Monthly Archives: May 2020

What Should an LPR Do if He or She is Detained at a Port of Entry?

By Peek & Toland on May 31, 2020

As even American citizens and legal permanent residents (LPRs) of the U.S. seem to be facing increased scrutiny at our nation’s borders, they should be aware of the fundamental rights that they possess in this situation. Like all international travelers, LPRs are subject to inspection by U.S. Customs and Border Protection (CBP). They will screen all LPRs to classify them either as “returning residents” or “arriving aliens.”

What Should an LPR Do if He or She is Detained at a Port of Entry?

In some cases, CBP officials will detain LPRs for secondary inspections. They will go to a separate room, where CBP officers will ask them questions, run records checks, and ensure that the individuals are eligible to enter the U.S. Nonetheless, individuals do enjoy some basic rights when detained in this manner.

You can always contact your consulate for assistance, who, in turn, may contact a lawyer on your behalf or your family. You also have the right to contact your lawyer directly. Any documents that CBP presents you must be written in a language that you understand, and you have the right to review those documents. You also can refuse to sign paperwork that CBP offers you if you do not agree with the contents of that document.

However, you do not have a right to privacy in any of your personal belongings when detained for inspection, including your computer and cell phone. CBP has the right to take these items, read your email, look at your social media activity, and generally search these devices. They can keep these items for a period before returning them to you.

As a returning LPR, you should have no difficulties passing the screening and being allowed to enter the U.S. If you are an arriving immigrant, however, CBP likely will examine your situation further to determine if you have abandoned your LPR status by remaining outside the U.S. for a lengthy period or committed a crime. As a result, detention periods for these LPRs may be longer.

Our goal is to assist you with your immigration concerns, whether family or business-based. We can evaluate your situation and develop a strategy that is most likely to be efficient and effective in your case. Regardless of the immigration matter that you are facing, the attorneys of Peek & Toland have the experience, knowledge, and reputation that you want and need to advocate on your behalf. When results matter most, contact us at (512) 474-4445.

Posted in Green Cards

Legal Elements of Fraud

By Peek & Toland on May 30, 2020

Texas law outlines various types of fraud that constitute crimes. Generally, fraud occurs when individuals deliberately deceive others for personal or financial gain. People who commit fraud typically use false or purposely misleading statements to obtain money, property, or services.

One common type of fraud is forgery under Tex. Pen. Code § 32.21. Individuals commit fraud when they forge writing to harm or defraud others. Forgery includes altering a document or creating a false document altogether. The level of the resulting charges depends on the value of the goods obtained through the forgery.

Legal Elements of Fraud

Credit or debit card fraud or abuse is a crime of fraud under Tex. Pen. Code § 32.31. This offense includes such actions as:

  • Using an expired credit card or a card belonging to someone else without consent
  • Using a fictitious credit or debit card
  • Stealing a credit card with the intent to use, sell, or transfer it to someone other than its owner
  • Possessing a credit card without the owner’s consent and with the intent to use it

Credit card fraud is a State jail felony under Texas law that could result in a sentence of incarceration ranging from 180 days to two years and a $10,000 fine.

Individuals also may commit another form of fraud called fraudulent transfer of a motor vehicle under Tex. Pen. Code § 32.34. In this type of fraud, persons take possession of a motor vehicle belonging to another with the intent to transfer it to a third party. However, the criminal element of this offense occurs when they transfer the vehicle without obtaining authorization from any lienholders or do so to harm or defraud the owner. 

If you or a family member is facing any criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

Posted in White Collar Crimes

Supreme Court Grants Cert in Criminal Removal Case

By Peek & Toland on May 29, 2020

The U.S. Supreme Court has agreed to hear the case of Pereida v. Barr, which is a criminal removal case. In this case, the noncitizen petitioner pled no contest in Nebraska State Court to charges of attempted criminal impersonation. He was trying to use a fraudulent Social Security card to get employment. After his conviction, the Department of Homeland Security (DHS) initiated removal proceedings against him. Petitioner attempted to apply for relief in the form of cancellation of removal, but an immigration judge ruled him ineligible. On review, the Board of Immigration Appeals (BIA) also found that Pereida had not met his burden of proof in showing that he was not convicted of a crime of moral turpitude, and thus eligible for relief. The Eighth Circuit Court of Appeals upheld the BIA decision, similarly finding that Pereida had not met the required burden of proof.

Supreme Court Grants Cert in Criminal Removal Case

At issue, in this case, is whether a criminal conviction bars a noncitizen from applying for relief from removal when it is unclear whether his or her criminal conviction is equivalent to one of the crimes listed in the Immigration and Nationality Act (INA). The INA lists several categories of crimes that render an immigrant without legal status ineligible to seek relief from removal, including crimes of moral turpitude.

Currently, the U.S. Supreme Court has scheduled the case for oral arguments on March 30, 2020. Various groups have filed amici curiae briefs in the case, including the National Association of Criminal Defense Lawyers, Former U.S. Immigration Judges and Members of the BIA, Immigration Law Professors, and the Immigrant Defense Project. Whatever your situation may be, you will need skilled legal assistance to work toward a resolution of your immigration matter.

The Texas immigration attorneys of Peek & Toland know how to help you navigate through the maze of immigration forms, regulations, and policies, and get the relief that you need. Take the first step today and secure the future of your family in the U.S. Contact our office today and set up an evaluation with one of our highly skilled Texas immigration lawyers.

Posted in Criminal Defense, Immigration

Does My Child Need a Defense Attorney if He or She is Arrested?

By Peek & Toland on May 28, 2020

The arrest of your minor son or daughter can be a frightening and stressful experience. While the juvenile court system is designed to rehabilitate rather than punish children, your child still could be subject to some form of involuntary detention and face other penalties for his or her actions. As a result, getting the advice of an experienced juvenile defense attorney can be crucial to a positive outcome in your child’s case.

Does My Child Need a Defense Attorney if He or She is Arrested?

Juvenile offenses are committed by children who are between the ages of 10 and 16. If the offense is minor, the chances are that your child will face no repercussions other than a stern warning. If the crime is more severe, however, then your child will face court proceedings.

Children have the same rights as adults upon arrest. They have the right to remain silent and to make two phone calls to their parents or guardians. In fact, law enforcement officials must notify the parents or guardians of the minors whom they arrest. Parents also must receive notice of all court proceedings and can visit their children if housed at a juvenile detention facility.

Most juvenile cases are handled through delinquency petition proceedings. The judge holds a delinquency hearing on the petition to determine whether the child committed the alleged crime. If the judge finds that the child committed the crime, then the judge will decide upon the appropriate penalties for the child.

However, if your child is over the age of 14 and is accused of committing a serious crime, he or she can face criminal charges as an adult. Before a child faces charges in adult court a judge will hold a hearing to certify whether the case is appropriate to be transferred from juvenile to adult court. If your child ultimately faces charges in adult court, he or she could be subject to the same penalties as an adult, which can be very harsh.

When you are facing any criminal charges in the State of Texas, you need an experienced criminal defense attorney to represent your interests. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

Posted in Criminal Defense

How can a criminal defense attorney help you if you’re served with a federal subpoena?

By Peek & Toland on May 28, 2020

This is Part 1 of a four-part series on the steps to take if you are served a federal subpoena.

I’m often asked, how can I, as a criminal defense attorney help an individual or a business when they do need to respond to a federal subpoena? It’s a really critical role that a good criminal defense attorney plays.

First and foremost, you want to reach out immediately and you want to narrow the scope.

Oftentimes, federal agents and us attorneys, they’re busy. Maybe they’re in a different jurisdiction, they’re in a different state and they ask a local jurisdiction to send out and they send out a blanket request for as much information as they can. They may not know everything they’re looking or what you have. They just know that somehow your business has tangentially or somehow unbeknownst to you, come in contact with the target of what they’re focused on or who the person whom they’re focused on. And so for that, the first thing I would do is I reach out and I start a conversation about what it is they’re looking for exactly. And you want to be very specific. So, I’m very experienced at that and I know how to do that.

After doing that, then we’ll put together a team on how to respond. And so we want to be very careful in how we do that. We don’t want to provide more information than is necessary for obvious reasons.

You might run afoul of other federal laws or other privacy, state laws, and you also don’t want to share personal, private information of your client base or others that you do business with if you don’t need to. But you also want to comply with the subpoena as quickly as you can, because you want to get this problem in the rearview mirror. It’s probably interrupting your business in your life. And so that’s part of the job of a good experienced criminal defense attorney.

And then as you put this team together, you want to be very careful about who you trust in your business to do that, if it’s not you. And you want to be mindful of the fact that even though you’re just responding to document production, let’s say, your footprint is everywhere. Your digital footprint in this case is everywhere.

At some point if the federal government were to come back and actually seize your computers, they could do a forensic mapping of your computer system and find out all the places you went and where you kept documents. Well, unbeknownst to you, you might be accidentally running a foul of the way you keep documents or records or you might actually have the government start finding out things that you didn’t necessarily think the government needed to know about. They weren’t necessarily illegal, but you’re just inviting trouble.

So you need a clear strategy from the beginning when you meet with your management team on how you’re going to collect these documents, where you’re going to simulate them and how you’re going to get them over to the government.

A good attorney will do a good job of finding out the exact deadlines, the specifics that government is looking for, and make sure that once that’s over that there’s an agreement that the investigation is over.

In other words, you want to find out at the very beginning, all the things the government expects to get from you, what they need from you, and then you want to limit that and shut that down so you can get back to focusing on your personal life and your business. That’s just a small snapshot of all the different ways we can help you.

If you do find yourself in a situation where the government has sent you a subpoena or the government has asked you to produce things, in person or, or otherwise. If you need help with this, please reach out to us. We’ve been here for 20 years. We know exactly how to handle this. Thank you.

Posted in Criminal Defense, White Collar Crimes

Americans Sue to Overcome Travel Ban

By Peek & Toland on May 27, 2020

The Trump Administration’s initial travel ban has been securely in place for some time, which has led some Americans to challenge the blanket ban in court to bring their family members to the U.S. Although American citizens can request a waiver to the travel ban for family members, the federal court process of obtaining waiver is lengthy and fraught with unpredictability. Only a fraction of those potentially eligible for an exemption have sought relief in court. Many individuals are unaware of their right to request a waiver or do not have the funds needed to fight the necessary court battle.

Americans Sue to Overcome Travel Ban

From December 2017 to October 2019, the Associated Press reports that over 28,000 visa applications have been filed by people seeking waivers. Of that total, the government granted 11,325 waivers and denied 16,775 waivers. The waiver application process also is quite lengthy. Although the State Department has reportedly decreased processing times in recent months, many older applications are still pending in this highly bureaucratic system. In one case, the State Department granted a waiver for one child in a family, but not for the other child, which has resulted in protected family separations. The family ultimately sued to get a waiver for their daughter and eventually succeeded, but not before several months of separation already has occurred.

The recent expansion of the Trump Administration’s travel ban to include more countries undoubtedly will result in an increased number of waiver applications and increased processing times. As a result, families may have no choice but to turn to the federal court system for relief. Nonetheless, a lack of awareness about their options and a lack of funds could cause some families to remain indefinitely separated.

The immigration attorneys of Peek & Toland have the experience that you need when you are seeking any relief or benefit under federal immigration laws. We will determine the facts and evidence that are relevant to your case, evaluate your options, and help you decide the best course of action for your situation. We intend to place you in the best position possible to achieve your goals. Contact our Texas immigration attorneys at our office today and learn how we can assist you through this complicated situation.

Posted in Immigration Reform

Texas Landowners Continue to Stand in the Way of Border Wall

By Peek & Toland on May 26, 2020

The construction of the Trump Administration’s border walls has faced many challenges. Funding delays, improper construction contracts, and court proceedings all have impeded progress on the wall. One of the most significant barriers to the continued construction, however, is the reluctance and, in some cases, refusal of private landowners to sell the land to the government that is necessary to accommodate the wall.

This problem is especially acute in southern Texas, where the government intends to erect 162 miles of the wall. However, 144 of those 162 miles fall on private land. Since 2017, the Trump Administration has managed to acquire only three of the 144 miles of privately-owned land that they need to continue construction of the wall.

Texas Landowners Continue to Stand in the Way of Border Wall

Unfortunately, eminent domain laws state that ultimately the federal government can take the land. Landowners can allow the government to survey their property and pay them for it now, or they can pursue the matter in court and argue for a higher payment. However, the eminent domain process can allow the government to begin construction on private land, even before the landowners have received compensation, and even if the matter remains in litigation for years. If government lawyers characterize the seizure of property as an “emergency,” they likely will be able to proceed with construction despite the dispute. To give an example as to how protracted litigation might be, 46 eminent domain lawsuits are still pending from when former President George W. Bush authorized the construction of fencing along the border in 2006.

The planned construction of the wall in this case is even more devastating to Americans who own land along the border than it was when the Bush administration wanted to build a fence. The wall is slated to run not along the border, which follows the Rio Grande, but well within the American side. As a result, the wall will cut off far more access to land for these landowners. For one farmer, the wall will cut off access to 350 of the 525 acres that he owns.

No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to resolve your immigration law case successfully.

Posted in Immigration Reform

Trump Administration Begins to Remove DACA Recipients

By Peek & Toland on May 25, 2020

The Deferred Action for Childhood Arrivals (DACA) program has been in an uncertain status since Trump took office in 2017. The program, which the previous administration had enacted via executive order in 2012, provided limited protections from deportations for individuals with no legal immigration status who had arrived in the U.S. at an early age.

Trump Administration Begins to Remove DACA Recipients

Upon taking office, the Trump Administration immediately announced its intent to end the program, giving Congress six months to pass legislation to authorize the program. Legislative efforts failed, which resulted in litigation over the authority of the Trump Administration to end the program without an accurate, rational, and legally sound reason for doing so. The U.S. Supreme Court recently heard arguments in the case, with the high Court’s opinion likely to issue this summer.

According to Immigration and Customs Enforcement (ICE), every DACA recipient whose deportation proceedings previously were subject to administrative closure now will see their cases reopened. These cases involve individuals with no criminal or only minor criminal records, which was a prerequisite for achieving DACA status. Advocates have reported the reopening of cases in Arizona, Missouri, and Nevada, with ICE confirming that this trend will continue nationwide.

Some DACA recipients have already received notice of impending deportation proceedings. Some of these cases are nearly a decade old. For instance, a 33-year-old Arizona resident received notice of the reopening of her deportation proceedings. She has lived in the U.S. since she was six years old. Now she fears that she will be deported to Mexico and forced to leave her husband and two young children behind.

Although the federal government claimed in oral arguments before the U.S. Supreme Court last fall that DACA recipients or the so-called “Dreamers” would not be deported, the actions of ICE to reopen the administrative-closed deportation proceedings suggests otherwise.

The immigration lawyers of Peek & Toland have handled the legal immigration matters of countless individuals and businesses. We are here to protect your rights and advocate on your behalf. Our goal is to get the best outcome possible in your situation. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys.

Posted in Deferred Action

When Should I Consider a Plea Bargain?

By Peek & Toland on May 24, 2020

Most criminal cases in the State of Texas and elsewhere are resolved using a plea bargain. In a plea bargain, the person accused of the crime admits guilt to one or more of the pending criminal charges. In exchange, the State may agree to drop one or more charges or reduce the penalties that the individual will face for pleading guilty to the crime or crimes.

People enter plea bargains for many reasons. The evidence against them may be so overwhelming that they feel they have little chance of winning if the case goes to trial. In other cases, the potential penalties for a conviction at trial are so significant that the individuals are not willing to take the risk of a poor outcome at trial. Additionally, individuals may simply wish to get their criminal cases over with, serve their punishments, and move on with their lives. With a plea bargain, individuals accused of crimes can achieve a level of certainty about their future that is not available by proceeding to trial on the criminal charges.

When Should I Consider a Plea Bargain?

Prosecutors and defense counsel work out plea bargains in negotiations outside the courtroom. A defense attorney cannot agree to a plea bargain on your behalf. You must fully agree to the plea bargain before it is submitted to the judge for approval.

Whether taking a plea bargain to resolve your case depends on your circumstances. Every case is different. In some cases, the prosecutor may have intentionally charged you with multiple crimes, even when some are unwarranted, simply to have more bargaining chips available in plea negotiations. In this case, a plea bargain may not be in your best interests. Only an experienced criminal defense lawyer accustomed to handling plea bargains can thoroughly evaluate your situation and advise you of the benefits and risks of a plea bargain that the State has proposed in your criminal case.

If you or a family member is facing criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

Posted in Criminal Defense

What is the Difference Between Burglary and Theft Under Texas Law?

By Peek & Toland on May 23, 2020

Although burglary can include an element of theft, burglary and theft are separate crimes under Texas law with distinct elements and penalties. Due to the unauthorized entry that characterizes a burglary, penalties for burglary may be more severe than they are for theft.

Tex. Pen. Code § 31.03 defines theft as the unlawful and non-consensual taking of property from its owner, with the intent to deprive the owner of the benefits or usage of that property. Under this code section, theft can take various forms. For instance, theft charges can result from:

  • Theft of services
  • Theft by writing bad checks
  • Organized retail theft
  • Receiving stolen or embezzled property

The value of the property involved determines the level of the charges and accompanying penalties for theft. These charges can range from a Class C misdemeanor offense for property worth less than $100 to a first-degree felony for property worth $300,000 or more. The theft of some items of property, however, results in a specific criminal charge regardless of their value. For instance, theft of a firearm is always a State jail felony, no matter the value of the firearm.

What is the Difference Between Burglary and Theft Under Texas Law?

In contrast, Tex. Pen. Code § 30.02 defines burglary as occurring when individuals enter a home or building and intend to commit, attempt to commit, or commit a felony, theft, or assault. Burglary also occurs when individuals remain hidden with the intent to commit a felony, theft, or assault in a building or habitation. The main distinction between theft and burglary is that burglary involves entering a building without consent and may involve the commission of a crime other than theft.

In contrast, Tex. Pen. Code § 30.02 defines burglary as occurring when individuals enter a home or building and intend to commit, attempt to commit, or commit a felony, theft, or assault. Burglary also occurs when individuals remain hidden with the intent to commit a felony, theft, or assault in a building or habitation. The main distinction between theft and burglary is that burglary involves entering a building without consent and may involve the commission of a crime other than theft.

The penalties for burglary generally are harsher than those for theft. Burglary of any building other than someone’s home is a State jail felony offense. A conviction for a State jail felony can result in a sentence of incarceration ranging from 180 days to two years, as well as a $10,000 fine. Burglary of a commercial building that houses controlled substances, when the person entered the building to steal controlled substances, causes the charges to increase to a third-degree felony offense. Penalties for a third-degree felony conviction can include from two to a ten-year prison sentence and a $10,000 fine if the burglary involves someone’s home, however, the charge is a second-degree felony, which can lead to a jail sentence of two to 20 years and a $10,000 fine.

An experienced Texas criminal defense attorney can help you build a strong defense against any criminal charges. We are here to evaluate the facts surrounding your case and explore your options. We can then help you make the decisions that are mostly like to be beneficial to you based on your situation. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Posted in Theft Crimes

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