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Monthly Archives: November 2020

Will DACA Be Reinstated with New President Joe Biden?

By Peek & Toland on November 25, 2020

Now that elections are over and President Joe Biden has been elected, will DACA be reinstated? Will you be able to apply for DACA? 

Attorney Jeff Peek discusses how President Joe Biden and his Administration will impact DACA recipients, how to know if you are eligible for DACA, and how you can start preparing for when he takes office in January 2021.

Joe Biden has won the elections, and he is set to take office on January 20, 2021. Everyone’s question is, what’s going to happen with DACA? The great news is that the Biden Administration has already announced they have plans to reimplement DACA as it was back under the Obama administration. They will start accepting new applications. 

As you might recall, very shortly after President Trump entered office, they announced they’re going to stop accepting new applications. We’ve been under that for almost two years.

Furthermore, the Biden administration has hinted at the possibility of even expanding DACA. We’re excited to see what’s going to happen. For now, we know they’re going to re-accept new applications. 

Who is Eligible for DACA?

1. You have to come to the United States before you’re 16. 

2. You have to have been in the United States before June 15, 2007 and stayed in the United States since that time.

Let’s clarify one point. Let’s say, for example, you came come in the United States before you were 16 but left and then came back before June 15, 2007. When you returned, you were already 16. Would you qualify? The answer is yes. If you had an entry before 16, as long as before June 15, 2007, it would count. 

3. You have to be in the United States when they implemented DACA, which was June 15, 2012. You cannot have been on a visa at that time. 

4. You have to be either in school, graduated, or have a GED. 

GED stands for General Educational Development. It’s a test you can take to prove that you’ve mastered the knowledge. Now, a lot of people say, “I dropped out and never finished school; I’m not eligible anymore?” Wrong. You can enroll even as an adult. We’ve seen people as old as 29 enrolled in a GED program, and that counts. You don’t have to get the diploma; just be enrolled in the program. 

5. You can’t have any disqualifying criminal convictions.  

 The most common disqualifying criminal convictions are DWI, more than three misdemeanor convictions, 90 days in a jail sentence, domestic violence, or any felony would disqualify you. There a lot more, but these are the most common ones. 

What can I do right now? 

Well, you can get prepared. January 20 is right around the corner, and you don’t want to wait until the last minute. We recommend talking to an immigration attorney to make sure you’re eligible and discuss the process. Start gathering all the documents you will need, such as proof of residence since 2007. 

We’d love to help you here at Peek & Toland. We’re excited for all you young people who are eligible for DACA. We’re excited about the possibility that it might even get expanded. Please pay attention to our updates every Immigration Wednesdays or follow us on social media for up-to-date information. 

Posted in Immigration

How Does the Possession of Marijuana Affect My Immigration Status?

By Peek & Toland on November 18, 2020

Board Certified Immigration and Criminal Defense Attorney Jeff Peek discusses how the possession of marijuana can affect your immigration status. 

If you are not a U.S. citizen and have a drug conviction, such as possession of marijuana, you can face deportation or be inadmissible to the United States.

We continuously see this issue of non-U.S. citizens, such as permanent residents or those here on student or work visas, that enjoy using marijuana. However, they don’t realize the legal consequences if you are an immigrant.

There are now more states legalizing the use or decriminalizing the use of marijuana. It’s beginning to increase as more people are using it. But there are still States, like here in Texas, where it is still illegal to have marijuana in your possession or THC products in your possession. 

So what happens if are a non-U.S. citizen and you get arrested for possession of marijuana?

As one side of the law begins to legalize marijuana, you have to know that the Federal Immigration Law still views all illegal drugs, including marijuana, as a problem for immigrants. If convicted, you can get deported or become inadmissible.

What is the difference?

Federal immigration law says, if you are here in the United States and have one conviction for marijuana under 30 grams, you may be able to avoid becoming deportable. However,, you will automatically be inadmissible to the United States.

What happens if you are inadmissible? 

Inadmissible means that you can be denied entry to the United States if you leave the country and try to come back. For example, if you have been a permanent resident for many years but get a conviction for a small amount of marijuana under 30 grams, and you decide to travel outside the U.S.. When you come back into the country, immigration can deny your entry and you will be placed into removal proceedings.

If convicted, what do I do? 

Anytime you have a drug charge or are accused of possession of any drug, even marijuana, you need to talk to immigration and criminal defense lawyer right away. Jeff Peek is a Board Certified Immigration attorney with over 20 years of experience in immigration and criminal defense. 

You have to have a lawyer that knows both sides of the law, one that can counsel you through the criminal defense, but that also knows immigration laws so they can best protect you. 

What if where I live is legal to smoke marijuana? 

Now, if you’re in a state where it’s legal, you’re in a different position. You’re not going to be convicted because it’s not a crime anymore. However, under Federal Immigration Law, there’s another statute that states if you’re considered an addict or admit to committing a crime, you could potentially be inadmissible as well. Therefore, you’re not entirely free, although there is a lower risk of being charged with a crime. 

Please let us know if you have any questions or if you or a loved one is faced with a drug conviction. We are always happy to help you.  


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Posted in Drug Crimes, Immigration

Four Tips for Parenting Minors About Alcohol

By Peek & Toland on November 13, 2020

Over the last 20 years, criminal defense attorney Steve Toland has counseled families during difficult times involving their minors and alcohol. Today, Steve wraps up his Minors & Alcohol in Texas series with four tips for parents to discuss alcohol with their minors.

1. Explain to them what the law is.
Often, children go off to college, and there are parties where alcohol is freely served and forget that underage drinking is still against the law. So, what is the law? If you are under 21, the law states you are not allowed to consume alcohol, and you cannot possess it. That means touch it, hold it, or be immediately accessible to alcohol.

2. Identify areas of risk for them
It’s vital when kids start going to high school parties or ride around in cars with others to be aware of the scenarios where they could be charged with alcohol possession. Some risk areas are tailgate parties, football games, house parties, in a car, at a nightclub, being outside a house holding a drink for a friend, etc.

3. Teach them about constructive possession.
Constructive possession includes touching alcohol, in control of alcohol, or an immediate reachable area of alcohol. For example, you are in a car, and there’s a 12 pack of beer, anyone who has access to that alcohol, even if you’re not actively holding it, could be charged with minor in possession through the doctrine of constructive possession. Another typical example is when you’re at a table, and there’s a pitcher of beer, and there are cups around. Even if you’re not holding one of the cups, a minor can be charged.

4.Talk to them about the emergency medical exception.
If a minor is scared and thinks that they or a friend has had way too much to drink, they can notify emergency personnel and not be charged. However, you must call and wait for help to arrive and cooperate by telling the truth. If a minor does all that, they will not be liable under the criminal charge of minor in possession or minor in alcohol consumption. Even if they have alcohol on them or have consumed alcohol, they can be immune from that liability.

The emergency medical exception is very important for minors to know, so they are not afraid to ask for help when they believe that they or a friend is in danger of alcohol poisoning.

If you have any questions about these issues or need help with your minor on applying for college if they have a record, reach out to us here at Peek & Toland, we’re always glad to help.

Posted in Criminal Defense

Minors in Possession of Alcohol in Texas: What You Need to Know

By Peek & Toland on November 13, 2020

Criminal Defense Attorney Steve Toland continues his series about Minors and Alcohol. Today he discusses minors in possession of alcohol.

Last week he discussed the rules of underage drinking and the consumption of alcohol. Today he discusses what it means to have possession of alcohol, where minors are most at risk, and how a minor could be charged with alcohol possession in Texas.

The What 

If you’re under 21 and you’re outside of parental or guardianship supervision, you’re not allowed to possess alcohol in any way. Pretty straightforward. 

The Where

We know that kids under 21 don’t always think these things through, so they need to note where they are most at risk. 

The most obvious is a night at a nightclub. There are clubs where 18 and older are allowed to enter. If they’re sitting at a table and there’s alcohol, they can be accused and charged with that. 

Other common places are a car, a fraternity or sorority house, tailgating, social gathering, or a school event. Any of those scenarios are areas minors should be aware of the potential risks of being charged with alcohol possession.  

The How 

How do they prove this? It’s through this essential element of the crime known as constructive possession. If you’re touching it, if you’re in control of it or an immediate reachable area, it can be a possession of alcohol. For example, or if you’re at a table and there’s a pitcher of beer and cups scattered, they’re going to view that as constructive possession. If you have the reachable ability to possess that alcohol, a police officer will likely charge you with a minor in possession. 

The penalty range is just the same for other class Cs that we’ve talked about with alcohol. It’s up to a $500 fine. It’s not a jailable offense. However, it can stay on your record. Many applications like college, grad school, and even employment are now asking if you’ve had any contact with law enforcement, and that includes a citation. 

As always, if you have a loved one that is struggling with this issue, or has questions about minors in possession or consumption of alcohol, reach out to us here at Peek & Toland.

Posted in Criminal Defense

Do Immigrants Increase Crime Rates in Texas?

By Peek & Toland on November 11, 2020

In the past couple of years, there have been comments made by the President that have made people question whether immigrants, specifically illegal immigrants, increase crime rates in the United States.

Immigration attorney Jeff Peek discusses the data recently published by CATO Institute that studied Texas data regarding illegal immigrants and crime rates.

In a recent Gallup poll, 42% of respondents said, yes, illegal immigrants increase the amount of crime in the community. 50% said they didn’t think so. And 7% said they thought they decreased the amount of crime. So what is the truth?

There is interesting work being done over at the CATO Institute, analyzing data out of Texas. The data shows the conviction rates per hundred thousand population.

Here are the findings:
535/100,000 are legal immigrants
782/100,000 are illegal immigrants
1,422/100,000 are native-born U.S. citizens

Interestingly enough, the lowest crime rate for a hundred thousand conviction rates is legal immigrants. The next highest category is illegal immigrants, which leaves with the staggering interesting thought that native U.S. born citizens in Texas are more likely to commit crimes than their legal and illegal immigrant counterparts.

In some sense, you can say the myth that illegal immigrants are more likely to commit crime compared to U.S. citizens or legal immigrants is somewhat untrue.

To be fair, when people talk about statistics, they like to shine a light to present their arguments the best way. The counter-argument is that every person illegally present in the United States is committing a crime under federal code. And that is technically true. But we are focusing on property crime, violent crime, drug crime, the crimes that affect us in our daily lives.

It’s important to note that these are based on estimates because we don’t technically know the full number of illegal immigrants in the United States. We make guesstimates based on all sorts of data. It could be possible that the illegal immigrant population is much lower than we estimate. If that were true, then this number would go up. But most people who study this believe if anything, we’re probably undercounting or underestimating the number of illegal immigrants in the United States.

You can view this information right now at cato.org/workingpapers and draw your conclusions. But we must speak honestly about the value that immigrants bring to the country.

There are other studies out there. One example found out that by the DACA passage, they saw the crime rate go down when you offered immigrants the opportunity to have a work permit. When people are here legally allowed to work, they’re less likely to be involved in crime.

Now that doesn’t mean there aren’t any immigrants committing a crime. As the report shows, both legal and illegal immigrants commit crimes, but it is not what the President has painted it to be. It’s always essential to have real information and real data and not just listen to false statements.

You can find CATO’s publication here: https://www.cato.org/sites/cato.org/files/2020-10/working-paper-60.pdf.

If you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445.

Posted in Criminal Defense, Immigration

Visa vs. I-94 Expiration Date: How Long Can I Stay In the United States?

By Peek & Toland on November 4, 2020

Many people often get confused about which date controls their ability to stay lawfully in the United States. Our clients often ask what the difference between a visa expiration date or an I-94 expiration date? Which one controls my ability to stay in the United States?  

It is essential to differentiate and know which date allows you to maintain a lawful presence in the U.S. The worst thing you can do is overstay and begin accumulating unlawful presence.

I-94 

Generally, the I-94 is what governs the time in which you are allowed to stay lawfully inside the United States. You’re given this upon every entry into the United States on a non-immigrant visa. Now, recently they moved to not issuing the little white cards. Instead, you have to go online with your passport information to find out the date. I-94 usually controls the time frame you are allowed in the United States. We say “usually” because there can be instances where it does not control your stay, which we will explain later in this article. 

Visa 

The visa is the actual document you’re given that allows you to present yourself at a port of entry or an airport and seek admission into the United States. However, you have to remember that just because your visa expiration date is far in the future does not mean that it is the date or time you’re allowed to have status inside the United States. A classic example of this is a tourist visa. Most tourist visas are given for ten years. However, that doesn’t mean you’re allowed to stay inside the United States for ten years. It means that you can present yourself at an airport or port of entry for the next ten years and ask for entrance to the United States under the status. If they allow you entry, they will give you an I-94, and the date on there will determine how long you can stay in the United States. You also have to keep in mind that they can deny you entry, even though you have a visa.  

USCIS Approval Notice 

Anybody inside the United States has to have status. You cannot have status outside the United States. Sometimes people look to change or extend their status from inside the United States by filing a petition. In that case, you might have a unique circumstance where if your new petition for change of status is approved, then that date controls your lawful presence. Not your I-94. 

Likewise, you can have the reverse scenario where you have an approved petition approval notice for a far-off date. But when you leave the country, come back in for different reasons. It could be something called reciprocity. The officers at the port of entry give you less time on your I-94 to be in the United States than the time you have in your petition notice. Which one of those two control?

Here’s a general rule that you can always pretty much take to the bank. 

The document that controls your status is the one most recently issued. 

If there’s a conflict between documents, whether the I-94, your petition approval notice, you go with the one that was most recently given.

The worst thing you can do is overstay your permission and begin accumulating unlawful presence, which could potentially block you from getting visas in the future. And even worse, you could have a bar of up to 3 or 10 years if you overstay. 

Please don’t hesitate to reach out to us for any questions at 512-474-4445.

Posted in Immigration

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