Peek & Toland October 2012 Newsletter

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Peek & Toland, L.L.P.

Issue 1October 2012

Criminal Defense &

Immigration Intersection

Immigration Law Section

Case Victories

IMMIGRATION DETAINERS AND THE 48 HOUR RULEby Je Peek & Steve Toland, Partners

In January 2008, Immigration

Customs Enorcement (ICE)ramped up their eorts to deportillegal immigrants who had beenarrested and were in local jails.What had been a once randomand very inrequent presence byICE in the county jails became adaily occurrence.

The process o an ICE detainervaries rom county to county, butbasically the detainer is placed byan ICE ocer (or sometimes aCounty Jail employee acting on

behal o ICE) ater the ocer hasveried that the arrested person inquestion was not born in the U.S.,is not a U.S. Citizen, and doesnot have any immigration status.However, a detainer is not limitedto only those who do not haveimmigration status, detainers canalso be placed on people who arelegally in the U.S., but have beenconvicted o a crime that rendersthem deportable.

The problem is ICE holds do not

stop there. Because there are somany jails, so many arrested people,and not enough ICE ocers, inmany instances people who shouldnot have ICE holds placed on themend up with ICE holds (which is awhole another problem with due

process, but that is another article

or another day). The good newsis that usually the representingattorney can coner with ICE andprove to them the legal status o hisor her client and ICE will lit thedetainer. But i the detainer sticks,then what happens?

The Code o Federal Regulations,under Title 8 Section 287.7(d) reads:

Temporary Detention at theDepartment of HomelandSecuritys Request. Upon adetermination by the Department

to issue a detainer or an Alienno otherwise detained by acriminal justice agency, suchagency shall maintain custodyo the alien or a period notto exceed 48 hours, excludingSaturdays, Sundays, and holidaysin order to permit assumption ocustody by the Department.

There are two options or anarrestee who has been served hisor her sentence, either his or hercharges are dropped or a bond is

posted. Once the the local jail nolonger has authority to hold thatperson or a crime or out o countywarrant, the 48 hour clock beginsto tick or Immigration to pick upthe detainee. The law states that the48 hour period does not include

Saturdays, Sundays or holidays

Thus, i a detainees bond is poon 3:00 P.M. on Friday, ICE huntil 3:00 P.M. on Tuesday to tthe detainee into its custody.

I have waited on many 48 hourperiods to end, hopeul my cliewill be ortunate enough to beorgotten by ICE. However, ICrarely ails to pick up a detaineRoughly 2-5% o detainees slipthrough the cracks, so a watcheye is necessary in order to swipand rescue a client i he is orgo

ICE also inrequently decides oown to release a detainee i it hheld him or her beyond the 48 period. The reason? The jails anot equipped with a sta dedicto monitoring that the inmatesreleased within the 48 hour timperiod. So the only way an attocan rescue somebody who has bheld beyond the 48 hour windois i he or she personally keeps eye on the detainee, and then cthe jail out on the violation onc

it happens. Ironically, the jail wnot police itsel on the matteand is not worried about violatthis Federal law. Imagine that: Enorcement authorities willuand knowingly violating FederImmigration Law! What do wepeople who do that? Illegals!

Criminal Defense Section

Legal Update

Core Values in Action

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

Christmas Party

and Fundraiser

Rattle Inn, Dec 12, 2012

Donationsbenet

International Justice

Mission and Casa

Hogar de La Montana

Firm Events

Recent Events

Deferred ActionInformation Seminars

August 11, 2012:

Mission Christiana

Maranatha Church

July 21, 2012:

Mariscos Tampico

Restaurant

July 14, 2012:

Crestview Baptist

Church

July 14, 2012:Cristiana Verbo Church

July 7, 2012:

Life Point Church

July 1, 2012:

First Evangelical Free

Church

2nd Annual Peek &

Toland Retreat and CLE

August 3-5, 2012:

J.W. Marriott Spa and

Resort in San Antonio

In This Issue

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Where Criminal Law &Immigration Law Intersect

Je Peek, Partner andSteve Toland, Partner

Je Peek, Partner andSteve Toland, Partner

Boston Cote,Immigration Attorney


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amily to nd competent and experiencedcounsel. They went to two attorneys, bothBoard Certied in Immigration Law, and bothwell respected attorneys who have practicedover 20 years each. In their inquiries neitherone o them detected this ground o relie. Imy clients amily had not gone or one last nallegal opinion, he would already be deportedand back in Mexico with his prospects anddreams ruined, having relied on incorrect legaladvice. I am not sharing this story to boast oany superior intake practices, or unique abilityto spot a legal argument, because even I wasabout to wrap up my interview without morequestions. I had almost accepted rom theoutset that there was probably no hope, solelybased on the act that the amily had alreadyconsulted with two veteran, respected colleaguesin Immigration and were told there was no

hope. No. Had I not been thorough, it couldhave just as easily been me giving a alse negativeprognosis.

To be competent at the practice o law onemust know the law and all o a clients potentialremedies and relies, but asking the rightquestions and being comprehensive about detailsare by ar the most important job o an att orneyin a consultation. I share this story with you toencourage you to never rest on your laurels andexperience, to always turn over every statutorystone, and to peak in every legal crevice to makesure you have exhausted all options. Your clientsuture very well depends on it.

Immigration Case VictoriesJuly 11: Client is a legal permanent resident who was placedin removal ater being detained by border patrol or a priorelony conviction o aggravated assault with a deadly weapon. 8U.S.C. 1101(43)(F)denes an aggravated elony as, a crimeo violence or which the term o imprisonment is at least 1year. Clients ormer elony conviction resulted in deerredadjudication and no imprisonment. Thus, clients ormerconviction was not an aggravated elony exempting client romlegal permanent residency status as dened by U.S. law. Ourimmigration team won clients cancellation o removal case andclient continues to hold his legal permanent residency status.

August 23: Client was a minor who entered the U.S. under a visa as an inant whis amily. Client hired our rm or his cancellation o removal proceedings atecharged with possession o marijuana. Client attended juvenile boot camp and wto his parents at which time the rm began his adjustment o status paperwork.our rm was working on clients cancellation case, client was arrested and conea elony endangering clients cancellation o removal case. Thanks to the work ocriminal department, clients elony charge was dismissed and negotiated down misdemeanor charge. Our immigration team was then able to win clients canceremoval case allowing client to adjust his status and become a legal permanent r

August 27: Client hired our rm to help her with her Mexican citizen ances waiver. Client had previously completed all the paperwork or a K-1 ance visain the nal stages o a the process, t he I-601 visa waiver. Clients ance had beecountry or over a year, causing extreme emotional distress and extreme nanciaor our client. Our immigration team was able to prove all the requirements orincluding hardship, resulting in an approved visa waiver or clients ance. Cliehusband are now reunited and married thanks t o our immigration teams hard w

Criminal Defense Case VictorieFebruary 10th: Client was charged with Driving While Intoxicated ater being appearing lost in a neighborhood and subsequent to his arrest, providing a vesample. Utilizing photographs we took at the scene with video taken during thour attorneys were able to win a suppression hearing ater demonstrating that thdetention o client did not meet any o the established warrantless exceptionsFourth Amendment. Clients DWI charge was dismissed.

April 18th: Client was pulled over or crossing over the center line, subsequentor Driving While Intoxicated and provided a very high breath sample. Our attsuppression hearing o the trac stop ater investigating the sceneand analyzing photos rom Google Earth showing that the neighborhood streour client was detained did not have center lines. Clients DWI charge was d

July 3rd: Client was charged with elony and misdemeanor evading arrest. TheReport alleged our client was speeding in excess o 100 MPH beore colliding wbus and feeing on oot. The elony evading arrest charge was dismissed ater ou

demonstrated that the State could never prove the requisite element o intentarresting ocer admitted that he was so ar behind our client that he could barevehicle; thereore, we successully argued, our client could not have known the oattempting to pull him over.

August 23rd: Client, not yet a citizen, was charged with possession o a prohiba third degree elony, while hunting on private property. Our attorneys led a MSuppress and, arguing a property based approach to the reasonable expectatioclause o the Fourth Amendment, convinced the Court that the police perormesearch o private property when they arrested our client. As a result o getting thdismissed or insucient evidence, our client maintained his permanent residenavoided deportation.

Immigration

From Deportable Aggravated Felon To A U.S. Citizen:

The Importance Of A Thorough Immigration Consultationby Je Peek, Partner

er this year the mother o a potentialnt came in to see i there was any hoper son who was currently sitting in the

y Jail serving a sentence or a Possessionijuana. Unortunately, the son was a

nent Resident and the sons Possession oana conviction created a problem or hisration status. It was not the rst timehad a run in with the law. More like

. In act, he had already been placedoval proceeding with the Immigrationonce beore due to a prior drugion and several convictions or Crimesal Turpitude. Luckily or him, at thate had already been a Permanent Residentnough to qualiy or Cancellation o

al. So he led or the relie, and waswin the Cancellation case and stay anda Permanent Resident.

e who practices Removal Deense inO.I.R. (aka, Immigration Court), willm that Cancellation o Removal is a greaty; however it can only be used once.et out o deportation ree card to useWhat happens i a deendant ends up

tting another deportable oense aterWell, he or she is most likely out o luck.

ably or this client, he had not onlyssion o Marijuana conviction on hishe also had a Burglary o a Habitationn his record, which he pleaded downuced charge o misdemeanor Criminale. Neither his Possession o Marijuanaion nor his burglary charges were

g his current predicament.

en this clients amily came to me toat his chances in Immigration Courtt was not looking good. Furthermore,ld me they had already been to visit toher Immigration attorneys (both Boarded and very well respected bastions

Austin Immigration community) andad advised the amily that there wasg that could be done. Both attorneysted that the amilys son was removabletable) and he no longer had any relie.blush, I agreed with them. However,ew more questions to ask, specicallyes o questions asked on the last pageonsultation Intake orm. They are thens asked or due diligence purposes.re the same kind o questions mostys already know the answer to beoree asked but ask them anyway, just inthe answers all into place correctly,

they provide a glimmer o hope via a HailMary approach to the legal process.

I have been practicing Immigration law orten years, and I can honestly say I do notthink I have had anybody ever provide mewith a avorable answer to the question Iasked next. I asked i the clients parents wereUnited States citizens and the mother repliedthat the ather was. My ears perked up. Uponurther investigation, I determined the atherwas naturalized in the 1970s. However, thenext questions revealed that on the date thatthe ather Naturalized, the client had alreadyturned 18 years old. I realized then that clientwas not going to be able to take advantage othe section 320 o the I.N.A. the section

that coners Citizenship by act o law i on thedate o the parents Naturalization the child othe Naturalized parent is under 18 years old, apermanent resident, and present in the UnitedStates. (Child Citizenship Act o 2000, 320,as amended by P.L. 106-395). My interest andhope or my clients Derivative Citizenshipclaim suddenly vanished. In act, I almost didnot even ask the very last question because in10 years o practicing I know I have never hadanybody give an answer that opened the doorto a remedy.

Well, Im sorry Mrs. X, I was hoping wecould claim he was a Citizen due to his atherbeing a citizen and him deriving it rom hisdad, but since he was already 18 when his Dadnaturalized, thats not an option. The onlyway would have been i his Mom or Dad werealready a US Citizen beore he turned 18 andhe had derived citizenship back then. Hismothers next words were intriguing: Well,his grandmother his Dads mom, was aUS Citizen by birth. Wait..what ? Hisgrandmother was born in the United States.

I had dismissed the possibility that my clients

ather was a U.S. citizen at birth because he wasnot born in the U.S. Rather, my clients atherhad become a Permanent Resident and didnot naturalize until 1978. I just assumed i myclients ather had a derivative citizenship claim,he would have asserted it earlier. This is whereit gets interesting: My clients ather was bornin Mexico in 1934. His Grandmother (athersmother) was born in the U.S. back in the early1900s (1909 to be exact).

It is always an arduous yet ascinatingadventure when a lawyer has to dust ohis researching skills to gure out whatImmigration law was eighty years ago. Luckily

several resources (like Kurzbans ImmigrationLaw Sourcebook) make the job o researchingold Immigration law a lot easier. It turnsout that my clients ather did not need tonaturalize, because he was already a U.S.Citizen at birth. Even more amazing is thati his ather had been born just 1 month later(say in June 1934) he would have had to makethat citizenship determination under a newlaw which went into eect on May 24, 1934at 12:00pm Eastern Standard Time. (1993,Revised Statutes (RS); 7 FAM 1135; 301(h)INA; P.L. 103-416). And under that law hewould NOT have been a citizen at birth.

Ater determining my clients ather was acitizen at birth, I had to look at the law on theday when the ather was born. The law statesthat the ather had to have lived in the U.S. atleast 10 years beore my clients birth, and 5 o

those 10 years had to have been ater his atherwas 14 years old (301(a)(7) INA). Luckilyor our client, his ather had worked a greatmany years in the 1950s and 1960s in the U.S.and was able to prove he met the qualicationswith work records and tax records. So myclient - the once Aggravated Felon, mandatorydetainee, deportable alien - was released oncewe proved in Court that he was a U.S. Citizenat birth.

The moral o the story and cautionary taleis this: Do a thorough intake and ask all thequestions and explore every possibility. Thisclient was stuck in jail, and counting on his

Boston Cote,Immigration Attorney

Your


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CriminalDefense lawUpDate

Consent to Search a Vehicle

U.S. v. Ansourian, 5th Circuit, August 23, 2012:

The 5th Circuit held that consent is voluntaryand an act o ree will based on: (1) the temporalproximity o the illegal conduct and consent; ( 2) thepresence o intervening circumstances, and (3) thepurpose and fagrancy o the initial misconduct. Inapplying these actors, the Court ound deendantsconsent was voluntary and an act o ree will becausepolice told deendant he was ree to go and provided

deendant his drivers license and vehicle registrationbeore the search commenced. Additionally, thepolice received deendants verbal consent twice tosearch the vehicle and while the searches were beingperormed, the deendant never attempted to stopthe searches, revoke his consent or complain aboutthe length o the searches. Lastly, police inormeddeendant the purpose o the search was to look orillegal contraband. Thus, the Court ound deendantprovided consent that was voluntary and an act oree will.

immigration lawUpDate

Deerred Action or Childhood Arrivals

On June 15, 2012 President Obama and SecretarNapolitano announced a new immigration enorcpolicy aecting young immigrants brought to theU.S. by their parents prior to their 16th birthdaynew policy will allow qualiying young law-abidinimmigrants to receive work authorization permitssecurity numbers and greater opportunities in the

To qualiy young immigrants must:

(1) Have been present in the U.S. on June 15, 20

(2) Be under the age o 31,

(3) Arrived in the U.S. prior to June 15, 2007 andcontinuously resided in the U.S. since that date tpresent,

(4) Have arrived in the U.S. beore their 16th bi r

(5) Been currently in school, graduated high schoa GED or were an honorably discharged veteran Coast Guard or Armed Forces o the United State

(6) Have no elony convictions, signicant misdeand less than three misdemeanor convictions.

Legal Update

Criminal Defense

The Impact of Federal Enhancements on State Court Guilty Pleas

by Steve Toland, Partner

ising a client in the course o pleadingilty in state court is a complicated. Every criminal conviction has directuences upon your clients liberties.ly those consequences include someollowing: court costs, nes, probationmmunity service restitution, counseling,ion, imprisonment and loss o privilegesiving). These consequences are a partonditions o punishment and sentencenormally are explained by the judge toendant at sentencing. To make mattersomplicated, there are oten unoreseenal consequences to a conviction, such

o a proessional license, administrativees, and ineligibility or public unds liket loans. What separates good criminale practitioners rom excellent ones islity to not only anticipate the collateraluences o a conviction but to negotiatethem so that their harmul impact ised. Nothing tests this maxim quite likessy world o ederal enhancements.

ral law, the ederal sentencing guidelinesmodel or collateral consequencesis determined by the date o when thewas committed and by the type o the. Accordingly, or deense lawyers incourt we are oten called to analyzethe impact o a state-court guilty pleaort to determine whether the client isg at a higher base oense level becauseapplicability o an enhancement. It mayounter intuitive to be thinking abouttate-court guilty plea could impact your they are accused o a ederal crimeuture. Ater all, we like to think ourhave learned their proverbial lessonll not reoend. However, the collateraluences o many state-court guilty pleass ederal enhancements are so severe inases that it seems almost malpractice toeast contemplate their potential impact

negotiating a state-court guilty plea.

enhancements are applicable inmmigration and rearm oenses.pproximately 75% o all ederal casessome variation o drugs, immigration

earms, it becomes very important totand enhancements. Which state priors matter then? All o them potentiallyas aggravated elonies, drug trackings, and crimes o violence can trigger

an enhancement thereby doubling or triplingthe guideline range. How then do we knowwhether our pleas are creating uture problems?One way is to learn which state crimes havebeen deemed by the Fith Circuit to be crimeso violence. That is not always easy, or

example, try answering this Quiz:Which of the following is a crime ofviolence?1. Burglary o a habitation?2. Evading arrest with a vehicle?3. Felony assault?4. Aggravated assault o a peace ocer?5. Statutory rape?

Answers1. Burglary o a habitation Sometimes, itdepends on the code section.2. Evading arrest with a vehicle Sometimes.3. Felony assault - Always.4. Aggravated assault o a peace ocer Sometimes.5. Statutory rape? Always.

Pretty clear that the answer is the dreadedanswer that reminds attorneys o their rst yearo law school.the answer is IT DEPENDS.It depends on the 1) elements o the state-courtoense and 2) what the deendant admitted.So rst, see i there is a Fith Circuit caseaddressing the specic penal code section. Ithere is not, then you will need to closelyinspect the ollowing: the charging document,the written plea agreement, a transcript o theplea colloquy, and any explicit actual ndingsby the judge to which the deendant assented.

A practical example: Deendant is chargedwith the state elony oense o possessiono a controlled substance, a third degreeelony. His state court attor ney thinks he ishelping his client by negotiating a resolutionwherein Deendant pleads guilty to the lesser

included charge o possession o a controlledsubstance with intent to deliver, a state jailelony, and receives less time than a t hirddegree elony. All is well until many yearslater this same Deendant is charged withan immigration oense, and his potentialsentence is DOUBLED because the previousstate court elony drug charge is labeled as anaggravated elony. Specically the state courtattorney thought by getting his client less timein jail and reducing the drug charge rom athird degree elony to a state jail elony he washelping his client. However, the third degreeelony was seen as possession whereas thestate jail elony is a type o delivery charge.Drug oenses wherein a deendant was ound

guilty o tracking will double the potentialsentence in an immigration case.

Thus, criminal deense practitioners whorepresent clients in state court must understandhow ederal enhancements could potentiallyaect their clients in ederal court. Otherwise,criminal deense practitioners in state courtcould nd the legal advice they provide to theirclients potentially more harmul than helpul.

The Firm

attorneys

Steve Toland*Partner

Alex Aguirre*Criminal Defense Attorney

Mike BurkeCriminal Defense Attorney

Je Peek*Partner

Boston Cote*Immigration Attorney

Diego Nuez*Immigration Attorney

paralegals

Adriana Peek*Licensed MexicanAttorney and Paralegal

Carrie Ann BuchananCriminal Defense Paralegal

Claudia Rian*Criminal Defense Paralegal

Zaira Nathan*Licensed MexicanAttorney and Paralegal

Rubi Macedo*Immigration Paralegal

Karla Arguello*Immigration Paralegal

Mayra Nuez*Immigration Paralegal

Mayra Serrano*Immigration Paralegal

s

Alex ArJail ReleJessica DMarketMarta MLegal AsLily GaReceptio* Bilingual in Spanish and English

Steve Toland, Partnerand Jeff Peek, Partner


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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 1October 2012

Core Values in Action

CommUnityoUtreaChDeerred Action Inormation SeminarsThe past three months our rm was dedicated to providing ree inormationessions to the Spanish-speaking community regarding Deerred Action or

Childhood Arrivals. As a part o this outreach eort, Peek & Toland hostedvents at local churches and restaurants inviting young immigrants to educatehemselves about the recent changes to immigration enorcement policies.

The inormation sessions were a huge success providing important legalnormation to over hundreds o young people and their parents. Deerred

Action or Childhood Arrivals went into eect on August 15, 2012 and willotentially aect 1.7 million young immigrants.

firm Cle

eek & Toland Law Firm celebrated its Second Annual Retreat at theW. Marriott Hill Country Resort and Spa in San Antonio, Texas, Augustrd through August 5th. On the rst day o the retreat, attorneys andta attended a CLE on the Federal Eects o State Court Guilty Pleasresented by Assistant Federal Public Deender David Petersen and a teamuilding workshop ocused on Marcus Buckinghams book, Now Discover

Your Strengths.

sUpporting oUrClients

One o Peek & Tolands clients lost all o his possessions when a reestroyed his amilys home. Peek & Toland reached out to the clientnd his amily and was able to help in their time in need. Peek & Tolandurchased new beds or the entire amily, as well as new clothing and

oys or the amilys small children.

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

Core Values:

Responding Graciously

Advocating Tenaciously

Sowing Generously

Investing in Excellence

Restore Compellingly

o Blog: www.peekandtoland.com/blog

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o Facebook: www.acebook.com/PeekAndToland

Documents

Peek & Toland October 2012 Newsletter