Monthly Archives: April 2013

Moncrieffe v. Holder: A Little Bit of Marijuana Is Not an Aggravated Felony for Immigration Purposes

By Peek & Toland on April 30, 2013

Today, the U.S. Supreme Court ruled that a small amount of marijuana would not be considered an aggravated felony for the purposes of removal proceedings. The opinion of the Court was delivered by Justice Sotomayor. To read the full opinion, visit: https://www.supremecourt.gov/opinions/12pdf/11-702_9p6b.pdf.

Adrian Moncrieffe, a Jamaican citizen, came to the U.S. legally in 1984. In 2007, he was pulled over for a traffic stop when police found 1.3 grams of marijuana in his car, the equivalent of two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Georgia state law. Moncrieffe, who was a first time offender, receive a lenient sentence of five years of probation, after which his charge was expunged all together.

Not long after, the Federal Government alleged that Moncrieffe’s possession of marijuana with intent to distribute conviction were an aggravated felony and tried to deport him. The Government argued that Moncrieffe’s possession of marijuana with intent to distribute conviction was an offense under the CSA, 21 USC §841(a), punishable by up to five years’ imprisonment, and thus an aggravated felony. The Immigration Judge agreed and ordered Moncrieffe to be removed. The Board of Immigration Appeals (BIA) affirmed the conclusion on appeal. The Court of Appeals denied Moncrieffe’s petition for review stating that the federal criminal prosecution default sentencing range for marijuana distribution is the CSA’s felony provision, §841(b)(1)(D), rather than the misdemeanor provision.

The issue brought before the Supreme Court was whether a conviction under a statute that criminalizes conduct described by both §841’s felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction of an offense that “proscribes conduction  punishable as a felony under” the CSA. Lopez, 549 U.S., at 60. On certiorari, the Supreme Court reversed.

A noncitizen may become removable and ineligible for discretionary forms of relief if he or she has been convicted of a narrow set of crimes classified as “an aggravated felonies”. §1227(a)(2)(A)(iii). The general term of “aggravated felony” is not defined by the INA; however it is generally understood to include drug trafficking crimes. §1101(a)(43)(B). A felony is generally defined as an offense for which the maximum term of imprisonment is authorized is more than one year. §3359(a)(5). However, a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s imprisonment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify as an aggravated felony, but as “state offense constitutes a ‘felony punishable under the CSA’ only if it prescribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006).

To determine if a state conviction qualifies as an aggravated felony under the INA the Court must generally employ the “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., Nijhawan v. Holder, 557 U.S. 29, 33-38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-187 (2007). Under this approach, the Court does “not look to the fact of the particular case” but to the whether, “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 496 U.S. 575, 599-600 (1990)). By “generic” the Court means the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, the state offense is a categorical match with a generic federal offense only if a conviction of the state offense “’necessarily’ involved…facts equating to [the] generic [federal offense].” Shephard v. United States, 544 U.S. 13, 24 (2006) (plurality opinion.)

In the instant case, the Supreme Court held that a small amount of marijuana would not be considered an aggravated felony for the purpose of removal proceedings because Moncrieffe’s state conviction did not necessarily proscribe conduct that is an offense under the CSA, and the CSA did not necessarily prescribe felony punishment for that conduct.

The Court was able to definitively determine that Moncrieffe was convicted for an offense that would necessarily proscribe conduct that was an offense under the CSA. However, the Court had to also determine whether Moncrieffe’s state conviction was “necessarily” conduct punishable as a felony under the CSA. To make this determination the Court stated it had to look at more than just “any offense under the CSA”, it had to look at “any felony punishable under the CSA”. In performing this analysis, the Court looked to the punishments the CSA imposed for offenses.

In section 841 the CSA is divided into two subsections that include punishments imposed for particular offenses. The main provisions of the law are punishable as felonies, however section (4) includes an exception to the main provisions of the law, finding, “any person who violates subsection (a)…distributing a small amount of marijuana for remuneration shall be treated as” a simple drug possessor, 21 USC §844, a misdemeanor offense for this particular case. Because of the main provision’s exception, the Court needed to perform further analysis to determine if Moncrieffe’s conviction would qualify for the section (4) exception under the CSA.

To perform this analysis, the Court looked to Georgia state law to determine if remuneration would mean that paragraph (4) is not implicated and thus that the state felony conviction is necessarily conduct punishable as a felony under the CSA. The Court determined that, standing alone, a conviction for possession with intent to distribute marijuana, does not reveal whether either remuneration or more than a small amount of marijuana was involved. The Court reasoned that there was ambiguity as to whether Moncrieffe’s state felony conviction would correspond to a federal misdemeanor conviction or a federal felony conviction. Thus, the Court found that this ambiguity meant that Moncrieffe’s state felony conviction could not necessarily correspond to an offense punishable as a felony under the CSA.

Alternatively, the Government offered a different approach toward analyzing Moncrieffe’s convictions, which the Court ultimately rejected. The Government’s alternative approach stated that a misdemeanor provision is irrelevant to the categorical analysis because paragraph (4) was merely a “mitigating exception,” to the CSA offense, not one of the “elements” of the offense.

To support its assertion, the Government argued that the categorical approach was only concerned with the elements of an offense, so §841(b)(4) “is not relevant” to the categorical analysis. The Government argued that possession of marijuana with the intent to distribute was presumptively a felony under the CSA, thus any state offense with the same elements is presumptively an aggravated felony. The Court rejected this argument citing Carachuri-Rosendo, in which the Court determined that, “when Congress chooses to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too”. See 560 U.S. at ___ (slip op. at 3). The Court stated that here the facts giving rise to the CSA offense establish a crime that may be either a felony or a misdemeanor, depending on the presence or absence of certain factors that are not themselves elements of the crime. Thus, to qualify as an aggravated felony, the predicate offense must necessarily establish those factors not included as elements of a crime as well.

Additionally, the Government attempted to distinguish Carachuri-Rosendo by arguing that the sentencing factor in that case there was a “narrow” aggravating exception that turned a misdemeanor into a felony, whereas under §841(b)(4) and in this case there is a narrow mitigation exception that turns a felony into a misdemeanor. The Court rejected this argument stating that a marijuana distribution conviction is not presumptively a felony and is neither a felony nor a misdemeanor until it is determined if the conditions in paragraph (4) attach. The Court stated that unlike the default felony provision routine in federal criminal prosecutions for marijuana distribution cases, the CSA’s text makes neither the felony nor misdemeanors provision the default for marijuana distribution cases. Thus, the Court must look to a categorical approach to determine whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, make punishable as a felony.

Finally, the Court rejected the Government’s argument for an alternative approach by stating that it would render even an undisputed misdemeanor an aggravated felony. According to the Government’s alternative approach any conviction under the Georgia state statute for possession of marijuana with intent to distribute would be categorically deemed an aggravated felony because the statute contains the corresponding “elements” of the offense. This would have detrimental effects for noncitizens convicted of misdemeanors in federal court under §§841(a) and (b)(4) directly because their misdemeanor convictions would need to be treated as aggravated felonies because their convictions establish elements of an offense that presumptively a felony. The Court stated that, “[It] cannot imagine Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have the courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Lopez, 549 U.S., at 58.

Thus, the Court held that a small amount of marijuana would not qualify as an aggravated felony for the purpose of removal proceedings under federal law. Additionally the Court found that noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defense could do at sentencing.

Posted in Drug Crimes

Outline of Senate Proposed Immigration Reform Bill Emerges

By Peek & Toland on April 12, 2013

Yesterday, April 11, 2013, several news outlets including the New York Times and the Huffington Post, began announcing expected provisions of the gang of eight Senator’s immigration reform bill expected early next week.

The first provision includes a 13-year path to citizenship for qualifying undocumented immigrants living in the U.S. However, this provision is not without strings. The 13-year path to citizenship is contingent on the Department of Homeland Security (DHS) and the U.S. Customs and Border Patrol (CBP) accomplishing 100% surveillance of the U.S. borders and maintaining 90% effectiveness of enforcement of the U.S. border in several high-risk sectors. Also required is a new electronic entry-exit system in all airports and seaports to track holders of temporary visas, to ensure all temporary visa holders do not overstay. If the DHS has developed a new plan for border security within six months of the immigration reform bills enactment, qualifying undocumented immigrants living in the U.S. will be able to apply for provisional legal status.

Additionally, the immigration reform bill includes a visa program for low-skilled workers. The visa program would allow 200,000 workers per year to enter the country to work in jobs as janitors, construction workers, nursing home attendants and other occupations. As a part of the negotiations with labor and farm markets, farm workers already living in the U.S. who are undocumented would receive a faster path to citizenship than other undocumented immigrants. Finally, a new visa program would allow a new immigrant workforce of tens of thousands into the country for the nation’s farms, fields and dairies.

Also introduced in the immigration bill, is a new high-tech worker visa program. The immigration reform bill includes a new cap on high-tech workers visas increasing the cap from 65,000 to nearly double its current amount. Also, foreign students attaining advanced degrees in math, technology, science and engineering in the U.S. will now have the opportunity to more easily qualify for permanent residence in the U.S.

The final condition of the immigration reform bill includes the requirement that all employers adopt a mandatory employer electronic verification system known as E-Verify to authenticate their worker’s legal status. Currently, E-Verify is voluntary to employers and operates by verifying an employee’s social security number through a national database to ensure the employee is legally able to work in the U.S. If the Senate’s immigration bill passes Congress, E-Verify will no longer be voluntary and all employers will be required to participate in the program.

Many news organizations are announcing that the proposed immigration bill will only apply to application who can document they were in the U.S. before December 31, 2011, have a clean criminal record and can show enough employment or financial stability that they are likely to stay off welfare. None of these provisions have been confirmed, but thus far, many believe these will likely be the outlines of the proposed Senate bill up for debate early next week.

If you would like to discuss the immigration reform process further, please contact our office to schedule a consultation at (512) 474-4445.

Posted in Immigration

Pillar #1 of Senate Proposal for Immigration Reform: Border Security and It’s Current State

By Peek & Toland on April 10, 2013

On April 10, 2013, the Department of Homeland Security (DHS) Border Warningtestified as to the current state of the U.S. Customs and Border Protection for a Senate Committee on Homeland Security and Governmental Affairs. The purpose of this testimony was to provide U.S. Senators with a frontline perspective on the current state of U.S. Border Security. As you may remember, the gang of eight Senators, including four Republican and four Democratic Senators, are expected to announce an immigration reform bill by the end of this week. One of the pillars of their bill is expected to include a pathway to citizenship for current undocumented immigrants, however this pathway to citizenship will likely be dependent on increased border security. Therefore, the current state of border security will likely be widely debated and discussed, especially if an immigration reform bill is announced at the end of this week.

Peek & Toland Law Firm has outlined the Written Testimony entitled “Border Security: Frontline Perspectives on Progress and Remaining Challenges”, to better explain DHS’s opinion on the current state of border security. To read the full testimony: Written testimony of U.S Customs and Border Protection: Border Security: Frontline Perspective on Progress and Remaining Challenges. For a more brief and summarized version, read below.

What is Needed to Secure Our Borders

For U.S. Customs and Border Protection, securing the U.S. borders means two having two things:

  • Visibility to see what is happening on the borders; and
  • Having the capacity to respond to what they see.

U.S. Customs and Border Protection’s visibility is provided through border surveillance technology, personnel and air and marine assets, while their ability to respond is also supported by a mix of these same resources.

The Past 10 Years – The Growth of Resources on the Borders

10 Years Ago versus Today:

10 Years Ago Today
Total Number of Border Patrol Agents (BPA) 10,000 21,000
BPA along Southwestern Border 9,100 18,500
BPA along Northern Border 500 2,200
Total Number of Customs and Border Patrol Officers (CBPOs) 17,279 21,000 + 2,400 agricultural specialists

The CBPOs and agricultural specialists help facilitate $2.3 trillion in trade in Fiscal Year (FY) 2012 and welcomed 98 million air travelers, a 12% increase since FY 2009.

Infrastructure & Technology

There were also large investments in border security infrastructure and technology. Technology is primarily used to provide awareness of all land, maritime and air domain, which is essential as Customs and Border Patrol (CBP) faces future threats. CBP acquired technology assets including integrated fixed towers, mobile surveillance units, and thermal imaging systems to increase agent awareness, efficiency and capability to respond to potential threats.

NII & RPM: At Point of Entries (POEs), CBP deployed Non-Intrusive Inspection (NII) and Radiation Portal Monitor (RPM) technology to help identify contract band weapons of mass effect.

Prior to 9/11/2001 Today
Non-Intrusive Inspections in use 64 310
Radiation Portal Monitors in use 0 1,460

RESULT: CBP has the capacity to scan 99% of all containerized cargo is seaports and 100% of passengers and cargo vehicles at land borders for radiological and nuclear materials upon arrival in the U.S.

WHTI & RFID: Similarly, the implementation of Western Hemisphere Travel Initiative (WHTI) has resulted in more than 19 million individuals obtained Radio Frequency Identification (RFID) technology-enabled secure travel documents. RFID documents are more secure because they can be verified electronically in real-time back to the issuing authority, to establish identity and citizenship; they also reduce the average vehicle processing time by 20%.

RESULT: RFID-enabled secure travel documents have increased CBP’s capability to enforce national law query rate, including the terrorist watch list, to more than 98%. In comparison, in 2005, CBP performed law enforcement queries in land border environments for only 5% of travelers.

Beyond Land Borders: CBP not only supports security efforts along 7,000 miles of land border, but also supplements support along the Nation’s 95,000 miles of coastal shoreline. With the help of the Office and Air and Marine (OAM), CBP has 269 aircraft, including 10 Unmanned Aircraft Systems (UAS), and 293 patrol and interdiction vessels that provide critical aerial and maritime surveillance and operational assistance to the personnel on the ground.

Indicators of Success

Although both enforcement statistics and economic indicators are important, neither can be solely relied on as indicators of border security. No one metric can be used to determine the true state of security along the border.

  • Border Apprehensions: 364,768 apprehensions nationwide, a historic low.
  • In FY 2012 apprehensions were 78% lower than they were in 2000, and down 50% from 2008.
  • At POEs, CBPOs arrested 7,700 people wanted for serious crimes, including murder rape, assault, and robbery.
  • CBPOs stopped nearly 145,000 inadmissible aliens from entering the U.S. through POEs, including the prevention of 4,199 high risk travelers, who would have been found inadmissible to board flight sin the U.S.
  • From FY 2009 to 2012, CBP seized 71% more currency, 39% more drugs, and 189% more weapons along the Southwest border compared to FY 2006 to 2008.
  • Nationwide, CBP seized 4.2 million pounds of narcotics and more than $100 million of unreported currency through targeted operations.
  • FY 2003 to 2012, CBP interceptions of reportable plant pests in the cargo environment increased more than 48% to 48,559 interceptions.
  • In addition to protecting the national ecosystem and associated native plants and animals, these efforts protected the Nation’s economy as well with economic impacts from invasive species exceeding $1 billion annually in the U.S.

Safer U.S.: Other indicators of success include, that crimes of violence in the Southwest Border States have dropped an average of 40% in the last two decades according to FBI crime reports. In FY 2012, more than $176 billion in goods entered the Southwestern border cities, such as Laredo and El Paso, compared to $160 billion in FY 2011. Forbes even ranked Tucson, Arizona, a community located along the Arizona-Mexico border one of the most desirable places to live in the nation, stating in April 2012 it was one of the “Best Cities to Buy a Home Right Now” and in February 2012, in Tucson Association of Realtors reported that the total number of home sales were up 16% from the same month the previous year.

RESULT: In 2011, secure international travel contributed to overseas travelers spending $153 billion in the U.S. – an average of $4,300 each – resulting in a $43 billion travel and tourism trade surplus. In addition, there was a promotion of a 5% growth in import values reaching $2.3 trillion in FY 202 and is expected to exceed previous records, in the air, land and sea environment this year.

Protecting America from Afar: Secure Borders Expanded

Securing Travel

Securing Air Travel: The current volume of air travelers to the U.S. increased by 12% from 2009 to 2012 and is projected to increase 4 to 5% each year for the next five years. To ensure air travel security, CBP requires a traveler to provide his or her advance travel information to the CBP prior to his or her departure via the Electronic System for Travel Authorization for those traveling under the Visa Waiver Program, or as part of the inter-agency collaborative effort to adjudicate and continuously vet visas.

Efficiency of Air Travel: CBP also works with business innovations and enhanced partnerships with private industry to help lead to expansion of Trusted Traveler Programs like Global Entry. More than 1.7 million people, including more than 414,000 new members this fiscal year, have enrolled in the Trusted Traveler Program, which allows expedited clearance to pre-approved, low-risk air travelers upon arrival in the U.S. CBP and TSA collaborate to efficiently serve the traveling public, including TSA’s PreCheck program which automatically extends eligibility to current US. Citizen members of the CBP’s Trusted Travelers Program. This partnership enables TSA to extend expedited screening benefits for these qualifying trusted travelers, and allows TSA to focus on security and unknown risks..

Securing Trade and Supply Chain

The U.S. is the world’s largest importer and exporter of goods and services. CBP assesses the risk of cargo bound for the U.S., whether by air, land or sea, at the earliest point of transit.

By Sea: CBP receives advanced shipment information for all cargo traveling by sea allowing CBP to assess risk of cargo before it reaches a POE. Since 2009, The Importer Security Filing (ISF) and the Additional Carrier Requirements regulation require an importer to supply CBP with an electronically filed ISF consisting of advance data elements 24 hours prior to the cargo shipment’s arrival into the U.S. by vessel.

By Air: For air suppliers, CBP has implemented Air Cargo Advance Screening (ACAS) pilot, which enabled CBP and TSA to receive advance securing filing cargo data and help identify cargo shipments inbound to the U.S. via air environment that may be high risk and require additional physical screening.

Foreign Ports: Finally, CBP has presence in foreign ports to add another layer of secure to cargo bound for the U.S. CBP works with the Container Security Initiative (CSI) to perform pre-screening of containers before the containers are placed in the U.S.-bound vessels. With the help of host countries, high-risk cargo is examined prior to lading in on a vessel destined to the U.S. Additionally, CBP screens 100% of all cargo manifests prior to arrival in the U.S. either through CSI locations or at the domestic port of entry for cargo that does not pass through a CSI port

Securing the Source and Transit Zones

Since 1988, CBP Office of Air and Marine (OAM) and the former U.S. Customs Service, has provided Detection and Monitoring capabilities for the Source and Transit Zone mission. The CBP OAM P-3 Orion Long Range Tracker (LRT) and the Airborne Early Warning (AEW) aircraft provide air and maritime surveillance, detecting suspect smugglers who are use a variety of conveyances.

RESULT: In FY 2012, P-3 crews were involved in the interdiction of 117,103 pounds of cocaine and 12,745 pounds of marijuana. In the first quarter of 2013, the P-3 crew has been involved in the interdiction of 38,378 pounds of cocaine.

Posted in Immigration

How to Immigrate Your Foreign Born Spouse to U.S.: The Basics and How New Waiver Procedure Can Re-Unite Families

By Peek & Toland on April 1, 2013

When a U.S. citizen decides to marry a foreign born spouse, the start of this new life together usually begins with the question:  How do I get my spouse papers?  Or stated a little more sophisticated, how does my spouse become legal in the United States?  Does he or she automatically become a U.S. Citizen?  Is it automatically guaranteed that he or she can get papers just by marrying a U.S. Citizen?  Many of my  clients and friends alike are shocked when they discover that these questions seldom are easily answered and there are many potential delays, disqualifiers and flat out bars/barriers that can leave newly-weds left without easy options.

What seems like what should be a speedy and simple process, and also one that many assume is a fundamental right (the right to have their spouse with them here in the U.S.) can very quickly become a quagmire of problems, and potentially one can find themselves in a situation where there is no way to quickly and easily immigrate their spouse.  I should know, my wife is from Mexico, and we almost ended up having to postpone our wedding due to U.S. immigration law and procedures.

Below are the basics of marrying and immigrating for foreign born spouses.

We start with the general rule in U.S. immigration law:  If you entered the country illegally, you don’t “get papers” (legally referred to as Adjusting your Status) here in the United States.  This means that for many people who entered illegally, they will be forced to leave the U.S. and go back to their home country in order to get their “greencard” (aka Legal Permanent Residence).  Now there are a couple of exceptions to this general rule: the 245(i) exception, the VAWA exception, the U Visa exception, and I will briefly address them later. (One can also possibly win his or her residency in removal proceedings, but I will not cover those options here).

 Option 1: The legal entry spouse who can Adjust Status

If you are a U.S. citizen fortunate enough to have a spouse/fiancé who entered the U.S. legally (having been inspected by a customs official on a valid passport not obtained through fraud) then you have hit the jackpot immigration-wise.  You are then eligible for the easiest and quickest path to a greencard – Adjustment of Status.  Right now this process takes about 6 months from filing to the interview, and your spouse can have their green card in hand in 6-7 months.  In immigration time, this is the equivalent of the 40 yard dash and is the absolute fastest way to become a Lawful Permanent Resident, and 2nd place isn’t even close.  By having entered legally this option is available as long as you have stayed in the U.S. the entire time since your last lawful entry, have not been removed from the country, nor have left the country on your own, and of course are not disqualified by a criminal conviction that makes you deportable.

You do have to be careful about the question of “immigrant intent”, which could cause you to be denied at your interview if the reviewing officer believes that your immigrant spouse’s intent from the moment they entered on their non-immigrant visa was to actually immigrate.  I have seen immigrants who were denied at their interview because they admitted that they knew when they came into the U.S. on their non-immigrant visa that they were going to file for residency through their spouse. Immigration officials take very seriously the honest intent of the immigrant when they apply for admission.  The most common example is an immigrant entering the U.S. on a tourist visa with their U.S. fiancé, who has the intent of marrying once inside the U.S. and applying for papers.  Immigration will tell you that this is not allowed.   However, there is a bit of semantics to their argument, because the exact same couple who came in on a tourist visa, who did have the intent of returning back to their home country, but then changed their mind once inside the U.S., would be allowed to stay and adjust their status.  A small but important detail which can be the difference between an approval or a denial.

It’s also important to note that this process of adjusting to status is even eligible to someone who has overstayed their visa for any amount of time (as long as they never left the U.S. after entering legally).  So, for example, an immigrant who enters legally on a tourist visa, overstays her permitted time by 15 years, but never leaves the U.S. and 15 years later marries a U.S. Citizen, is still eligible to Adjust Status, despite having accumulated 15 years of unlawful presence.

However, it is equally important to note that this privilege is only extended to the spouses of U.S. Citizens.  A spouse of a Permanent Resident does not have the luxury to enter legally, overstay and adjust his or her status.  But, if the Legal Permanent Resident spouse can ever naturalize, then they too would be eligible under this provision.

 Option 2:  The illegal entry spouse who is eligible to Adjust Status under I.N.A. § 245(i)

The most famous and most commonly used exception to the rule (that one who enters illegally cannot Adjust Status and get papers inside the U.S.), is the process commonly referred to in Immigration legal circles as 245(i).  To be eligible under INA Section 245(i), the alien must have previously been the beneficiary (or derivative beneficiary) of either a labor certification under INA Section 212(a)(5)(A) or a family based petition under INA Section 204 (including I-140, I-130, I-360, I-526) that was filed on or before April 30, 2001. A beneficiary can adjust status based on an immigrant visa petition or labor certification that was approved after April 30, 2001, so long as his petition or application for certification was “properly filed” (postmarked or received by the Department) on or before April 30, 2001, and “approvable when filed”. The immigrant also must have been physically inside the U.S. before December 21, 2000.  8 C.F.R. Section 1245.10(a)(2). “Approvable when filed” means the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being “patently without substance”). 8 C.F.R. Section 1245.10(a)(3).

What does all that mean?  Essentially, as long as your intending spouse was physically present in the U.S. before December 21, 2000, and somebody filed a petition for them on or before April 30, 2001, then they can pay a $1,000 fine and adjust status and get their greencard here in the U.S. without having to leave the country.  And this can be done with the previously filed petition on its own (assuming the petition is now current) or it can be done by combining the previously filed petition with a new spousal petition.  For example, if a young woman illegally entered the U.S. when she was 10 years old in January 2000, and her father was Permanent Resident and filed a family petition for her in April 20, 2001, but she never adjusted status under that original petition (for whatever reason, lack of money, laziness, lost contact with her dad, etc), but then later she marries a U.S. Citizen, that U.S. Citizen can file a new petition for her along with an Adjustment of Stats and she can combine the prior petition from her father to qualify for 245(i) and be able to pay the $1,000 fine to stay here in the U.S., and combine it with the new petition from her new U.S. Citizen boyfriend, and in 6 months or so should be able to adjust status to a Permanent Resident (again, assuming she stayed here the whole time and had no criminal disqualifiers).

 Option 3:  The Consular Process spouse or the Fiancé Visa

Option 3 is the least desirable of the options presented here, because of the requirement to leave the United States (assuming the person was already in the U.S. illegally and doesn’t qualify for one of the exceptions) or in cases where there immigrant spouse is already outside the U.S., to have to wait outside the U.S. for almost a year until your Consular Appointment arrives.   In cases where a waiver is not needed it can also take from 10 months to a year, if the process is being driven by somebody who knows what they are doing.   I have seen cases delayed 3 and 4 years due to a spouse who was doing it by themselves and not aware of the requirements and processes.

The absolute worse position of the options in this article is to be in is an immigrant spouse who has accumulated over 1 year of unlawful presence in the U.S. which triggers the 10 year bar (INA 212(a)(9)(B)(i)(II)) and who is only eligible to process their immigrant petition via outside the U.S. at their home country consulate.  Not only must they leave the U.S. (and presumably their spouse and family), but for almost 2 decades the process required filing for a waiver (I-601) at the Consular post and then waiting for that Waiver packet to be reviewed and decided on by State Department officials, and this process kept many spouses waiting from anywhere from 3 months to a year.  And the approval is not a sure thing either.  There must be enough evidence in the Waiver packet to show the U.S. Citizen spouse would suffer extreme hardship if the immigrant spouse is not allowed to come into the U.S. to live.

Luckily, starting March 4, 2013, the Obama administration made some procedural changes (note: Procedural changes, not changes to the law) about how these waivers would be processed.  Now USCIS will allow for the waiver applicant to apply while still here inside the U.S. thus negating the long wait outside and apart from their family and minimizing the time they will spend out of the country to less than 2 weeks (once approved).  It also takes away the fear of applying and eventually leaving the U.S. because an applicant will obviously only leave if they have been approved.

Spouses of U.S. Citizens have always been in the best position to receive their papers the fastest out of all the immigrant relative categories, and now the new Stateside Waiver process has even made it better by easing the burden on families who need a waiver for unlawful presence.  It’s never been better to be an immigrant married to a U.S. Citizen!

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Posted in Immigration

Chaidez Court says Padilla Rule is NOT Retroactive

By Peek & Toland on April 1, 2013

Criminal convictions, whether minor or major, can have an impact on the legal options of noncitizens under our immigration laws. For example, a permanent resident may be barred from seeking his citizenship through naturalization for 5 years if he is convicted of shoplifting something as simple as a candy bar.  A noncitizen convicted of possession of a controlled substance can be placed under mandatory detention by Immigration & Customs Enforcement while he waits for his immigration court case to be resolved. And noncitizens, regardless of family ties or immigration status, can be punished with removal (deportation) if convicted of an offense that can be categorized as an aggravated felony under the Immigration & Nationality Act.

It seems like many Americans are now realizing what it means for immigrants to be taken away from their families and friends and forcibly sent abroad. This may explain the upsurge of public support for immigration reform. Yet, the deportation of an individual from his adopted homeland has long been recognized as one of the harshest forms of punishment. In the words of one of our nation’s founding fathers:

If the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness — a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent, as well as the movable and temporary, kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for; . . . if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war and of unusual licentiousness on that element, and possibly to vindictive purposes, which his immigration itself may have provoked — if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.” -President James Madison, 4 Elliot Debates 555.

The severity of deportation as a punishment resulting from criminal convictions has also been long acknowledged by our court system. In an 1893 dissenting opinion in Fong Yue Ting v. United States (1893), Justice Brewer stated deportation is a “punishment…oftentimes most severe and cruel.” A hundred and eight years later the Supreme Court declared in its INS v. St. Cyr (2001) decision that “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.”

But it was not until March 31, 2010, when the Supreme Court, in Padilla v. Kentucky, finally held that the immigration consequences derived directly from criminal convictions can be so detrimental that criminal defense attorneys are required to advise their noncitizen clients about the potential consequences of a guilty plea. If such advice is not given to a noncitizen client, the client may raise a claim of ineffective assistance of counsel. When this ruling came down, many immigration advocates understood it to be a clarification of a rule that would be applicable retroactively. Unfortunately, on February 20, 2013, the U.S. Supreme Court held in Chaidez v. United States that the Padilla decision created a new rule and that, according to Court precedent under Teague v. Lane (1989), it will not apply retroactively to cases that had final convictions prior to the Padilla decision. The reasoning in Chaidez has received much criticism from scholars and advocates alike. But the Court has answered the question of Padilla retroactivity and has created a clear line of its application. So, what is that line, what are the obligations of defense attorneys, and what options do noncitizens have?

  • Padilla Rule: as of March 31, 2010, criminal defense attorneys have been required to advise noncitizen defendants about the risk of deportation as a consequence of guilty pleas. If such advice is not given, defendants may raise a claim of ineffective assistance of counsel.
  • Final Convictions Prior to March 31, 2010: Individuals will not be able to raise a Padilla claim of ineffective assistance of counsel if their convictions were finalized before March 31, 2010, and they did not receive advice from their defense counsel regarding deportation consequences of their guilty pleas.
  • Final Convictions on or after March 31, 2010: These individuals will be able to use Padilla to challenge convictions where no advice was given as to the deportation consequences of their guilty pleas.
  • Strickland Standard Untouched: The Strickland v. Washington (1984) standard of reasonableness still applies in cases with final convictions prior to or after the Padilla ruling where defense counsel misadvised the noncitizen defendant about the collateral consequences of his guilty plea.
  • Violation of Other Constitutional Duties: A noncitizen may be able to raise an ineffective assistance of counsel claim in cases where his defense counsel violates a recognized constitutional duty such as effectively negotiating a plea in order to mitigate harm.

Legal representation of defendants violates the Sixth Amendment if it falls below the objective standard of reasonableness under prevailing professional norms. What was once reasonable in 1984 in the representation of noncitizens, may not necessarily be reasonable in 2013. This is because immigration law has gone through many changes in the last three decades and these changes have increased the number of deportable offenses and decreased eligibility of immigration relief for criminal offenders.  Justice Sotomayor notes in her Chaidez dissenting opinion that as the immigration consequences for criminal convictions have increased, “the standards of professional responsibility relating to immigration ha[ve] become more demanding.” The Padilla ruling formally recognized this responsibility as part of the criminal defense of noncitizens and the Chaidez ruling set the marker of when this responsibility began.  Remaining silent on the immigration consequences of guilty pleas will no longer be an option for criminal defense attorneys. Criminal defense counsel will now need to know their client’s immigration status, as well as how a guilty plea can affect that status or the immigration relief options.

For online resources on this subject go to:


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Posted in Immigration

Consent Searches of Vehicles

By Peek & Toland on April 1, 2013

In a YouTube video titled, “Cop Gets Angry When Driver Tells Him He Needs A Warrant to Search His Car”, a gentleman is stopped by police while driving his SUV. (See video below).

Following a brief investigation the police officer asks the driver for his consent to search the vehicle. The driver calmly refuses a search without a warrant. There is a pregnant moment of silence before the police officer becomes irate and begins spewing a barrage of obscenities towards the driver. The angered officer then gets in his patrol car and leaves. No search was conducted.

As criminal defense attorneys, we are often asked what rights “the people” have regarding police searches involving vehicles. Generally speaking, our analysis must begin by looking at the protections provided by federal and state laws. The Fourth Amendment of the U.S. Constitution, as applicable to the states under the Fourteenth Amendment, protects us and our property against unreasonable searches by the government.  What constitutes an “unreasonable” search is fact specific.  If the vehicle search involves a search warrant the Bill of Rights says that search warrants shall only be issued when accompanied by a sworn statement supporting probable cause describing the place to be searched and the thing to be seized. Texas has nearly identical provisions in her constitution under Article 1, Section 9, as well as in the Texas Code of Criminal Procedure Article 1.06.  Irrespective of the presence of a warrant, these laws protect us from unreasonable searches and seizure. How do police get around these laws?

The most common way police gain access to a vehicle is through consent. As the example above shows, law enforcement can ask to search your person or property without any suspicion of contraband being present or probable cause to believe a crime is being committed. The request to search can be as simple as, “do you mind if I have a look inside your car?” or a more forward statement, such as “I want to look in your car.” These are simple requests by law enforcement akin, in the eyes of reviewing courts, to a simple “good morning,” or, “hello.” Once consent to search is given, the police can, in most cases, search without offending warrant requirements under the Fourth Amendment or Texas law.

Consent of Search PhotoHowever, even if consent is given, the scope of the consent can be limited.  A person may limit the time, intensity, duration, and area of the search. For example, a person can tell the police that they can only search the trunk of the vehicle, not open any containers; or can instruct the police that they may only search for 10 seconds.  In other words, the police authority to search based on consent allows them to only search within the bounds of the consent given. As the video above suggests, such limitations will not endear one to the police.  Generally, in the course of conducting vehicle searches officers are trying to circumvent the stringent requirements of the federal and state constitutions enumerated above so “speak up or forever hold your peace.”

Of course, analysis into the scope of the consent is irrelevant if the consent to search was not voluntarily given in a positive and unequivocal manner.  Complicating this analysis though is the consistent holding by courts that consent may be given either orally or through ones actions.  Thus, we as criminal defense attorneys constantly scrutinize the facts to see the manner in which the consent was given. For example, silence is not consent, nor is saying, “I dunno.” Oftentimes, police will tell a person that he “can simply arrest” the driver and then conduct the search. The consent to search cannot be a product of coercion or threats. Unlike federal law, Texas requires prosecutors to prove that consent was freely given by “clear and convincing” evidence. That standard is more difficult to meet if it can be shown that an officer threatened the defendant or if the defendant never actually consented.

Due to the high number of minority drivers being stopped and having their persons and vehicle searched without probable cause, some cities, such as Austin, have adopted policies which require consent to search be given in writing and recorded by audio and/or video, if available. The Austin Police Department (APD) administration found that such a high number of “consensual” searches negative impacts the Department’s relationship within the community. In order to collect data for statistical analysis, APD requires all consent forms be routed through their chain of command regardless of whether contraband is found.

APD also requires the person giving consent to be in a position to withdraw his or her consent. While this does not necessarily mean that the officer must conduct the search in plain view of the person giving consent, they should keep the person in a position where he or she can withdraw consent. If the consent is revoked, the officer must stop his or her search unless probable cause to continue searching has developed. It can be fodder for a defense attorney to argue that his client was handcuffed and in the back of a patrol car with the windows rolled up while an officer was conducting a consensual search. How can he get the officer’s attention to withdraw his consent? More often than not, the officer testifies that he simply did not hear the defendant. Should a drive then consent to a search of their vehicle?

Like most decisions involving interactions with the police, a certain cost-benefit analysis should be applied. What does a person gain by giving consent? Besides time and possibly inconvenience, what could be the harm? The gains are minimal; the harm can be potentially devastating.

Years ago, the son of a highly-respected real estate attorney was arrested for possession of a controlled substance. The police had pulled him over for an expired inspection sticker. They asked him for permission to search his car, which the young man consented to. A small baggie of cocaine was found in the back seat of his vehicle. The young man tried explaining to the police that the drugs were not his; he had given a ride to several friends a couple of weeks earlier, driving everyone to the coast for spring break. His explanation made little difference to the police. He went to jail and was charged with a state jail felony.

This young man believed that he had nothing to hide, and certainly nothing illegal, in his car. Most of us, if similarly situated, would likely feel the same way. The young man subsequently explained to his criminal defense lawyer that he was afraid of what would happen to him if he refused to give consent. Such fears are not entirely unfounded. Visit the link to the YouTube video referenced above for some insight into that scenario.

 About the Authors


Posted in Criminal Defense

Spring 2013: Success Stories, Legal Update, and Core Values in Action

By Peek & Toland on April 1, 2013

Champion GraphicCase Victories

Immigration Case Victories

On-Going Case: Client is a Mexican citizen who was pulled over for speeding and arrested when she couldn’t provide proper identification. Client hired Peek & Toland Law Firm to help with her immigration removal case. The prosecution submitted a Notice to Appear in immigration court stating client had entered without inspection. However, client entered with inspection as a child on a visitor’s visa with her mother.  The prosecution failed to amend their Notice of Appear to document that client had entered the U.S. with inspection; allowing Peek & Toland’s immigration team to argue that client’s removal proceedings should be terminated. The judge agreed and client was released from immigration custody and is now free to pursue deferred action for childhood arrivals to stay with her family in the U.S.

March 18, 2013 (Cancellation Case): Our client is a legal permanent resident who was arrested and placed in cancellation proceedings. Peek & Toland’s immigration team was able to argue that despite our client’s former procession of controlled substance conviction, the Court should cancel removal proceedings against our client. Peek & Toland’s immigration team argued that our client was not an aggravated felon and met all the statutory requirements under U.S. immigration law and thus, should not be removed. The Court agreed and thanks to Peek & Toland’s immigration team, client will remain in the U.S. with his family.

March 18, 2013 (DACA Case): Client is a Mexican citizen who came to the U.S. as a child with her Aunt. Although client met all the requirements for deferred action for childhood arrivals (DACA), she lacked strong proof of evidence to show she had lived in the U.S. for the past five years, a requirement for DACA, because she had not worked a great, opting instead to care for her sick and ailing aunt. When client’s DACA application came back from USCIS with a request for evidence, client was disappointed. However, Peek & Toland stepped encouraging client’s aunt to sign a sworn affidavit to client’s presence and care, along with aunt’s medical records to show of aunt’s illness. Upon re-submission, client was approved for DACA and thanks to Peek & Toland client is now able to stay in the U.S. to care for her ill aunt.

Criminal Defense Case Victories

February 13, 2013 (Federal Charge): Client is a Mexican citizen charged with the federal crime of alien smuggling after entering into the United States with five other individuals.  He was facing a potential sentence of 10 years when he hired Peek & Toland Law Firm’s federal criminal defense team to represent him.  On cross-examination of the lead investigator during the examination trial and detention hearing, it became clear that our client had not smuggled the other individuals, but rather had joined with them in a joint effort to illegally enter the United States.  As a result of the strategies employed during the initial hearings, the Peek & Toland federal criminal defense team negotiated a very favorable plea agreement resulting in a sentence of eight months, or time served!

February 20, 2013 (State-Felony Charge): Client was originally charged with Assault on a Security Officer, a third degree felony, after becoming involved in a physical altercation in the parking lot of his apartment complex with another tenant.  Peek & Toland Law Firm’s criminal defense team obtained affidavits from witnesses to the altercation who not only were never interviewed by the police, but whose testimonies contracted the statements contained in the police report.  As a result, the attorneys were able to negotiate an agreement with the State that reduced the case to a misdemeanor charge of assault.  Over a year later the client was offered a better job out of state but needed permission to be released early from his probation.  Peek & Toland’s criminal defense team successfully argued for his early discharge resulting in the client being able to move his family out of state for a better job.

March 14, 2013 (State-Misdemeanor Charge): Client was pulled over by the police for allegedly nearly striking an 18-wheeler while driving on the interstate. After a brief investigation, officers arrested Client and charged her with DWI.  After refusing to provide a breath specimen, an officer obtained client’s blood draw through a warrant which allegedly purported to show a blood alcohol level well above the legal limit.  Peek & Toland’s criminal defense team attacked the sufficiency of the blood draw warrant and the results of the blood draw eventually resulting in the State dismissing the DWI and allowing the Client to be placed on probation for a non-alcohol related offense.

Legal Update


Chaidez v. United States, 568 U.S. ____ (2013).

Last month, one of the partners at Peek & Toland, Jeff Peek, wrote an article outlining the legal issues before the U.S. Supreme Court in Chaidez v. U.S. In Padilla v. Kentucky, 559 U.S. ____,  the U.S. Supreme Court held that under the Sixth Amendment, criminal defense attorneys are required to inform non-citizen clients of the deportation risks of a guilty plea. The issue before the U.S. Supreme Court in Chaidez, involved whether Padilla could be applied retroactively to cases already final on direct review. The Supreme Court in Chaidez, found that Padilla does not apply retroactively to cases already final or on direct review. The Court reasoned that Padilla created a new rule. Under Teague v. Lane, 489 U.S. 288, a person whose conviction is already final may not benefit from a new rule of criminal procedure on collateral review. Thus, those clients whose attorneys failed to advise them of the immigration consequences of their guilty plea are unable to seek ineffective assistance of counsel for their claims under Padilla.

However, the U.S. Supreme Court maintained that an attorney may not affirmatively misrepresent his expertise or mislead his client as to an important matter. In other words, an attorney may not affirmatively advise his non-citizen client that his client’s guilty plea will not result in immigration consequences, such as deportation, if the opposite is true.

Criminal Defense

Bailey v. United States, 568 U.S. ___ (2013)(Slip Opinion).

Police were outside an apartment preparing to execute a search warrant for a gun, when two men, Bailey and Middleton, exited the apartment and left in a vehicle from the complex.  Some detectives began a search of the apartment and other detectives followed the two men for over a mile before instructing them to pull over.  Police then searched the two men and uncovered keys on Bailey’s person.  When asked Bailey admitted that the keys were to his apartment, but did not say where he lived and the detectives had no evidence linking Bailey to the apartment being searched.  When the detectives return to the apartment complex, they learned that other police officers had uncovered a gun and illegal drugs inside the apartment.

Bailey challenged the admissibility of his statement regarding the keys and his apartment, as well as the taking of his keys found on his person during the vehicle stop. The issue before the Supreme Court became whether the evidence found on Bailey’s person and his admissions were incident to the execution of the search warrant under Michigan v. Summers.

The U.S. Supreme Court held that that the rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply in this case, because Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question. The Court reasoned that Summers protected three important law enforcement interests. The first interest is to detain occupants found within or immediately outside the residence being search so officers can search without fear that the occupants will become disruptive, dangerous or otherwise frustrate the search. The second interest is the facilitation of the completion of the search to prevent unrestrained occupants from hiding or destroying evidence, distracting officers, or simply getting in the way. The final interest is to prevent the occupants from flight or rushing the search.

In applying the first two interested from Summers to the Bailey case, the Court found that Bailey did not pose a threat to the officers conducting the search of the apartment because had left the premises without knowledge of the search. Additionally, the Court found that Bailey was not physically present at the search, so he could not have hidden or destroyed evidence, distracted officers or simply been in the way of the search. The Court did note that Bailey could have been a flight risk, however the Court noted that, “the mere fact that law enforcement may be more efficient can never by itself justify disregard for the Fourth Amendment.” Thus, the Court found that officers erred in detaining Bailey when he was a mile away from the premises to be searched.

Core Values In Action

Investing In Excellence

Peek & Toland would like to Welcome Attorneys Natalia Peralta and Dawn Salas to the firm.

Natalia FINAL Photo Natalia Peralta, Esq. – Natalia joined Peek & Toland in January from the Law Offices of Humberto Iquierdo in Atlanta, Georgia. Natalia earned her Juris Doctor Degree from Emory University Law School in Atlanta, Georgia and her Bachelor of Arts from Georgia State University. She is a licensed attorney in Georgia and has plans to take the Texas state bar this July. Natalia has already exhibited a true passion for immigration law, winning removal cases for Peek & Toland’s clients facing removal proceedings. Peek & Toland is eager to welcome Natalia to the immigration team.
Dawn SalasPhoto Dawn Salas, Esq. – Dawn joined Peek & Toland in March from the Azarmehr Law Group in Austin, Texas. Dawn earned her Juris Doctor Degree from St. John’s University School of Law in Queens, New York and her Bachelor of Science from St. John’s University. She is licensed to practice law in Texas. Dawn brings a great deal of business-related immigration experience to the Peek & Toland Law Firm and we are eager to explore her wealth of knowledge and excited to welcome her to the Peek & Toland immigration team.

Posted in Immigration

Peek & Toland Quarterly Newsletter: Spring 2013

By Peek & Toland on April 1, 2013

Peek & Toland Quarterly Newsletter

Peek & Toland is dedicated to not only aggressively fighting for our client’s rights, but also devoted to implementing our core values and mission statement into our work on a daily basis.  Keep up to date on the latest immigration, criminal defense and federal criminal defense via our newsletter!

Spring 2013 Newsletter:

Where Criminal Law & Immigration Law Intersect

Chaidez Court says Padilla Rule is NOT Retroactive

Criminal convictions, whether minor or major, can have an impact on the legal options of noncitizens under our immigration laws. For example, a permanent resident may be barred from seeking his citizenship through naturalization for 5 years if he is convicted of shoplifting something as simple as a candy bar. Keep Reading…


How to Immigrate Your Foreign Born Spouse to the U.S.

When a U.S. citizen decides to marry a foreign born spouse, the start of this new life together usually begins with the question:  How do I get my spouse papers? Or stated a little more sophisticated, how does my spouse become legal in the United States? Does he or she automatically become a U.S. Citizen?  Keep Reading…

Criminal Defense

Consent of Vehicle Searches

In a YouTube video titled, “Cop Gets Angry When Driver Tells Him He Needs A Warrant to Search His Car”, a gentleman is stopped by police while driving his SUV. (See video below). Following a brief investigation the police officer asks the driver for his consent to search the vehicle. The driver calmly refuses a search without a warrant. Keep Reading…

The Legal Update, Success Stories & Core Values In Action

Keep up to date with the latest changes to criminal defense, immigration and federal criminal defense law. Learn about our case victories and read about the clients we’ve been able to help. Also, learn how we strive to implement our Core Values every day to defend our clients, earn great results and changes lives. Keep Reading…

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Posted in Immigration

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