Monthly Archives: August 2017

Trump Will Continue to Provide Citizenship Through Military Service

By Peek & Toland on August 31, 2017

A crackdown on immigration has been a key policy of the Trump administration. However, citizenship through military service appears to be safe from repeal, according to a Defense Department official.

The comments of Lt. Col. Myles Caggins were reported on Fox News. He said the military will continue to honor a long-standing policy that allows people serving in America’s armed forces to gain a pathway to citizenship.

Official says citizenship through military services is set to survive

Citizenship through military service is likely to remain

He also said the United States will continue to welcome noncitizen recruits into its military.

Caggins praised the contribution of foreign nations to the United States military. He said:

“Today’s service members are eligible for expedited citizenship under a July 2002 executive order and the military services have worked closely with the U.S. Citizenship and Immigration Services (USCIS) to streamline citizenship processing for service members.”

Caggins confirmed the government has no plans to change or abolish the initiative that provides citizenship through military service. Trump has taken a stance against immigration. He has also stressed his support for the military. He has not made any public comment on citizenship through military service. However, in answer to a question about the rights of an undocumented immigrant in the U.S. military he described the scenario as a “special situation.”

About 5,000 legal permanent residents a year are recruited to the military under the Military Accessions Vital to the National Interest Program. We recently noted an extension to the so-called MAVNI program.

The average number of noncitizens who were on active duty from 2010 to 2016 was about 18,700.

The MAVNI allows applicants who are successful to enlist in the military even if they are not a U.S. citizen or even a permanent resident. The program is only available to certain medical personnel and those with language skills in short supply.

USCIS set up the Naturalization at Basic Training Initiative in 2009. The Army gives noncitizen enlistees an opportunity to naturalize once they have graduated from basic training. The Navy, Air Force and Marine Corps joined the program soon afterward.

Shortly after the Deferred Action for Childhood Arrivals program was set up by President Obama, 359 recipients enlisted in the Army, the only branch of the military that accepts this immigrant category.

Some foreign nationals have given their lives to the country they were serving. In March 2003, Lance Cpl. Jose Gutierrez, a U.S. Marine and Guatemalan native and U.S. Marine was one of the first casualties of the invasion of Iraq. He was posthumously granted full citizenship. Fellow Marine and Mexican national Jesus Alberto Suarez del Solar was killed a week later.

However, recruits must have a recognized immigration status to join the military, be it being a DACA recipient, a green card holder or the holder of a visa. The military does not accept undocumented immigrants.

If you need help with an immigration issue in Austin, San Antonio, San Marco, Round Rock or elsewhere in Texas, please contact our experienced family immigration lawyers for a consultation.


Posted in Citizenship, Immigration

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Outlining the Revised Texas Bathroom Bill

By Peek & Toland on August 30, 2017

The Texas Bathroom Bill has made lurid headlines and promoted revisions as it progressed through the legislature.

However, the Bathroom Bill remains as confusing as it is controversial. Recently, an article in the Texas Tribune sought to explain it.

The Texas bill follows similar legislation in North Carolina. However, that state revised its bill while it was being discussed in the Texas legislature.

The bill also appeared to be languishing in Austin. It was under fire both from the LGBT community and business leaders who feared it would harm the economy of Texas.

However, in April the Senate rushed to approve the bill mandating that transgender Texans use public bathrooms corresponding to their birth certificate gender after an intervention by Governor Greg Abbott.

Controversial Texas bathroom bill is changed

Texas bathroom bill is amended

Abbott gave his support for the bill after the House said it would set aside the Senate’s bill. The House instead wanted to advance a bill prohibiting policies that sought to protect transgender rights in public bathrooms. Legislators did not specifically address birth certificate gender.

The changed bill in Texas remains controversial. An article on KUT.org compared the bill in the Lone Star State with North Carolina’s.

The bill in Texas regulates bathroom use in public facilities on the basis of “biological sex” as listed on a user’s birth certificate. The legislation would ban a majority of transgender people in Texas who have not amended their birth certificates from using a bathroom that matches their gender identity.

Both Texas and North Carolina base their bathroom regulations on “biological sex.” However, in a recent retreat in North Carolina, the language was changed to no longer specifically prohibit people from using a bathroom that aligns with their particular gender identity.

The North Carolina law no longer contains specific regulations that would regulate the bathroom transgender people are allowed to use. However, it still prevents localities drawing up bathroom policies, leaving the regulations to the state.

If the bathroom bill becomes law in Texas, there are many questions about how it would be enforced. The law sets out civil rather than criminal sanctions.

For instance, Under SB 6, the office of the Texas Attorney General would be able to investigate bathroom policy complaints against school districts or other governmental entities and decide whether to pursue related civil penalties.

When North Carolina’s bathroom act became law, many police departments were confused about it reported Mother Jones.

Some checked with their attorneys to determine whether they could arrest an individual who used the incorrect bathroom. Although the bathroom legislation was a civil law, some police discretion was inherent in it. Many departments said they would not enforce it. The Texas Bathroom Bill contained many uncertainties.

If your rights have been violated by the police or if you feel you have been wrongly arrested, it’s important to retain an experienced Austin criminal defense lawyer. Call us at (512) 474-4445.

Posted in Criminal Defense

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Did Honduran Receive the Death Penalty in Texas Because He was an Unlawful Immigrant?

By Peek & Toland on August 29, 2017

A case to be heard by the U.S. Supreme Court will hear a disturbing defense claim. Lawyers for a Honduran claim he was handed the death penalty in Texas because he was living illegally in the state.

Earlier this year, the U.S. Supreme Court agreed to hear the Texas death penalty case of Carlos Ayestas. The Honduran is arguing a federal appeals court made a mistake when it denied him resources to investigate and find evidence of mental illness and substance abuse.

His lawyers claim a jury would not have handed down the death penalty if it heard about his cocaine addiction and his mental problems.

Did unlawful status lead to death penalty in Texas?

Did Honduran receive death penalty in Texas because he was undocumented?

He was sentenced to death for the murder in 1995 of 67-year-old Santiaga Paneque during a home invasion in Houston.

State officials are dismissive of this speculation from the death row inmate’s defense team.

Ayestas along with two accomplices bound the woman with duct tape before beating her and strangling her to death, according to the state’s brief to the Supreme Court. Ayestas was convicted and sentenced to death two years after the killing.

Later a controversial memo surfaced in 2014. It showed the Harris County District Attorney initially cited one reason to pursue the death penalty in the Honduran’s case – his immigration status.

A report in the Texas Tribune stated almost 20 years after the verdict, Ayestas’ case will be reviewed by the Supreme Court.

His attorneys claim he was denied his constitutional right to nondiscriminatory treatment and effective representation. Although the memo was raised, it’s a secondary factor in the case.

Ayestas is not the only death row inmate to claim his status as an undocumented immigrant landed him there.

A report in The Tribune claimed of 251 men and women languishing on Texas death row, 12 committed their crimes while in the country illegally.

Ayestas apparently traveled back and forth to Texas from Honduras several times. He  re-entered the country illegally in  1994. He ended up in Houston where he was arrested for misdemeanor theft in July 1995. He spent more than a week at the Harris County jail.

If you are arrested for a crime as an undocumented immigrant, it’s important to hire experienced legal representation as soon as possible. In many cases, an immigrant unlawfully in the United States will face deportation. For more serious crimes you could face deportation or even the death penalty.

Please call our experienced Austin immigrant lawyers for a consultation at (512) 474-4445.

Posted in Criminal Defense, Immigration, Immigration Reform

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Feds Accuse Four Men of Drug Trafficking in Houston

By Peek & Toland on August 28, 2017

Drug trafficking is a crime that often crosses state and national borders. It’s usually investigated at a federal level. Recently, four men were arrested for allegedly drug trafficking in Houston.

A report in The Examiner stated acting U.S. Attorney Brit Featherston made an announcement on March 7 that four people were arrested. They were charged with drug trafficking in the Eastern District of Texas, after a lengthy investigation.

An indictment was returned by a federal grand jury. It was unsealed on March 1. The four men who appeared before a U.S. magistrate charged with conspiracy to distribute heroin and conspiracy to money launder were Harry Martinez, 41, Alexander Ramirez Valencia, 43, and Jeihka Angelica Cuero, 24, all from Colombia. The fourth man is Carlos Ivan Calderon Rosado, 52, of Puerto Rico.

Four are accused of drug trafficking in Houston

The indictment accuses the men of distributing heroin through Southeastern Texas to the New Orleans area for three years from about 2014 until February 2017. Law enforcement teams seized 10 kilograms of heroin and $386,000 cash in raids.

The four men were living in Houston in Texas. Ramirez and Martinez and were reported to be awaiting final deportation hearings at the time they were picked up. The defendants face up to 20 years in federal prison if convicted of drug trafficking in Houston and elsewhere.

On our website we note the stiff penalties people accused of drug trafficking face at a federal level. Often people who have no prior criminal convictions face as long as 10 years in prison if they are convicted of drug trafficking.

The arrests come at a time when heroin deaths are spiking in the United States and the authorities are determined to make an example of drug traffickers.

Acting U.S. Attorney Featherston said in a press release:

 “Heroin use in the United States has reached a 20 year high according to the 2016 World Drug Report issued by the United Nations Office on Drugs and Crime. 2016 saw the number of overdose drug deaths exceeded 50,000. This number is more than violent gun deaths, and more than car crash related fatalities reported in 2016.”

This case against the four men is being prosecuted under the Organized Crime Drug Enforcement Task Force (OCDETF) as part of a joint investigation. The task force has pledged to disrupt, identify and break up serious drug trafficking organizations and to bring the drug traffickers to justice.  Other bodies joined forces with the feds in the investigation including the Texas Department of Public Safety, Houston Police Department, and the Beaumont Police Department.

The influx of cheap heroin from Mexico has been linked to a rise in crime in the United States.

One of the theories for this is the fragmentation of the Sinaloa Cartel. The gang was the largest player in the heroin market but the arrest of its kingpin Joaquin “El Chapo” Guzman in 2014 left a vacuum that was filled by warring gangs in cities like Chicago.

If you have been arrested for drug trafficking, you can expect a harsh sentence if convicted. You should hire experienced Austin criminal defense lawyers as soon as possible. Call us at (512) 474-4445.

Posted in Drug Crimes

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Lockhart High School Teacher Accused of Improper Conduct with a Student

By Peek & Toland on August 25, 2017

Over the past few years, we have heard about many alleged instances of teachers being involved in improper conduct with a student. The rise in these kinds of offenses was the catalyst for new legislation in the Texas Legislature.

In a recent case, the Lockhart Police Department accused a female teacher at Lockhart High School of being involved in improper conduct with a student.

A report on CBS Austin said Sarah Madden Fowlkes, a 27-year-old teacher, was charged with having an inappropriate relationship with a 17-year-old male student at the school in March.

Lockhart ISD said school administrators were informed of the report on Friday, March 10, shortly before spring break.

improper conduct with a student changes filed against Texas teacher

Large numbers of teachers are charged with improper conduct with a student

The report said police claimed the male student has been in contact and messaged Fowlkes. They claimed the teacher took part in sexual contact with the student.

This was not the first report of a teacher being involved in improper conduct with a student in Texas in recent months. Data from the Texas Education Agency (TEA) highlighted a 53 percent rise in these kinds of relationships in the last seven years.

Lt. Gov. Dan Patrick requested lawmakers to bring in new legislation to tighten up the rules relating to inappropriate relationships.

In March, the Senate passed legislation that would hit school principals and superintendents who fail to report relationships between teachers and students with criminal charges.

Sen. Paul Bettencourt, a Republican from Houston, introduced Senate Bill 7 in response to the relentless rise in Texas teachers found to be in sexual relationships with their students.

In the 2016 financial year, Texas Education Agency opened up 222 investigations of teachers allegedly involved in Improper Conduct with a Student.

Bettencourt said he was concerned that many of those teachers remain in the Texas educational system after their criminal behavior is discovered. School superintendents or principals are failing to report their transgressions to the TEA, Bettencourt claimed.

The legislation is intended to end the practice of school boards quietly firing teachers found to be in inappropriate relationships. Legislators say they often find work at other school districts.

Under the bill, administrators who fail to report teacher misconduct could be charged with a Class A misdemeanor. The intentional non-reporting of an offense could lead to a state jail felony.

If you are a teacher who is accused of inappropriate conduct with a student, you are likely to be facing damaging headlines, the end of your career and possible incarceration. However, in some cases, false allegations are made against teachers who are vulnerable. Please contact the Austin criminal defense attorneys at Peek & Toland if you need representation.

Posted in Criminal Defense

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Few Sex Assaults in Austin Lead to Prosecutions

By Peek & Toland on August 24, 2017

Sex assaults in Austin often are serious crimes with heavy sentences. However, as few as 10 percent end up in convictions, police revealed in a recent report.

Austin’s public safety commission asked police officials for a snapshot of the criminal justice process in sexual violence cases, The Statesman reported in March.

The report they received was a reminder about how few prosecutions end up in convictions.

At the commission’s monthly meeting in March, Austin police officials gave a detailed breakdown of 113 sexual assaults. The cases in question dated from January to March 2015. The three-month period was a random sample.

few sex assaults in Austin lead to convictions

few sex assaults are prosecuted in Austin

Only 10 of the alleged sex assaults led to indictments, the data showed. Travis County prosecutors lacked sufficient evidence to make a case in 49 of those 113 cases. In another 40 cases the victim did not want police to pursue the case, officials said.

The Statesman report said many of the sex assault prosecutions were unraveling even before the closure of the city’s DNA lab which has caused issues with the testing of rape kits.

The report said of the 10 cases that resulted in arrest some are still pending. It reported:

  • Four of the cases ended up in charges other than sexual assault.
  • One case was dismissed.
  • One perpetrator was sentenced to three years in prison.
  • Another offender took a plea deal and served 120 days

Although this report suggested many sex assault cases were not leading to convictions, it’s not clear why these cases do not proceed. In some cases, a claim of sexual assault is spurious or made as part of a domestic argument when no such assault occurred. The Texas Penal Code deals very seriously with these offenses.

The Penalties for Sex Assaults in Texas

Sexual assault, commonly known as rape, can occur in a range of scenarios when the offense is committed without the victim’s consent. The Texas Penal Code lists those circumstances here.

Typically, a sex assault is a second-degree felony in Texas. It carries a sentence of two to twenty years in a state prison along with a fine of up to $10,000.

Rape may be elevated to a first-degree felony if the victim is under 17-years-old. If you are convicted of a first-degree felony in Texas, you can face five to 99 years in a state prison and/or a maximum fine of $10,000.

Aggravated sexual assault is also first-degree felony. It can carry a minimum sentence of 25 years if the victim is younger than six when the crime was committed or if the victim was under 14 and either a deadly weapon was used or displayed, the child was seriously injured, the defendant tried to kill the child, or used drugs in the sex assault. Read more about assaults here.

These are serious charges. If you have been charged with a sex assault, you should contact our experienced Austin criminal defense lawyers as soon as possible at (512) 474-4445.

Posted in Criminal Defense

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ICE Agents Arrests – 150 Immigrants Are Picked Up in South Central Texas

By Peek & Toland on August 23, 2017

The first few months of the Trump administration saw a series of high-profile immigration raids by ICE agents across Texas. In March, U.S. Immigration and Customs Enforcement agents arrested 153 people in central Texas.

It was not the first series of raids in and around Austin, raising concerns the state capital is being targeted due to its sanctuary city status.

The Statesman reported 24 people suspected of being in the country illegally were detained by the Austin/Waco field office.

ICE provided details of the 12-day operation that lasted from March 20 to 31. The agency said all of the undocumented immigrants arrested had previous criminal convictions.

The operation was the second one ICE carried out in the area this year. In February, ICE agents detained more than 50 people in the Austin area as part of a nationwide operation.

ICE agents arrests seen in Texas

ICE agents arrests cause fear in Texas

Those picked up in the March sweep included foreign nationals from five countries. Reports said 140 people from Mexico were picked up along with seven undocumented immigrants from Honduras, three from Guatemala, one from El Salvador and two from Canada.

Federal officials said 33 of the people who were picked up will face criminal prosecution on charges of re-entry after deportation.

The increased frequency of raids resulted in an upsurge of advice to undocumented immigrants about what they should do if ICE agents come knocking.

What You Can Do to Avoid ICE Agents Arrests

Roundups of undocumented immigrants across the United States prompted immigrant rights groups to provide advice on social media to people caught up in raids.

The American Civil Liberties Union (ACLU) advises undocumented immigrants not to open the door unless the ICE agents can show a warrant signed by a judge.

ICE administrative warrants do not permit agents to enter a home without the consent of the residents. Inhabitants should ask through the door why the agents are present and request an interpreter if they need one, reported USA Today.

If an ICE agent lacks a warrant, the undocumented immigrants should ask the agents to leave information outside.

If you or a family member is caught up in ICE agents’ arrests, please call our Texas immigration attorneys at (512) 474-4445.

Posted in Cancellation of Removal, Immigration

Should Bad Immigration Legal Advice Mean Another Chance for Deportees?

By Peek & Toland on August 22, 2017

The justices at the U.S. Supreme Court recently discussed whether immigrants should be given a second chance in court if bad immigration legal advice results in a guilty plea and certain deportation.

The Boston Herald reported the high court justices appeared divided during an argument about what to do in cases involving poor legal advice if criminal evidence against an undocumented immigrant is strong and he or she is unlikely to be acquitted.

The court considered the of Lee v. U.S. The justices heard Jae Lee, a South Korean immigrant, faced drug charges.

Lee admitted the offense. His lawyer mistakenly told him a conviction would not lead to deportation, the justices heard.

Bad immigration legal advice is discussed by U.S. Supreme Court

should poor immigration legal advice halt a deportation?

The federal government argued the flawed immigration legal advice is irrelevant because the outcome of the trial would have been the same. The case is seen as important because the Trump administration wants to increase deportations. It is focusing on immigrants with criminal convictions.

Attorneys for Lee say the Korean would have taken his chances in court or demanded a better plea deal from his lawyer, had he realized it might allow him to remain in the United States.

Justices Discuss Poor Immigration Legal Advice

The main issue in the appeal is whether the immigration legal advice to take the deal offered by the prosecutor was bad enough to amount to a violation of Jae Lee’s constitutional right to an attorney.

Justice Elena Kagan appeared sympathetic to Lee’s arguments. Although the justices seemed to agree that Lee’s original lawyer gave deficient immigration legal advice, Lee must show bad lawyering impacted the outcome of the case, The Boston Herald reported.

A federal appeals court in Cincinnati, Ohio ruled the drug evidence against Lee was overwhelming. The judges were of the opinion he would have been convicted had he taken his chances at a trial. Almost 20 U.S. states are backing the arguments of the Trump administration that the ruling of the Cincinnati report should be upheld.

In 2010, The U.S. Supreme Court ruled immigrants have a constitutional right to be informed by their lawyers if pleading guilty to a crime would result in deportation.

Justice Anthony Kennedy appeared to be siding with the administration. He said a ruling in favor of the South Korean would put judges in a difficult position.

“You’re asking us to assess the mindset of a defendant when he makes the plea,” Kennedy said.

Alabama is leading the 19 states in backing the administration’s argument that the appeals court ruling should be upheld.

With as many as 11 million undocumented immigrants living in the United States, the Supreme Court’s decision is likely to prove important.

Given the present upsurge in arrests and deportations, cancellation of removal cases are becoming increasingly important. Read our Austin family immigration attorneys’ resources here or call (512) 474-4445.

Posted in Cancellation of Removal, Immigration

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Jailed for Life for DWI – Texas Man Receives Seventh Conviction

By Peek & Toland on August 21, 2017

You could be jailed for life for DWI in Texas if you receive repeated convictions. In Weatherford, Texas, a man recently received a life sentence for his seventh conviction.

Police arrested James Eric Nachlinger from Scurry County in West Texas 10 times. He was convicted of seven DWIs, reported the Star-Telgram.

The 48-year-old pleaded guilty to a DWI charge from last July. Jeff Swain, Parker County assistant district attorney, said Nachlinger elected to have state District Judge Craig Towson assess his sentence.

Texas man was jailed for life for DWI

The DWI driver previously received a custodial sentence for four other felony charges.  The case was handled under Texas’ habitual offender law, Swain said.

Nachlinger was apprehended by a Texas Department of Public Safety trooper on July 28.

He was seen driving erratically on Interstate 20 in western Parker County.  A blood test revealed a blood-alcohol content of more than three times the legal driving limit, prosecutors said.

According to media reports, the judge told Nachlinger he would be jailed for life to protect the public.

After being sentenced to 66 years in prison, Nachlinger is said to have told authorities he still drinks “because he likes it.”

This case from Weatherford highlights the tough stance Texas takes on repeat DWI offenders. Although it’s relatively rare to be jailed for life for DWI, judges sometimes deny a driver of his or her liberty for a string of drunk driving arrests.

Last year, a judge in Montgomery County, Texas, handed a life sentence to a DWI driver. Donald Middleton was arrested by police on May 30, 2015, on a DWI charge. It was his ninth since 1980. After causing a wreck while drunk, he was jailed for life for DWI.

You can find out more about DWI offenses here on our website. In Texas, even first-time DWI offenders can lose their liberty.

If you have been charged with DWI or DUI, please call our experienced Austin drunk driving defense lawyers at (512) 474-4445.

Posted in DWI

Crimes Against Police – Deputy is Shot Dead in Baytown

By Peek & Toland on August 18, 2017

Crimes against police are seldom far from the headlines in Texas after a tragedy last year and a move to make acts of violence against first responders hate crimes.

In April, another police officer lost his life when a Harris County deputy constable was gunned down in Baytown.

Police said Clint Greenwood’s killer later used the same gun to shoot himself dead and had a grudge against the officer.

Greenwood was killed on April 3 when he arrived at work at the Harris County courthouse annex in Baytown. He started work three months earlier as an assistant chief deputy for the Precinct 3 Constable’s Office. The officer worked for decades in the criminal justice system in Harris County.

New law in Texas was passed due to crimes against police

Crimes against police sparked legislation in Texas

Police linked the shooting to William Kenny, reported the Houston Chronicle. Kenny reportedly harbored a grudge against Greenwood and other officials after deputies responded to a call in five years ago. He had a legal permit for concealed carry in Texas and bought a 9mm Taurus in 2014.

He shot himself in the head soon after the killing of the officer. Ballistics tests used to compare the rounds used in the two shootings established a match.

Over the last year, we have seen the killings of police officers in Dallas, San Antonio, and Harris County, prompting moves for Blue Crimes Matter legislation.

Crimes Against Police in Texas

In the wake of the slayings of five police officers by a sniper in Dallas last year during a Black Lives Matter rally, Texas Governor Greg Abbott called for the killing of Texas police officers to become a hate crime.

Legislation filed in Texas this year would make violent offenses that target any emergency responder a hate crime.

Blue Lives Matter legislation has been implemented in Louisiana. However, the use of heavy sentences for less serious crimes against police officers is controversial. In Louisiana, for example, resisting arrest can constitute a hate crime, reported the Washington Post.

In at least 37 states there are enhanced penalties for assaulting a police officer.

If you have been charged with an offense against a police officer or another first responder such as a paramedic or a firefighter, you may be facing a heavy sentence. Call Peek & Toland for a consultation at (512) 474-4445

Posted in Criminal Defense

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