Peek & Toland, L.L.P.

Issue 2
January 2013
Criminal Defense &
Immigration Intersection
Immigration Law Section
Case Victories
IS THERE HOPE FOR THE IMMIGRANT CONVICTED PRE-PADILLA (3/31/2010) ?
(Whose Defense Attorney Failed To Advise Them Their Plea Was Going To Screw Them)
by Jeff Peek, Partner
O
n November 1, 2012 the U.S.
Supreme heard oral arguments
on Chaidez v. U.S., a case decided
out of the 7
th
Circuit which held
that the Supreme Courts previous
ruling in Padilla v. Kentucky,
does NOT apply retroactively
to criminal cases pled before its
decision was handed down on
March 31, 2010.
Padilla was groundbreaking
in that for the frst time
ever, the Court held that
immigration consequences of a
criminal conviction, a collateral
consequence, were the exact type
of subject matter that a competent
and reasonable criminal defense
attorney should discuss with his
client in counseling and advising
his client on whether or not to
accept a plea bargain. Previously
the court had held that only
incorrect advice given on the
immigration consequences (an act
of commission) were grounds for
ineffective assistance of counsel, but
in Padilla expanded that ruling to
include an attorneys failure (an act
of omission) to advise his clients
of the immigration consequences
of his criminal plea, when those
consequences are clear.
The question posed by the Court
in Padilla, and one which they left
for a later day, was whether or
not their ruling would open
the foodgates to thousands of
previously convicted immigrants
who had previously plead guilty to
deportable offenses, but were never
advised before the plea by their
defense attorney, that their plea
would result in their deportation.
The decision will depend on
whether the Padilla ruling in is
interpreted to be a new procedural
rule which the Court previously
held in Teague v. Lane (1988)
could not be applied retroactively
to a collateral attack on a criminal
Criminal Defense Section
Legal Update
Core Values in Action
Firm Newsletter Dedicated to Immigration Law, State and Federal Criminal Defense
Continued on page 6...
Firm Events
Recent Events
In This Issue
1
2
3
4
7
8
PG
Where Criminal Law &
Immigration Law Intersect
Peek and Toland Firm
Steve Toland, Partner and
Jessica Dobias, Marketing Specialist
Jeff Peek and Steve Toland,
Partners
Christmas Party and
Fundraiser
The Rattle Inn,
Dec 12, 2012
Raised more than
$12,000.00 in donations
benefting Casa Hogar de
la Montaa orphanage
and International
Justice Mission.
Guatemalan Consulate
Sponsorship for
Deferred Action
First Baptist Church,
Nov 3-4, 2012
Peek & Toland Firm
White Elephant
Brick Oven, Dec 18, 2012
Employee White
Elephant Gift Exchange
Fifth Friday Fun
On Track Xperience,
Nov 30, 2012
Team Building event
at local racetrack in
Kyle, Texas.
Alex Aguirre, Attorney and
Mike Burke, Attourney
Criminal Defense Case Victories
December 13, 2012: In 1996 our client was
17 years old and in a dating relationship with a
13 year old. The girls father disapproved and
our client was charged with aggravated sexual
assault. Shortly after turning 18 our client
pled guilty to the third degree felony offense of
indecent exposure. After completing his prison
sentence he was deported from the United States
in 1998. Client subsequently re-entered the
U.S., married and had two children where he
played an active and loving role in their lives.
He was discovered during an immigration
raid, cooperated, arrested and charged with
illegal re-entry. Currently in the Fifth Circuit,
statutory rape is a considered a crime of violence
necessitating a sixteen level increase of the base
offense level. To put that in laymans terms a
prior crime of violence increases an illegal entry
sentence by 200% or more. For our client, who
only had the one conviction in 1997, he went
from facing 6 to 12 months to facing a top-end
guideline sentence of 51 months.
Peek & Tolands federal criminal defense
team fled legal objections to the Presentence
Investigation Report citing a Fifth Circuit case
that was granted En Banc Review on November
29, 2012 to determine whether statutory rape
should be considered a crime of violence.
Additionally, the attorneys fled a Motion for
Variance citing the remoteness of the prior
conviction, the clients exemplary record since
his arrest in 1997, cultural assimilation, and
the constitutional barriers against double
counting. While the District Judge overruled
Peek & Tolands legal objection, the judge
granted the Motion for Variance, sentencing
our client to twelve months and 1 day, resulting
in an incredible 3 + year downward departure.
In federal court, any sentence of 12 months or
less results in the defendant fulflling the entire
sentence, day for day. However, a sentence
to time greater than 12 months, allows the
defendant to earn good time credit reductions
every month. Client and his family were
extremely grateful with the extraordinary result.
December 4, 2012: Client was arrested and
charged with reckless driving. The alleged bad
driving happened in a two-lane residential
street. He was accused of passing a vehicle
on a blind curve and into oncoming traffc.
After passing the vehicle, the client allegedly
drove into an accident scene where the
arresting offcer observed the offense. During
cross examination, the arresting offcer gave
conficting testimony as to what he observed.
The jury was out for approximately 30 minutes
before returning a verdict of not guilty.
September 28, 2012: Client was charged with
conspiracy to possess and intent to distribute
marijuana, a federal charge. Client hired our
Criminal Defense team to help defend him
in his federal case. Upon further inspection
of the evidence, the Peek & Toland Law Firm
discovered that the prosecutions offce had failed
to fle a Report of Investigation. The Report of
Investigation was eventually located, but failed
to mention our client by name for any of the
alleged crimes he committed. As a result, Peek
& Toland Law Firm was able to successfully
argue that our clients case should be dismissed
for lack of evidence against him.
September 14, 2012: Client was arrested for
evading arrest in a vehicle, a state jail felony,
and resisting arrest, a misdemeanor. Client has
temporary protected status because is he is an
immigrant from El Salvador. Peek & Toland
Law Firm attempted to get Client a pretrial
diversion program, but was denied when the
District Attorneys offce decided that evading
arrest cases would not be accepted for a pretrial
diversion program. However, our attorneys
were able to negotiate a straight dismissal of
the felony charge, contingent on the Client
entering into a misdemeanor pretrial diversion
program. Luckily for our Client, the County
Attorney let our client into the misdemeanor
pretrial diversion program. Client was extremely
fortunate to receive such a favorable decision
and even the District Attorneys offce fnal
interviewer commented that she could not
believe our Client was in the program.
Immigration Case Victories
On Going Case: Client was a legal permanent
resident representing himself pro-se in a removal
proceeding when one of Peek & Tolands
immigration attorneys was preparing for Court
with another client. Client was struggling
through the Court proceeding in front of the
Judge, so our immigration attorney stepped in
and told the Judge she may be able to the help
our Client pro-bono. Client agreed and hired
Peek & Toland. After the initial consultation
with Client, our immigration attorney realized
that Client, who was about to be deported,
had actually achieved citizenship by act of law
through the Child Citizenship Act several years
earlier, and was already a U.S. citizen. Thus,
Clients criminal convictions, which would have
usually resulted in a legal permanent residents
deportation, would not affect Client as a U.S.
citizen. Before meeting with Peek & Toland,
Client would have likely been deported, but
because he was provided an opportunity to
consult with experienced and knowledgeable
immigration attorneys who were able to evaluate
the facts of his case, Client will remain in the
U.S. as a U.S. citizen.
December 4, 2012: Client is a legal permanent
resident who was arrested for a DWI. Client had
several prior convictions for burglary of a vehicle
and possession of drug paraphernalia. Client
has a family in the U.S., including a pregnant
wife and two other children from a previous
relationship in which he has custody. Our
Criminal Defense team was able to help Client
plead out his DWI charge, so he was still eligible
for Cancellation of Removal. Then Peek &
Tolands immigration team stepped in arguing
before the immigration judge that Clients prior
convictions were not suffcient crimes of moral
turpitude to preclude Client from relief. The
judge agreed and cancelled Clients removal
proceedings allowing him to stay with his family
in the U.S.
December 3, 2012: Client is an undocumented
person with four U.S. citizen children
and a non-U.S. citizen husband. One of
Clients children is chronically and critically
ill, permanently disabled, requires use of a
ventilator and only travel via ambulance with
medical supervision. Client was placed in
removal and faced deportation proceedings.
The immigration team at Peek & Toland was
able to show that removal of Client would place
extremely exception and unusual hardship on
her U.S. citizen disabled child, that she was
a person of good moral character, and that
she had continuously resided in the U.S. for
ten years. Thus, the Court granted Clients
cancellation of removal case and allowed her to
stay in the U.S. with her children.
November 8, 2012: Client is an undocumented
person who was arrested for assault. Clients
wife is a U.S. citizen and his two children are all
U.S. citizens. Clients wife is chronically ill and
disabled. Peek & Tolands immigration team
was able to argue that Client should be able to
stay in the U.S. since he was married to a U.S.
citizen and had three dependent U.S. citizen
children, all of whom would suffer extremely
exceptional and unusual hardship if Client
was deported. The judge agreed and Client
became a legal permanent resident and won his
cancellation of removal hearing.
Immigration
Family Violence Assaults and Immigration:
The Good, Bad, and the Ugly
by Jeff Peek, Partner
R
epresenting an immigrant when con-
fronted with a charge of Assault Family
Violence can be one of the more challenging
issues a Criminal Defense/Immigration
Practitioner faces. The reason being is a charge
and potential conviction for Assault Family
Violence challenges the Attorney to identify
and understand the multi faceted risks and
opportunities involved in the pending case, the
complexity of which usually is only seen in a
law school exam.
Assault Family Violence (as it is commonly
called) is an Assault Bodily Injury under
22.01 of the Texas Penal Code charge with
the potential to have a Family Violence fnding
meaning that the victim was related to the
Defendant under one of the relationships laid
out in 71 of the Texas Family Code. Assault
Family Violence carries with it 3 potential
problems if the immigrant is convicted of it,
but also carries 2 potential opportunities if the
immigrant is the victim.
The Good
Immigration has a couple of Safe Harbor
provisions for immigrants, who would
otherwise be deportable, in the event they
are victims of violent crime. The 2 most
commonly used immigration processes to
protect these immigrant victims, are the U
Visa
1
and VAWA
2
(Violence Against Women
Act). The U visa allows a victim of Assault
Family violence to obtain a work permit,
and eventually (after a 3-4 year wait) obtain
Permanent Residency. The victim is required
to have: (1) suffered substantial physical or
mental abuse as a result of having been a victim
of the criminal activity (Assault and other
abuse); (2) possess information concerning the
Assault; (3) be helpful to local law enforcement
and/or prosecutors in investigating and
prosecuting the crime; and (4) the crime was
committed in and is in violation of laws of the
United States. Perhaps even a bigger beneft, is
that the victims spouse and children (under 21)
can also receive the same immigration benefts.
If the victim is under 21, her parents can also
beneft and be eligible for the visa.
VAWA is a little different in that it require
the victim to be married to the accused
and it require that the accused be a Lawful
Permanent Resident or a US Citizen (Abused
immigrant children can also qualify under
VAWA).
3
USCIS
has been a little
more broad in
their defnition of
being batteredor
subject to
extreme cruelty
in that it doesnt
require that there
have been an
arrest or criminal
charge (resulting
from the abuse) as
is required under
the U Visa.
4
One
big difference
is that under
VAWA you can
self petition,
meaning you dont
have to require
a signature by the petitioner, nor do you have
to receive the signature from law enforcement
or the Prosecution as you have to do with a U
Visa (which many times results in long waits
as law enforcement or the Prosecutors review
the request). The VAWA process also leads
directly to Permanent Residency, compared to
the U Visa which requires the U Visa holder to
maintain U Visa status for 3 years
(work permit only) before applying for
Permanent Residency.
5
The Bad
Every Criminal Defense practitioner should
be aware the Assault Family Violence is its own
separate ground of Deportability. 237(a)(2)
(E) of the INA states any alien who is convicted
of domestic violence (including violating
protective orders) is deportable. Interestingly
enough, although it is a deportable offense
under 237(a)(2)(E), it is not listed as a
ground of inadmissibility under 212. What
does that mean ? It provides the very odd
result that a person who is already a Lawful
Permanent Resident could lose their residency
with an Assault Family Violence conviction
and be deported, but at the same time if that
person was married to a US Citizen, could
have that US Citizen spouse fle for them via
Consular Processing and later be admitted
back into the United States as a Permanent
Resident. However, a recent ruling by the
5
th
Circuit in Holder v. Esparza-Rodriguez (5
th

Cir. 2012) has decided that an Assault Bodily
Injury conviction in Texas, where the Assault
is intentional and knowing and caused more
than a de minimis level of physical harm, is a
Crime of Moral Turpitude. Previously case law
from the Board of Immigration Appeals (BIA)
and the 5
th
Circuit had ruled that due to the
way the Texas statute was written, it had left
open an uncertainty which did not allow such
a fnding. The fnding in Esparza-Rodriguez
puts the accused immigrant in a position
where a conviction would not only make him
removable under 237(a)(2)(E), but also have
a Crime of Moral Turpitude conviction and
removable under 237(a)(2)(A)(i). This places
additional burden on defense counsel to pursue
even more inventive and creative plea deals in
order to avoid a potential deportability. Also,
the defense of Cancellation of Removal for
Non-Permanent Residents under 240A(b)
requires a period of 10 years of presence with
good moral character, so a conviction for
both Assault Bodily Injury or Assault Family
Violence will disqualify the immigrant from
asserting this defense.
Continued on page 6...
3 2
Jeff Peek, Partner
Criminal Defense
Exonerations and False Confessions
by Steve Toland, Partner
T
here are few areas in all of the law, much
less in the area of criminal justice, more
compelling than that of criminal exonerations.
Over the last year alone many Texans have been
gripped with the exoneration saga of Michael
Morton. What makes the story of Mr. Morton
even more compelling is that it involves not
only blatant governmental misconduct, but
exoneration due to advancements in DNA
testing. DNA testing has had an indelibly
positive impact on almost every aspect of
criminal law. There have been 301 post-
conviction DNA exonerations in the United
States, with the frst DNA exoneration having
taken place in 1989. Exonerations have been
won in 36 states and in Texas, 84 people have
had their convictions overturned since 1989.
Most astounding is that in 27% of national
exoneration cases, false confessions and
incriminating statements led to an individuals
wrongful conviction. Moreover, 28 individuals
not only confessed to a crime that they didnt
commit, but subsequently pled guilty in open
court to a crime they didnt commit. How can
that happen?
The common-sense notion is that no one
would confess to a crime he or she did not
commit. As counter-intuitive as it may seem
however, false confessions occur regularly, as
the above-referenced statistics indicate. If
approximately 27% of the total number of
exoneration cases involved a false confession
and if 10% of the two million men and women
imprisoned in the United States are innocent,
as estimated by the Department of Justice, then
we can extrapolate that as many as 50,000 of
their convictions involved false confessions.
False confessions destroy lives and keep the
true perpetrators of terrible crimes from being
brought to justice.
How do false confessions happen?
We need only look at the techniques police
are trained to use on suspects to understand
how confessions can be coerced. An interesting
read is the textbook Criminal Interrogation
and Confession which is known in the law
enforcement community as the interrogators
bible. Its fundamental tenant being, isolate
the suspect. Experts agree that the principal
psychological factor contributing to a successful
interrogation is privacy alone with the suspect
away from his or her home. A
person is more apt to maintain confdence and
remain aware of their rights within the walls
of their own home. Moreover, the likelihood
that friends and family are nearby lends
moral support. However, at the station, an
investigator possess all the advantages.
In the article True Crimes, False
Confessions, false confession experts offer a
nine-step process showing how, after isolating
the suspect, interrogators:
1. confront the suspect with unwavering
assertions of guilt.
2. develop themes that psychologically
justify or excuse the crime.
3. interrupt all efforts at denial and defense.
4. overcome the suspects factual, moral and
emotional objections.
5. ensure that the passive suspect does
not withdraw.
6. show sympathy and understanding and
urges the suspect to cooperate.
7. offer a face-saving alternative construal of
the alleged guilty act.
8. get the suspect to recount the details of his
or her crime.
9. convert the latter statement into a full
written or oral confession.
These tactics are designed to destroy the
suspects confdence that he will emerge from
the interrogation without being harmed and to
make the suspect believe that he is powerless
to bring an end to the interrogation unless
he confesses. In Why Do People Confess
to Crimes They Did Not Commit? Prof.
Steven Drizin explains how the tactics yield a
confession, true or false:
Once the suspect is on the brink of
hopelessness, the interrogator engages in
tactics designed to persuade the suspect that
the benefts of confessing outweigh the costs
of continued resistance and denial. Here,
the interrogator makes offers to the suspect,
ranging from low-end inducements like appeals
to the suspects conscience (the truth will
set you free) or religious beliefs (God will
forgive you), to suggestions that the confession
will be treated more favorably by those in the
system with the power to determine his fate
(judges react more favorably to remorseful
defendants), to the more coercive inducements
which expressly or by implication promise
leniency or threaten harm. Most people are
surprised to learn that it is perfectly legal for
police to lie to suspects.
Anyone being interviewed in a police
investigation is susceptible, with juveniles
and those with lower IQs being the
most vulnerable. A study conducted by
Professor Drizin revealed that juveniles were
disproportionately represented among the
false confessors, and the majority of juvenile
false confessors were between the ages of 14
and 17, the age range in which many alleged
juvenile offenders are tried as adults. Like
juveniles, Mentally Handicapped people who
falsely confessed, did so in an effort to please
authoritative fgures and/or because they
mistakenly believed that is what they were
supposed to do.
In the well documented West Memphis 3
Case in Arkansas (www.Freewestmemphis3.
org) Jessie Misskelley, Jr., 16 years old and
mentally disabled with an IQ of 67 at the
time of the murders, was convicted of a triple
murder based solely on a confession that, like
most false statements, failed to match crime
scene evidence. In his so-called confession, he
made incriminating statements that placed
him with the three murdered children at
9:00 am on the day of the murders. The
problem with this statement was that the
victims were actually in school during that
time. The West Memphis police, unhappy
with Jessies statement, continued to suggest
Jessie admit to his involvement at times more
closely associated with the estimated time of
death. He fnally agreed to the prompting
of his interrogators and changed his story to
suggest that he and his co-defendants were
with the children in the evening. The fact that
Misskelley and his friends had strong alibis for
their whereabouts that evening did not matter
to the police. Misskelleys false confession was
also used to convict Jason Baldwin, sentenced
to life without parole, and Damien Echols,
who is currently on death row in Arkansas.
In addition to custodial interview tactics,
law enforcement personal also engage in two
distinct investigation tactics that incite false
confessions. The frst of these is the two step
interrogation technique, and the second is the
knock and talk procedure. The essence of
the two step interrogation technique is to
question the suspect frst, without the beneft
of Miranda warnings, and then administer
Miranda warnings and resume questioning
designed to have the suspect repeat the
answers previously given. This is a deliberative
technique designed to circumvent Miranda.
The Supreme Court has, by the narrowest of
margins, condemned this type of interrogation
tactic because it is designed solely to get a
confession the suspect would not make if he
understood his rights at the outset. Missouri
v. Seibert, 124 S.Ct. 2601 (2004). A second
common tactic is the knock and talk
technique. In this technique offcers seek to
blatantly intimidate a suspect by catching
him by surprise, overwhelming the individual
with their presence and engaging in overt acts
causing a reasonable person to feel they are
not free to leave. Courts have held this is a
reasonable investigative tool when the offcers
seek to gain an occupants consent to search
or when offcers reasonably suspect criminal
activity. United States v. Jones, 239 F.3d 716,
720 (5
th
Cir. 2001).
Sadly, but not surprisingly, a recent survey
conducted by the American Bar Association
indicated that 68% of those polled felt the
possibility a person would confess to a crime
they didnt commit is not very often, while
another 28% believed that a person would
never confess to a crime they didnt commit.
What then is the answer? A glimmer of hope
exists in the number of states and police
jurisdictions that are now requiring all custodial
interrogations to be electronically recorded
in their entirety in order to prevent coercion
and to provide an accurate record of the
proceedings. If we are to ever make a dent in
preventing the number of wrongful convictions
due to insidiously procured false confessions,
requiring transparency in the course of all
police interrogations is a promising start.

Steve Toland, Partner
4 5
Steve Toland, Partner
and Jeff Peek, Partner
CRIMINAL DEFENSE LAW UPDATE
Fienen v. State, Texas Court of Criminal
Appeals, November 21, 2012: The Texas Criminal
Court of Appeals held that a defendant arrested for
DWI did voluntarily and consciously consent to
a breathalyzer test, even though he frst refused
consent. After his arrest defendant refused to provide
a breath sample two separate times. The arresting
offcer responded by telling the defendant that he
would be required to provide a blood sample through
a search warrant. Based upon the offcers assertion,
the defendant changed his mind and consented to a
breath test. During the pretrial phase defendant fled
a motion to suppress the evidence of his breathalyzer
test based on Erdman v. State, 861 S.W. 2d 890.
In Erdman, the Court held that an appellants
consent to a breathalyzer test was involuntary
because the arresting offcer gave the appellant not
only the statutory warnings, but included additional
information which the Court determined amounted to
coercion through psychological pressure. Surprisingly,
in this case, the Texas Criminal Court of Appeals
disagreed and overturned Erdman and its progeny
fnding that Erdman failed to consider the totality
of the circumstances and placed an improper burden
on the defendant to show they were coerced to take
the breathalyzer test. As a result of this reasoning,
the Texas Criminal Court of Appeals found that the
offcers statements regarding the breathalyzer test
and blood test in Fienen were not prolonged, did
not exchange or exert psychological pressure, did not
threaten, or deceive the defendant and that defendants
ultimate consent to the breathalyzer was conscious and
voluntary based on the totality of the circumstances.
IMMIGRATION LAW UPDATE
BREAKING LEGAL NEWS:
Stateside Waiver for Consular Process
On January 2, 2013, 2013, the Department of
Homeland Security (DHS) announced an amendment
to a current regulation affecting spouses, children and
parents of U.S. citizens who are living in the U.S.
unlawfully and eligible for consular process. The recent
change will allow those applying for consular process
the opportunity to apply for a waiver of inadmissibility
prior to their departure for their country of origin for
an immigrant visa, thus greatly reducing the length of
time families will be separated. The change to the current
regulation will become effective on March 4, 2013.
Prior to this change in regulations, consular process
required applicants to travel to their country of origin,
request an immigrant visa through the U.S. State
Department while abroad, which would likely be denied
because of their illegal entry into the U.S. The result
was that applicants would then be required to request a
waiver of inadmissibility for their unlawful presence in
the U.S. The entire process would all take place while the
applicant was in his or her country of origin and could
take up to a year and a half for approval. Once approved
for a waiver, the applicant was able to return to the
U.S. and receive his or her lawful permanent residency
or green card. However, this process was lengthy and
consular process applicants were separated from their
families for the entire duration of the process abroad.
Thus, those individuals who were possibly eligible for
consular process were reluctant to apply because of they
did not want to be separated from their families in the
U.S. for such a long period of time.
The recent change to the consular process regulations
will allow applicants the opportunity to apply and receive
their waiver while in the U.S prior to leaving for their
country of origin. Those who are approved for the
waiver will still be required to return to their country of
origin for an immigrant visa; however their wait time
for their immigrant visa will be less prolonged because
they will only have to undergo one approval process,
the immigrant visa approval process. This change will
greatly improve ineffciencies, decrease costs, and reduce
the amount of time that families are separated while
undergoing the consular process.
Legal Update TIP: The 5
th
Circuit court indicated
in its decision that the Assault in that case
was committed with the requisite level of
scienter..., which was intentionally and
knowingly. Texas Penal Code 22.01 also
permits for an Assault to be committed
Recklessly. In the event you cant convince
the State to dismiss or reduce the Assault to a
Class C Offensive Contact Assault (which
the courts have held does not qualify as morally
turpitudinous), look to plea the client to merely
reckless assault, which would then take away
the intent to cause physical harm, a term used
in the BIAs decision in In re Solon, which the
5
th
Circuit quoted as its justifcation in Esparza-
Rodriguez. In re Solon, 24 I.& N. Dec.239,
241-42 (BIA 2007);
The Ugly
Last but not least, the most damaging
conviction for an Immigrant coming out of a
plea bargain for Class A misdemeanor Assault
under Texas Penal Code 22.01 (regardless
if it has the Family Violence Finding or not),
is a sentence of 1 year or 365 days. Class A
misdemeanors have a range of punishment
up to 1 year in jail. Many times prosecutors
when offering probation will offer a 1 year
sentence, probating that sentence for 1 or 2
years (meaning the client is on probation for
1 or 2 years, and if he screws up on probation,
the court can sentence him for up to 1 year
in County Jail). The problem is that Assault
by defnition has been classifed as a Crime of
Violence under Federal Law in section 16 of title
18, United States Code. Under section 101(a)
(43)(F) of the INA holds that a crime of violence
for which the term of imprisonment is at least
1 year is an Aggravated Felony. Aggravated
Felonies not only ruin almost every type of
immigration relief and future immigration
options one has, but it also can expose an
immigrant to future serious enhancements under
the Federal Sentencing Guidelines, should that
immigrant illegally reenter the country in the
future. For this reason, the conscionable and
educated criminal defense practitioner should do
everything in his power to avoid entering a plea
agreement in which his non-U.S Citizen client
pleads to a 1 year probated sentence, or pleads
to a 365 day jail sentence for any misdemeanor
Assault charge. To do so would make his client
an Aggravated Felon, and completely ruin his
future immigration options.
(Endnotes)
1. 101(a)(15)(U) of the Immigration & Nationality Act (INA).
2. 101(a)(51) of the INA; 245(a) of the INA.
3. 204(a)(1)(A)(iv) of the INA.
4. 204(a)(1)(A)(iii)(I)(bb) of the INA.
5. 245(m) 6
conviction. The hope of Immigration and
Criminal Defense advocates everywhere is
that the Court decides that Padilla did not
create a new rule but rather simply applied
and enforced the standard for ineffective
assistance of counsel as adopted in Strickland
v. Washington (1984). That a person who
relies on his trained, educated, professional
counselor at law to advise him of potential life
altering harmful consequences of a criminal
plea bargain such as being kicked out of
your country and barred for life to reenter
has recourse when that attorney fails to advise,
or advises incorrectly, and the client relies on
him to his grave detriment.
In our offces, I frequently meet potential
clients in consultations who have been
represented in the past for a criminal
conviction by another attorney, who failed to
explain the immigration consequences of a
criminal plea bargain. Those potential clients
have never been told that because they pled
guilty to a drug conviction, the inevitable
and eventual result is placement in removal
proceedings, sometimes without any form
of relief.
We currently are representing a client in
deportation proceedings who has lived legally
in the U.S. for over 20 years as a permanent
resident. He is facing deportation proceedings
for a conviction under Texas Penal Code
Section 38.05, Hindering Apprehension. Our
client had loaned some money to his son, who
just happened to have a warrant for his arrest
for a felony charge. The police learned that our
client had loaned his son money, and argued
he was helping to provide aid in providing
the other with any means of avoiding arrest
or effecting escape, and charged him with
Hindering Apprehension. Never mind that the
38.05 requires that the aid has to be given
with intent to hinder the arrest, prosecution,
conviction of punishment of an offense and
that it would be very diffcult to prove ones
intent just by lending money - for whatever
reason our clients Court appointed criminal
defense counsel convinced him that it would
be better for him to plead to this felony
conviction and settle for 10 years probation.
However, this was not the best choice for
our client because his attorney failed to advise
him that by pleading to this felony conviction,
he had pled to an Aggravated Felony
under 103(a)(43)(S) of the Immigration
Nationality Act (Obstruction of Justice). As
a result of our clients plea, he is now facing
deportation proceedings without any form of
relief.
Unfortunately for our client, he pled guilty
in 2009 before Padilla. If the Supreme
Court decides the Padilla decision is not
retroactive, then our client and thousands
like him will be barred from relief, even
though they were failed by their defense
attorneys in providing constitutionally
defcient representation in violation of their
6
th
amendment right to the assistance of
competent counsel.
Family Violence Assaults and Immigration:
The Good, Bad, and the Ugly continued...
Is There 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
Peek & Toland, L.L.P.
Los Abogados Geros
1214 E. 7th Street
Austin, Texas 78702
Ph: 512-474-4445
Fax: 512-474-4466
www.peekandtoland.com
* This information this newsletter should not be relied
on as legal advice and does not constitute legal advice.
Issue 2
January 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.facebook.com/PeekAndToland
Responding Graciously
Advocating Tenaciously
Sowing Generously
Investing in Excellence
Restore Compellingly
SOWING GENEROUSLY

Christmas Party and Fundraiser
On December 12, 2012, Peek & Toland
Law Firm hosted its frst ever Christmas
Fundraiser and Party benefting Casa
Hogar de la Montaa childrens home,
and the International Justice Mission.
Peek & Toland Law frm was able to
raise more than $12,000.00 for both
organizations. However, Peek & Toland
could not have been so successful
without generous donations from the
University of Texas Longhorn Football
and Basketball coaches, Football Coach Mac Brown and Basketball Coach Rick
Barnes. Additional contributions were made by Heisman trophy winner and former
UT Longhorn Football quarterback Earl Campbell, Heisman trophy winner and
former UT Longhorn Football quarterback Vince Young, and former UT Longhorn
defensive tackle Doug English. Other generous contributions were made by local Austin
restaurants, the Alamo Drafthouse, Austins Pizza, Tacodeli, Takoba Restaurant, the
Eastside Cafe, and Maudies Tex-Mex. Additionally, the Peek & Toland Christmas Party
and Fundraiser received generous donations from local Austin folk band, Carrie Ann
and the Apocalyptics, local audio and video products and service store, A&B TV, and
local diamond wholesaler, Simply Radiant, LLC. Peek & Toland is grateful for all that
attended and donated to the Peek & Toland Christmas Party and Fundraiser.
Peek & Toland Attorneys & Staff
at Christmas Fundraiser & Party