Peek and Toland January 2013 Newsletter

7/29/2019 Peek and Toland January 2013 Newsletter

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Peek & Toland, L.L.P.

Issue 2January 2013

Criminal Defense &Immigration IntersectionImmigration Law SectionCase Victories

IS THERE HOPE FOR THE IMMIGRANT CONVICTED PRE-PADILLA (3/31/2010) ?(Whose Deense Attorney Failed To Advise Them Their Plea Was Going To Screw Them)

by Je Peek, Partner

On November 1, 2012 the U.S.Supreme heard oral argumentson Chaidez v. U.S., a case decidedout o the 7th Circuit which heldthat the Supreme Courts previousruling in Padilla v. Kentucky,does NOT apply retroactivelyto criminal cases pled beore itsdecision was handed down onMarch 31, 2010.

Padillawas groundbreakingin that or the rst timeever, the Court held that

immigration consequences o acriminal conviction, a collateralconsequence, were the exact typeo subject matter that a competentand reasonable criminal deenseattorney should discuss with hisclient in counseling and advisinghis client on whether or not toaccept a plea bargain. Previouslythe court had held that onlyincorrect advice given on theimmigration consequences (an acto commission) were grounds orineective assistance o counsel, butin Padillaexpanded that ruling toinclude an attorneys ailure (an acto omission) to advise his clientso the immigration consequenceso his criminal plea, when thoseconsequences are clear.

The question posed by the Courtin Padilla, and one which they let

or a later day, was whether ornot their ruling would openthe foodgates to thousands opreviously convicted immigrants

who had previously plead guilty todeportable oenses, but were neveradvised beore the plea by their

deense attorney, that their pleawould result in their deportatio

The decision will depend onwhether the Padillaruling in isinterpreted to be a new procedrule which the Court previousheld in Teague v. Lane(1988)could not be applied retroactivto a collateral attack on a crimi

Criminal Defense SectionLegal UpdateCore Values in Action

Firm Newsletter Dedicated to Immigration Law, State and Federal Criminal Defense

Continued on page

Firm Events

Recent Events

In This Issue

1

23

478

PG

Where Criminal Law&

Immigration Law Intersect

Peek and Tolan

Steve Toland, Partner andJessica Dobias, Marketing Specialist Je Peek and Steve Toland,

Partners

Christmas Party and

Fundraiser

The Rattle Inn,Dec 12, 2012Raised more than$12,000.00 in donationsbeneting Casa Hogar de

la Montaa orphanageand InternationalJustice Mission.

Guatemalan Consulate

Sponsorship for

Deferred Action

First Baptist Church,Nov 3-4, 2012

Peek & Toland Firm

White Elephant

Brick Oven, Dec 18, 2012Employee WhiteElephant Gift Exchange

Fifth Friday Fun

On Track Xperience,Nov 30, 2012Team Building eventat local racetrack inKyle, Texas.

Alex Aguirre, AttornMike Burke, Atto


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Criminal Defense Case Victories

December 13, 2012: In 1996 our client was17 years old and in a dating relationship with a13 year old. The girls ather disapproved andour client was charged with aggravated sexualassault. Shortly ater turning 18 our clientpled guilty to the third degree elony oense oindecent exposure. Ater completing his prisonsentence he was deported rom the United Statesin 1998. Client subsequently re-entered theU.S., married and had two children where heplayed an active and loving role in their lives.He was discovered during an immigrationraid, cooperated, arrested and charged withillegal re-entry. Currently in the Fith Circuit,statutory rape is a considered a crime o violencenecessitating a sixteen level increase o the baseoense level. To put that in laymans terms aprior crime o violence increases an illegal entrysentence by 200% or more. For our client, whoonly had the one conviction in 1997, he wentrom acing 6 to 12 months to acing a top-end

guideline sentence o 51 months.Peek & Tolands ederal criminal deense

team led legal objections to the PresentenceInvestigation Report citing a Fith Circuit casethat was granted En BancReview on November29, 2012 to determine whether statutory rapeshould be considered a crime o violence.Additionally, the attorneys led a Motion orVariance citing the remoteness o the priorconviction, the clients exemplary record since

his arrest in 1997, cultural assimilation, andthe constitutional barriers against doublecounting. While the District Judge overruledPeek & Tolands legal objection, the judgegranted the Motion or Variance, sentencingour client to twelve months and 1 day, resultingin an incredible 3 + year downward departure.In ederal court, any sentence o 12 months orless results in the deendant ullling the entiresentence, day or day. However, a sentenceto time greater than 12 months, allows thedeendant to earn good time credit reductionsevery month. Client and his amily wereextremely grateul with the extraordinary result.

December 4, 2012: Client was arrested andcharged with reckless driving. The alleged baddriving happened in a two-lane residentialstreet. He was accused o passing a vehicleon a blind curve and into oncoming trac.Ater passing the vehicle, the client allegedlydrove into an accident scene where thearresting ocer observed the oense. Duringcross examination, the arresting ocer gaveconficting testimony as to what he observed.The jury was out or approximately 30 minutesbeore returning a verdict o not guilty.

September 28, 2012: Client was charged withconspiracy to possess and intent to distributemarijuana, a ederal charge. Client hired ourCriminal Deense team to help deend him

in his ederal case. Upon urther io the evidence, the Peek & Tolandiscovered that the prosecutions oto le a Report o Investigation. TInvestigation was eventually locatto mention our client by name oalleged crimes he committed. As a& Toland Law Firm was able to suargue that our clients case shouldor lack o evidence against him.

September 14, 2012: Client wasevading arrest in a vehicle, a state and resisting arrest, a misdemeanotemporary protected status becausimmigrant rom El Salvador. PeekLaw Firm attempted to get Clientdiversion program, but was denieDistrict Attorneys oce decided arrest cases would not be accepteddiversion program. However, ourwere able to negotiate a straight dthe elony charge, contingent on entering into a misdemeanor pretprogram. Luckily or our Client, tAttorney let our client into the mpretrial diversion program. Clientortunate to receive such a avoraband even the District Attor neys ointerviewer commented that she cbelieve our Client was in the prog

Immigration Case Victories

On Going Case: Client was a legal permanentresident representing himsel pro-se in a removalproceeding when one o Peek & Tolandsimmigration attorneys was preparing or Courtwith another client. Client was strugglingthrough the Court proceeding in ront o theJudge, so our immigration attorney stepped inand told the Judge she may be able to the helpour Client pro-bono. Client agreed and hiredPeek & Toland. Ater the initial consultationwith Client, our immigration attorney realizedthat Client, who was about to be deported,had actually achieved citizenship by act o law

through the Child Citizenship Act several yearsearlier, and was already a U.S. citizen. Thus,Clients criminal convictions, which would haveusually resulted in a legal permanent residentsdeportation, would not aect Client as a U.S.citizen. Beore meeting with Peek & Toland,Client would have likely been deported, butbecause he was provided an opportunity toconsult with experienced and knowledgeableimmigration attorneys who were able to evaluatethe acts o his case, Client will remain in theU.S. as a U.S. citizen.

December 4, 2012: Client is a legal permanentresident who was arrested or a DWI. Client hadseveral prior convictions or burglary o a vehicleand possession o drug paraphernalia. Clienthas a amily in the U.S., including a pregnantwie and two other children rom a previousrelationship in which he has custody. OurCriminal Deense team was able to help Clientplead out his DWI charge, so he was still eligibleor Cancellation o Removal. Then Peek &Tolands immigration team stepped in ar guingbeore the immigration judge that Clients priorconvictions were not sucient crimes o moral

turpitude to preclude Client rom relie. Thejudge agreed and cancelled Clients removalproceedings allowing him to stay with his amilyin the U.S.

December 3, 2012: Client is an undocumentedperson with our U.S. citizen childrenand a non-U.S. citizen husband. One oClients children is chronically and criticallyill, permanently disabled, requires use o aventilator and only travel via ambulance withmedical supervision. Client was placed inremoval and aced deportation proceedings.

The immigration team at Peek &able to show that removal o Clienextremely exception and unusual her U.S. citizen disabled child, tha person o good moral character,she had continuously resided in thten years. Thus, the Court grantecancellation o removal case and astay in the U.S. with her children

November 8, 2012: Client is an uperson who was arrested or assauwie is a U.S. citizen and his two U.S. citizens. Clients wie is chro

disabled. Peek & Tolands immigrwas able to argue that Client shoustay in the U.S. since he was marrcitizen and had three dependent Uchildren, all o whom would sueexceptional and unusual hardshipwas deported. The judge agreed abecame a legal permanent residencancellation o removal hearing.

Immigration

Family Violence Assaults and Immigration:

The Good, Bad, and the Uglyby Je Peek, Partner

resenting an immigrant when con-onted with a charge o Assault Familyce can be one o the more challengingCriminal Deense/Immigrationoner aces. The reason being is a chargetential conviction or Assault Familyce challenges the Attorney to identiyderstand the multi aceted risks andunities involved in the pending case, thexity o which usually is only seen in aool exam.

ult Family Violence (as it is commonlyis an Assault Bodily Injury undero the Texas Penal Code charge with

ential to have a Family Violence ndinging that the victim was related to the

dant under one o the relationships laid71 o the Texas Family Code. AssaultViolence carries with it 3 potential

ms i the immigrant is convicted o it,o carries 2 potential opportunities i therant is the victim.

The Goodigration has a couple o Sae Harborons or immigrants, who wouldise be deportable, in the event theyims o violent crime. The 2 most

only used immigration processes tothese immigrant victims, are the U

nd VAWA2 (Violence Against Women

Act). The U visa allows a victim o AssaultFamily violence to obtain a work permit,and eventually (ater a 3-4 year wait) obtainPermanent Residency. The victim is requiredto have: (1) suered substantial physical ormental abuse as a result o having been a victimo the criminal activity (Assault and otherabuse); (2) possess inormation concerning theAssault; (3) be helpul to local law enorcementand/or prosecutors in investigating andprosecuting the crime; and (4) the crime wascommitted in and is in violation o laws o theUnited States. Perhaps even a bigger benet, isthat the victims spouse and children (under 21)can also receive the same immigration benets.

I the victim is under 21, her parents can alsobenet and be eligible or the visa.

VAWA is a little dierent in that it requirethe victim to be married to the accusedand it require that the accused be a LawulPermanent Resident or a US Citizen (Abusedimmigrant children can also qualiy under

VAWA).3 USCIShas been a littlemore broad intheir denition obeing batteredorsubject toextreme crueltyin that it doesntrequire that therehave been anarrest or criminalcharge (resultingrom the abuse) asis required underthe U Visa.4 Onebig dierenceis that underVAWA you can

sel petition,meaning you donthave to require

a signature by the petitioner, nor do you haveto receive the signature rom law enorcementor the Prosecution as you have to do with a UVisa (which many times results in long waitsas law enorcement or the Prosecutors reviewthe request). The VAWA process also leadsdirectly to Permanent Residency, compared tothe U Visa which requires the U Visa holder to

maintain U Visa status or 3 years(work permit only) beore applying orPermanent Residency.5

The Bad

Every Criminal Deense practitioner shouldbe aware the Assault Family Violence is its ownseparate ground o Deportability. 237(a)(2)(E) o the INA states any alien who is convictedo domestic violence (including violatingprotective orders) is deportable. Interestinglyenough, although it is a deportable oense

under 237(a)(2)(E), it is not listed as aground o inadmissibility under 212. What

does that mean ? It provides the very oddresult that a person who is already a LawulPermanent Resident could lose their residencywith an Assault Family Violence convictionand be deported, but at the same time i thatperson was married to a US Citizen, couldhave that US Citizen spouse le or them viaConsular Processing and later be admittedback into the United States as a PermanentResident. However, a recent ruling by the5th Circuit in Holder v. Esparza-Rodriguez(5thCir. 2012) has decided that an Assault BodilyInjury conviction in Texas, where the Assaultis intentional and knowing and caused morethan a de minimis level o physical harm, is aCrime o Moral Turpitude. Previously case lawrom the Board o Immigration Appeals (BIA)and the 5th Circuit had ruled that due to theway the Texas statute was written, it had letopen an uncertainty which did not allow sucha nding. The nding in Esparza-Rodriguezputs the accused immigrant in a positionwhere a conviction would not only make himremovable under 237(a)(2)(E), but also havea Crime o Moral Turpitude conviction andremovable under 237(a)(2)(A)(i). This placesadditional burden on deense counsel to pursueeven more inventive and creative plea deals inorder to avoid a potential deportability. Also,the deense o Cancellation o Removal orNon-Permanent Residents under 240A(b)requires a period o 10 years o presence withgood moral character, so a conviction orboth Assault Bodily Injury or Assault FamilyViolence will disqualiy the immigrant romasserting this deense.

Continued on page 6...

Je Peek, Partner


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Criminal Defense

Exonerations and False Confessions

by Steve Toland, Partner

re are ew areas in all o the law, muchs in the area o criminal justice, moreling than that o criminal exonerations.

he last year alone many Texans have beend with the exoneration saga o Michaeln. What makes the story o Mr. Mortonore compelling is that it involves notatant governmental misconduct, butation due to advancements in DNA

DNA testing has had an indeliblye impact on almost every aspect oal law. There have been 301 post-ion DNA exonerations in the Unitedwith the rst DNA exoneration having

place in 1989. Exonerations have been

36 states and in Texas, 84 people haveir convictions overturned since 1989.stounding is that in 27% o nationalation cases, alse conessions andnating statements led to an individuals

ul conviction. Moreover, 28 individualsy conessed to a crime that they didntt, but subsequently pled guilty in openo a crime they didnt commit. How canppen?

common-sense notion is that no oneconess to a crime he or she did nott. As counter-intuitive as it may seemer, alse conessions occur regularly, asve-reerenced statistics indicate. Iimately 27% o the total number oation cases involved a alse conession0% o the two million men and women

oned in the United States are innocent,mated by the Department o Justice, then

extrapolate that as many as 50,000 onvictions involved alse conessions.

onessions destroy lives and keep therpetrators o terrible crimes rom beingt to justice.

do false confessions happen?

need only look at the techniques policened to use on suspects to understandnessions can be coerced. An interestingthe textbook Criminal Interrogationnession which is known in the lawment community as the interrogatorsIts undamental tenant being, isolatepect. Experts agree that the principallogical actor contributing to a successulgation is privacy alone with the suspect

away rom his or her home. A

person is more apt to maintain condence andremain aware o their rights within the wallso their own home. Moreover, the likelihoodthat riends and amily are nearby lendsmoral support. However, at the station, aninvestigator possess all the advantages.

In the article True Crimes, FalseConessions, alse conession experts oer anine-step process showing how, ater isolatingthe suspect, interrogators:

1. conront the suspect with unwaveringassertions o guilt.

2. develop themes that psychologicallyjustiy or excuse the crime.

3. interrupt all eorts at denial and deense.

4. overcome the suspects actual, moral andemotional objections.

5. ensure that the passive suspect does

not withdraw.6. show sympathy and understanding and

urges the suspect to cooperate.7. oer a ace-saving alternative construal o

the alleged guilty act.8. get the suspect to recount the details o his

or her crime.9. convert the latter statement into a ull

written or oral conession.These tactics are designed to destroy the

suspects condence that he will emerge rom

the interrogation without being harmed and tomake the suspect believe that he is powerlessto bring an end to the interrogation unlesshe conesses. In Why Do People Conessto Crimes They Did Not Commit? Pro.Steven Drizin explains how the tactics yield aconession, true or alse:

Once the suspect is on the brink ohopelessness, the interrogator engages intactics designed to persuade the suspect thatthe benets o conessing outweigh the costso continued resistance and denial. Here,the interrogator makes oers to the suspect,ranging rom low-end inducements like appeals

to the suspects conscience (the truth will

set you ree) or religious belies (God willorgive you), to suggestions that the conessionwill be treated more avorably by those in thesystem with the power to determine his ate(judges react more avorably to remorseuldeendants), to the more coercive inducementswhich expressly or by implication promiseleniency or threaten harm. Most people aresurprised to learn that it is perectly legal orpolice to lie to suspects.

Anyone being interviewed in a policeinvestigation is susceptible, with j uvenilesand those with lower IQs being themost vulnerable. A study conducted by

Proessor Drizin revealed that juveniles weredisproportionately represented among thealse conessors, and the majority o juvenilealse conessors were between the ages o 14and 17, the age range in which many allegedjuvenile oenders are tried as adults. Likejuveniles, Mentally Handicapped people whoalsely conessed, did so in an eort to pleaseauthoritative gures and/or because theymistakenly believed that is what they weresupposed to do.

In the well documented West Memphis 3Case in Arkansas (www.Freewestmemphis3.org) Jessie Misskelley, Jr., 16 years old andmentally disabled with an IQ o 67 at thetime o the murders, was convicted o a triplemurder based solely on a conession that, likemost alse statements, ailed to match crimescene evidence. In his so-called conession, hemade incriminating statements that placed

him with the three murdered children at9:00 am on the day o the murders. Theproblem with this statement was that thevictims were actually in school during thattime. The West Memphis police, unhappywith Jessies statement, continued to suggestJessie admit to his involvement at times moreclosely associated with the estimated time odeath. He nally agreed to the promptingo his interrogators and changed his story tosuggest that he and his co-deendants werewith the children in the evening. The act thatMisskelley and his riends had strong alibis ortheir whereabouts that evening did not matterto the police. Misskelleys alse conession wasalso used to convict Jason Baldwin, sentencedto lie without parole, and Damien Echols,who is currently on death row in Arkansas.

In addition to custodial interview tactics,law enorcement personal also engage in twodistinct investigation tactics that incite alseconessions. The rst o these is the two stepinterrogation technique, and the second is theknock and talk procedure. The essence othe two step interrogation technique is to

question the suspect rst, without the benetoMirandawarnings, and then administerMirandawarnings and resume questioningdesigned to have the suspect repeat theanswers previously given. This is a deliberativetechnique designed to circumventMiranda.The Supreme Court has, by the narrowest omargins, condemned this type o interrogationtactic because it is designed solely to get aconession the suspect would not make i heunderstood his rights at the outset. Missouri

v. Seibert, 124 S.Ct. 2601 (2004). A secondcommon tactic is the knock and talktechnique. In this technique ocers seek toblatantly intimidate a suspect by catchinghim by surprise, overwhelming the individualwith their presence and engaging in overt acts

causing a reasonable person to eel they arenot ree to leave. Courts have held this is areasonable investigative tool when the ocersseek to gain an occupants consent to searchor when ocers reasonably suspect criminalactivity. United States v. Jones, 239 F.3d 716,720 (5th Cir. 2001).

Sadly, but not surprisingly, a recent surveyconducted by the American Bar Associationindicated that 68% o those polled elt the

possibility a person would conethey didnt commit is not very oanother 28% believed that a persnever coness to a crime they didWhat then is the answer? A glimexists in the number o states and

jurisdictions that are now requirinterrogations to be electronicallin their entirety in order to preveand to provide an accurate recorproceedings. I we are to ever mpreventing the number o wrongdue to insidiously procured alserequiring transparency in the coupolice interrogations is a promisi

StSteve Toland, Partnerand Jeff Peek, Partner


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CriminalDefense lawUpDate

Fienen v. State, Texas Court of CriminalAppeals, November 21, 2012: The Texas CriminalCourt o Appeals held that a deendant arrested orDWI did voluntarily and consciously consenttoa breathalyzer test, even though he rst reusedconsent. Ater his arrest deendant reused to providea breath sample two separate times. The arrestingocer responded by telling the deendant that hewould be required to provide a blood sample througha search warrant. Based upon the ocers assertion,the deendant changed his mind and consented to abreath test. During the pretrial phase deendant led

amotion to suppress the evidence of his breathalyzertestbased on Erdman v. State, 861 S.W. 2d 890.In Erdman, the Court held that an appellantsconsent to a breathalyzer test was involuntarybecause the arresting ocer gave the appellant notonly the statutory warnings, but included additionalinormation which the Court determined amounted tocoercion through psychological pressure. Surprisingly,in this case, the Texas Criminal Court o Appealsdisagreed and overturned Erdmanand its progenynding that Erdmanailed to consider the totalityo the circumstances and placed an improper burdenon the deendant to show they were coerced to takethe breathalyzer test. As a result o this reasoning,the Texas Criminal Court o Appeals ound that theocers statements regarding the breathalyzer testand blood test in Fienenwere not prolonged, didnot exchange or exert psychological pressure, did n otthreaten, or deceive the deendant and that deendantsultimate consent to the breathalyzer was conscious andvoluntary based on the totality o the circumstances.

immigration lawUpDate

Breaking legalnews:Stateside Waiver for Consular Process

On January 2, 2013, 2013, the Department oHomeland Security (DHS) announced an amendto a current regulation aecting spouses, childrenparents o U.S. citizens who are living in the U.Sunlawully and eligible or consular process. The change will allow those applying or consular prothe opportunity to apply or a waiver o inadmissprior to their departure or their country o origian immigrant visa, thus greatly reducing the leng

time amilies will be separated. The change to theregulation will become eective on March 4, 201Prior to this change in regulations, consular p

required applicants to travel to their country o orequest an immigrant visa through the U.S. StateDepartment while abroad, which would likely bebecause o their illegal entry into the U.S. The rewas that applicants would then be required to reqwaiver o inadmissibility or their unlawul presethe U.S. The entire process would all take place wapplicant was in his or her country o origin and take up to a year and a hal or app roval. Once apor a waiver, the applicant was able to return to thU.S. and receive his or her lawul permanent resior green card. However, this process was lengthy consular process applicants were separated rom tamilies or the entire duration o the process abrThus, those individuals who were possibly eligiblconsular process were reluctant to apply because did not want to be separated rom their amilies iU.S. or such a long period o time.

The recent change to the consular process regwill allow applicants the opportunity to apply antheir waiver while in the U.S prior to leaving or country o origin. Those who are approved or thwaiver will still be required to return to their couorigin or an immigrant visa; however their wait tor their immigrant visa will be less prolonged bethey will only have to undergo one approval procthe immigrant visa approval process. This changegreatly improve ineciencies, decrease costs, andthe amount o time that amilies are separated whundergoing the consular process.

Legal UpdateTIP: The 5th Circuit court indicatedin its decision that the Assault in that casewas committed with the requisite level oscienter..., which was intentionally and

knowingly. Texas Penal Code 22.01 alsopermits or an Assault to be committedRecklessly. In the event you cant convincethe State to dismiss or reduce the Assault to aClass C Oensive Contact Assault (whichthe courts have held does not qualiy as morallyturpitudinous), look to plea the client to merelyreckless assault, which would then take awaythe intent to cause physical harm, a term usedin the BIAs decision in In re Solon, which the5th Circuit quoted as its justication in Esparza-Rodriguez. In re Solon, 24 I.& N. Dec.239,241-42 (BIA 2007);

The UglyLast but not least, the most damaging

conviction or an Immigrant coming out o aplea bargain or Class A misdemeanor Assault

under Texas Penal Code 22.01 (regardlessi it has the Family Violence Finding or not),is a sentence o 1 year or 365 days. Class Amisdemeanors have a range o punishmentup to 1 year in jail. Many times prosecutorswhen oering probation will oer a 1 yearsentence, probating that sentence or 1 or 2years (meaning the client is on probation or1 or 2 years, and i he screws up on probation,the court can sentence him or up to 1 yearin County Jail). The problem is that Assaultby denition has been classied as a Crime oViolence under Federal Law in section 16 o title

18, United States Code. Under section 101(a)(43)(F) o the INA holds that a crime o violenceor which the term o imprisonment is at least1 year is an Aggravated Felony. AggravatedFelonies not only ruin almost every type oimmigration relie and uture immigrationoptions one has, but it also can expose animmigrant to uture serious enhancements underthe Federal Sentencing Guidelines, should thatimmigrant illegally reenter the country in theuture. For this reason, the conscionable and

educated criminal deense practitioner should doeverything in his power to avoid entering a pleaagreement in which his non-U.S Citizen clientpleads to a 1 year probated sentence, or pleadsto a 365 day jail sentence or any misdemeanorAssault charge. To do so would make his clientan Aggravated Felon, and completely ruin his

uture immigration options.

(Endnotes)1. 101(a)(15)(U) o the Immigration & Nationality Act (INA).2. 101(a)(51) o the INA; 245(a) o the INA.3. 204(a)(1)(A)(iv) o the INA.4. 204(a)(1)(A)(iii)(I)(bb) o the INA.5. 245(m)

ion. The hope o Immigration andnal Deense advocates everywhere ise Court decides that Padilladid nota new rule but rather simply appliedorced the standard or ineectivence o counsel as adopted in Stricklandhington (1984). That a person whon his trained, educated, proessionallor at law to advise him o potential lieg harmul consequences o a criminalrgain such as being kicked out ountry and barred or lie to reenter

ourse when that attorney ails to advise,ses incorrectly, and the client relies onhis grave detriment.

ur oces, I requently meet potentialin consultations who have beennted in the past or a criminalion by another attorney, who ailed tothe immigration consequences o a

al plea bargain. Those potential clientsever been told that because they pledo a drug conviction, the inevitableentual result is placement in removaldings, sometimes without any orm

.

currently are representing a client ination proceedings who has lived legallyU.S. or over 20 years as a permanentt. He is acing deportation proceedings

onviction under Texas Penal Coden 38.05, Hindering Apprehension. Ourhad loaned some money to his son, whoppened to have a warrant or his arrestlony charge. The police learned that our

client had loaned his son money, and arguedhe was helping to provide aid in providingthe other with any means o avoiding arrestor eecting escape, and charged him withHindering Apprehension. Never mind that the

38.05 requires that the aid has to be givenwith intent to hinder the arrest, prosecution,conviction o punishment o an oense andthat it would be very dicult to prove onesintent just by lending money - or whateverreason our clients Court appointed criminaldeense counsel convinced him that it wouldbe better or him to plead to this elonyconviction and settle or 10 years probation.

However, this was not the best choice orour client because his attorney ailed to advisehim that by pleading to this elony conviction,he had pled to an Aggravated Felony

under 103(a)(43)(S) o the ImmigrationNationality Act (Obstruction o Justice). Asa result o our clients plea, he is now acingdeportation proceedings without any orm orelie.

Unortunately or our client, he pled guilty

in 2009 beore Padilla. I the SupremeCourt decides the Padilladecision is notretroactive, then our client and thousandslike him will be barred rom relie, eventhough they were ailed by their deenseattorneys in providing constitutionallydecient representation in violation o their6th amendment right to the assistance ocompetent counsel.

Family Violence Assaults and Immigration:The Good, Bad, and the Ugly continued...

ere Hope For The Immigrant Convicted Pre-Padilla? continued....

Mike Burke, Boston Cote, Jeff Peek, Steve Toland,Alex Aguirre and Diego Nunez, Attorneys at Peek & Toland


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Peek & Toland, L.L.P.Los Abogados Geros

1214 E. 7th StreetAustin, Texas 78702

Ph: 512-474-4445

Fax: 512-474-4466

www.peekandtoland.com

This information this newsletter should not be relied

n as legal advice and does not constitute legal advice.

Issue 2January 2013

Core Values in Action

Called to champion those in need,every day in every small way, by:

Core Values:

o Blog: www.peekandtoland.com/blog

o Twitter: www.twitter.com/PeekAndToland

o Facebook: www.acebook.com/PeekAndTo

Responding Graciously

Advocating Tenaciously

Sowing Generously

Investing in Excellence

Restore Compellingly

sowing generoUsly

Christmas Party and Fundraiser

On December 12, 2012, Peek & TolandLaw Firm hosted its rst ever ChristmasFundraiser and Party beneting CasaHogar de la Montaa childrens home,nd the International Justice Mission.

Peek & Toland Law rm was able toaise more than $12,000.00 or bothrganizations. However, Peek & Tolandould not have been so successul

without generous donations rom theUniversity o Texas Longhorn Footballnd Basketball coaches, Football Coach Mac Brown and Basketball Coach Rick

Barnes. Additional contributions were made by Heisman trophy winner and ormerUT Longhorn Football quarterback Earl Campbell, Heisman trophy winner andormer UT Longhorn Football quarterback Vince Young, and ormer UT Longhorn

deensive tackle Doug English. Other generous contributions were made by local Austinestaurants, the Alamo Drathouse, Austins Pizza, Tacodeli, Takoba Restaurant, the

Eastside Cae, and Maudies Tex-Mex. Additionally, the Peek & Toland Christmas Partynd Fundraiser received generous donations rom local Austin olk band, Carrie Annnd the Apocalyptics, local audio and video products and service store, A&B TV, andocal diamond wholesaler, Simply Radiant, LLC. Peek & Toland is grateul or all thatttended and donated to the Peek & Toland Christmas Party and Fundraiser.

Peek & Toland Attorneys & Staff

at Christmas Fundraiser & Party

Documents

Peek and Toland January 2013 Newsletter