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Valid Search Warrants Dissected

By Peek & Toland on January 29, 2021

We’ve talked in detail about several of our Constitutional amendments, specifically our Fourth Amendment and its protection of our right to feel safe and secure in our own home. But, if you’ve paid any attention to the recent news cycles, you know that no-knock search warrants are a controversial tactic used by police in limited scope and circumstance that absolutely interrupt our sense of security in our home. Though perceived to be a method of search rarely used, statistics show that 60,000-70,000 no-knock warrants are issued each year, and the recent death of Breonna Taylor as the result of a no-knock warrant has really brought this issue into the public arena and proposed legal reform.

This staggering statistic and tragic situation lead us to a broad and continuing discussion about warrants, how to hire a lawyer to contest the validity of an unlawfully obtained or executed search warrant, and your fourth amendment rights under search warrants, which will eventually bring us to what the no-knock search warrant is, how it works, and why it’s so controversial.

Before we dive into no-knock warrants, let’s cover the criteria needed in order to lawfully obtain and execute a search warrant in Texas and review what that ever-important Fourth Amendment guarantees us. To break down the criteria in manner you can easily recall, we can ask: Who? What? When? Where? Why?

Who?

Texas, our Texas! All hail the mighty state! First and foremost, a valid search warrant in Texas must be issued by a state magistrate in the State of Texas. Not Oklahoma. Not New Mexico. Not Louisiana. Not any other state, no matter how much they wish they were Texas. Texas is who has to issue a valid search warrant in this state.

What?

A proper and valid search warrant in the State of Texas must include what it is the police are trying to find. Coming in and ransacking everything in sight didn’t work for King George and his broadly worded search warrants in the 1700s, and it certainly doesn’t fly here today.

When?

We always hear that time is of the essence, and that universal phrase for prompt action is never more important than it is in regard to properly executing a search warrant. Any valid search warrant in Texas should clearly state the date and hour at which the warrant was obtained. Why is that important? The time and date a warrant was obtained is crucial because time is ticking—there’s generally a 72-hour or three-day window to conduct the search defined in a warrant. There are exceptions, though. A 15-day span is given for DNA evidence collection, and technological forensic officers have 10 days to recover data from electronic devices listed in the warrant. As a general rule, the three-day rule applies to restrict stagnant search warrants, and knowing when that warrant was signed is crucial for your defense and to ensure your Fourth Amendment rights weren’t violated.

Where?


A valid search warrant will define exactly where the police are allowed to search—that means it must state, with some specificity, the address or a reasonable description of the property permissible to search if the exact address isn’t known. A proper warrant should say with specificity exactly where it is police officers are allowed to go, and it must narrowly define that area.

Why?


We already covered that the search warrant must include the signature and name of the magistrate who issued the warrant. In addition to that information showing proof the warrant was issued by Texas, the magistrate’s name gives you the information you’ll need to request why you’re being searched. You can specifically request to know what it is the officers swore to on an affidavit that lead to a search warrant being issued.

In a neatly wrapped and memorable nutshell, you know what questions to ask and for what you should look in the event that you ever receive a supposedly valid search warrant in Texas

Of course, there is a lot more to digest in ensuring your Fourth Amendment rights are upheld, and we’ll have a deeper discussion that you don’t want to miss when we break down no-knock warrants. Continue to follow us on social media to keep up with this broadening and important conversation on warrants and why it’s imperative to have trusted counsel in the event of any issues with arrests or questionable search warrants. If you’re in that position now or fear your Fourth Amendment rights might have been violated, please reach out to us here at Peek & Toland.

Sweeping Reform in Texas | The George Floyd Act

By Peek & Toland on January 27, 2021

Police reform is a hot-button topic, and it’s one that’s recently caused stalemates in our federal legislative process; however, Texas lawmakers have returned to session and are working on the business of state, including enacting new laws. One such law whose progress we are following closely is the George Floyd Act, an incredible sweeping attempt to encapsulate several issues surrounding criminal justice reform that have been recurring for more than 20 years.

Though we all might differ in our personal beliefs, we can appreciate standards of humanity and care, and we can understand the outrage resulting from the events we saw unfold in May 2020 when George Floyd passed away from deadly use of the chokehold, a miscarriage of justice which begs for resolve. The proposed reform measure at hand, aptly named after George Floyd and backed by his family, has four main components to it, so let’s take a look at the meat of it:

We all have the right to breathe

In the wake of George Floyd’s death, a turning point in the discussion surrounding police tactics was the use of chokeholds and whether or not they have a place in our society. We’ve all seen the use of chokeholds in jiu-jitsu, a martial arts practice with a grappling referee who calls an end to a match, and also within combat maneuver tactics designed to kill. During an arrest where there’s no referee to say when and the goal is to detain a suspect for due process, the lethal use of the chokehold is considered controversial and is why so many cities, states, and even countries have already banned the use of this practice. The bans we’ve already seen are purely aspirational, and we can’t count on chokeholds being banned with certainty until an actual law is passed to prohibit the use, and the George Floyd Act would do just that.

 Reciprocal rights are a must

The second component of the George Floyd Act that is gaining traction is the use of reciprocal force. If you’ve tuned into our show or seen some of our previous social media posts, you know that we take seriously self-defense and the notion that you’re only legally and defensibly allowed to use physical force on someone else that is proportionate to the force they excise on you first. These laws are often argued in assault cases, but they currently do not extend to police officers. The George Floyd Act would restrict police officers from using unnecessary, disproportionate force while making arrests. Opponents of this portion of the act argue that it will leave officers in jeopardy and without means to arrest persons suspected of criminal activity; however, it does not create a void in police response, but more so requires that officers continually monitor and assess their situation as they subdue a suspect and to constantly try and exercise de-escalation techniques to restore the peace and humanely perform their duty.

Walk it off

The third component of note here has less to do with physical force and more to do with acknowledging that some crimes require no force at all, as not every misstep calls for an arrest. The proposed George Floyd Act would recognize that fine-only offenses, your Class C crimes that don’t include a statutory element of jail time, are better suited for ticketing instead of an arrest. Allowing citizens to walk instead of placing them under arrest unnecessarily would exponentially decrease the risk of excessive force by police.

Throwing out the “bad apples”

The fourth component of great importance that is part of the George Floyd Act would place on officers an affirmative duty to step in and either stop excessive force, minimize it, call for help, and report it. Just as the bystander law in Texas which requires action from citizens when they view emergency situations, this concept would make law officers beholden to the same duty that we demand from citizens.

There is so much to unpack with this proposed legislation that we will continue to closely monitor in the hopes that many of our state’s and nation’s concerns will be resolved. I will conclude this heated but important discussion with a reminder to reach out to a trusted criminal defense attorney if you ever have any questions about or are involved in a criminal issue, and continue to check in with us on social media, as we are dedicated to sharing the crucial information that affects our clients and society.

The Differences Between Peaceable Assembly and Riot, and How You’re Protected

By Peek & Toland on January 21, 2021

“Congress shall make no law…” Most Americans can quote that line from the First Amendment, as that amendment to the constitution encompasses the most basic liberties we hold near and dear in the United States, but what is really guaranteed and protected by this amendment, and where is the line when it comes to our right to peaceable assembly?

Blurred lines

While there are some blurred lines and varied interpretations of our First Amendment right to assemble peaceably to express our beliefs, there are some pretty firm rules concerning this amendment in the State of Texas.

No matter your political leanings, we all need to be aware of our rights and the laws concerning those rights if we decide to exercise our right to free speech and peaceable assembly. To that end, it’s also incredibly important to understand how to avoid a riot and avoid being criminally liable should you end up being involved with a riot. To better understand what is allowed in protesting, we need to know what is not permissible; so, let’s dive in to four laws concerning peaceable assembly in the State of Texas.

  1. So, what exactly is disorderly?

The laundry list of actions or activities covered under disorderly conduct is quite broad, to say the least, but there are a few big standouts for violations deemed as disorderly conduct:

  • Watch your language – Engaging in any type of language, obscene gestures, or physical and furtive movements designed to incite a breach of the peace is considered to be a violation.
  • Nix the tactical tools – In Texas, especially, we’re proud of our right to carry firearms. You’re well within your rights to carry; however, presenting a gun in a way that instills fear of safety if you use it in a manner that interferes with others’ civil liberties, you’re looking at criminal charges. While responsibly carrying your firearm for protection is acceptable, you’ll need to leave any smoke bombs at home.
  • Location! Location! Location! – Time restrictions and permits to peacefully assemble are common sense when planning to protest, but did you know there are definite restrictions on where you can peacefully protest? Gathering at a funeral with intention to protest is strictly prohibited, as is peaceable assembly near critical infrastructure, which includes pipelines, natural gas, and oil. In order to obstruct a road or highway with your assembly, you’ll need one of those permits I mentioned.

2. What’s on the books about riots?

In the State of Texas, riots are specifically defined in our penal code as seven+ people gathered and engaged in an activity that is absolutely designed to or results in prohibiting others from engaging in their civil liberties. “Your rights end where mine begin” is an adage on which we rely in the U.S., and respecting the rights of others is just as important as asserting your own rights. Always remember that when your passions and emotions run high enough to take a stance.

3. You have an out!

So, you’re aware of others’ rights, and you know what not to do when you protest, but what happens if other protestors aren’t aware of the restrictions on riots and you inadvertently end up in a riot instead of a peaceful protest? It can happen in what seems like an instant, but the good news is that you have a way out of being held criminally liable should you end up in a riot without intending to be. Your “get out of jail free” card comes in knowing that the police need to first give you the opportunity to remedy the situation and remove yourself from destructive or intrusive action before they can arrest you.

4. Watch your step!

In the State of Texas, it’s very clear under the code that you are not allowed to disrupt in any way, shape, form, or fashion a lawful meeting. What does that mean? It means you’re completely covered by the First Amendment to peacefully protest outside of a city council meeting or beyond the perimeter of the U.S. Capitol during an active session, but you are not permitted to protest with the sole purpose and design of stopping the governmental function. So, feel free to stand your ground, but make sure the ground on which you stand is outside of and in no way interrupts a lawful event.

These are just a few takeaways to consider before stepping out and standing up for what you believe, especially in the current heated political climate. If you have any questions about your rights or need to consult an experienced advocate to guide you through your defense, we’d love to help. Please tune in to our updates every Wednesday, and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

Can CBP Search My Electronic Devices?

By Peek & Toland on January 20, 2021

In the U.S., we’re quite proud of the Fourth Amendment, which protects us from unreasonable searches and seizures, but are we always able to invoke those rights of protection when it comes to searches and confiscation of our electronic devices? The short answer here is that invoking your Fourth Amendment rights is always encouraged, but it might not always be honored, especially at the border and airports. If that doesn’t sound like a clear answer, that’s because it’s not. There are several factors that go into protecting your devices and your private information they hold. Let’s take a high-level look at that.

Why should I care?

You may think you’re immune to unwarranted searches and seizures, but the sad truth is that anyone carrying cell phones or laptops across the border or through the airport is at risk to have their personal items searched and possibly confiscated. You also may be wondering how often those types of searches even occur, and you’ll probably be as shocked as I was to learn that Customs and Border Protection (“CBP”) performed over 40,000 searches of cell phones and laptops in 2019. With our devices tracking our every move, habit, and some may even say our every thought, it’s no wonder why the numbers of these types of searches continue to climb. Our electronic devices are ripe with information that legal enforcement officers would love to see, and they readily and warrantlessly do it, whether you’re a U.S. citizen or not.

Wait, how can this be?

The government has long maintained that our Fourth Amendment protections against warrantless searches hold no power at the border, but that doesn’t mean we’ve all accepted that as the end-all, be-all truth. In fact, there are several recent cases that put unlawful searches to test, including Riley v California, a Supreme Court case in which the Court unanimously determined that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. While that sounds like a clear case of “no warrant, no phone,” there’s something referred to as border search exception, which claims exception to that ruling at border crossings due to a heightened need for security and high demand to search for contraband, even if there is no reasonable suspicion of nefarious activity. That doesn’t mean you have to accept that practice as part and parcel of border officials working to make the U.S. a safer place.

So what can I do to protect my private information on my devices?

As the courts continue to argue this far-from-settled issue, I can offer you a short answer to the initial question of whether or not a CBP officer can search and seize your electronic devices without a warrant or reasonable suspicion: sadly, yes. If you ever find yourself in such a situation, you could and should assert your Fourth Amendment rights of protection from unlawful searches and ask what the reasonable suspicion is for the search. While they’ll likely still search your devices if they’re so determined, you’ve established your rights and set yourself up for success in any lawsuit you file to reclaim your property.

I understand that those options, or lack thereof, are not very comforting, especially when you’ve not done anything wrong, or even if you have. It’s quite controversial, and we hope the courts will definitively sort this out with the right decision on those unlawful border searches. Until then, if you experience any search issues, criminal violations, or immigration needs, and you need an expert to handle those, please call us here at Peek & Toland. We’d love to help.

Asserting your Sixth Amendment Rights Under COVID-19 Restrictions

By Peek & Toland on January 8, 2021

I’ve discussed in previous blogs some portions of your rights that are guaranteed under the Sixth Amendment, and there’s more to unpack as we attempt to maintain our rights in court while living under the changing COVID-19 restrictions.

What’s at risk here?

One of the most fundamental rights guaranteed by the Sixth Amendment, a right whose violation can drastically affect the outcome of your criminal case, is the right to confront and cross-examine your accuser and witnesses who are testifying against you. Appearing in person and being able to look witnesses in the eye is a basic right with foundations dating back to the very origins of our legal system in Rome and England, so I don’t speak lightly when I stress the importance of maintaining this right as you navigate the criminal courts.

Why is the Confrontation Clause important to me?

In the United States, you are guaranteed the right to confront, face eye-to-eye, and engage with your accuser or anyone offering testimony against you in an attempt to test their credibility. This understandably becomes an issue in the age of COVID-19 restrictions that affect travel, capacity restrictions, and whether witnesses are willing to appear in public places.

We look to a Texas case in the Court of Criminal Appeals to demonstrate the importance of asserting your full Sixth Amendment rights. Though recent, the decision in discussion and the rationale behind it occurred prior to the COVID-19 restrictions.

A high-level review of this case, in which a nurse practitioner conducted an exam that resulted in physical evidence and testimony against a defendant, is demonstrative of how the right to confront your accuser in person can completely shift the direction and outcome of your case.

As a result of the physical evidence and nurse practitioner’s testimony, the State needed to introduce evidence and the account; however, the nurse practitioner had recently moved out of state and was unwilling to return to Texas to testify in person. Despite this witness’s unwillingness to return to testify in person, the judge hearing this case astonishingly allowed this witness to appear via video and deemed the collected physical evidence permissible. As a result, the Defendant was convicted but was able to fight the conviction in the Court of Criminal Appeals.

This brief account is not simply anecdotal—it provides three very important factors that were key to the decision made, key factors that are takeaways you can apply moving forward in the courts in the age of COVID-19:

Subpoena! Subpoena! Subpoena!

Our first takeaway from this case to note is how perturbed the Court of Criminal Appeals was by the attorney who did not subpoena the witness in question. If you are facing criminal charges, make certain that your attorney subpoenas all of your witnesses. Doing so introduces the threat of contempt and subsequent punishment to any witness unwilling to appear, and it helps ensure the right to confront a witness.

What gives?

Never hesitate to challenge or question the reasons a witness gives for resisting their appearance in court. Your confrontation clause rights allow you to demand a witness appear, despite any fears of COVID-19—it’s perfectly acceptable to remind that judge that the courtroom being safe enough for some means it is safe enough for witnesses to appear. Feel free in your rights to ask what safety procedures are in place if the courts adopted face mask requirements, and whether or not they are respecting the six-feet minimum distance guidance to assert your right to have witnesses appear in person.

Demand swift justice

Another important aspect of this to remember is that you must continually assert your right to a speedy trial. Despite executive orders, gubernatorial decrees, and country restrictions due to the pandemic, you still have every right to a speedy trial and to not linger in limbo waiting months on end for your time in court. You must let your attorney know that you assert your rights to a speedy trial and refuse to agree to anything that attempts to deny your right to speedily complete your case.

Your Sixth Amendment rights covered here are so fundamental to your receiving a fair trial during the pandemic, which is all the more reason for you to have an experienced attorney who knows how to assert those rights and apply facts and arguments that will help support you.

If you have any questions about your rights or need a trusted advocate for your defense, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance.

Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

Does the Pandemic Affect My Constitutional Rights?

By Peek & Toland on January 1, 2021

In the United States, we take immense pride in our criminal justice process and wholly depend on our constitutional rights to ensure justice and objectivity when facing accusations and criminal charges. It is a common rationale that nobody, not even the government, can strip from us those rights guaranteed by the Constitution; however, there are certain circumstances in life that can affect those rights, and the COVID-19 pandemic is one of those events currently having a negative impact on our Sixth Amendment rights.

https://youtu.be/KVKFMAnHaTo

How am I to appear in public?

Before COVID-19 hit the U.S., appearing in public places was not really considered a luxury. Now, though, the threat of this virus has placed more burden on us than just limiting our holiday gatherings and restricting our ability to see movies in the theater. With a long-standing backlog in criminal courts and new, ever-changing COVID-19 restrictions, court administrators are grappling with how to keep up with cases while also ensuring our Sixth Amendment right to a public proceeding. Appearing in public for a hearing is one of our nation’s bedrock principles. Anything that interferes with that is a major issue with which to contend, in addition to fighting criminal charges and accusations you may face. To combat the restrictions on our courts and public assembly, many judges have turned to live-streaming hearings, including creating dedicated YouTube channels and Zoom meetings. Of course, as we’re all aware by now, these virtual hearings come with their own set of complications, including hackers and technological interruptions. Who doesn’t love a good laugh at someone forgetting their mic is on during an inopportune time? But when it comes to fighting criminal charges, these technological issues are no laughing matter, especially when they interfere with the very foundations of our criminal justice system.

What does speedy mean in the era of COVID-19?

Another aspect of our Sixth Amendment right on which COVID-19 is wreaking havoc goes hand-in-hand with a public trail, and that is your right to a speedy trial. As mentioned, and widely reported, court systems are overburdened with a backlog of cases. Fighting for your Sixth Amendment right to an expedited hearing was a battle to fight prior to COVID-19. It’s now more important than ever to have an experienced attorney in your corner to ensure your rights are upheld in the chaos of COVID restrictions on our courts. In the State of Texas, speedy, in court terms, is generally held to be eight months, as a minimum. This, of course, is provided your attorney files on your behalf a speedy trial motion and consistently maintains your position that you would like to proceed forward with trial. Executive orders and any gubernatorial orders that relegate the performance of our court systems weigh heavily on the ticking of that speedy trial clock and can definitely work to your disadvantage. You must have an experienced attorney to reassert your Sixth Amendment rights, even if the judge overseeing your proceeding appears to be powerless as a result of city, county, or state restrictions related to the pandemic.

What about my right to confront those accusing me?

If we’re concerned with public gatherings, travel, and the ability to appear in public hearings, it is only logical that our right to confront those with evidence against us is also in jeopardy, along with the other guarantees of the Sixth Amendment mentioned here. In addition to who can appear in our courts during a pandemic and how, we’re also left contemplating how safety measures affect our right to face our accusers. How will a judge, jury, witnesses, and attorneys wearing a mask challenge our Sixth Amendment right to a confrontation? Could this be the veil of secrecy about which our forefathers warned us when fighting to ensure our rights? What safety protocols can survive our constitutional rights? These questions have left our legal scholars scrambling for answers, so you certainly shouldn’t be left alone to contemplate and ensure your rights.

While governors’ orders and safety restrictions may be at odds with our Constitution, we know that removing the right to a confrontation and a speedy, public trial would, in fact, require a constitutional amendment. Until then, the court systems place the burden on you to ensure your rights are upheld and justice is within fair reach throughout your proceedings, even during a pandemic. There’s absolutely no reason for you to ever wage that war on your own.

At Peek & Toland, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance. Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

Can an Employer Sponsor an Undocumented Immigrant?

By Peek & Toland on December 16, 2020

How can I adjust my legal status?

There are many paths to take to obtain various visas and absolution of undocumented status, and people often wonder whether or not their employer filing on their behalf is one of those options, especially if the employee in question is undocumented. There are many work visas that employers can use, but whether or not they apply to employees here unlawfully, illegally, or without status in the United States is the brass tacks of what many immigrants want to know. Unfortunately, the answer is complex.

One of the most difficult endeavors in immigration law is the pathway from having no status, expired status, or being undocumented. No matter which way you identify, changing from that status into a legal status can be quite complicated. In fact, transitioning from illegal to legal status can sometimes be an impossibility; however, there are a few ways that a person might be eligible to make that difficult transition and adjust their status to permanent residence in the United States.

Section 245-I

Of the many avenues people take to adjust their legal status, one of the oldest is under section 245-I. We don’t often see this option, as it’s been such a long time since it’s last been renewed. The last time USCIS renewed this ruling and made it available was nearly twenty years ago. To be eligible for this rule, an employer would have had to file an application on behalf of the undocumented employee before April 30, 2001, with the employee being physically in the United States by December 17, 2000. With the length of time that has passed since the 245-I ruling was an option, it’s understandable that we don’t often meet many people who fit those requirements. In the off chance that you do, or you are a beneficiary under somebody who benefited from section 245-I, that application serves as a waiver, or a perdón, as we say in Spanish.

Are you willing to return home for a chance to legally come back into the United States?

Another opportunity to adjust legal status is one that requires your willingness to return back to your country so you can apply for a waiver for a non-immigrant visa, such as any work visa, but only if you first go back to your country. The problem is that there is no guarantee of success, so there is a bit of risk involved in returning to your native country. For most people, though, the risk does not outweigh the possible reward, as many people who’ve lived here for years and know no life outside of what they have made in the United States—homes, children in school, deep ties to their community. Without knowing with certainty that they’re going to get approved for that waiver, traveling back to their native country is simply out of the question.

Could you be eligible for a work permit?

There is an option for which many people are eligible to adjust their legal status, which comes in obtaining a work permit. Remedies such as U-visa, DACA, or VAWA allow an eligible undocumented person to obtain a work permit through these limited programs, even if that person illegally entered the United States. Each program has its own set of requirements for eligibility that we’d be happy to discuss in detail with you.

DACA

Separate from a pathway to citizenship or legal standing is the possibility of obtaining deferred action. If you or someone you know is a young person who came to this country, DACA may be an opportunity about which you may want to speak to a lawyer.

Victims of Violent or Domestic Crimes

If you or a loved one has been a victim of domestic violence with a spouse who is a permanent resident or US citizen, it’s very much worth discussing your options with an immigration lawyer who can help you identify the best and safest means to stay in the United States.

If you have been a victim of a violent crime and you cooperate with the police and prosecutors, you may be eligible for U Visa. Whether or not you know who committed the violent crime against you or if either of you is undocumented is irrelevant.

Those are all different pathways to take without having to leave the country.

Overstaying Your Visa

Another predicament immigrants may find themselves in is having overstayed their visa, failing to return to their native country when they were supposed to have done so. This happens, and it’s usually for a lengthy period of time that the person has overstayed their visa. Most often, an employer is unfortunately not able to file for their employee to rectify this particular situation. As mentioned, unless you qualify for one of the options mentioned previously, there just are not many options for people who are undocumented to transition from undocumented to visa status legally within the United States, even if they have an employer who is willing to cooperate and work on their behalf. Simply put, it’s not as easy as you would think.

The options discussed here are just a few of the ways a person can work to adjust their legal status. If you think you might be eligible for one of the programs discussed here, it’s more than worthwhile to talk to a lawyer to see where you stand. As an immigration attorney, the need would be to evaluate various details about your background and your immigration history to make sure that we account for all of the possibilities and scenarios that could make you eligibility for adjusting your legal status or deferring action against you.

At Peek & Toland, we’d love to help you gain peace of mind and take steps to rectify your legal standing. Please tune into our updates every Immigration Wednesday or follow us on social media for up-to-date information.

Immigration Accused Me of Fraud, Now What?

By Peek & Toland on December 2, 2020

What do you do if you’re at a port of entry or an airport and a CBP immigration officer accuses you of making a misrepresentation or a fraudulent claim? What do you do next? 

Immigration law has a strict punishment if you make a willful misrepresentation or fraudulent statement to immigration. A misrepresentation is when you knowingly or willfully misrepresent a material fact to obtain a visa or admission. A material fact is any statement that if immigration had known the truth, they would not have granted a visa or entry to the United States.

Material fact example

For example, a material fact can be when somebody who traveled before on a tourist visa, overstayed had a child here. They went back to their country to renew their visa but did not mention they have a child because it would be evident that they overstayed. 

Example of non-material fact  

We had a case recently where a Canadian client told immigration he was coming on a tourist visa to pick up his car in the United States and drive it back to Canada. Immigration allowed him ten days to go to the U.S. to pick up his car. He flies in the United States, but the client decides to leave the car and just flew back. He left before the ten days that he was given. However, the next time he talked to immigration officers, they were bothered by the fact that the purpose of his entry was to pick up the car. Was that a material fact? No. It had no bearing on whether or not he would have been admitted to the U.S. It was just a small change in plans once he got here. But you can find immigration officers making a case that something was material when it wasn’t. 

Did you knowingly do it? Did you say something that you knew was wrong or knew was a lie, or did you say something that you unknowingly know was not true? That could be potential questions that your attorney has to review. 

False Citizenship Claim 

There is one kind of claim that there is no waiver for, and that is a false citizenship claim. You cannot do that in immigration law because it’s the harshest punishment. You don’t have the possibility for a waiver. The only exception of that is if you have two citizen parents, and you just thought you were a citizen by nature of the fact that they were a citizen. It’s imperative to know that is one colossal disqualifier.

Waiver Requirements

1. Immigrant Visas 

People with these visas want to immigrate to the United States. They are usually attaining the visa through family or work. The purpose of coming to the United States is to become permanent residents. 

The immigrant waiver for misrepresentation for an immigrant visa is stricter than the non-immigrant one. Why? Because you have to have a U.S. citizen or permanent resident spouse, or a U.S. citizen or permanent resident parent to qualify. If you are the parent of a U.S. citizen or permanent resident, and you do not have a citizen or resident spouse, you are not eligible for this waiver. 

You will also have to show crucial evidence of extreme hardship. This is not just a given. 

2. Non-immigrant visas 

These are people coming on temporary visits such as tourism, as a student or for work. These people come knowing that they’re going to pass the time here. It could be a year or three years, but eventually, they will have to leave the country. 

Non-immigrants will need to fill out form I-92. It can be processed either at the consulate or ports of entry, usually in Mexico or Canada. It can take 5-6 months through the consulates. It could be 4-5 months at the port of entry. Therefore, you will need to do it in advance of your plan travel to make sure you have enough time to adjudicate when you want to come in. 

Non-immigrants are not required to show extreme hardships. 

There is a kind of a three-prong test to be granted the waiver: 

  1. Is there a risk or harm to society if they let you into the country? 
  2. How serious was the prior immigration violation or criminal violation? 
  3. What is the importance of the reasons for seeking entrance to the United States? 

However, luckily they’ve ruled that there is no requirement that your reason for entering the United States be compelling. So you don’t have to have some super important reason. 

These are tricky waivers. I would advise you to consult with or hire a lawyer to help you prepare for them. They’re not easily given. 

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. 

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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