What’s the Difference Between Tax Fraud and Tax Evasion?

By Peek & Toland on July 26, 2016

Tax fraud and evasion are taken very seriously by the Internal Revenue Service (IRS). Those who commit these white collar crimes may end up with a hefty fine or a jail sentence.

These crimes don’t always make headlines unless a famous person is convicted. A case in point is home and garden guru Martha Stewart, who was forced to pay $220,000 in back taxes and penalties to the State of New York for evasion of taxes on her mansion.

Tax fraud and tax evasion are different issues

The complexity of the taxation system means there is a fine line between criminal activity and negligence when it comes to unpaid taxes.

It’s also useful to know the distinctions between tax fraud and tax evasion.

Tax fraud is a general term which can touch on a raft of laws found in Title 26 (the Internal Revenue Code) as well as Title 18 of the United States Code.

To commit fraud, the taxpayer must have shown intent to defraud the government by failing to pay taxes that he or she was well aware were lawfully due.   You can face civil as well as criminal penalties for taxation fraud.

It’s possible for a taxpayer who has committed tax fraud to face civil penalties alone under 26 USC § 6663, without being charged with the offense of criminal tax evasion.

Why It’s Difficult for the IRS To Prove Tax Fraud

The IRS faces an uphill task in proving fraud of taxes because the burden of proof is on the department to show that the taxpayer deliberately defrauded the government out of revenue. It’s not easy to prove that a taxpayer willfully intended to defraud the government out of taxation dollars, which is why the IRS often takes the civil rather than the criminal course of suing the taxpayer for unpaid taxes.

You will usually successfully avoid being charged with a crime as long as you have a reasonable argument as to why you failed to pay your taxes.

What is Tax Evasion?

Tax evasion usually results in criminal charges. In these cases, the defendant is accused of deliberately misrepresenting taxable income to the IRS.

Examples of evasion include:

1 Failing to file tax returns;

2 Failing to declare sizeable additional earnings like a second job;

3 Making up false deductions or deliberately overstating them;

4 Using a false social security number.

You should be aware that there are legitimate ways to minimize or avoid paying taxes as described in this FindLaw article.

Our Austin criminal defense lawyers help people who are charged with white collar crimes. You can find out more here on our website.

If you are facing charges of tax fraud or evasion, it’s vital to act fast so as you can make a strong case against the IRS that you did not have criminal intent. Call us for a consultation at (512) 474-4445.

Spate of Highway Kidnappings in Northern Mexico Sparks Calls for U.S. Security Review

By Peek & Toland on July 25, 2016

The often-volatile border between the United States and Mexico presents massive challenges to law enforcement. Recently kidnappings of Americans in northern Mexico have made headlines and worried the authorities.

The recent kidnapping of a couple from Dallas in the northeastern Mexican state of Tamaulipas has illustrated the vulnerabilities and the security challenge in the border zone.

The Dallas Morning News reported on how all Mexican border states are under security advisories from the U.S. government. The highest levels of warning concern the states of Tamaulipas and Coahuila.

Kidnappings have surged in parts of northern Mexico

On April 15, the U.S State Department updated its warning about travel to Mexico.

It stated:

“U.S. citizens have been the victims of violent crimes, such as homicide, kidnapping, carjacking, and robbery by organized criminal groups in various Mexican states.”

Kidnappings Surge in Tamaulipas

The family from the Dallas area was kidnapped in April en route to a funeral in the state of San Luis Potosí in Mexico. They became the victims of a highway assault that led to almost three weeks in captivity three hours from the Texas border, near the Tamaulipas capital of Ciudad Victoria.

The incident raised concerns about kidnappings in Tamaulipas, a state whose security situation has “deteriorated horribly” according to U.S. Rep. Filemon Vela, D-Brownsville, who is a member of the House Homeland Security Committee.

Last year Breitbart Texas reported on how a drug cartel in Tamaulipas was seeking Americans for kidnapping to obtain ransom money.

The article pointed out that the Gulf Cartel has started to “target innocent people as a way to make quick money.”

Some of the victims did not survive their kidnapping ordeal.

There have even been instances of Mexican cartels crossing the U.S. border to carry out kidnappings.

In 2011, CNS News spoke to Sheriff Tomas Herrera of Maverick County, who said he did not agree with the assessment of the Department of Homeland Security that security at the U.S-Mexico border was improving.

He said he did not believe a single mile of the 85-mile stretch of border between the U.S. and Mexico in Maverick County, was secure and members of the Mexican drug cartels were making incursions into the United States to kidnap teenagers for their smuggling operations.

Serious crimes committed in the areas around the southern border are investigated by the FBI. They include human smuggling, drug trafficking, kidnap, murder, and corruption.

The FBI points out cash and weapons are flowing south on the 2,000-mile border and drugs are flowing north.

If you are charged with serious crimes such as kidnapping or human smuggling, you are likely to be facing a long jail sentence. Our Austin criminal defense attorneys can help you to fight these charges. Call us as soon as possible at (512) 474-4445.

Texas Valedictorian Reveals She is an Undocumented Immigrant in Speech

By Peek & Toland on July 22, 2016

We hear a lot of negative things about undocumented immigrants and the success stories are often hidden. A high school valedictorian helped readdress the balance when she revealed her status during a graduation speech in Texas.

Larissa Martinez is Yale-bound. She used her valedictorian speech at McKinney Boyd High School in McKinney, Texas on June 3 to convey the “unexpected realities” of being undocumented in the United States.

valedictorian reveals she is undocumented in speech

The speech provided a different perspective on the debate about undocumented immigrants which has come before the U.S. Supreme Court. President Obama’s deferred action for childhood arrivals program (DACA) is described here on our website. Martinez fits the criteria.

During her speech, she described herself as “one of the 11 million undocumented immigrants living in the shadows of the United States.”

Martinez said she had decided to speak out about her status in her speech because it might be the only chance she had to convey the truth to a wider audience.

She spoke of the importance of embracing immigrants, appreciating what they have to offer as well as detailing the obstacles she faced to academic success while she charted a course to Yale. Martinez won a full scholarship and hopes to become a neurosurgeon.

In a speech that had echoes of the famous oratory of Dr. Martin Luther King Jr., she made the case for other immigrants, praising “people with dreams, aspirations, and hopes.”

She said immigrants rather than a wall built on “hatred” would help make America great again.

Martinez’s teachers said they recognized her great potential ever since her freshman year.

Success stories like this make headlines, but they are far from unique. There are many cases of immigrants from Mexico and elsewhere who come to the United States with little education but go on to great things.

The case of Luis Govea, who hardly knew a word of English when he moved to Texas from Mexico six years ago, was recently featured on NBC News.

The 18-year-old was the valedictorian at Irving High School in Texas. He has won a full scholarship to the prestigious Stanford University, which he will attend in the fall. He won his scholarship through a program called QuestBridge that links academically gifted students from low-income backgrounds to top universities across the U.S.

He said his family was incredibly supportive in backing his academic career after he arrived in America in 2010.

A recent academic study from California found Mexicans are the most successful immigrants in the United States when their starting point is taken into consideration.

If you or your child is an undocumented immigrant who may benefit from deferred action, you will likely be facing a large amount of uncertainty. Our Austin family immigration lawyers can help you. Call us for help at (512) 474-4445.

ICE to Set up Texas Immigration Center to House Transgender Detainees

By Peek & Toland on July 21, 2016

A new immigration center in Texas will include a special unit for transgender detainees, highlighting some of the difficulties they face in these facilities.

A report in Inquisitr stated the Prairieland Detention Center will open in November in Alvarado in Texas and will be the second center to include a transgender unit.

ICE says it is expected to house about 700 detainees. There will be a segregated 36-bed unit for transgender occupants.

ICE plans for transgender unit in detention center are under fire

The agency points out each detainee will be given an individual detention plan that covers such things as clothing options, hygiene issues, searches and accommodation assignments.

These apparent safeguards have failed to satisfy advocates’ groups who claim transgender people are more vulnerable than the rest of the population and are more likely to be victims of sexual and physical assaults when they are held in detention facilities.

Aaron Morris, executive director of Immigration Equality, an advocates group for LGBT immigrants, told the Guardian they “simply should not be in detention”.

Morris said putting most of one vulnerable group in a single facility raises serious issues of oversight.

There are also concerns about whether the safeguards would be put in place. Santa Ana city jail in Texas also has a specialized program for transgender people, but the Guardian reported it has yet to implement the specialist guidance that was published in a June 2015 memorandum.

How Many Undocumented Immigrants Are Transgender?

According to the UCLA Williams Institute, there are 267,000 undocumented LGBT immigrants in the United States. Between 15,000 and 50,000 are transgender, states the National Center for Transgender Equality.

Some of these immigrants come to the U.S. because they have faced persecution in their home nation, while others are looking for a better quality of life here. Interviews with transgender people suggest they are more likely to face discrimination than other immigrants once they are in the U.S.

Diverse cities such as Austin are magnets for  immigrants.  Austin became a “majority minority” city more than 10 years ago. The rush to build centers for these immigrants in Texas highlights the way the authorities are finally recognizing the rights of transgender people, but support groups say it doesn’t go far enough, and there is certainly a raft of concerns about how immigrants are treated in detention centers. This issue is part of the immigration reform debate in Texas.

If you have any questions about immigration in Texas, see our immigration FAQs, or call our experienced attorneys for a confidential consultation at (512) 474-4445.

Lawyer Hailed as a Hero for Saving Christians from ISIS Is Convicted of Fraud

By Peek & Toland on July 20, 2016

A lawyer and immigration activist was hailed as a hero for saving Christians in Iraq from persecution. But now he is the one facing jail after being convicted of helping clients falsify asylum claims.

Robert DeKalaita helped save thousands of Iraqi-American Christians from terrible fates at the hands of ISIS, reported Fox News.

While the lawyer is a popular figure In the Iraqi-American Christian community because he helped keep hundreds of Christians out of the hands of Muslim extremists, federal authorities accused him of getting his clients to lie to obtain asylum.

Lawyer Robert DeKalaita is convicted of making bogus asylum claims

In May, a federal jury convicted him of falsifying paperwork to help his clients secure asylum in the United States by making bogus claims of persecution and torture.

As we explain here in our blog, you must have been treated in certain detrimental ways in your home nation to be eligible for asylum. Refugees and asylum seekers need to show persecution in areas such as race, religion or nationality.

DeKelaita a 53-year-old attorney who was born in Iraq faces up to 35 years in prison after his conviction for helping clients falsify asylum applications. His backers said he had highlighted the federal government’s failure to address the issue of the persecution of Christians in the Middle East.

Federal Law Has Harsh Penalties for Fraudulent Asylum Claims

The laws on asylum were changed in 1996 when Congress imposed a new penalty for all asylum applicants who filed applications. Asylum seekers who filed frivolous applications were prevented from receiving benefits under the Immigration and Nationality Act (INA). This is obviously a serious measure because it means an immigration judge can bar an asylum seeker from receiving benefits such as asylum and temporary protected status. However, a frivolous funding does not prevent you receiving withholding of removal under INA § 241 or protection under the auspices of the United Nations Convention Against Torture (CAT).

If you lie on an asylum claim, you can face dire consequences years later if your lie catches up with you. If your application is approved and you gain asylum and later successfully obtain a green card, you could still lose it and be removed at a later date if an untruth is discovered.  There have even been rare cases of former asylum seekers losing citizenship.

The extent of asylum fraud remains a matter of conjecture but there have been some cases of large scale operations. In 2014, a massive prosecution was held involving claims of mass asylum fraud among the Chinese population of New York City, reported the New York Times.

If you are accused of making a fraudulent asylum claim it’s important to hire an experienced criminal and immigration attorney as soon as possible to fight the potentially dire consequences. Call Peek & Toland, PLLC at (512) 474-4445 or see our FAQs on immigration.

Challenge on Immigration Detention Centers will be Heard in Texas Court

By Peek & Toland on July 19, 2016

There has been a lot of publicity in recent years about children who have been illegally crossing the southern U.S. border, only to end up held in immigration detention centers.

The fact children have been making this hazardous journey graphically illustrates the level of fear and violence in some Central American countries and some parts of Mexico.

The ongoing housing of these children for long periods in detention centers in Texas is a matter of continued controversy as immigration officials brace themselves for another wave of arrivals this summer.

immigrants often end up in detention centers

undocumented immigrants often end up in detention centers

An Associated Press story in May revealed how the issue has become a matter for litigation.

Children are housed at two detention centers south of San Antonio in Texas by U.S. Immigration and Customs Enforcement. The agency appealed a ruling by California U.S. District Judge Dolly Gee in 2015 that ordered the children to be released from the centers “without unnecessary delay.”

While ICE maintains it is trying to comply with the judge’s order, a state agency has sought to have the two detention centers in Texas licensed as childcare facilities.

The move prompted legal opposition from immigrant advocate groups. Grassroots Leadership from Austin, was successful in gaining a temporary injunction that has stalled the award of a child care facility license to South Texas Family Residential Center in Dilley, a 2,400-bed facility, reported the Statesman. Another Texas detention center, the 500-bed building in Karnes City, received a temporary license in April.

Austin-based Judge Karin Crump issued a temporary injunction that prevented the Texas Department of Family and Protective Services (DFPS) from issuing a child care license to the Dilley center. The issuing of a license would have allowed standards to be lowered at the South Texas Family Residential Center which is operated by Corrections Corporation of America.

A hearing will now take place in September to decide whether the state agency has the authority to give a license to both the Dilley facility and the one in Karnes County, Texas which is run by GEO Group.   ICE detains children and mothers at both centers.

At the crux of the legal fight is the time children and their families stay in the centers. Immigrant advocate groups argue the lawsuit forms part of their broader legal attempts to get federal officials to adhere to a longstanding agreement for families and kids to be held for short periods only in centers before being released into the homes of families and friends pending their immigration hearings.  Our Austin immigration attorneys represent families who fight deportation in these circumstances.

Jennifer Elzea, a spokeswoman for ICE, said the licensing of Karnes is “an important step” to improve oversight at the center.

Courtroom battles have been waged in Texas and California. Federal officials argue the lawsuits are an added burden in their attempts to respond to another influx of immigrants that they expect to see this summer.

Facing deportation is bad enough without spending time in immigrant detention centers. If you are facing deportation, you may be able to fight it and there are options.  For more details or to make a consultation appointment, contact our Texas immigration attorneys.

Texas Can Do Its Own Background Checks on Refugees says AG

By Peek & Toland on July 18, 2016

Texas appears to have been unsuccessful in its efforts to keep Syrian refugees out of the state, but it continues to court controversy by insisting it’s legal to conduct background checks on refugees.

Texas Attorney General Ken Paxton reaffirmed his stance that state officials can impose further security checks on refugees who move to the state, in a written opinion in May.

The opinion was issued just months after Gov. Greg Abbott wrote to President Barack Obama to inform him that Texas would not take in Syrian refugees in the light of last year’s terrorist attacks in Paris. It failed to recognize the state’s limited powers over where refugees can be placed.

AG says Texas can do background checks

Paxton’s written opinion relating to refugee dollars warned that while state background checks do not violate federal law, they could violate the guarantee of equal protection under the U.S. Constitution if based on race or gender.

Abbott had questioned the adequacy of federal background checks to pick up terrorists who might be hiding in an influx of immigrants. Paxton said the potential security risks posed by Syrian refugees should justify additional background checks in Texas.

At Peek and Toland, PLLC, we help those who are seeking asylum in the United States. Asylum seekers and refugees must satisfy the same criteria, but refugees apply when they are outside the U.S. and asylum seekers when they are on U.S. soil. Further details are provided in this blog.

You must show you have been persecuted or have a “well-founded fear” of persecution to be accepted as a refugee or an asylum seeker.

Paxton said in his opinion that there is “no question that security concerns” can be a legitimate basis on which Texas can distinguish between arrivals who pose a heightened security risk and those who do not.

Groups supporting refugees took issue with Paxton’s stance.  Rebecca Robertson with the Texas ACLU said it was based on an “irrational fear” of those fleeing the war in Syria who need help rather than discrimination.

In legal terms, the opinions of attorney generals are not binding but are interpretations of legal questions.

To date, federal judges have rejected Abbott and Paxton’s request to impose an order that would prevent Syrian refugees coming to Texas.

If you wish to apply for asylum, or you or a family member is facing an immigration issue, our experienced Austin immigration attorneys can help you. Call us today at (512) 474-4445.

Trump’s Plan to Deport 11 Million People Would Pose Logistical Challenges

By Peek & Toland on July 15, 2016

Donald J. Trump’s vow to deport millions of undocumented immigrants and to build a wall between the United States and Mexico is seldom out of the news. However, less attention has been paid to how the GOP nominee for President would achieve his aim.

In a recent article the New York Times,  a news organization that has been critical of Trump, wrote he has “typically provided scant details” on how he would meet his aims and his policies on immigration fail to add up.

Although Trump has promised to provide more details about his immigration plans, major questions remain.

Donald Trump's immigration proposals are controversial

Trump has outlined a number of key immigration proposals that were noted on CNN, namely:

  1. The United States would build a wall across the U.S.-Mexico border.
  1. He would impose a nationwide system to verify workers’ legal status, increase the number of immigrations and customs enforcement agents threefold and put in place a tracking system to identify people who remain in the U.S. when their visas expire.
  1. He would reverse a U.S. law that gives American citizenship to any child born in the United States, regardless of whether the child’s parents are undocumented immigrants. Every year about four million children of undocumented immigrants living in the U.S. become citizens because they are born here, states The Los Angeles Times.
  1. Trump would suspend the issuance of any new green cards, providing a pause for U.S. employers to hire from a “domestic pool of unemployed immigrant and native workers.”
  1. He would remove about 11 million undocumented immigrants, deporting them to their native countries.

The deportation plan would present a challenge on a monumental scale and be a radical immigration reform. Deportations in recent years have peaked at about 400,000 annually, and 11 million would be unprecedented. Experts have warned just finding the immigrants alone would be difficult, and police officers would have to demand proof of residency or citizenship during random stops or traffic stops. It’s a scenario that threatens the development of a police state, critics say.

Michael Chertoff, who oversaw an increase in immigration enforcement when he was a Secretary of Homeland Security under former President George W. Bush, told the New York Times it was impossible to envisage the deportation of 11 million people without the apparatus of a police state.

Large scale raids would probably be required and the Obama administration’s focus on deporting those who had committed crimes would likely be muddied.

The New York Times article raises the prospect of a mass internment camp building program. At present, there are about 34,000 beds. There would need to be as many as 300,000, it states.

There’s also the issue of the judicial backlog. Presently, there are 57 immigration courts that face backlogs of as long as two years for a hearing. The federal government would face opening up dozens of emergency courts and appointing hundreds of new judges.

These logistical hurdles just relate to the deportation plans. The funding and building of the wall would be another massive headache and Trump’s insistence that Mexico would pay for it appears to be less than credible.

Recently, an article in Business Insider warned that in addition to the incredible human costs related to the deportation plan, losing 11 million workers and potential employees could lead to the loss of billions of dollars from the U.S. economy.

If you or a loved one is facing deportation, it’s important to talk to an experienced Austin immigration attorney as soon as possible. Contact the attorneys at Peek & Toland, PLLC, to help you better understand your options and start the process of securing legal status in the United States. Call us at (512) 474-4445.

Texas Judge Causes Outcry by Demanding Names of DACA Immigrants

By Peek & Toland on July 14, 2016

Federal judge Andrew Hanen has provoked an outcry by demanding detailed personal information that identifies young immigrants caught in a bureaucratic bungle. Now the immigrants are fighting the move.

The Texas judge has ordered the Department of Justice to provide the names of more than 100,000 immigrants who received three-year renewals of deferrals of deportation as well as work permits under the Deferred Action for Childhood Arrivals program in 2012.  They should have been given two-year renewals, reported ABC news.

Judge Andrew Hanen

Federal judge Andrew Hanen

It’s not the first time Hanen has courted controversy. He was the judge who blocked President Barack Obama’s immigration executive action. The issue recently came before the U.S. Supreme Court which heard evidence in April. Texas and 25 other states are opposing Obama’s orders.

Hanen has ordered the DOJ to provide the names of all of the immigrants who were given DACA benefits from November 20, 2014, to March 3, 2015. Although the lists would be sealed, the judge ordered the government department to separate out states and send sealed copies to each one. He wants the lists to include:

  • Names
  • Addresses
  • A comprehensive list of contact information
  • The immigrant’s identifying “A” file numbers.

Four Immigrants Challenge Personal Information Release by Judge

The Department of Justice was told to provide the immigrants’ names by June 10. However, four immigrants launched a legal challenge just days earlier.

They sought a decision that would have prevented personal details from falling into the hands of states that are seeking to block Obama’s executive actions. The petition asked the New Orleans-based federal fifth circuit appeals court to make a ruling before June 10.

Many undocumented immigrants are understandably sensitive about providing personal information because they fear it could be used against them.

Angelica Villalobos, one of the four immigrants to launch the appeal, told the media Judge Hanen’s order could lead to immigrants thinking twice before submitting personal information.

It has also been condemned by Marielena Hincapié, executive director of the National Immigration Law Center, who told reporters that the judge’s ruling lacks legal justification and would involve providing the personal details of thousands of teenagers and young immigrants.

If you applied for deferred action, you are likely to be facing considerable uncertainty and upheaval as the issue is fought in the courts. The prospect of the states that are hostile to the program gaining your personal details may be an added worry. Read more about the deferred action programs here on our website.

If you are eligible for deferred action or have another concern about an immigration matter, please call our experienced Texas deferred action attorneys for help at (512) 474-4445.

USCIS Reaches H2-B Cap For Seasonal Workers for 2016

By Peek & Toland on July 13, 2016

Employers in Texas and elsewhere apply for H-2B seasonal visas when they want to bring over non-agricultural temporary workers from overseas to fill short-term vacancies.  There is a cap on these visas, and it was recently reached, according to immigration services.

Last month, USCIS announced it had reached the sufficient number of petitions for the visas it required to reach the cap for the 2016 fiscal year. May 12 was the final day for USCIS to receive applications for an employment date that started before October 1, 2016.

cap is reached for seasonal worker visas

construction workers

Although H-2B visas are limited to seasonal workers, they are highly sought after and there is usually more demand than visas available. It can be a fraught and complex process to apply for these visas as we describe here on our website.

Congress has set the cap on H-2B visas at 66,000 per fiscal year. It breaks down as 33,000 workers who start their jobs in the first half of the fiscal year (October 1 – March 31) and a further 33,000 for those who start working in the second half of the year (April 1 – September 30).

USCIS points out any visas that are unused during the first half of the fiscal year will be available later for employers seeking to hire H-2B workers during the second half of the fiscal year. Unused H-2B numbers do not carry over from year to year.

How Some Seasonal Petitions Are Exempt from the Cap

If you are applying for these kinds of petitions, they are exempt from the cap.

  • Workers who are certified and confirmed as “returning workers” who were previously counted against the annual H-2B cap in the fiscal years 2013, 2014 or 2015, for 2016 only.
  • Fish roe processors or others involved in fish roe processing such as technicians.
  • Current H-2B workers who are already in America and are petitioning to extend their stay:
  • Workers who are performing labor or other services in the Northern Mariana Islands or Guam from Nov. 28, 2009, to Dec. 31, 2019.

H-2B returning workers should complete the H-2B Returning Worker Certification to avoid further delays in processing.

H-2B Petitions for Fiscal Year 2017

USCIS will consider H-2B petitions for a work start date on or after October 1, 2016, towards the FY 2017 H-2B cap.  These petitions will be subject to the cap.

At Peek and Toland, PLLC, helping companies and individuals to negotiate the difficult visa application process is an integral part of our work. Please read more about visa applications here and complete the form on the page to contact us.