Texas Prosecutor Seeks New Mental Disability Standards in Death Cases

By Peek & Toland on April 24, 2018

The mental disability standards used by Texas in death penalty cases were criticized as outdated by the U.S. Supreme Court in 2017.

Now commentators and at least one state prosecutor are calling for changes in Texas.

After these standards were ruled unconstitutional Harris County District Attorney Kim Ogg called for change. Ogg wants Texas to use current medical science to decide if a defendant is mentally disabled and thus ineligible for the death penalty.

The Texas Tribune reported Ogg wants Texas to conform to the standards set up by the American Psychiatric Association which are similar to how Louisiana and Mississippi determine intellectual disability.

The change follows a Supreme Court ruling on Bobby Moore, a death row inmate from Houston.

Case changed Texas Mental Disability Standards

Texas Mental Disability Standards Are Challenged

Moore was convicted of the shooting death of a Houston supermarket clerk in 1980 and sentenced to death.

Ogg said Moore is intellectually disabled. Questions related to Moore’s mental capacity led to a March 2017 ruling by the Supreme Court ruling that invalidated Texas’ method of determining intellectual disability for prisoners on death row.

The Texas method was deemed to be out of date. However, while the Supreme Court ruling dismissed Texas’ old way of determining disability, it stopped short of creating a new one.

Justice Ruth Bader Ginsburg took issue with Texas’s standards branding them as posing an “unacceptable risk” of executing intellectually disabled people. The practice is deemed unconstitutional by the nation’s highest court but states set their own standards.

Inmates deemed competent for execution under the old test were suddenly eligible for new litigation.

At least two inmates who had been on death row for decades had sentences changed to life in prison while awaiting a final ruling on Moore’s intellectual capacity.

Ogg has requested Moore’s sentence is reduced to life in prison. She has also asked Texas to create a new way of determining intellectual disability saying it should be consistent with the medical books.

As long ago as 2002, the Supreme Court issued a landmark ruling meant to stop the execution of people with an intellectual disability. In Atkins v. Virginia, the Court held it to be a violation of the Eighth Amendment ban on cruel unusual punishment to execute death row inmates with “mental retardation.”

Robert Dunham, executive director of the Death Penalty Information Center, told the Tribune states that fail to adhere to modern medical standards face the vast majority of legal issues. He said:

“We see persistent problems in states [that] have adopted standards that are clearly inconsistent with the contemporary medical standards or have created procedures that make it virtually impossible to prove intellectual disability.”

Murder is one of the most serious crimes you can face in Texas. Capital murder may carry the death penalty. If you have been charged with this crime, our Austin criminal defense team may be able to help you. Call us at (512) 474-4445.

Legislation May Tackle Rent-To-Own Companies Pursuing Charges Against People Who Default

By Peek & Toland on April 23, 2018

Rent-to-own companies have been pursuing criminal charges against people who default on payments for items like electronics and sofas. The practice alarms some lawmakers on both sides of the aisle who are considering reform legislation.

Support for action by legislators came after The Texas Tribune and NerdWallet published the results of a lengthy investigation into a little-known provision of the penal code written 40 years ago by rental industry lobbyists.

Texas is not alone in this regard. The Tribune noted there are similar laws in other U.S. states. The joint investigation found evidence that charges are being filed against thousands of rent-to-own customers across the country.

Defaulters prosecuted by rent to own companies

Rent to own companies are prosecuting defaulters

Colleyville Republican Konni Burton favors criminal justice reforms at the Texas Capitol. She suggested the civil rather than the criminal law is the best system to sort out these issues. She said:

“While I believe that we, as individuals, are responsible for the contracts in which we enter, I do not believe that one industry, or set of industries, should have special laws allowing the escalation of a dispute to our criminal system. We have a civil system for these kinds of disputes. I look forward to exploring this issue in advance of next session.”

Evidence of criminal prosecutions in these cases came from The Tribune’s investigation.

It turned up a large number of cases in McLennan County. Here, rent-to-own disputes made up a staggering 98 percent of the more than 400 theft of service complaints lodged with police departments over almost four years.

State Sen. Brian Birdwell, who represents the Waco area, called for a rigorous review of the issue by the state legislature.

The Tribune reported Birdwell compared these cases to the idea of a debtors’ prison, a concept that’s unlawful in Texas.

Another concerned politician is Sen. Kirk Watson, D-Austin. He said it seemed to be unfair that a contract dispute could end up with one of the parties getting arrested. Watson said there was no reason for police to be involved in such cases and was concerned that a party could be jailed for a misunderstanding.

Defense attorneys are also unhappy about how rent to own cases can land parties with criminal records.

The McLennan County Defense Lawyers Association issued a statement saying the district attorney’s office has exhibited a keenness to take on rent-to-own cases.

More people are charged with crimes of theft than any other kind of offense. Please contact our Austin criminal defense lawyers if you have been charged with a crime of this nature.

Countries Where It’s Easiest for Americans to Get Dual Citizenship

By Peek & Toland on April 19, 2018

It’s no secret that the United States has onerous citizenship rules. People who are seeking citizenship here must be a green card holder for at least five years and go through a 10-step naturalization process. The process is not as difficult in all counties, prompting some Americans to seek dual citizenship.

An article in Business Insider noted how Ireland, for example, has very different citizenship laws than those of the United States.

Ireland considers “jus sanguinis,” or “right of blood” in applications. This means citizenship of the Emerald Isle may be available not just to the children of Irish citizens who were born in Ireland, but also to their grandchildren.

Compared to becoming a U.S. citizen, becoming an Irish citizen is a fairly straightforward process.

Dual citizenship countries

Countries where it’s easy to get dual citizenship

Many Americans have Irish roots and dual citizenship has proved popular to some of them. You need to provide documentation and apply for the Foreign Births Register.

The Business Insider article listed other countries that offer a simplified or brief application process to attract entrepreneurs.

Hungary

You may be able to apply for citizenship of this eastern European country of you can speak Hungarian and prove your Hungarian ancestry. The country has a process called  “simplified naturalization.”

The Consulate General of Hungary states it takes officials in the capital of Budapest about six to nine months to determine whether an applicant qualifies. Hungary’s borders shifted a lot in the 20th Century and there were some caveats based on historical changes.

Israel

Israel has a law of return that makes it fairly straightforward for ethnic and religious Jews, as well as their spouses and grandchildren to gain Israeli citizenship.

You can gain citizenship in a matter of months and have a passport within the year. For more information see the Israeli Ministry of Foreign Affairs.

Peru

You can become a Peruvian citizen in two years if you pay a $25,000 fast-track fee. It takes approximately three months to secure approval for residency.

Once you have lived in Peru for two years, you can apply for citizenship. You must be able to pass tests on Peruvian history and culture and know the Spanish language.

Italy

You can actually inherit Italian citizenship from your great-great-grandfather.

However, as noted on YourItalianPassport.com Italy also has a large number of caveats.

From the outset, you’ll need to find documentation that proves an Italian ancestor lived after Italy’s 1861 unification and did not naturalize elsewhere before July 1, 1912. None of the ascendants in your direct line must have ever renounced Italian citizenship.

If you have Italian ancestors, they can pass on citizenship to children born after January 1, 1948.

There are advantages and disadvantages of dual citizenship. Even if you have a second citizenship and live abroad, the US government expects you to pay taxes.

US citizens living overseas, earning an income and paying to a foreign government are still subject to US income tax, as well as the same onerous tax filing requirements that apply to US citizens resident in the United States.

You can find out more about citizenship by reading the U.S. citizenship resources on our website. Call us at (512) 474-4445.

Woman Sues to Remove Religious Language from Citizenship Oath

By Peek & Toland on April 18, 2018

Religious language in the Citizenship Oath is being challenged in a court case by a green card holder who is seeking to become a citizen.

Olga Paule Perrier-Bilbo, a French national and green card holder who has lived in Scituate in Massachusetts since 2000 has been trying to become an American citizen for years.

She claims her Citizenship dream has been derailed by the words “So help me God,” in the Citizenship Oath.

Perrier-Bilbo is an atheist. She filed a federal lawsuit claiming the inclusion of the phrase in the oath is an unconstitutional violation of her religious freedom. She has filed a lawsuit. It states:

“Accordingly, the current oath violates the first 10 words of the Bill of Rights, and to participate in a ceremony which violates that key portion of the United States Constitution is not supporting of defending the constitution as the oath demands.”

Challenge over Citizenship Oath

Religious language in Citizenship Oath is challenged

Perrier-Bilbo has brought the lawsuit even though she was offered a modified oath or allowed to attend a private citizenship ceremony, reported masslive.com.

Perrier-Bilbo claims the four words “so help me God” constitute an unconstitutional government endorsement of a particular religion. The lawsuit states the alternatives offered to Perrier-Bilbo by the government put an illegal burden on her for her beliefs.

The suit claims the religious statement to which Perrier-Bilbo does not agree with makes her feel less than a new citizen.

There is a long list of cases which test the First Amendment’s clauses regarding freedom of religion.

The amendment says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Many of these cases have gone as far as the U.S. Supreme Court cases, as citizens, states, and the federal government have been pitted against one another.

Initially many of these rulings in the early 20th Century protected people of faith from laws that disadvantage them. However, government agencies were prevented from policies that imposed one religion.

In the 1960s, three rulings outlawed mandatory bible readings and prayers in schools.

In the important 1968 case of Epperson v Arkansas a public school teacher brought an action challenging the constitutionality of Arkansas’ “anti-evolution” statute. That law made it unlawful for a teacher in any state-supported school or university to use or teach from a textbook that covered the theory of evolution.

The U.S. Supreme Court decided the statute violated the Fourteenth Amendment, which enshrines the First Amendment’s prohibition of state laws respecting an establishment of religion.

If you need help and advice in seeking citizenship, please call Peek Toland & Castañeda PLLC at (512) 474-4445.

Terrorist Attack Puts Diversity Green Card Lottery in Jeopardy

By Peek & Toland on April 17, 2018

The diversity green card lottery hit the headlines after a terrorist attack in New York in November 2017.

The diversity visa program, also known as the green card lottery, was criticized for allowing an attacker who was an immigrant from Uzbekistan, to come to the US.

Sayfullo Habibullaevic Saipov was from Central Asia but he had been living in the US since 2010, sources said. He is accused of driving a rented pickup truck down a busy bicycle path near the World Trade Center in Manhattan killing eight people, reported CNN.

President Donald Trump tweeted that he didn’t want the diversity green lottery to continue. He called for a switch to a merit-based immigration system.

Diversity green card lottery at risk post New York Terror attack

New York terrorist attack threatens diversity green card lottery

Notwithstanding the criticism, the diversity green card lottery has an unusual history, reported USA Today.

In 1965, The Immigration Act eliminated quotas that previously determined how many people could immigrate to the U.S. from any given country. This key piece of immigration legislation prioritized the immigration of people with close relatives living in the U.S. or the skills that employers wanted.

The provisions proved problematic for hundreds of thousands of Irish immigrants who were escaping an economic crisis at home. USA Today noted a quota system was no longer in place. Most of the Irish people who wanted to head west lacked close family living in the U.S. or skills that were in high demand Stateside.

Nevertheless, many Irish immigrants came to the United States anyway and overstayed the terms of their visas. They ended up living as undocumented immigrants.

In 1986, the diversity visa lottery was put forward as a solution to the problem by Irish American members of Congress.

Thousands of Irish immigrants benefitted in 1986. By 1995, Congress had passed a permanent version of the law.

Although demand from Ireland dropped off, every year the program provides green cards to 50,000 people chosen randomly from countries with low immigration numbers to the U.S.

The program appeared to be living on borrowed time even before the New York terrorist attack.

Demand for these visas always exceeds supply. The countries of eligibility include Turkey, Poland, Italy Japan, Romania, Russia, Spain, and Nepal.

Most winners of the so-called green card lottery live outside the United States and immigrate through consular processing and the issuing of an immigrant visa.

Shortly after the terrorist attack, the diversity lottery was again under fire. Federal authorities moved to strip citizenship from four Somali immigrants who prosecutors claim lied about being a family, defrauding the Diversity Visa Lottery program.

The Washington Times reported that one woman, Fosia Abdi Adan, allegedly won the visa lottery in 2000 and then illegally brought three cousins, claiming two were her children and one was her husband to the United States. The feds claim the man was married to another woman at the time.

Removing citizenship is no easy task, although the Trump administration is seeking to make it easier. In the summer of 2017, the U.S. Supreme Court set the bar higher on citizenship stripping in the case of a Serbian woman who lied about her husband’s military service.

To find out more about the diversity green card lottery or citizenship please contact our Texas immigration lawyers at (512) 474-4445.

What Investment Sources Are Allowed for EB-5 Investors?

By Peek & Toland on April 16, 2018

EB-5 investors can qualify for a green card if they invest a large sum of money in a business enterprise in the United States.

To qualify for a green card under the EB-5 category the overseas investor must bring at least $1 million in a U.S. commercial enterprise, or $500,000 if the business is located in a targeted employment area (TEA).

There is a myriad of other rules. An EB-5 investor must be the legal owner of the invested capital. The foreign investor must be able to prove to the U.S. Citizenship and Immigration Services (USCIS) that all of the capital to be invested was lawfully acquired.

There are strict rules for EB-5 investors

Rules for EB-5 Investors

In recent years, the EB-5 program has been dogged by a series of scandals. These rules are meant to ensure the money comes from a legitimate source.

USCIS sets out the sources of investment money that are allowed. Funding obtained through an employer as part of a salary is one of the most well-recognized sources of money.

As long as income is properly documented, and does not involve any unauthorized employment in the United States, the ‘source of funds’ component of an  EB-5 petition should be straightforward.

The process is seldom so straightforward. Often EB-5 investors investment funds from a wide variety of sources. It may present a challenge to document these sources. These sources include:

Gifts

If money is obtained via a gift, it can be utilized for EB-5 investment purposes. However, the foreign investor must be able to document and prove it’s a genuine gift and not a loan.

He or she must show there is no obligation to repay the giver. It’s also necessary for the investor to show the gifting party obtained the funds lawfully. If gift tax is owed, USCIS may ask for evidence that it was paid.

Sale of Assets or Property

An investor from abroad can sell property or use other assets to raise the funds necessary for the investment in the U.S. economy

You should be aware that USCIS will want to know the lawful source of the funds. The investor should document how the money was originally acquired to buy property or an asset in the first place. There is no standard guidance related to how far the investor must go back to document the lawful source of funds used for the investment.

Loans

There are restrictions on the use of loans. If investment funds are obtained via a loan, this money can only be used when the loan is secured by assets of equal or greater value than those owned by the investor.

An unsecured loan, or another loan that is secured by the assets of the EB-5 enterprise, cannot be used for EB-5 investment purposes.

EB-5 investment is a complicated and tricky area that requires considerable paperwork. USCIS meticulously looks at evidence related to source of funding in all EB-5 cases. It’s important to keep a paper trail of where the investment money is coming from.

Our experienced Austin business immigration lawyers can help you with EB-5 applications. Please call us at (512) 474-4445.

Poll Finds More Texans Oppose Deportation of Dreamers

By Peek & Toland on April 13, 2018

The termination of Deferred Action for Childhood Arrivals (DACA) raises the prospect of the deportation of Dreamers. It’s not a popular notion, according to a recent poll.

The University of Texas/Tribune Poll found most voters in the state are opposed to the idea of these young immigrants being sent back to their home nations.

The Dreamers are young people who came to the United States as children. Many were given temporary rights to work and be free from the threat of deportation under the Obama era DACA.

In September, the Trump administration signaled the end of DACA.

Three-fifths of the registered voters surveyed in the poll said they would continue the Deferred Action for Childhood Arrivals, or DACA, program. Just 30 percent said the program should end.

Unsurprisingly, there was a split along party lines. Democrats strongly favor continuation (86 percent.) However, 39 percent of Republicans would do so.

The study found more than a fifth of Hispanics said they would end the DACA program, while 64 percent said they’d keep it.

The survey found a narrow majority of Texans disagree that undocumented immigrants currently living in the state should be deported immediately.

Poll finds many oppose the deportation of Dreamers

Deportation of Dreamers is controversial

The partisan split was again present. Just 19 percent of Democrats agreed with deportation, while 64 percent of Republicans agreed. Fifty percent of white voters wanted deportation of undocumented immigrants. The figure was 37 percent for black voters and 36 percent for Hispanic voters.

Jim Henson, co-director of the poll and head of the Texas Politics Project at the University of Texas at Austin, alluded to some nuance in the poll, the Tribune reported.

He said Hispanics in Texas are not known for being liberal.

In the survey, most Texans said local law enforcement agencies should cooperate with federal immigration authorities. They included 67 percent of white voters, 44 percent of Hispanic voters and 45 percent of black voters.

Men were found to be 10 percentage points more likely to support cooperation between federal and local authorities than women.

Strong support for Dreamers against deportation was shown in national polls. A poll published last October by the Associated Press-NORC Center for Public Affairs Research found just one in five people favored the deportation of Dreamers.

Approximately 800,000 young immigrants received a deportation reprieve under Obama’s Deferred Action for Childhood Arrivals plan. Trump gave notice on the program in September. He gave Congress six months to act on a replacement.

About 60 percent of Americans favor allowing those young immigrants to stay in the U.S. legally, compared to 22 percent who are opposed, the national poll found.

If you have an immigration matter, please call Peek Toland & Castañeda PLLC. Our lawyers are passionate about our client’s legal needs. Call us at (512) 474-4445.

Texas Service Center Denies Advance Parole Applications

By Peek & Toland on April 12, 2018

Advance parole is a permit for a non-citizen who does not have a valid immigrant visa, to re-enter the United States after traveling abroad. An airline can accept an advance parole document instead of a visa as proof that you are allowed to travel to the United States. However, an advance parole document does not replace your passport.

In the past, the federal authorities allowed advance parole applications for people who traveled abroad before their applications were approved.

However, in the fall of 2017 U.S. Citizenship and Immigration Services (USCIS) confirmed it was still denying travel from its Texas service center while the advanced parole form I-131 was pending

The stance ran contrary to a longstanding practice by the USCIS to allow international travel while an I-131 is pending, assuming the applicant had another means of being readmitted to the United States, such as an H-1B visa or an unexpired advance parole.

Texas center denies advance parole

Advance parole applications are denied

Usually, when an applicant for adjustment of status (form I-485) leaves the United States while an application is still pending, the I-485 is denied and the application is scrapped.

This is not the case if an adjustment applicant is in lawful L-1, L-2, H-4, H1B, K-3, K-4, or V status, and continues to be eligible for that status on return to the United States. In these cases, the application is not considered to be abandoned.

If an adjustment applicant travels overseas during when the I-485 application is pending, it is not typically denied as long as the foreign national has a valid, unexpired advance parole document that was approved prior to departing the United States.

The relatively new stance of I-131 applications being denied because the applicant traveled while an application was pending is of concern to immigration lawyers.

The new approach by USCIS may reflect President Donald Trump’s stance of reducing parole applications and approvals.

Advanced parole is on occasions confused with a reentry permit. Advanced parole is issued to an undocumented immigrant who does not have permanent resident status. A Reentry Permit is issued to a permanent resident of the United States. The two documents are very different in physical appearance. While Advance Parole is a single piece of paper bearing the individual’s photo, a Re-entry Permit looks like a passport.

Our Austin immigration attorneys can help with a wide variety of visa needs. Call us at (512) 474-4445.

Immigrant Checkpoints Keep Workers Away from Texas Farms

By Peek & Toland on April 11, 2018

More than half of immigrant farmworkers are in the United States illegally. The crackdown on undocumented immigrants through immigrant checkpoints and other measures has had an unfortunate impact on agriculture in Texas.

A report in The Observer noted the predicament of Bernie Thiel. The farmer near Lubbock in Texas was forced to watch his yellow squash crop rot away.

The problem was not disease or pests. Instead, restrictions on immigrant workers meant he could not hire anybody to pick the crops.

He even reduced the acreage of the plants to squash from 160 acres seven years ago to 60 acres now. The immigrant workforce he used is aging and there is no replacement.

The Observer reported that as well as the squash he has labor-intensive crops including zucchini, okra, and tomatoes. These crops have to be picked by hand.

Thiel has 35 employees who work round the clock. It’s unforgiving work. Many Americans won’t do it. He relies on immigrant labor from countries like Mexico.

However, as many as 50 to 70 percent of immigrant farmworkers are in the United States illegally. As many as 1.6 million undocumented workers are in Texas.

Immigrant checkpoints hit farm workers

Immigrant checkpoints impact agriculture in Texas

Undocumented workers will tolerate tough conditions and lower pay more than people legally in the United States, according to research. Many of those workers who can help on the land live in the Rio Grande Valley, near the Texas-Mexico border. Although large populations of immigrants are found in Houston and other Texas cities, many already work in non-agricultural industries.

Although the valley which is close to Mexico, has a surplus of undocumented workers, they would have to travel on major highways to get to many of the parts of Texas that need labor. They would pass immigration checkpoints and risk deportation.

The Observer reported Hildalgo County alone has as many as 100,000 undocumented people.

Thiel’s farm has an uncertain future due to the labor shortage. Most of his current workers were hired the Reform and Control Act, Reagan era legislation. The law granted amnesty to immigrants who entered the country before 1982.

Other Texas farmers are suffering from the labor shortage. The Observer reported how Erath County dairy operator Sonja Koke told the U.S. House Agriculture Committee over the summer she struggles to hire year-round help for her 200-cow dairy.

She said every day the farm is seeking workers. Farmers in the equine and beef cattle export industries report similar problems.

In 2017, we noted how the threats of increased deportations may impact businesses.

If you are seeking visas for temporary workers or have other immigration issues, please contact our experienced Texas immigration lawyers at (512) 474-4445.

Undocumented Girl Who was Detained After Surgery Was Released

By Peek & Toland on April 10, 2018

The case of an undocumented girl held in an immigration facility after surgery in Texas sparked an outcry. The issue appeared to be resolved in November 2017 when a lawmaker confirmed the girl was reunited with her family.

Rosa Maria Hernandez, noted the Texas Tribune, has cerebral palsy. Immigration authorities detained the girl after gallbladder surgery. Although she is undocumented, she lived in Texas since she was 3 months old.

However, Hernandez was taken into federal custody after she and her family were traveling from Laredo in the fall of 2017. They passed through a U.S. Border Patrol checkpoint in Freer.

The girl was having surgery. Federal agents escorted her to a Corpus Christi hospital after she and her cousin, a U.S. citizen, traveled through the checkpoint. The agents waited until Rosa Maria’s gallbladder surgery was over. They informed her family she could return to Mexico voluntarily or go through court proceedings.

Undocumented girl was detained after surgery

Undocumented girl had surgery in Texas

Customs and Border Protection said in a statement it is committed to enforcing the nation’s immigration laws. It stated:

“Due to the juvenile’s medical condition, border patrol agents escorted her and her cousin to a Corpus Christi hospital where she could receive appropriate medical care. Per the immigration laws of the United States, once medically cleared she will be processed accordingly. The Mexican Consulate has been advised of the situation by Laredo Sector Border Patrol.”

The episode provoked an outcry. Lawmakers including U.S. Rep. Joaquin Castro called for the girl’s release.

On Nov. 3, Castro said the girl was united with her family, the Tribune reported.

Although he welcomed the fact federal agents backed off, Castro said the girl has an uncertain future ahead of her.

The case highlights the real uncertainties undocumented immigrants face in the United States in the current era. Although the Trump administration has pledged to prioritize undocumented immigrants with criminal records for deportation, others have been picked up in raids.

Although immigration centers are used to hold undocumented adults and families apprehended at the border, it’s unusual for a child living in the United States to be arrested. The New York Times reported it was almost unprecedented for a child with a serious medical condition to be held in this manner.

Rosa Marie was held 150 miles away from her parents in Laredo who are also undocumented.

Undocumented immigrants across the Lone Star State face difficult and frightening times. If you need assistance with an immigration matter contact our experienced Austin-based family immigration law firm.

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