Monthly Archives: November 2017

Cross Border Shooting Lawsuit is Sent to Another Court

By Peek & Toland on November 30, 2017

The question of whether U.S. Border Patrol can be held liable for the shooting of a Mexican across the border is no nearer to resolution after the U.S. Supreme Court sent a cross border shooting lawsuit back to a lower court.

In June, the Texas Tribune reported the highest court in the land sent the case involving the cross-border shooting death of a teenager back to the U.S. 5th Circuit Court of Appeals to be reconsidered.

In 2010, Sergio Adrían Hernández Güereca was killed by a U.S. Border Patrol agent who fired his gun across the Rio Grande.

The U.S. authorities claimed the teen threw rocks. The teen was shot dead by agent Jesus Mesa Jr. The border patrol agent was on the banks of the Rio Grande in El Paso. The teen was on the Mexican side of the border, in Ciudad Juárez, when the agent fatally shot him from the Texas side.

The killing led to a lawsuit filed from Mexico. The family of the victim sued U.S. Customs and Border Protection, the Department of Homeland Security, the U.S. government and Mesa himself.

Cross border shooting legal fight

Cross border shooting leads to legal battle

The case was dismissed by a district judge on the grounds the victim was a Mexican national who was on Mexican soil when the shooting took place.

An appellate court took a different approach in 2014. It ruled that the agent could be sued in his individual capacity although the U.S. agencies could not. A year later, the U.S. 5th Circuit Court of Appeals sided with Mesa. The judges ruled the agent was entitled to immunity because Hernandez was in Mexico when the shooting happened.

We noted this drawn out legal procedure recently in our immigration blog.

The teenager’s family appealed the Court of Appeals decision in the cross border shooting case to the U.S. Supreme Court. The high court agreed to consider the case last October. However, in June, the Supreme Court sent the case back again to the 5th Circuit.

The justices asked the court to revisit its previous ruling in the context of other court decisions that have been decided since. The court wrote:

“The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life. Whether petitioners may recover damages for that loss in this suit depends on questions that are best answered by the Court of Appeals.”

Lawyers for the teens family argue the 1979 case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics supports their stance.

In the 1979 case, the court held the violation of a person’s Fourth Amendment rights, gives that person the right to pursue a legal challenge against a federal agent.

The U.S. Fourth Amendment guarantees protection from illegal search and seizure.

At Peek & Toland our attorneys will protect your rights against the immigration authorities in Texas. Please call us at (512) 474-4445.

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Nursing Visas Shortage Continues Despite Lack of Nurses

By Peek & Toland on November 29, 2017

The importance of foreign nurses in American hospitals cannot be overstated. They keep some medical facilities running. However, the supply of nurses from abroad is hampered by a nursing visas shortage.

A report on US News stated American hospitals have relied on foreign nurses for many years. In many hospitals, nurses from abroad help keep emergency rooms and inpatient facilities running.

As the country braces for a new wave of aging patients as the baby boomer generation becomes infirm along with a wave of retiring nurses, foreign nurses will be needed more than ever before.

Hospitals face nursing visas shortage

Nursing visas shortage hits hospitals

At present, foreign nurses comprise about 15 percent of registered nurses in the country, stated Immigrants in Healthcare, a report published in June 2016 by the Institute for Immigration Research at George Mason University and the Immigrant Learning Center.

The report stated more than half of the foreign nurses employed in the United States are in facilities in Texas, California, New York, New Jersey and Florida.

However, they perform a vital role in other parts of the country, in particular, some rural areas where it can be difficult to recruit healthcare professionals.

How the Nursing Visas Shortage Impacts Hospitals

While plenty of nurses from overseas want to work in the United States, the visa process can be very onerous.

Nurses can be hired on H-1B visas if the position is difficult to fill at a local level. However, RNs who apply for these visas must hold at least a bachelor’s degree to qualify.

They are also competing against tech workers in the annual H-1B visa lottery in which demand outstrips supply.

Alternatively, nurses can apply for an H-1C visa, taking advantage of a category of nonimmigrant visas created in 1999 at the time of an acute shortage of nurses.

The demand for registered nurses has changed over the years. At present, only 500 H-1C visas are granted annually. You can read about the requirements to qualify here on our website.

Not all medical facilities can accept registered nurses via the H-1C nursing program. To be eligible, the hospital must be in a health professional shortage area, contain 190 acute care beds or more, have a Medicare population of over 35 percent and a Medicaid population of 28 percent and over and be certified by the Department of Labor.

Employers face lots of paperwork and obstacles in bringing nurses from overseas, notwithstanding the shortages. An experienced Austin immigration attorney can make the process easier. Call us today at (512) 474-4445.


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U.S. Citizen Mistakenly Detained Sues Miami Authorities

By Peek & Toland on November 28, 2017

Detainer requests in which federal authorities ask local jurisdictions to hold inmates for longer terms while their immigration status is examined are controversial across the country.

In Miami, Florida, an 18-year-old U.S. citizen who was held for an extra night in a jail based on an incorrect and illegal request from immigration authorities, is suing the authorities.

The Miami-Herald reported Garland Creedle was arrested following an alleged domestic violence incident in Miami in March. He said he spent a night in a county jail. The teen posted bond. The lawsuit stated he was due to be released the next day on March 13.

However, a detention request was sent by the Immigration and Customs Enforcement agency. It led to Creedle being detained for another day, according to the federal suit filed in Miami.

Under the “detainer” request Creedle was declared to be a “removable alien.” It asked that he be jailed for another 48 hours.

The report stated Miami-Dade complied under the terms of a federal policy enacted in January.  President Donald Trump had threatened to withhold funding to authorities that declined requests to hold alleged immigration offenders.

Citizen sues after being mistakenly detained

Citizen mistakenly detained sues authorities

Credle was born in Honduras to a father who held U.S. Citizenship. He was the subject of a detainer request even though his citizenship was proved in court in 2015.

The Herald report said the American Civil Liberties Union (ACLU) is suing the Miami-Dade jail as well as the city mayor Carlos Gimenez, accusing them of “unlawfully detaining” Creedle against his will and without legal authority.

Creedle’s lawsuit says Miami city’s policy of honoring detainer requests from ICE is flawed because the requests themselves are not attached to arrest warrants and exist “outside the normal judicial process governing other charges.”

The Herald article stated Creedle was one of 376 people in Miami subjected to detainer requests since President Donald Trump issued a crackdown on undocumented immigration in January. The city turned over 143 former inmates to immigration authorities up until the summer.

Detainer requests are controversial in Austin where the sheriff has opposed them for all but the most serious offenders. However, legislation enacted in the state this year criminalizes law enforcement officers who fail to comply with them.

If you are fighting immigration enforcement action, call our Austin legal team today at (512) 474-4445.

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Three Police Officers Are Wounded in Texas Shoot Out

By Peek & Toland on November 27, 2017

Crimes against police officers have made headlines in recent months and led to new legislation. Recently, three police officers were wounded in a shootout at a Laredo convenience store.

Media reports stated a man who was wanted for questioning in a homicide was killed and three police officers were hospitalized following the shootout in Laredo, Texas.

Police hunted Antonio Gerardo Rodriguez in June after his 50-year-old girlfriend was found dead inside her apartment.

Detective Joe Baeza, a spokesman for Laredo police, said officers searched all day for 55-year-old Antonio Geraldo Rodriguez.

Police officers wounded in Laredo

Three police officers are wounded in Laredo

They spotted a vehicle matching the description of one driven by Rodriguez outside a convenience store later in the afternoon. When the officers approached the car, Rodriguez opened fire, drawing return fire from the officers.

The attack left one police officer in a critical but stable condition. The other two also suffered serious injuries.

Rodriguez later died at Doctors Hospital of Laredo, according to a report on CNN.

Attacks against police officers are not rare in Texas. In July 2016, five police officers were shot dead by a sniper in Dallas, reported CNN.

Lone shooter Micah Xavier Johnson, 25, of Mesquite, Texas, a military veteran who served in Afghanistan, targeted the officers during a Black Lives Matter protest in the city.

The massacre led Texas to pass legislation that makes all targeted crimes against police officers or other emergency responders hate crimes.

Texas Governor Greg Abbott said he wanted to “create a culture of respect for law enforcement.” He put his weight behind a campaign to educate young Texans on the value law enforcement officers bring to communities.

Under the legislation, the penalties for threatening peace officers or judges will be upped from a misdemeanor to a felony, punishable by 180 days to two years in prison.

The legislation likens the punishment to offenses based on crimes against groups identified by religion, race, disability, ancestry, age, gender or sexual preference under Texas’ existing hate crimes law.

Under the legislation, assaulting or unlawfully restraining a police officer or judge is a second-degree felony, which carries a prison sentence of up to 20 years.

Legislators had crimes like the shooting of Texas District Judge Julie Kocurek in Austin in 2015 in mind when they added judges to the bill at the 11th hour.

If you have been charged with a hate crime in Texas, you should hire experienced defense counsel. Call our Austin criminal defense lawyers at (512) 474-4445.

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How Immigrant Crackdown Puts Domestic Assault Victims in Danger

By Peek & Toland on November 24, 2017

The recent immigration crackdown is intended to be a ‘get tough’ measure on crime that expedites the deportation of immigrants who offend. However, domestic assault victims may also be collateral in the crackdown, experts claim.

An article in Self noted how counselors at a domestic violence agency in Orange County in California report fewer and fewer undocumented immigrants are arriving at the agency to report abuse.

Adam Dodge, the legal director of Laura’s House, sees this as a worrying sign. He warned undocumented domestic violence victims are keeping quiet because they fear deportation if they speak out.

The trend became apparent in February.  Dodge said the agency experienced a dramatic change among about 80 people who use its services in a typical month. It went from up to 45 percent of the clients being undocumented to nearly zero.

Domestic assault victims and the immigration crackdown

Immigration crackdown may impact domestic assault victims

With immigration raids targeting cities like Austin, there is increasing evidence that undocumented immigrants are going underground. Some are no longer using services and others have taken their kids out of schools.

Dodge noticed a decrease in undocumented immigrants using services like counseling, legal aid and an emergency shelter in the wake of an incident in Texas.

In February, Immigration and Customs Enforcement (ICE) agents detained a woman claiming she was a victim of domestic violence in El Paso when she showed up at the courthouse to seek a protective order against her alleged abuser. The woman was deported.

Dodge said:

“That just spread like wildfire through the undocumented community across the United States and created this chilling effect where no one’s going in to seek restraining orders. People are just so scared of having their name in any system.”

He said the agency could not promise victims they would not be picked up by ICE if they showed up in court. Dodge said just one undocumented abuse victim sought the agency’s help after the El Paso incident and her situation was dire. A few more since trickled back but many did not return.

While many undocumented immigrants may have gone underground they may not be without support.

In February, some religious leaders vowed to set up a so-called “underground railroad” for undocumented immigrants, reported The Independent.

The report noted how the “Rapid Response Team”, a recently-formed network based in Los Angeles, is offering refuge to people sought by US Immigration Customs Enforcement (ICE), by buying houses for them to live in.

Los Angeles pastor Ada Valiente is overseeing the renovation of a house the network acquired to accommodate three immigrant families.

The El Paso incident appears to have created a new climate which is not beneficial for domestic assault victims. In March, video was shown of ICE officers apparently poised to make an arrest at a Denver courthouse where victims of domestic violence attend.

If you or a loved one has been apprehended by ICE agents, it’s important to seek help from an experienced Austin immigration lawyer as soon as possible. Contact us here.


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Farmers Face Loss of Foreign Workers During Immigrant Crackdown

By Peek & Toland on November 23, 2017

Stricter immigration enforcement is consistently touted by the Trump administration but the message has left some farmers nervous. They fear a loss of foreign workers in the fields will impact their livelihoods.

A report in U.S. News stated the United States uses more undocumented immigrants in agriculture than any other country. It’s difficult to find Americans who want to do the kind of labor they perform on farms.

The report contained stark comments from Patricia Dudley who heads up Bethel Heights Vineyard in Oregon.

loss of foreign workers impacts farming

Loss of foreign workers hits agriculture

A team of about 20 Mexicans works the vineyard every year. She said native-born Americans have no desire to work as hard as the immigrants in cold and wet conditions in the hills of Oregon. She asked.

“Who’s going to come out here and do this work when they deport them all?”

The agricultural industry fears a crackdown on undocumented immigrants threatens to deprive it of the labor it needs to plant, grow and harvest the crops that feed the nation.

Experts say this is not a hollow fear. Agriculture uses a higher percentage of undocumented labor than any other industry in the country, according to a Pew Research Center study. The study found undocumented immigrants make up 5 percent of the population but a quarter of the agricultural workforce.

An analysis by the Associated Press based on data from the U.S. Departments of Labor and Agriculture put the figure even higher. It said immigrants working illegally in the United States accounted for 46 percent of about 800,000 crop farmworkers in recent years.

Immigrants working illegally in this country accounted for about 46 percent of America’s roughly 800,000 crop farmworkers in recent years, according to an Associated Press analysis of data from the U.S. Departments of Labor and Agriculture.

The U.S. News report cited some instances of agricultural workers who were rounded up. Apple pickers were detained in upstate New York and Guatemalans were pulled over in Oregon as they headed to a forest to pick a plant used in floral arrangements.

However, the new administration’s policies have yet to make a major dent in the agricultural workforce.

The warning signs are there. A U.S. Department of Agriculture study in 2012 cited “significant economic implications,” if America’s unauthorized labor force constricts 40 percent. Vegetable production could fall by more than 4 percent, the study said.

The American Farm Bureau Federation warns strict immigration enforcement could push food prices 5 to 6 percent due to the drop in supply as farmers faced higher labor costs.

These are difficult and uncertain times for immigrants. The loss of foreign workers is clearly impacting agriculture. At Peek & Toland , we help foreign workers apply for visas to safeguard their time in the United States. Find out more about visas here or call us at (512) 474-4445.

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Indian Government Asks U.S to Consider Positive Role of IT Firms in H-1B Visa Reform

By Peek & Toland on November 22, 2017

H-1B visas for skilled workers face an uncertain future following an executive order from President Donald Trump. The Indian government is calling for a role in the review to help shape H-1B visa reform.

The Indian government said it hopes the review will take into account the contribution of Indian companies to American business, reported the Business Standard.

IT secretary Aruna Sundararajan was quoted as saying the pressing concerns on visa changes were “premature.”

The US administration recently started its review. It has not taken any action to reduce the number of such work permits to Indian companies.

However, much of the rhetoric coming from the Trump administration has been in favor of restricting the supply of H-1B visas amid concerns the program is undercutting local workers.

H-1B visa reform - Indian firms want input

India want a say in H-1B visa reform

Indian IT workers make up the vast majority of recipients of H-1B visas. Typically, India and China make up more than 80 percent of the visas applied for.

However, Sundararajan said just 17 percent of total U.S. visas go to Indian companies. She said a large number of American firms benefit from services provided by Indian enterprises. She said Indian companies added value.

H-1B Visa Reform is Proposed by Trump Administration

In April, President Donald Trump issued an executive order outlining a fundamental reform of the H-1B visa process by agency department heads.

We noted in our blog that the order was short on specifics but echoed Trump’s earlier criticism of the visas for skilled overseas workers.

Companies who hire overseas workers may have to pay more for H-1B visas in the long term and the review could see greater restrictions placed on outsourcing companies.

The present lottery system for visas may be replaced by a more merit-based immigration system, according to Trump.

The Business Standard report stated in response to the proposed tightening of the visa regime in the United States, Indian IT firms are increasing the hiring of locals in the US. The market accounts for almost 60 per cent of the India’s tech export revenues.

Recently, CNN reported the appeal of a high tech job in the US remains undiminished in India, despite Trump’s policies. Applications to India’s elite Institutes of Technology are still at a high.

The direction of the H-1B visa reform will become clearer over the next year. In the present climate of uncertainty, it makes sense to hire an Austin family immigration lawyer if you are seeking H-1B visas for your skilled workers in certain areas.  Please call us for a consultation at (512) 474-4445.

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Trial Ordered over Heat Deaths in Texas Prisons

By Peek & Toland on November 21, 2017

Texas prisons are uncompromising places. While prison time is meant to be a punishment, a recent lawsuit claims extreme conditions are infringing the civil rights of inmates.

The litigation relates to a spate of deaths in Texas prisons that are linked to extreme heat.

A federal judge ordered a civil trial of the Texas prison system in a case relating the death of an inmate, reports CBS news.

The lawsuit followed the heat-related death of Larry Gene McCollum. It accuses state prison officials of refusing to provide air conditioning in prisons that could have kept 21 other inmates alive.

Lawsuit over heat deaths in Texas prisons

Heat deaths in Texas prisons lead to a lawsuit

McCollum was a 58-year-old taxi driver from Waco. He is one of 22 inmates who perished from the heat in Texas prisons since 1998. McCollum was serving a one-year sentence in the Hutchins State Jail near Dallas for writing a bad check. He died of heat stroke in 2011.

He was one of 10 inmates who died in the heatwave of 2011, U.S. District Judge Keith Ellison of Houston wrote. He had only been at the jail for seven days.

In an opinion released this year Ellison, who visited state prisons during the heat wave, recorded information from the jail logs. In the day before McCollum’s death, the air temperature exceeded 90 degrees for over nine hours.

The temperature nudged above 100 degrees for at least six hours and reached 107 degrees.

Information provided by the University of Texas Medical Branch at Galveston suggested the heat index that day was about 150 degrees.

The air handlers used for ventilation in the prison merely circulated the air around the facility without changing its temperature, Ellison wrote.

“Larry McCollum’s tragic death was not simply bad luck, but an entirely preventable consequence of inadequate policies. These policies contributed to the deaths of 11 men before McCollum and 10 men after him.”

The Texas Department of Criminal Justice intends to appeal the ruling to the 5th U.S. Circuit Court of Appeal.

The CBS report stated of the 109 prisons in the Texas system, only 30 are fully air-conditioned, notwithstanding a requirement by state law for prisons to be air conditioned.

When air conditioning is unavailable, many inmates struggle to acclimatize in the middle of the summer.

These alarming conditions at Texas jails are just another reason why defendants should try to avoid incarceration at all costs.  Many inmates in Texas are being held for relatively minor crimes.

Find out more about jail release here on our website. Contact our Texas criminal defense lawyers here.

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Texas’ Prison Population Continues to Fall

By Peek & Toland on November 20, 2017

In past years, Texas has gained a formidable “lock ‘em up” reputation. Although this endures today and the state still has the largest prison population in the country. Texas’ prison population continues to fall.

Recently the San Antonio Current noted the state’s massive prison population is shrinking at a faster rate than the rest of the country.

Part of that is due to criminal justice reforms aimed at offsetting the need for new jails.

The Current noted in 2010, the prison population in the Lone Star State reached an all-time high when there were 173,649 inmates behind bars.
However, the Sentencing Project noted in a report that the number had fallen by five percent in five years. That equated to almost 8,700 fewer people in prison than in 2010.

Texas' prison population is falling

Texas’ prison population continues to fall

Although the report pointed to the marked decline in Texas’ prison population, the five percent fall was small compared to many states. New Jersey saw a decline of almost 35 percent and it fell by 29 percent in New York.
Texas Criminal justice experts say the fall in the prison population is linked to reforms Texas lawmakers started to implement in 2007, in an attempt to reduce the state’s ballooning criminal justice budget. We have noted some of these changes like the decriminalization of truancy.

Michele Deitch, a senior lecturer at the University of Texas’ LBJ School of Public Affairs said:

“For the last decade, Texas has been making a concerted effort to turn the tide.”

In past years, Texas sought to meet the spike in the prison population by providing more beds.  Now it has started putting more money into diversion programs and treatment services that tackled the underlying reasons why Texans ended up in prison in the first place.

Deitch said Texas has not seen reductions in its prison population to rival states like New Jersey because it failed to pass a comprehensive prison reform bill.

In New Jersey, sentences for drug crimes were slashed while California revisited the controversial ‘three strikes and you’re out’ legislation.

Reform in Texas has been a more gradual process and Deitch is concerned the pace of reform is slowing with no major criminal justice reforms in this year’s legislative session.

At the same time at the national level, Attorney General Jeff Sessions is pursuing an approach to incarceration that echoes the 1980s tough on crime rhetoric.

In contrast to in the 1980s, crime levels in the U.S. remain low, although violent offenses have been rising in many cities over the last two years. Cities like Austin have seen marked increases in violent crime over the last year.

Deitch is critical of the approach, saying the new administration is not attuned to the facts and data related to crime trends.

While Texas has made strides to cut its jail population in recent years, it still has a well-earned reputation for being tough on crime. If you have been charged with an offense in Laredo, Austin, Round Rock or elsewhere in Texas, it’s vital to hire an experienced criminal defense lawyer. Call us at (512) 474-4445.

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Outlining Felony Theft in Texas

By Peek & Toland on November 17, 2017

It’s possible to be charged with felony theft in Texas. The severity of a theft charge in the state is related to the value of the goods you are accused of stealing.

In Texas, a person can be charged with theft if they take property with the intent to deprive the owner of it. It may not always involve the direct taking of property. If you take property from someone else that you know was stolen, you may commit a larceny.

Failure to perform an affirmative act may also be a theft crime in Texas such as not turning over a properly executed certificate of title to a car.

Generally, if you steal goods or services worth more than $2,500 in Texas you can face a felony theft charge. The thresholds were updated two years ago.

felony theft in Texas

Here are the sentencing classifications for theft in Texas.

Theft as a Class C Misdemeanor

The least serious form of theft in Texas occurs if the value of the property or services stolen is less than $100. The punishment for this offense is a fine of no more than $500. It does not involve jail time.

Class B Misdemeanor Theft

If the defendant is accused of stealing goods or services worth more than $100 but less than $750, the theft will be a Class B misdemeanor. The theft of a driver’s license or an identification card, is also charged as a class B misdemeanor. The punishment for this offense is a possible jail term of not more than 180 days and a fine not exceeding $2,000.

Class A Misdemeanor Theft

When the value of the property stolen is in the $750 to $2,500 range, the defendant could be jailed for up to a year and be fined up to $4,000.

Felony theft may occur if good or services worth at least $2,500 are stolen.

State Jail Felony

Theft becomes a state jail felony in Texas when the value or the property or services is more than $2,500 but under $30,000. Property of a certain type such as a gun or some forms of livestock valued at less than $20,00 fall into this category.

If you are charged with a state jail felony, you may be jailed for a range of 180 days to two years a state jail and receive a fine of up to $10,000.

Felony of the Third Degree Theft

When property or services stolen is valued at $30,000 or more but less than $150,000, or the property is of a specific type, such as livestock under $100,000 in value, you may be charged with a third-degree felony.

The punishment range is two to 10 years in prison and a fine of up to $10,000

Felony of the Second Degree Theft

Stealing services or goods of a very high value is likely to incur a long term in prison. If the value of the items or services you stole is more than $150,00 but under $300,000, the punishment in Texas is two to 20 years’ incarceration. You can be fined up to $10,000.

Felony of the First Degree Theft

If the value of goods or services in the larceny exceeds $300,000, you may face the most serious theft felony on the statute books in Texas. The punishment for a felony of the first degree is five to 99 years in a prison and a fine of up to $10,000.

Although Texas law requires a fairly high-value theft to be charged with a felony, you should not take this crime lightly.

We have represented clients in and around Austin who have been charged with a wide range of theft and larceny offenses. See our theft resources here or call us at (512) 474-4445.

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