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Monthly Archives: July 2013

If You’re Gonna Do Me Wrong Judge, Do It Right

By Peek & Toland on July 11, 2013

Texas courts have long held that the requirements of Tex. Code Crim. Proc. Art. 26.13 are only mandatory in felony pleas of guilty or nolo contendere. Art. 26.13(a)(4) states that prior to entering a plea of guilty or nolo contendere, a defendant must be admonished that if he:

 [I]s not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

 In felony cases, it is statutorily required; no such statutory requirement is necessary in misdemeanor cases. See Johnson v. State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App.1981) (op. on reh’g)(as commendable as it may be for a trial judge to admonish [under Art. 26.13] a misdemeanor defendant…there is no requirement in Texas law for a trial court to admonish a defendant of anything if the offense is a misdemeanor). However, the admonishments required under Art. 26.13(a)(4) regarding the immigration consequences of a plea are often given in misdemeanor cases as a matter of routine.

See Meraz v. State, 950 S.W.2d 739 (Tex. App.-El Paso 1997, no pet.)(most judges follow the commendable practice of admonishing defendants in misdemeanor cases).

 As a criminal defense attorney, I cannot simply read the admonishments of Art. 26.13(a)(4) and tell a misdemeanor defendant that he “may” be subject to adverse immigration consequences. While the admonishment “may” be correct, it “may” not be. I have a duty to at least investigate whether the misdemeanor defendant’s plea will result in removal (deportation), exclusion from the US, or would cause denial of naturalization under federal law.
Austin - Peek & Toland Law Firm The 6th Amendment to the US Constitution acts as a guarantee that the accused the right to the effective assistance of counsel. As the Padilla case shows us, incorrect advice regarding immigration is an affront to the Constitution. See id. However, Padilla offers no protections to the thousands of pro se defendants that appear in front of Texas courts each year. An important distinction must be made at this juncture: Padilla only dealt with the 6th Amendment right to effective assistance of counsel; its dictates have not been applied to federal due process or Texas due course of law provisions. Perhaps it is time for courts to do just that: protect due process.

The Texas Court of Criminal Appeals considered whether a misdemeanor defendant is entitled to Art. 26.13(a)(4) admonishments as a matter of right under federal due process and Texas due course of law safeguards. State v. Jimenez, 987 S.W.2d 886 (Tex. Crim. App. 1999) (en banc). The 8th Court of Appeals (El Paso), had held that although Art. 26.13(a)(4) was not statutorily required in misdemeanor cases, it was constitutionally required to comport with federal due process and Texas due course of law provisions; 1996 amendments to federal immigration laws made several classes of state misdemeanor cases as “deportable” offenses. Id. at 887-8. In reversing the court of appeals, the Texas Court of Criminal Appeals said there was no federal or state constitutional requirement to admonish misdemeanor defendants of immigration consequences because the issue of removability was a “collateral” matter. Id. at 888-9. Yet, misdemeanor courts continue to provide these admonishments although they are not required to do so. Id. As noted above, if I were to give the admonishment verbatim as found in Art. 26.13(a)(4), especially when the immigration consequences are clear, it would be ineffective assistance of counsel. When the court gives these admonishments to a pro se defendant, it is merely surplusage that is a collateral matter, even though the admonishment, as we will see, is often incorrect.

Padilla did call into question whether the distinction between collateral versus direct consequences is applicable in cases that result in removal. Although the Padilla case’s analysis was under the 6th Amendment, it should be no less applicable under the 5th Amendment or 14th Amendment. Certain misdemeanor offenses, such as possession of drugs/paraphernalia, are interpreted as being violations of the Federal Control Substances Act for immigration purposes. Like Padilla, a simple glance at the immigration laws would reveal that a plea of guilty or nolo contendere to this type of charge would make a non-US citizen removable. If the courts are making sure that this information is given to him by defense counsel, why do we allow fewer protections to those appearing pro se? A judge can check the immigration laws just as quickly as a defense attorney.

By permitting misdemeanor courts to allow pleas to be entered without admonishing pro se defendants that they will be suffering from certain immigration consequences (as opposed to “may” be deported, “may” be excluded from the US, or “may” be denied naturalization) the courts are giving incorrect admonishments. This incorrect admonishment is repeated on an almost daily basis across courtrooms in Texas, resulting in devastating results for non-citizen defendants. Just because the court is voluntarily giving an admonishment should not relieve the court from getting it right. By requiring that judges give correct admonishments regarding immigration consequences of a plea, especially from a pro se defendant, courts can rest assured that the plea truly meets notions of due process. Or, as one classic country song pleads, “if you’re gonna do me wrong, do it right.” If You’re Gonna Do Me Wrong (Do It Right), Vern Gosden & Max Barnes (1983).

[sc:Summer2013Newsletter]

About the Author

[sc:Aguirre]

Posted in Criminal Defense

Right to Remain Silent: Most Powerful and Least Used Right

By Peek & Toland on July 11, 2013

Lady Justice - Peek & Toland Newsletter“A Detective has called and wants me to come in and talk with him about an ongoing investigation into a potential criminal matter, what should I do?”  If you practice Criminal Defense for any amount of time, you will inevitably get a question like this.  I have already had 4 clients in 2013 call with this exact dilemma.

So many of us have been conditioned since a young age to cooperate with authority, to be honest, and to help the police, that the mere thought of not talking with a police investigator or Detective makes us feel as if we are doing something wrong.  Others feel that if they give a sufficient explanation that they can talk their way out of any criminal charges.  Others are arrogant enough to believe that any wrongdoing by them was properly hidden, covered up or distanced from themselves and that the police will never be able to make a case against them.

Whatever the instinct, I always counsel that if one is to attend such a meeting, one should never attend a meeting with an officer or Detective investigating a crime without having consulted an attorney first and without an attorney present during the questioning. In most cases, I go even beyond that and advise that the person not speak with the police at all.

 The reason is simple:  In all my years of practicing, and of the over 100-plus instances of clients being invited to speak with Detectives/police, I can honestly count on 2 fingers the number of times when this type of interview helped the client avoid prosecution, or helped him in his Defense.  The reality is that these types of meetings are designed for 2 things: the confession of the suspect, or the revealing of information and testimony of the suspect that will be later used against him.  Either way, the meeting is designed to take in evidence to be used against the accused later.  I also can’t even tell you how many cases were dead in the water before I could even begin my defense preparation due to an accused giving a confession to the crime during this interview with law enforcement.

Most of the time, the only reason the police are inviting you in to talk is for the sole purpose of obtaining your confession.  When a suspect voluntarily attends a meeting with police, he has a right to terminate the interview at any time on his own and freely leave the interview.  The right to have counsel present hasn’t attached since they went voluntarily on their own. Furthermore, their obligation to give you a Miranda warning advising you of your rights also has not attached since you are in their office of your own free will.

The Supreme Court issued its ruling in Salinas v. Texas on June 17, 2013, a case involving the 5th amendment right to not “be a witness against himself.”[i]  The ruling held that a suspect who is not in custody is not entitled to have his Miranda warnings read to him and that his answers, including his failure to answer and subsequent silence in response to a question, can be used against him in court proceedings.  The Court’s decision is of interest to Criminal Defense Law practitioners not due to any groundbreaking expansion or limitation of the well known 5th amendment right to not incriminate one’s self, but perhaps due to the distinction between a suspect who verbally invokes his right to remain silent, and a suspect who fails to verbally invoke the right.

Even many legal practitioners inaccurately believe the right to remain silent is so inviolate, that any questions asked in a question and answer setting with police are not admissible unless one had been previously read his Miranda warnings.  Moreover, much of the general public hold an even greater misunderstanding of their rights and wrongly believe that an entire arrest is illegal if at no point during the arrest they are not read their rights (not understanding that the need to read you your rights is only necessary if they are seeking to obtain information from you post custody or post arrest.)  If even licensed members of the bar don’t completely understand the 5th amendment and its protections, you can imagine how the average citizen may potentially incorrectly assume he is being protected during a conversation with police before having been read his Miranda warnings.  Because the defendant in Salinas went to talk to the police voluntarily, his statement was not custodial, thus no Miranda warnings were required.

 It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “must claim it.”[ii]  The Court has held there are two exceptions to the requirement that witnesses invoke the privilege. The first exception is that a criminal defendant need not take the stand and assert the privilege at his own trial.[iii] That exception reflects the fact that a criminal defendant has an “absolute right not to testify.[iv]  The second exception is that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. A suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege.[v] Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.”[vi]  The noticeable word that must be taken into account is the word “custodial interrogation.”  If you aren’t in custody, you are going to a sword fight with toothpick.  Unless you are wise enough to know you can refuse to answer any question and leave at any time.  But if that is your position since the beginning, why would anyone go to the interview to begin with?

 Popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.[vii] A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.  So even if you are smart enough to refuse to answer a potentially delicate or outright implicating question, you will still come across as hiding something!

Your school age child (should he choose a life of crime) may have a little more protection. The latest Supreme Court case to apply Miranda to juveniles is J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011).  In this decision he Court looked directly at the question of factors that may be present which might lead a juvenile to believe that he was in custody, thereby requiring law enforcement to give the Miranda warnings.  In that case the juvenile was questioned by 2 police officers and 2 school administrators in a room with the door closed, without being told he was free to leave, without being allowed to talk to his Grandmother, and threatened.  The Court held for Juveniles, other relevant factors such as their age, a controlled setting, etc. could be used to determine if child’s decision to go meet with authorities really was “voluntarily”.  However, adults will not have the luxury of being given the same wide latitude that a juvenile enjoys in determining the voluntariness of his attendance in a police interview.

In his concurring opinion in the Salinas decision, Justice Scalia quoting precedent says, “A defendant is not ‘compelled…to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence.”[viii]  Scalia’s observation drives home the most compelling reason not to attend any such interview with the police: Anything you say, and anything you don’t say and any silence to any questions, can and will be used against you in court.  Attending such an interview will inevitably allow a jury to make inferences based on your silence as well as the tone in your voice, your posture, your clarity, your reactions, your delay in answering a question, etc.  If you don’t attend the interview you are disarming the prosecution of this potential evidence.  You also avoid locking your defense attorney into a defensive strategy for your case.  Once an accused offers up his explanation, justification, information about why he is not guilty of a crime at his interview, the cat is out of the bag as far as the theory of defense goes.

The best advice you will ever get when faced with a potential criminal charge is to immediately talk to an attorney.  But the better advice is to not talk to anyone until you have talked to an attorney.  Talking to an attorney on a Tuesday, the day after you went to an interview with police on a Monday, could very well be the difference between Guilty and Not Guilty.

Posted in Criminal Defense

The Waiver of Right to counsel, 5th & 6th Amendments, and the Immigrant Defendant

By Peek & Toland on July 11, 2013

John Marshall - Peek & Toland NewsletterIt is a well established right under both the Federal and State constitutions, that anyone charged with a crime who cannot afford to hire his own counsel for his legal defense, will be provided counsel at no charge to him.  This mandate is also explicitly stated in the Texas Code of Criminal Procedure: “An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement . . .”.[i]

Depending on the County one is in, this will be done via either a Court Appointed attorney system or a Public Defender Officer (a model used by some larger cities).  However, in some smaller counties in Texas there still exists a practice being exercised by some County Court at Law Judges for Misdemeanor cases, working in collaboration with the local District and County Attorney offices, that has caused and continues to cause the potential to violate a person’s right under the 6th Amendment to “have the assistance of counsel for his defense” and the person’s 5th Amendment right to not be “deprived of life, liberty, or property without due process of law.”[ii]  We have seen many cases where gross abuses from these local practices have resulted in miscarriages of justice with little regard to the direct and collateral consequences that flow from an accused making an unknowing and uninformed waiver of his right to counsel.

Nowhere is this injustice more obvious and most frequently exploited than with 3 particularly vulnerable defendants:

  • The uneducated
  • The young
  • The non-English speaking immigrant

The most egregious abuse happens when all 3 of these characteristic reside in 1 super-ignorant individual: the non-English-speaking, uneducated, young foreigner accused of a crime.  Many criminal defendants are at a disadvantage from the beginning as statistics reveal that most criminal defendants are some of the most un-educated in society, most live at or below the poverty line, and many from single parent homes, where they lack substantial parental engagement and teaching due to the single parent working long hours or multiple jobs.  Even where there is parental engagement by one or both parents, if those parents themselves are uneducated (as is common in immigrant families from 3rd world countries) their children will not benefit from even basic common sense legal knowledge that would be present in native born American children with American parents. The 3rd-world-immigrant-parents commonly have less than a middle school education, have zero understanding of the U.S. legal process, and (due to not having grown up here) don’t even have the street level legal knowledge that an American may have gleaned from watching TV programs or movies with legal themes and issues presented in their story.

They have never heard the expression, “you have the right to remain silent”, or the phrase “read me my rights”, and many times they aren’t even sure their legal status (assuming they are present in the country illegally) affords them any protections and rights under the law.  Many of these humble and uneducated souls will merely do what they are told- “sign here”, “blow in this machine”- resigned to a state of ignorance and confusion due to their language barriers and educational barriers.

Instead of taking advantage of these individuals, our courts are charged with the duty and highest calling of protecting the rights of those who are the least able to understand, comprehend and assert these rights. To assure protection of a right as fundamental as the right to counsel, courts should indulge every reasonable presumption against waiver of counsel.[iii] In a criminal case, the record must show that the defendant was informed specifically of his right to the assistance of appointed or retained counsel and that he clearly rejected such assistance.[iv]

The best way of assuring defendants receive due process and don’t make an unknowing waiver of any rights is making sure competent counsel is appointed to educate, explain, and represent these people. The defendant must be informed specifically of his right to have counsel appointed at the state’s expense.

However, in many counties with smaller populations, the Courts can be seen glossing over the right to counsel with an efficiency that is scary, if not effective, in meeting its designed ends.   The process, as I have personally seen it played out in several central Texas counties, is that the Judge will have a court setting where there will be numerous defendants, both incarcerated and out on bond, and the court uses this setting to make a determination if the accused has hired legal counsel.  Now there are variations on how this gets played out, but the following process usually is manifested in the following way or form:

–          The Judge will ask who is present without an attorney

–          The Judge will briefly mention they are welcome to pay for an attorney with their own money, or they are welcome to speak with the prosecutors on their own to work out a deal

–          Some counties will read out loud a warning that the accused has a right to counsel and have the right to apply for court appointed counsel, some counties will hand out something for the defendants to read (many times it is not provided to read in Spanish and seldom if ever are defendants asked if they are literate, relying on the accused to self identify his shortcoming)

–          Some counties will have everyone apply for court appointed counsel and deny on case by case basis (never explaining the right to counsel is an absolute right that does not have to be waived), some counties will tell the defendant’s that they can apply if they want, and for the most part all of them leave the defendants confused as to whether they have a right to court appointed counsel or not, and many are led to believe, if not flat out encouraged, that talking to the prosecutor by themselves is the best and fastest way to resolve their case (at no cost to the defendant !)

–          Prosecutors will talk to defendants and explain the offer they are making, sometimes justifying why they are making the offer (without getting into the evidence).  It is very common to hear a prosecutor explain how probation works, what is deferred adjudication.  It is also common to hear prosecutors answer questions from defendants, very quickly crossing an already blurred line of establishing an attorney client relationship, to then giving legal advice to the very person they are prosecuting.

The whole process is designed to appeal to the pocketbook and schedule of a low resourced individual, and entice him to talk with a prosecutor in order to resolve their case without having to pay an attorney and possibly resolve everything in one setting without the need to miss another day of work or school to return to court.  It appears double insidious when it is done specifically with the intent that the County save money on hiring an attorney to defend the accused.  Counties who are eager to save costs (The County has to pay for indigent defense out of their own budget) are more than happy to accept plea agreement deals from defendants who have opted for self representation, without regard to the lifelong consequences, and potential disastrous results that can follow.  At best the client is not being explained all the consequences of his plea by the court before entering it.  At worst the client is being told things about his plea deal that are partially correct, and leaving him with a false impression and misrepresentation about the totality of the consequences he will incur.  Although the Supreme Court in Padilla v. Kentucky required counsel to correctly explain any probable immigration consequences, it remained silent as to the requirement and responsibility to do so when the client has waived his right to counsel.[v]  Is the prosecutor required to explain it to him (most prosecutors don’t have a clue to immigration law) ?  Is the Judge required to explain it to him (most judges rely on the phrase “this may have immigration consequences” which the Padilla court specifically rejected as inadequate when the Immigration Consequence is inevitable) ?

The defendant must be informed specifically of his right to have counsel appointed at the state’s expense.[vi] If an accused is not intelligently and understandingly waiving the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction.[vii]

For the immigrant defendant, very frequently he unwittingly, and (most assuredly) unknowingly signs a plea deal that will result in his deportation and (in some cases) a lifetime ban from ever again entering the United States.  For the young student, he can sign a plea deal that will bar him from every holding certain professional licenses, or have other consequences that can mean thousands of dollars in surcharges and license suspensions.  For all, they will be convictions or marks on their record that will never be eligible to expunge (under current laws).

You can’t expect 17-18 year old young people (treated as adults under the law), many who show up to court without a parent, to know that by signing their plea agreement, they will never be able to expunge this criminal matter and it will be on there for life.  No lay person understands the law of expunctions – heck most lawyers who don’t practice criminal defense don’t know the qualifications.   Moreover, you can’t expect an uneducated, non-English speaking immigrant, to understand or know on his own that his plea agreement will result in horrendous collateral consequences and bar him from ever legalizing his status.

Even worse, I have overheard many conversations where prosecutors inaccurately state the law or fail to completely explain the law to a defendant when explaining what he is offering in his plea deal.  A perfect and very common example of this is when a prosecutor explains that by signing for a Deferred Adjudication probation deal, that if the client successfully completes the term of probation, that it will not be a conviction and that the case will be dismissed at the end.   Failing completely to further explain the difference between a Deferred Adjudication dismissal and a straight dismissal, leaving the defendant with a misrepresentation of the law.

Our Constitutional rights and our system of Criminal Justice, are too important to risk tainting such sacred proceedings with unfairness, least of which for the sake of temporal and monetary expediency.   These practices should probably be done away with completely to avoid further risking any constitutional violations, but at the very least, courts need to take special precautions and extra efforts to appoint the accused counsel and urge them to hire their own attorney.  Especially in the case of the young, the uneducated, and those no fluent in English.  A simple inquiry by the Court of the accused before taking his plea to identify these characteristics and then requiring these younger and more ignorant defendants to talk with an attorney and their parents before accepting their plea would best protect the principles of justice and fairness our judicial system was founded on.

 



[i] TEX. CODE CRIM. PROC. art. 1.051.


[ii] U.S. Const. am. 5; U.S. Const. am. 6


[iii] Trevino v. State, 555 S.W.2d 750, 751 (Tex. Crim. App. 1977) (panel op.) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).


[iv] Carnley v. Cochran, 369 U.S. 513, 516 (1962).


[vi] Piankhy v. Cuyler, 703 F.2d 728, 731 (3d Cir.1983).


[vii] Uveges v. Pennsylvania, 335 U.S. 437 (1948)

[sc:Summer2013Newsletter]

About the Author

[sc:Jeff]

Posted in Criminal Defense

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

By Peek & Toland on July 11, 2013

Case Victories


Immigration Case Victories

Champion GraphicMay 5, 2013 (DACA Case): Client and his brother were brought to the U.S. as children by their parents. Client’s brother has a severe medical condition that requires 24/7 care. Client’s family members work while he cares for his brother. Client hired Peek & Toland Law Firm for deferred action for childhood arrivals. Client met all the requirements, however Client’s paperwork was sent back with a Request for Evidence for proof of Client’s presence in the U.S. for the past five years. Luckily Client was able to bring not only church records indicating he attended and helped out his Church regularly, he also was able to bring in a signed affidavit stating that he was the primary caregiver for his handicap brother. Client and his brother were both approved for deferred action for childhood arrivals.

May 29, 2013 (Cancellation Case): Client came to the U.S. from Mexico 1993. Client was arrested for a DWI in 2010. He came to our office seeking help with his criminal charges and with his immigration hold. Initially Peek & Toland Law Firm believed that Client was eligible for a U Visa because he was stabbed in 2007, however our immigration team and criminal defense team could not prove the requirements for a U Visa for the Client. However, Client’s daughter was a victim of a sexual assault when she was 17-years-old which resulted in the conviction of her perpetrator. The requirements for a U Visa state that a victim can include her Mexican citizen parents in a derivative petition for a U Visa if the victim was under the age of 21 at the time of filing the application. Thus, Client was able to qualify for the derivative benefits of a U Visa through his daughter who was a victim of a violent crime.

June 4, 2013 (Citizenship Case): Client became a legal permanent resident through 1986 Immigration Reform and Control Act. He sought Peek & Toland Law Firm’s services for his Mexican citizen mother who was in the U.S. on an expired visa. Client had attempted to apply for an adjustment of status for his mother years earlier but was denied because he failed to disclose a prior conviction on his record before he was a legal permanent resident. Peek & Toland advised Client to apply for U.S. citizenship to significantly speed up the adjustment of status process for his mother. Client agreed and Peek & Toland began the naturalization process for client, including his prior convictions with his application. Fortunately, Peek & Toland was able to show Client met all the requirements for naturalization and should be granted U.S. citizenship. Client’s mother is currently seeking an adjustment of status thanks to Peek & Toland Law Firm’s immigration team and her son’s persistence.

Criminal Defense Case Victories

May 30, 2013 (Theft Case): Client’s mother brought her to the U.S. as a baby. Client has never left the U.S. and is now an adult with a baby of her own. Client was arrested for petty theft and detained on an ICE hold, which could ultimately result in removal proceedings. Client hired Peek & Toland to represent her for her criminal case and immigration case. Peek & Toland argued that Client’s crime was for a small offense, that she’d never had an prior arrests or convictions and that a theft conviction would likely result in removal proceedings against client, a harsh offense for Client who was eligible for Deferred Action for Childhood Arrivals. The prosecution agreed and dismissed the case. Client is now free to pursue legal status via Deferred Action for Childhood Arrivals thanks to the help of Peek & Toland Law Firm.

May 23, 2013 (Assault-Family Violence): Client was arrested for assault-family violence. The court appointed Peek & Toland Law Firm to represent client for his case. On the recommendation of Peek & Toland’s criminal defense team Client enrolled in anger management classes and sought professional help for his bipolar disorder. At Court it became apparent that the prosecution was no longer in contact with the alleged victim and Peek & Toland’s criminal defense team requested that the case be dismissed for lack of evidence. The Court agreed and the case was dismissed.

April 24, 2013 (Sexual Assault): Client is a highly ranked military officer who was charged with sexual assault.  He hired Peek and Toland to represent him in his criminal defense case. In addition to facing serious felony charges, the case was further complicated when the lead detective for the Austin Police Department announced client’s arrest on the radio and he faced immediate discharge from the military. Peek and Toland’s criminal defense team successfully attacked the credibility of the state’s case by steadfastly obtaining all materials related to the military investigation and securing witness affidavits from military officers. The attorneys at Peek and Toland persuaded the state to eventually dismiss all charges against client.

Legal Update


Immigration

Border Security, Economic Opportunity and Immigration Modernization Act of 2013: The Immigration Reform Bill in Plain English

The U.S. Senate passed the immigration reform bill on June 27, 2013. Now that the Senate has passed the bill, it will be sent to the U.S. House where it will be debated and either pass or fail. However, many in the U.S. House of indicated that the immigration reform bill has little hope of making it through the next hurdles. U.S. House of Representatives Chief Deputy Whip Peter Roskam, (R-IL) stated, “The House has no capacity to move that bill in its entirety. It just won’t happen, so it is a pipe dream to think that bill is going to the floor and is going to be voted on.”

Needless to say, if the immigration reform bill becomes law, it will have a huge impact on many lives. The U.S. Senate’s immigration reform bill can be best broken down into four main pillars:

  • First, meet Border Security Goals, then employ a Pathway to Citizenship for Undocumented Immigrants
  • An Electronic Verification (E-Verify) system which indicates an individual is authorized to work in the U.S.
  • Improvement of Visa System for Skilled Workers (H-1B visa holders), and
  • An Admission System for Unskilled, Skilled and Farm Workers to enter the U.S. to work

Within the bill there are two main sections, immigration policies affecting legal immigrants and immigration policies affecting non-legal immigrants. The immigration policies affecting legal immigration include an increase in the number of skilled worker visas also known as H-1B visas and the creation of a W visa program geared toward unskilled labor and farm workers.

Alternatively, the immigration reform bill creates a system for including the 11 million undocumented immigrants living in the U.S. a pathway to citizenship. The pathway to citizenship is contingent on reaching certain border security goals; however the main requirements are as follows:

  • He or she must be a resident of the U.S. prior to December 31, 2011 and be able to show continuous presence in the U.S.
  • He or she must pay a $500 penalty and will be assessed all taxes
  • An immigrant is automatically ineligible if he or she is:
    • Convicted of an aggravated felony;
    • Convicted of a felony;
    • Convicted of 3 or more misdemeanors;
    • Convicted of an offense under foreign law;
    • Unlawfully voted; and
    • Inadmissible for Criminal, National Security, Public Health and other morality grounds.

Immigration Reform 2013If the undocumented immigrant meets the above criteria, he or she will be eligible to apply for Registered Provisional Immigrant (RPI) status. After 10 years in RPI status, the immigrant may adjust his or her status to become a Lawful Permanent Resident (LPR). Finally, the immigrant will be able to naturalize, or become a U.S. citizen, after he or she has been an LPR in good standing for 5 years.

To learn more about immigration reform, feel free to check out our new immigration reform website dedicated to providing our readers with the latest news and information on Immigration Reform. We have included a breakdown of the E-Verification System, more information on RPI status, what happens to DACA eligible young adults and much, much more. You can visit it at www.reforma2013.com.

Criminal Defense

Maryland v. King, 569 U.S. ___ (2013)(Slip Opinion).

The defendant was arrested for aggravated assault and taken into custody. Police performed a cheek swab pursuant to the Maryland DNA Collection Act to collect the defendant’s DNA. The defendant’s DNA was uploaded to the Maryland DNA database and was matched to a DNA sample taken from an unsolved 2003 rape case. The defendant was then indicted by a grand jury for rape. The defendant moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statue as constitutional. King pled not guilty to the rape charges, but was eventually convicted and sentenced to life in prison without the possibility of parole. On certiorari the U.S. Supreme Court heard the appeal.

The U.S. Supreme Court held that police may perform a search in the form of DNA sampling for the purpose of identification from a charged suspect of a serious crime without a warrant. The Court reasoned that there was a significant government interest in performing the search without a warrant and that the intrusion on defendant’s privacy was minimal. The Court stated that the DNA sampling performed via a cheek swab was a minimal intrusion similar to fingerprinting a suspect. The Court also noted that a significant government interest alone does not justify a search where the defendant has an expectation of privacy. However, the Court reasoned that the defendant did not have an expectation of privacy because he had been arrested with probable cause for a dangerous offense in which he knew he would likely be detained. Thus, the Court held that an arrestee’s DNA identification is a reasonable search that can be considered part of a routine booking if the initial arrest was supported by probable cause and was for a serious offense.

Core Values In Action


Sowing GenerouslyResponding Graciously

Reforma2013.com

Last month Peek & Toland Law Firm launched a website dedicated to covering the latest news and information on the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, also known as the immigration reform bill. Offered in both English and Spanish, Reforma2013.com’s primary goal is to educate and inform the immigrant community on potential legislation affecting them directly. Reforma2013.com includes the information on the politics affecting the immigration bill, the proposed amendments, the requirements an immigrant must meet to qualify for a provisional registered immigrant status under the bill, and a simple plain language outline of the bill. Additionally, Reforma2013.com includes information on state proposed legislation that directly affects immigrants in Texas. To learn more about Reforma2013.com, please visit the website at https://www.reforma2013.com.

[sc:CoreValues] [sc:Summer2013Newsletter]

Posted in Immigration

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