Steven Pham's Legal Blog

The recent passage of the $700 Billion bailout by the U.S. government signals that this is a time of uncertainty.  While most people would agree that the bailout would help the financial industry from failing and going into bankruptcy, experts are not certain and disagree on how much it would help some of these failing banks.  Worse yet, many economist and political analysts do not think that the bailout would help home owners who are facing bankruptcies and foreclosures. 

The Act will allow the feds to buy up loans that are facing foreclosures, leaving banks with assets and revenue to make loans to more financially sound individuals and institutions.  In theory, this could work.  However, the Act will not buy up all bad investments, such as construction loans.  So, which banks are likely to fail while others are likely to be able to survivng this financial shake-ups?  Most likely, it would be local banks and mortgage companies who have limited assets and more likely to make riskier loans during the inflated, bull market in the real estate industry.

What does this mean to home owners and businesses?  If you are facing foreclosures, the recent passage of the $700 billion bailout will not help you.  If you are a general contractor, developer, and investors, the bill may help in the long turn, but many experts agree that the Act will not help in the immediate future.  Housing value will continue to decrease over the next year.  However, if you are one of the lucky investors who have a nest egg, or be able to get a loan, and ready to invest, this is the right time.  I suggest that regardless whether you are facing bankruptcy, foreclosures, or are those that are lucky enough to start investing, contact one of our Houston real estate attorneys, our Long Beach business and contract lawyers, our U.S. bankruptcy attorneys, or our U.S. credit repair attorneys for assistance during this time of uncertainty. 

For years, the right-winged conservatives have been screaming for the government to step-up enforcement of illegal immigration.  They attribute illegal immigration to the lack of jobs, claiming that jobs were taken by illegal immigrants who are willing to work for less by getting pay under the table.  To be fair, it is reasonable to assume that many undocumented aliens do accept jobs that pay less than the employer would have to pay for a U.S. residence or citizen.  However, whether that is a widely used phenomenon is yet to be determined.

What is clear, however, is that the number of illegal immigrants declined over the past few years.  The conclusion was based on a recent study, which was referred to in a recent Associated Press’s article.  While recent crack downs by ICE and removals may have caused fear in some illegal immigrants, the article attributed the decline due to the lack of low-skilled jobs, such as in the construction industry.  As the bearish economy slows down and enters into a recession, construction projects, especially in the residential construction industry, comes to almost a complete halt.  These low-skilled, low-paid jobs are often not desirable to many U.S. residence and citizens. 

The fact is whether the illegal immigrants take up “American jobs” are yet to be proven. One thing is clear.  As the illegal immigrant number increases, so is the U.S. economy.  Contrary, as the number of jobs decrease, and the economy slows down, so is the number of illegal immigrants.  Perhaps we all should stop worrying about who takes up “our jobs,” and concentrate on developing our own skills to be competitive.  Perhaps we should take into consolation that, when there is an increase in the number of illegal immigrants, it is an indication that our economy is vibrant and there are more jobs out there for everyone. 

Recently, I was asked to spear-head our firm’s marketing strategy and reassess our efforts to promote business.  This is a gargantuan endeavor because we have numerous websites, blogs, and hundreds of web pages, if not thousands, to review.  Although this would be a laborious task, and undoubtedly time consuming, it would not be as ambitious as my personal goals in this position.

You see, marketing is not just about looking for various ways to promote the firm’s images, branding, firm recognition, media ads., internet ads., and networking.  Marketing starts from within one’s organization.  To be able to convince the public, we must first be able to convince our employees and staffs that our firm is capable of providing quality legal services on behalf of the client, and that the firm cares for the overall welfare of its employees and clients alike.  Furthermore, employees also have the responsibilities to the firm and the employer and everyone must understand that a law firm, just as any other professional services organization, is a business; and because we are a business, we all share the responsibility to promote such business.

Thus, everyone has the responsibilities to market the firm, just as much as the firm has the responsibility to assist and to market the associates’ and the partners’ images. Until all of the above are accomplice, the media ads, branding, and internet marketing will not achieve the firm’s long-term goals and objectives.  On the other hand, if we do all of the above, do it well, and is consistent, the firm will be able to build trust, confidence, loyalty, and dedication from its partners, associates, staffs.  By working together, the firm will be recognized and appreciated by our clients, which will be reflected by the bottom line.  So, let us be brave, be bold, and be positive in moving forward with the changes and tasks in which we all equally bear.  God Speed! 

Not widely known, the USCIS implemented a new vaccination requirement starting last August 1, 2008 for female immigrant applicants outside the U.S. through Consular Processing and for those who seek Adjustment of Status in the U.S.  The new vaccination is part of the requirement based on the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) which came into effect in 1996.  

Female immigrant applicants, ages 11-26, must now obtain cervical cancer vaccination, using a drug that was recommended by the Center For Disease Control & Prevention (CDC) last year, Gardasil.  IIRIRA required that any vaccination that is recommended by the CDC for U.S. citizens to vaccinate will be required by all immigrant applicants. The effect has wide-spread impact on the ability many immigrants to be able to file for an immigrant application and adjustment of status.  Gardasil is an expensive drug in which many immigrants simply cannot afford; mindful that there is already an extensive list of vaccinations, 14 to be exact, in which immigrant must show, such as measles, mumps, and meningitis. 

Of the 14 that are listed, 13 are communicable disease that could be spread through the respiratory system.  Cervical cancer, on the other hand, is a sexual transmitted disease.  At the cost of $360 for the 3 shots required for Gardasil, cervical cancer, vaccination, many immigrants simply cannot afford.  To put this into perspective, the average annual income for most developing countries is less than $300/year.  Where would an average immigrant find $360, just for Gardasil vaccination alone, to file their petition?  Has USCIS gone too far?  Are they just doing their job as required under IIRIRA?  Should IIRIRA be amended, as it inadvertently has negative affects for thousands of unintended “victims?” 

I am not a political person and usually do not meddle into politics.  However, recent Olympic events show the true characters of the Chinese government (Mainland Chinese government, that is).   With the reputation of the nation on the line, the Chinese government and their Olympic committee chose deceptions and frauds to host their first, and probably only, Olympics. 

Now, it does not take a genius to know and realized that many knockoff brand-names and boot-legged CDs and DVDs come from China.  In fact, one may even presume that these knockoffs and piracies are condoned by the Chinese government in the name of growths and profits.  However, it would be hard to imagine that the mainland Chinese government has the audacity and foolishness to fake many of the performances in their Olympics opening ceremony. 

    Anyone who watched the opening ceremony was stunned and marveled over the performances, using the masses, and spectacular fire-works.  However, the world soon realized that much of the performances and the televised broadcast was a series of deceptions.  First, the firework show on TV was partially computer generated, showing a large part of Beijing was lit up of fireworks.  In fact, much of the fanfare was generated by computers.  Second, we also realized that the former Olympian who gracefully pretended to “walk on air” around the bird-nest stadium was also a fake; and that in fact, much of it was also computer generated.  Now, it seems that the voice of the 9 year-old girl singing was also dubbed by another 7 year-old girl’s voice.  The reason, as explained by the General Music Designer, Chen Qigang, was “because we wanted to project the right image, we were thinking about what was best for the nation.”  That’s right!  The reason was because the Chinese committee wanted the world to see a girl that has a “perfect image” and a girl that has a “perfect voice.”  You see, the real singer, Yang Peiyi, is chubby and has crooked teeth; and so, they showed a cute little girl, Lin Miaoke, to “mimic” on stage.  In most parts of the world, it is called “lip-singing” and it would be considered as a deception, a lie, a fraud, a mockery of art, and an insult to the true artist, Yang Peiyi.    To add insult to injury, “Miaoke” is not a common Chinese sur name.  “Miao” (also known as Miao, Miao-tse, Miao-tsze, Meau, Meo, mo, miao-tseu) is a common sur name for a group of indigenous ethnic group of people that lives in Myanma, Thailand, Laos, Vietnam, and China.  So, nationality, she may or may not even be Chinese.  Ethnically, most likely cute little Lin Miaoke is not even Hans (the predominant and majority Chinese ethnic group.)  What does that say?

Does the Chinese’s explanation remind you of another group in the early 90’s?  That’s right; they are called “Milli Vanilli.”  Deceptions and frauds is what the performances were, games in which the Chinese government are so familiar with. “Girl, You Know It’s True!“  What is next?  The 208 drum performers were computer generated to look like there were 2008?  Nothing surprises me anymore!  

To all boaters, whether you are avid anglers, sail-boat lovers, water-ski and jet-ski owners, and to all water-craft owners alike, I am pleased to let all anglers and boaters know that effective as of July 29, 2008, the U.S. Environmental Protection Agency (EPA) will not be issuing pollution permits to non-commercial boat owners.  As of July 29, 2008, President Bush signed the Clean Boating Act.  While regulating commercial vessels, the Act precludes the regulation by the EPA on small, recreational water crafts.  As such, the EPA will revise its plan to for the permit systems that will be effective as of September 30, 2008 as the result of a court order after several environmental groups filed suit against the EPA in 1999, which the court’s decision was issued in late 2006. 

According to Sports Fishing Magazine, the Act affects approximately 17 million recreational boats in the U.S. from having to under-go the 5 years permits that was scheduled to be issued this September.  Without the Clean Boating Act, the owners of these relatively small recreational boats would have be stuck in another bureaucratic red-tape.  The cost for monitoring, issuing, and inspecting these permits would cost the federal and local government, as well as boaters, in the billions.  Should you have any questions as to whether your boat may be affected by the Act, please do not hesitate to contact me at www.smithgarglaw.com.

Over a year ago on July 30, 2007, USCIS dramatically increased filing and application fees, promising to hire new adjudicating officers and eliminating backlogs on case loads.  One year later and we find ourselves worse than we have ever been in the number of backlogs.  Whether or not the USCIS hired more employees, the evidence is clear.  Irrespective of how much funding the agency (USCIS) receives from the federal government or collected from applicants and petitioners (which are USCIS’s constituents), the agency has no clue as to how they can efficiently and effectively adjudicate these applications. 

In 2005 and 2006, a person who is filing an application to change his/her status from one nonimmigrant visa to another, or extend his or her visa status, would be able to receive a decision, whether that is a denial or approve, within 90 to 120 days.  Thus, a B-1/B-2 visitor who filed an application to change or extend his or her status 90 days before the expiration of the I-94 would be able to get a decision either before or soon after the expiration of the I-94.  While the application is no guarantee and the person may receive a denial after the expiration of the I-94, putting the foreign national “out of status,” his or her immigration status will not be adversely affected, so long as the person leave the U.S. within 180 days from the expiration of the I-94.  Essentially, although a denial after the expiration of the I-94 would make the person “out of status” and would have to leave the country, the person would not have been considered an “over-stay,” triggering a bar from coming back to the U.S.Currently, all service centers are at least 8 months behind in adjudicating change of status and extension of status applications.  In the Texas Service Center, who process applications for numerous states in the South and South-east of the U.S., these applications are 14 months behind.  Thus, anyone who files an application for change of status or extension may face removal and deportation, as well as a possible 3 through 10 years bar, if their application is denied.  Worst of all, these applications are ineffective and useless for B-1/B-2 visa holders because the extensions are usually only up to 180 days, making an approval useless because they would still be out of status by the time they received an approval from the USCIS.  As such, filing an extension for B-1 and B-2 visitors became the thing of the past. 

Sometimes, I wonder where all the additional application fees went?  What happened to new adjudicating officers that were supposed to be hired by the USCIS to clear the “backlogs?”  I wonder what would happen if one files a complaint to the Government Accountability Office (GAO) would make any difference or would that person get lost in the quagmire of government bureaucracy?  Perhaps AILA would like to take responsibility and bring up these issues and demand more accountability from USCIS?  Just a thought! 

Last week, the U.S. Supreme Court ruled on the Exxon Valdez case in which it limited the punitive damage to equal the actual damage for $507.5 million.  The court reversed the 9th Circuit Court’s ruling that the $2.5 billion in punitive damage award, roughly 5 times the actual damages, holding that the punitive damage award was excessive for maritime law.  The court took into consideration in light of the actual damage and the retribution in which Exxon already paid for the cleaning-up efforts.  Although the Court’s holding is only intended to apply toward maritime law, it is likely that other courts will use this holding and limit other form punitive damages in none-maritime cases. 

The fundamental basis of for punitive damages is to punish the wrong-doer, and discourage such behaviors, and avoid tragic events such as the oil-spill in 1989 by The Exxon Valdez.  The Court’s holding on June 26, 2008 takes away the punishment aspect of punitive damage in light of the amount of the award verses Exxon-Mobile’s record earnings over the past few years.  In its first quarter of 2008, Exxon-Mobile boasted a $10.5 Billion in profits.  That is $10.5 billion in net.  Therefore, the annual net income would expect to be roughly $42 billion.  Thus, a punitive damage of $500 million is only roughly 1.25% of Exxon-Mobil’s annual profit.  That is hardly any punishment to the company of that size and profits.  The $500 million punitive damage is not a punishment; but rather, it’s a joke!

The award is so small that it is silly.  Why do we have it at all if punitive damage will no longer deter the wrong-doer from commit crimes?  At 1.25%, it becomes a risk/benefits analysis, and for most business owners, they would take that risk.  If I were to have a business that potentially makes $100 million a year, which I would be able to profits millions dollar more by illegal activities, and the only risk are (1) retribution when get caught (2) punitive damages equal to that amount, I might be very tempted to take that risk.  Let us take it another step further.  If I were to rob a store, and my only punishment, if I happen to get caught, is to pay back the amount stolen and the same amount in punitive damage, without jeopardizing my liberty, the risk is very minimal.  Isn’t it?  We would have chaos and society would not be what we know it today. 

The punishment, regardless of whether it is a poverty crime, a white collar crime, or a crime contributed by corporate gross negligence, such as the Exxon Valdez, should fits such crime.  The punishment should be a deterrent factor.  By deciding that the punitive damage should be equal to the actual damage, the Supreme Court had taken away the punitive (punishment) aspect away.  Exxon-Mobile no longer feels the pain in its pocket and will continue to violate federal laws to reap record profits.  Where is the justice in that? 

Previously, I wrote an extensive blog regarding drafting resumes.  In that article, I stated that, “a well written and organized resume would get you the interview, which would land you a job.”  Although that may be true, an equally important part of drafting your resume and submitting it to potential employers would be a well written cover letter.  At a request of my friend, colleague, and former law clerk, Ms. Christina Le (Ms. Le is a Judicial Clerk with the Immigration Judges of the Executive Office of Immigration Review in Houston Texas), I will dedicate this blog to “how to draft a cover letter.”   If you had ever been to a career center of your school, regardless if it’s a professional school or an undergraduate school, the common theme in which you will hear is that (1) a resume must be limited to 1 page; and (2) A cover letter should not be detailed or that employers do not pay attention much to your cover letter.   

The truth is far from it.  Even before looking at your resume, the employer will review your cover letter in details.  In this electronic age, many people do not draft a separate cover letter, but instead, draft an email, introducing themselves and attaching the resume.  Regardless of your method (i.e. either drafting a very short introduction email and attach a cover letter & a resume or to draft a detailed cover letter within the text of your email and attach only the resume) is of no consequence.  What is important is the content of your cover letter.     

So, what information should you properly insert into the cover letter?  Obviously, you do not want to write a mini-novel about yourself and put the reader to sleep.  Executives and managers are often very busy and are impatient, unless it is business, especially in the legal field.  Therefore, the information must be concise, to the point, and illustrate your best qualities.  Ask yourself this question, what sets myself apart from the other 30 resumes?  Prior to hiring an employee, the manager will probably have read through 20-30 resume and interviewed probably no less than 5 people.  So, at every opportunity, you must set yourself apart from the other candidates.  In your cover letter, you must briefly state your overall experience.  More importantly, you must state your accomplishments.  If you were an immigration attorney, you must demonstrate your knowledge, and perhaps specialization and accomplishment in a specific area of immigration law.  If you were a litigator, you must state your records.  State the number of jury trials, bench trials, motion practice, and the overall outcome and percentages of those trials and motions.  If you were an engineer, state some important projects or clients in which you successfully assisted.  If you were a software developer, state the program, the importance of such program and your contribution in that project; and if you were a web developer, state which site you had developed and your role in developing or optimizing that site.  Finally, if you were a sales professional, state the largest accounts in which you have closed and managed, the number of client-visits in a month and the number of phone call you make on a daily basis. Again, whatever your field may be, you must state your accomplishments in a concise manner and get it across in your cover letter.  

The blog above is based on the number of resumes, cover letters and in which I have reviewed and interviewed as a partner at Smith & Garg, as well as based on my 5 years experience as a recruiter and business consultant.  I hope it has been helpful and shed some lights as to what a potential employer look for in a cover letter. 

Last night, I had the opportunity to watch “Rendition” with my wife, and my friend and co-worker, attorney Evi Ha Huynh, and her husband.  “Rendition” is a recent movie in which Hollywood depicted the U.S. Government, CIA specifically, kidnapped a foreign national (Egyptian) who is a permanent resident in the U.S., to a North African country to be tortured for interrogation purposes for his alleged ties to a known Egyptian terrorist.  “Rendition, otherwise known as “Extraordinary Rendition” is a term used to describe the apprehension and extrajudicial transfer of persons from the U.S or other countries to another State in which the suspected terrorist may be interrogated in ways that critics alleged to be unconstitutional and/or in violation of Article 3 of the United Nations Convention Against Torture (CAT).  The program has been used since the 1980 by the Central Intelligence Agency in covert operations, which may or may not have saved lives.

Renditions have increased dramatically since 9/11 and is now allegedly used more often.  The movie shows that the permanent alien (green card holder) came to the U.S. some years ago at the age of 14 and is now a renowned scientist as a chemical engineer.  He is married to a U.S. citizen and has two U.S. born children.  Nevertheless, he was deprived of due process and communication with his family and attorney.  In the end, after suffering from intense tortures, he cracked and falsely testified to what the interrogator wanted to hear just so the pain would stop.  I am in no way a liberal and I am also not a “rebel without a cause.”  In fact, I do not doubt that this tactic may have even saved lives, here in the U.S., as well as in Europe and other Westernized countries.  However, the movie brings back memories when I was in law school.  The statement in which my immigration law professor made on the first day of class was: “So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders.” Carlson v. Landon, 342 U.S. 524, 531 (1952).

Although this statement was made more than 56 years ago by the U.S. Supreme Court, it holds the truth.  So long as a person in the U.S. is not a U.S. citizen, either by birth, naturalization, or through derivative citizenship, the U.S. government has the right to pass any law to govern the aliens within its border.  Those laws, however, must not undermine the U.S. Constitution and it is up to the Judicial system to uphold the constitution if Congress and the President passed laws that infringe and erode Constitutional rights of its citizens and aliens. 

The important thing to remember here, however, is that it is the sovereign rights of every recognized nation to secure its borders and regulate its aliens.  Thus, unless you become a naturalized citizen, your rights are always limited and may be deprived or diminished at the whim of Congress and the President.  I urge that all permanent alien residents file and apply for naturalization as soon as practicable to avoid the heart-aches and even hardships should you encounter a situation in which your required the protected afforded for U.S. citizens.  In light of the Illegal Immigrants & Immigrants Responsibility Act (IIRIRA), the Patriot Act, and renditions, your rights as a permanent resident alien have greatly diminished.