Scholarships at the Southern Methodist University's Dedman School of Law, UNT Dallas College of Law, and Texas A&M University School of Law. To date Bar None has raised over $1.8 million for the Hughes Scholarships. Learn more and get tickets at www.barnoneshow.com
New & Inspirational: THE 1ST NATURALIZATION CEREMONY AT BELO MANSION JUNE 29, 11:30
AM
Please join us in celebrating our newest American citizens. In one of our most beautiful constitutional exercises, applicants for citizenship to the United States of America will take their oath and final steps in their journey to become Americans. Presided over by the Honorable Chief Judge Barbara Lynn, the ceremony will begin at 11:30 AM sharp at Belo Manison. The 30-minute ceremony will be followed by lunch with our new citizens and their families. Please RSVP to yhinojos@dallasbar.org to attend
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