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Monthly Archives: December 2016

How the Presidential Election Result Affects Immigration Reform

By Peek & Toland on December 30, 2016

The election of Donald Trump, a candidate who took a radical line on immigration reform, to the office of President of the United States, is likely to have big impact on migrants.

During the election campaign, Trump promised to crackdown on undocumented immigrants and to build a wall between Mexico and the USA.

He also made comments about blocking Muslim immigrants from certain countries with links to terrorists.

immigration reform was a key part of the election

Immigration reform took center stage during the presidential election

With Republicans controlling the White House, the House of Representatives and the Senate, the President will find fewer potential obstacles to his immigration platform, according to Forbes.

However, immigration commentators say the extent of Trump’s immigration reforms remains to be seen.

What Are Donald Trump’s Immigration Reforms?

Here are eight policies derived from a speech that Trump made in Arizona this year. Trump laid out immigration reforms that were vastly different from those of Obama’s deferred action orders that would have allowed millions of undocumented immigrants to stay in the country on a temporary basis and work.

1 Cracking Down on Undocumented Immigrants Who Commit Crimes

The Obama administrated switched its deportation focus to undocumented immigrants who commit crimes. Trump called for a more vigorous crackdown.

2 Build a wall and Make Mexico pay for it

Building a wall between the United States and Mexico is one of Trump’s key immigration policies. It was hailed as a way of securing the border. An article in Newsweek estimated it would cost about $8 billion.

Although Trump has said he would make Mexico pay for it, the Mexican government has told him it will not finance the wall.

  1. End the policy of Catch and Release of Illegal Immigrants Coming into the United States

The Newsweek article said there is a catch and detain or a catch and return policy that has potential to be improved. However, President George W Bush abolished the catch and release loophole.

4 Cancel Obama’s Unconstitutional Executive Orders and Enforce Immigration Laws

Obama’s major deferred action orders were stymied by the Supreme Court which was tied 4-4. Forbes stated enforcing all immigration laws runs up against the issue of prioritizing resources.

5 Block the Financing of Sanctuary Cities

Sanctuary cities is a vague term. Generally, it refers to jurisdictions that limit the extent to which police and other government employees will go to assisting the federal government on immigration matters. San Francisco is an example, states CNN.

Forbes points out clamping down on sanctuary cities may run up against the Fourth Amendment protection from arbitrary arrest.

6 Return Criminals to the Countries Where They Are Citizens

Sending criminals back to their own countries has proved difficult in recent years because their home nations don’t want to accept them. Trump has advocated a ban on visas to countries that refuse to accept their citizens.

7  Stop Undocumented Immigrants Taking Jobs and Receiving Benefits

Trump advocates an expansion of systems such as E-Verify which help identify undocumented workers. There were about 8 million undocumented workers as of 2014.

8 Implementing the Mass Deportation of Undocumented Immigrants

Trump promised early on in his campaign to deport the 11 million undocumented immigrants in the United States. It’s one of the most controversial of his immigration plans and would involve a massive logistical operation and considerable cost.

The President-elect has also spoken about his terrorism concerns and wanting to stem the tide of Syrian refugees coming into the United States.

Immigrants have seen a bewildering array or immigration reforms in recent years. It’s certainly a stressful time to be an undocumented immigrant. If you need legal assistance, call our experienced immigration lawyers at (512) 474-4445.

Posted in Immigration, Immigration Reform

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Fewer Undocumented Workers are in the US than in 2008

By Peek & Toland on December 29, 2016

The issue of undocumented workers took center stage in the U.S. presidential election, raising questions about how many immigrants are working unlawfully here.

The answer, according to a recent CBS news story, is not as many as in 2008.

The story drew on research published this year by the Pew Research Center, which looked at data from the U.S. Census Bureau. It estimated there were about 8 million undocumented workers in 2014.

The figure was down from about 8.3 million in 2008, which was at the height of the recession and 8.1 million the following year in 2009.

study looked at numbers of undocumented workers

male hand pressing immigration key button over blue abstract background

At the same time, the size of the American labor force comprised of people born in the United States or immigrants who are entitled to work, grew by 2.2 percent.

Undocumented workers are making up a smaller share of America’s labor force than in 2009.

Where Are Undocumented Workers Coming From?

The survey also provides some information about the source of the unauthorized workers.

The number of undocumented workers from Mexico has decreased in recent years. However, Mexicans still make up the largest share of unauthorized workers.

U.S. Census Bureau figures state about 5.85 million unauthorized immigrants are from Mexico. El Salvador is the second largest source of undocumented workers. About 700,000 were born in the Central American country.

Over the last five years, there has been a steady increase in unauthorized immigrants coming from Guatemala, China, and Canada.

Pew found the number of unauthorized workers rose in New Jersey and Pennsylvania, while it fell in South Carolina, Georgia, and California.

Unauthorized workers are most likely to work as drywall installers and agricultural workers.

Other professions that employ high numbers of unauthorized workers are roofing and construction, carpet installers, maids and housekeepers.

It is prohibited for undocumented immigrants to seek employment, although undocumented workers can be self-employed. Recently, the Los Angeles Times reported on how thousands of undocumented immigrants are their own bosses.

If you are undocumented, making a living can be a major problem and you are likely to be living in constant fear of potential deportation. Our Austin immigration attorneys may be able to help you. Read about our success stories here.

If you or a loved one is facing an immigration dilemma, call us at (512) 474-4445.

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Are DWI Police Checkpoints Legal in Texas?

By Peek & Toland on December 28, 2016

Road blocks and DWI police check points raise the specter of random breath tests. We are sometimes asked if they are legal in Texas.

The answer is no, but that doesn’t stop law enforcement setting up DWI police check points to apprehend drunk drivers.

We usually see this over holiday periods when drunk driving levels increase. The July 4 holiday is a case in point and a common time for police to set up roadblocks.

DWI police check points may be illegal in Texas

A drunk driving police check point

According to the Fatality Analysis Reporting System, from 2008 to 2012, more than 630 Americans lost their lives over the 4th of July weekend. More than a third of these deaths were from drunk driving.

Although DWI police checkpoints are set up from time to time, their constitutionality is questionable in Texas.

There are 12 states that outlaw DUI sobriety checkpoints and roadblocks. A further 38 states permit them, according to the Governors Highway Safety Association. While Texas has not expressly outlawed checkpoints by statute as some other courts have, the Texas Court of Criminal Appeals has ruled that DWI sobriety checkpoints violate Fourth Amendment rights in Texas.

Court Case Undermines DWI Police Check Points

In the 1994 case of Holt v. State of Texas the court stated.

“Because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional under the Fourth Amendment of the U.S. Constitution unless and until a politically accountable governing body sees fit to enact constitutional guidelines regarding such roadblocks.”

DWI police checkpoints can only be set up if the Texas legislature has established guidelines.

If you are stopped and asked to take a breath test at a no refusal sobriety checkpoint, you have rights. The fact a checkpoint has been set up does not negate the need for an officer to establish probable cause to ask you to take a sobriety test.

Although DWI police checkpoints are not legal in Texas, if you attempt to avoid one it could constitute the reasonable suspicion police need to legally detain you and ask you to take a test. This is particularly the case if you commit a traffic violation.

If you have been charged with a DWI there are many scenarios in which a police officer may be acting in an unconstitutional way that can lead a charge to be challenged. Our experienced Texas DWI lawyers can help you out. Call Peek & Toland at <a href=\"5124744445\">(512) 474-4445</a>.

If you have been charged with a family assault, the prosecution will take it very seriously. It’s important to hire a seasoned criminal defense attorney in Austin as soon as possible. Call us at (512) 474-4445.

Posted in Criminal Defense, DWI

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Texas Domestic Violence Claims Highest Number of Women’s Lives in 10 Years

By Peek & Toland on December 27, 2016

Domestic violence against women is spiking in Texas. A report released in the fall revealed it claimed its highest number of victims in more than a decade.

A report from the Round Rock-based Texas Council on Family Violence revealed 157 women were killed in the state in domestic violence scenarios last year. The figure was a 20 percent hike on 2014.

The figure marked the highest tally of domestic violence deaths in 25 years of annual reports from the council.

The rise in domestic violence in Texas has seen more women killed

Domestic violence is increasing in Texas

During Domestic Violence Awareness Month in October, the TV station KXAN published some warning signs that you may be a victim of domestic violence. They include:

  • The exertion of strict control over a partner. It could relate to social, financial or controlling another’s appearance.
  • Demanding constant contact including excessive phone calls and texts.
  • Emotional abuse including insulting your partner in public.
  • Demonstrating fear around a partner.
  • Extreme jealousy.
  • Isolating your partner from their friends and family.
  • Unexplained injuries and explanations for them that don’t make sense.

Texas Council on Family Violence released its report at an event in Round Rock to highlight the increase in domestic violence related deaths in the Austin area and further afield.

Counties that recorded an upsurge in deaths linked to family violence included Travis, Bastrop and Williamson.

The upsurge in violence among families came at the same time as a rise in gun crime.

The federal prohibition on gun ownership by people with a domestic violence conviction was upheld by the U.S. Supreme Court this year.

Many states like Texas have passed their own legislation to supplement the federal prohibition.

An article in The Trace stated domestic assaults with firearms are more than 12 times more likely to be deadly than assaults with other weapons.

South Carolina has the highest number of women killed by men in the United States. It has finally enacted legislation limiting firearms access for domestic abusers.

You can read more about domestic assaults here on our website.

Penalties for Domestic Violence Offenses in Texas

The punishment for domestic violence offense assaults in Texas ranges from a “Class C” misdemeanor, which carries a possible fine of up to $500, up to a second degree felony, with a penalty of two to 20 years in a prison and a fine up to $10,000.

There are also some defenses to domestic violence, including:

  • Mistake or a lack of intention
  • Lack of knowledge of the crime
  • No offense occurred
  • Self-defense.

If you have been charged with a family assault, the prosecution will take it very seriously. It’s important to hire a seasoned criminal defense attorney in Austin as soon as possible. Call us at (512) 474-4445.

 

 

 

Posted in Criminal Defense

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More than Half of All Federal Offenders Re-Offend After Release, Report Finds

By Peek & Toland on December 26, 2016

When defendants end up in federal prison it’s a hard sentence. There’s very little evidence that being locked up helps them either. A recent study found nearly half of all federal inmates re-offend within eight years of their release.

Recidivism rates were studied by the United States Sentencing Commission. The researchers looked at offenders who were released after a term in a federal prison or placed on a term of probation in 2005.

More than half of federal prisoners re-offend

The study looked at what happened to 25,431 offenders in the federal system. They re-entered the community after leaving the federal system in 2005.

Nearly half (49.3 percent) of the offenders were rearrested within eight years of their release. They were charged with either a new crime or violation of their release or probation conditions.

Although the figure seems high, the recidivism for state inmates is even higher, according to statistics

Released State Inmates Re-offend More than Federal Ones

The Bureau of Justice Statistics studied more than 404,000 released prisoners in 30 states from 2005 to 2010.

It found approximate two-thirds (67.8 percent) of prisoners who had been released were arrested for a different crime within three years, and three-quarters (76.6 percent) were arrested within five years of their release.

 

Typically younger inmates are more likely to reoffend. Within five years of their initial release, 84.1 percent of prisoners who aged 24 or under at the time of their release were arrested, compared to 78.6 percent of those aged 25 to 39

The figures show incarceration is a very ineffective method to prevent re-offending and reform inmates. Many prisons have reputations as ‘universities of crime’ where offenders pick up new offending tricks.

Often a sentence like probation or community service can be more worthwhile for certain categories of offenders. There is an educational aspect and an incentive not to re-offend.

Texas has pioneered some re-educational programs in recent years in a bid to reduce its prison population. If you are seeking jail release in Texas our experienced criminal defense lawyers can help you. We know how important it is to get out of jail as soon as possible.

For help and advice contact our experienced Austin jail release attorneys here.

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Federal Authorities Prosecute More People for Drug Possession

By Peek & Toland on December 23, 2016

Drug possession may not be punished as harshly as drug trafficking but the number of people charged with these offenses at a federal level has risen exponentially over the last few years.

The trend prompted a report that was published by the United States Sentencing Commission in September.

The research noted the number of federal offenders whose most serious offense was simple drug possession rose nearly 400 percent during the years from 2008 to 2013.

Drug possession arrests rise

Drug possession offenses are rising

The trend is of interest. When offenses fall under the federal system, the penalties are typically higher. The study by the United States Sentencing Commission nixed the notion that federal enforcement officers had increased their focus on drug possession offenses.

Marijuana Accounted for Rise in Federal Drug Possession Offenses

The study found the rise was almost entirely accounted for by the use of marijuana.

The increase in possession cases was fuelled by arrests at the US/Mexico border, predominantly in Arizona.

In the case of people arrested away from the border zone for the possession of marijuana, the median quantity of the drug recovered was 0.2 ounces.

In contrast, the people arrested for possession of marijuana offenders at the border possessed a median quantity of 776.0 ounces — an amount that appeared to be way in excess of a personal use quantity.

Proving Drug Possession

In order to prove drug possession, a prosecutor must prove your possession of certain unlawful drug violates federal and state laws. Prosecutors have to be able to prove beyond any reasonable doubt that the person who was arrested was aware the drug was a controlled substance. He or she must have knowingly had possession of the drug or control of it.

Crimes of simple possession carry a lower sentence than possession with intent to distribute. However, in the cases highlighted at the border there’s clearly a question about whether this marijuana was for personal use.

At Peek & Toland , our Austin criminal drug defense lawyers help people who are charged with drug possession. There are five groups of drugs in Texas. The seriousness of a sentence will depend on what narcotic you are accused of possessing.

The five categories are Group 1, Group 1A, Group 2, Group 3 and Group 4. The penalties for possession of these narcotics range from one year incarceration and a fine of $4,000 to life imprisonment and $250,000 fine.

If you have been charged with any drug offense in or around Austin it’s important to hire a criminal defense lawyer from the outset before the prosecution builds on its case against you. Call us at (512) 474-4445.

Posted in Criminal Defense, Drug Crimes

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How Social Media has Changed the Way Crimes are Committed

By Peek & Toland on December 22, 2016

The massive growth in social media as a mainstream means of communications and sharing of material has dramatically changed the way crimes can be committed.

The rapid development of smart phones means material such as graphics and pictures can be shared in a matter of seconds. It also presents a challenge for law enforcement agencies to police this new media landscape.

For instance, a story in the Washington Post in February revealed how even sending a threatening emoji can constitute a criminal offense. A 12-year-old from Fairfax in Virginia was charged with threatening her school after police said she posted a message on Instagram. Reports stated it contained images of a gun, a bomb and a knife.

social media changes the way crimes are committed

Part of the message read “meet me in the library Tuesday.”

It wasn’t the first time an emoji has been considered as a threat. A jury tackled the question in New York. It was asked to decide whether an emoji with the face of a police officer and a gun represented a threat to police officers.

In Michigan, a judge was asked to interpret the meaning of a tongue sticking out. The cases raise important First Amendment questions.

The challenge for police and prosecutors is to draw a line between dark humor and threats. It’s a fine line between free expression and intimidation.

Social Media and Cyber Bullying

Texas, like other states, has had to catch up with digital advances in recent years by enacting cyber bullying statutes.

In our state, “cyberbullying” is defined using any electronic communication device to take part in bullying or intimidation. It doesn’t need to be on social media. It can be via a text message or email.

There is also a crime of harassment that can be committed by sending obscene material, or making threats or false reports.

You can commit the crime of online impersonation by creating a page on a website. You can also be charged with sending messages while pretending to be someone else. It has to be done with the aim of harming, defrauding, or intimidating to be charged.

Online impersonation can be either a felony or misdemeanor depending on the circumstances under the Texas Penal Code § 33.07.

Criminals Broadcast Offenses on Social Media

Ray Surette, a Professor in the Department of Criminal Justice at the University of Central Florida, recently wrote about how social media is changing the way crimes are committed and the way the police respond.

In his article in LSE, he wrote about how people who made bomb threats in past years did it secretly. Now they are more likely to broadcast their threats on social media such as Facebook and Twitter. He noted a move toward “performance crimes” stating:

“It is better to get your performance out there and be known than to be unknown in a celebrity culture, even if criminality is required.”

Surette noted an increase in invasive law enforcement techniques to fight these crimes with police increasingly turning to body and car cameras and community surveillance camera systems.

At Peek & Toland , we constantly question police methods of evidence gathering. In Texas, a cell phone is not like a pair of shoes. It’s more akin to a personal computer and can’t be searched at will.

The Texas Court of Criminal Appeals ruled in State v. Granville that the contents of an inmate’s cell phone were protected, even when he was locked up. Police need a warrant to obtain the contents of your phone.

Threats on social media can range from vaguely threatening statements, as seen during the recent panic about clowns, to terrorist threats that could land you in jail for more than a decade.

If you have been charged with a crime on social media, call an experienced Austin criminal defense lawyer. Call us at Peek & Toland at (512) 474-4445.

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Expert Warns Governments They Are Losing the War on White Collar Crime

By Peek & Toland on December 21, 2016

White collar crime is sometimes known as economic crime. It may not leave physical victims but it’s certainly taken seriously by the U.S. government and those of other nations.

We read about a lot of high profile federal initiatives. Investigations into companies like Enron made huge waves in the financial industry. Nevertheless, a recent international conference on white collar crime heard claims that governments are losing the war against the fraudsters.

Counties are losing the war on white collar crime

The New York Times reported the global record of combating economic crime is so pitiful that governments need a new approach. The view was echoed by academics and legal and compliance experts at a recent conference in Cambridge, England.

Alison Levitt, a partner at Mishcon de Reya, a London law firm, said the war on economic crimes such as money laundering, fraud and insider trading was being lost.

The conference heard of the widespread involvement of senior managers at companies in white collar crime schemes.

The pessimism expressed by European experts was shared by those from the United States.

Experts Point to Losing Battle on White Collar Crime

John W. Moscow, the former chief of the frauds bureau and a deputy chief of New York County district attorney’s office, said the number of people benefiting from large-scale, white collar crimes is huge. He said declining budgets was impeding the apprehension of white collar criminals.

At Peek & Toland we are well aware of the pressures on the federal authorities. When investigators are under pressure for results, botched prosecutions can ensure. We have represented many clients who have been charged with economic crimes in Austin.

In a recent blog we wrote about five of the biggest white collar frauds in the history of the United States. They include Bernie Madoff, who was jailed for 150 years in prison and ordered to pay $170 billion in restitution. He ran a Ponzi scheme that defrauded investors of billions of dollars.

The FBI states the term ‘white collar crime’ was coined in 1939. It is now synonymous with a wide range of crimes committed by professionals. They are not dependent on the use of physical force, although some white collar crimes have entailed intimidation. The motivation behind these crimes is to avoid losing money or to secure a business advantage or services. The crimes are characterized by deceit of concealment. A company that falsifies its books for commercial advantage is committing a white collar offense.

The FBI states such crimes are not victimless. A scam can send a company out of business. Employees can lose their jobs and families can see their life savings wiped out.

White collar crimes are becoming more sophisticated. It remains to be seen if the federal response has kept pace.

If you have been charged with a crime like fraud or another white collar crime, you are likely to be facing a very stiff sentence. Call us for a consultation at (512) 474-4445.

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Citizenship Backlog Derailed Voting Hopes of Thousands of Immigrants

By Peek & Toland on December 20, 2016

As immigration quickly emerged as a key issue of the 2016 Presidential election, many green card holders sought citizenship so as they could vote.

A massive backlog also meant many of them failed to make it in time to cast their vote.

Recently, the Washington Post reported how immigrants who were concerned about the anti-migrant stance taken by Republican nominee Donald Trump rushed to vote in the elections. For many it was too late.

USCIS delays on citizenship left many unable to vote

Many citizenship applications were not completed in time to vote

The news article cited the case of Agustin Gomez, a Las Vegas resident who held a green card for 17 years. The cook sought citizenship to vote against Trump.

He endured months of waiting and was finally told by U.S. Citizenship and Immigration Services (USCIS) the scheduled date for his naturalization interview would be on Nov 8 – the day he hoped to be voting against Trump.

Many Green Card Holders Failed to Gain Citizenship to Vote

Gomez was not alone. The report stated thousands of applicants are affected by the increasing naturalization backlog. Information from USCIS revealed that from April to June this year processing delays left as many as half-million applicants with pending naturalization applications.

They hoped to vote in the presidential election but were unable to do so. Hispanics rushed to gain citizenship so as they could vote. We noted how as many as 81 percent of Latinas wanted to vote in the presidential election.

Although Hispanic immigrants were expected to be anti-Trump because of his stance on immigration, the Latino vote for Trump was higher than commentators expected. According to NBC News, as many as 29 percent of Latinos may have backed the winner.

The revelation raises questions about the efficiency of USCIS systems as well as democratic questions. A report from National Partnership for New Americans warned the delays threatened to create “disenfranchisement danger zones.” The partnership’s research found almost 930,000 people applied for citizenship, a rise of almost a third over the same period in 2015. The backlog to process applications rose 31.2 percent since 2015.

The Post reported on concerns raised by Department of Homeland Security Inspector General John Roth over the IT systems used by USCIS. The report branded them outdated and said USCIS had improperly approved more than 850 applications for citizenship

You can read more about citizenship here. We can’t speed up the outdated USCIS computers but we can ensure you do everything on your end to minimize delays in the process.

Please call our Texas family immigration attorneys for a consultation at (512) 474-4445.

Posted in Citizenship, Immigration

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DWI Test Refusal – What Happens if You Refuse a Blood Test in Texas?

By Peek & Toland on December 19, 2016

Our Austin DWI defense lawyers are often asked about DWI test refusal. Does a defendant have the right to refuse a blood test after being apprehended for suspected drunk driving? What are the likely consequences?

Texas has a controversial law of implied consent. If you are lawfully arrested by a police officer or a state trooper who has probable cause to believe you were driving intoxicated, you consent to taking one or more chemical tests of breath or blood to determine your blood alcohol content (BAC).

You should be aware a police officer cannot usually force you to take a test. An exception to the rule is if you caused an accident in which someone was seriously injured or killed.

Your right to a DWI test refusal in Texas

A DWI breath analyzer

If you decline to take a test, you violate the “implied consent” section of the Texas Transportation Code. You can still be charged with DWI even if you refused a breath or blood test. The state will attempt to prove your guilt through other means.

As well as facing a likely DWI conviction, you will face sanctions for refusing a chemical test. A police officer will confiscate your driver’s license and replace it with a temporary driving permit. On day 41 after your arrest, you will have your license suspended for 180 days unless you demanded a hearing. Second time DWI offenders who refused to give a test face a two-year suspension.

Your Right to DWI Test Refusal

Notwithstanding Texas’s implied consent law, you still have the right to refuse a chemical test under the Fourth Amendment of the United States Constitution.

Texas has seen a spate of cases in which defendants were forced to take tests against their will in recent years.

The rights of defendants to refuse blood tests were recently bolstered by a U.S. Supreme Court decision on DWI test refusal that appeared to erode the rights of suspected DWI drivers to refuse a breath test.

The justices ruled that police or troopers must first obtain a search warrant to carry out a blood/alcohol test on a driver who they suspect to be drunk, but that states are within their rights to make it a crime for a motorist suspected of intoxicated driving to refuse a breath test.

If you have been forced to give a blood test without your explicit consent a police officer may have been acting outside the law. Please contact the DWI criminal defense lawyers at Peek & Toland immediately. The evidence against you could be suppressed and rendered inadmissible in your case. Call us at (512) 474-4445.

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