peek & toland immigration, state and federal criminal defense newsletter for spring 2013

8/23/2019 Peek & Toland Immigration, State and Federal Criminal Defense Newsletter for Spring 2013

1/8

Peek & Toland, L.L.P.

Issue 3Spring 2013

Criminal Defense &

Immigration Intersection

Immigration Law Section

Case Victories

Criminal Defense Section

Legal Update

Core Values in Action

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

Continued on page

Peek & Toland Expands

902 E. 7th Street, Austin

March 4, 2013

Bench Bar 2013 CLE

Sponsored Hospitality

Room at Austin BarAssociation Bench

Bar 2013

Westin La Cantera

San Antonio, Texas

April 12-13, 2013

Fifth Friday Thursday

Training & Trivia

Employee Customer

Service Training &

Team Building

Trivia Game

The Tavern

922 W. 12th Street,

Austin

March 29, 2013

5:00-9:00 P.M.

Criminal convictions, whether

minor or major, can havean impact on the legal options ononcitizens under our immigrationlaws. For example, a permanentresident may be barred romseeking his citizenship throughnaturalization or 5 years i he isconvicted o shopliting somethingas simple as a candy bar. Anoncitizen convicted o possessiono a controlled substance canbe placed under mandatorydetention by Immigration &

Customs Enorcement whilehe waits or his immigrationcourt case to be resolved. Andnoncitizens, regardless o amilyties or immigration status,can be punished with removal(deportation) i convicted o anoense that can be categorized asan aggravated elony under theImmigration & Nationality Act.

It seems like many Americansare now realizing what it meansor immigrants to be taken away

rom their amilies and riendsand orcibly sent abroad. Thismay explain the upsurge opublic support or immigrationreorm. Yet, the deportation o anindividual rom his adoptedhomeland has long been

recognized as one o the harshest

orms o punishment. In thewords o one o our nationsounding athers:

"I the banishment o an alienrom a country into which he hasbeen invited as the asylum mostauspicious to his happiness -- acountry where he may have ormedthe most tender connections; wherehe may have invested his entireproperty, and acquired property othe real and permanent, as well asthe movable and temporary, kind;where he enjoys, under the laws,a greater share o the blessings opersonal security and personal libertythan he can elsewhere hope or; . .. i, moreover, in the execution othe sentence against him, he is tobe exposed, not only to the ordinarydangers o the sea, but to the peculiarcasualties incident to a crisis o warand o unusual licentiousness on thatelement, and possibly to vindictivepurposes, which his immigration

itsel may have provoked -- i abanishment o this sort be not apunishment, and among the severesto punishments, it will be difcult toimagine a doom to which the namecan be applied."-President JamesMadison, 4 Elliot Debates 555.

The severity o deportation

as a punishment resulting romcriminal convictions has also blong acknowledged by our cou

system. In an 1893 dissentingopinion in Fong Yue Ting v. UnStates(1893), Justice Brewer stdeportation is a punishmentotentimes most severe and cru

Firm Events

In This Issue

1

2

3

4

7

8

PG

Where Criminal Law&

Immigration Law Intersect

Peek and Toland Law

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

Partners

ChaidezCourt Says Padilla Rule Is NOT Retroactiveby Diego Nuez, immigration attorney


2/8

Immigration

Continued on page 5

How to Immigrate Your Foreign Born Spouse to U.S.: The Basics and How New Waiver

Procedure Can Re-Unite Families

by Je Peek, partner

W

hen a U.S. citizen decides to marry

a oreign born spouse, the start ohis new lie together usually begins with theuestion: How do I get my spouse papers? Ortated a little more sophisticated, how does

my spouse become legal in the United States?Does he or she automatically become a U.S.Citizen? Is it automatically guaranteed that

e or she can get papers just by marrying aU.S. Citizen? Many o my clients and riendslike are shocked when they discover that theseuestions seldom are easily answered and therere many potential delays, disqualiers and fatut bars/barriers that can leave newly-weds let

without easy options.

What seems like whathould be a speedy andimple process, and alsone that many assume isundamental right (the

ight to have their spousewith them here in theU.S.) can very quicklyecome a quagmire oroblems, and potentiallyne can nd themselves in aituation where there is no

way to quickly and easilymmigrate their spouse.should know, my wie

s rom Mexico, and welmost ended up having toostpone our wedding dueo U.S. immigration lawnd procedures.

Below are the basics omarrying and immigrating

oreign born spouse.

We start with the general rule in U.S.mmigration law: I you entered the country

legally, you dont get get papers (legallyeerred to as Adjusting your Status) here inhe United States. That means that or manyeople who entered illegally, they will be orcedo leave the U.S. and go back to their homeountry in order to get their greencard (aka

Legal Permanent Residence). Now there arecouple o exceptions to this general rule: the45(i) exception, the VAWA exception, the U

Visa exception, and I will briefy address them

later. (One can also possibly win his or her

residency in removal proceedings, but I will notcover those options here).

Option 1: The legal entry spousewho can Adjust Status

I you are a U.S. citizen ortunate enoughto have a spouse/anc who entered the U.S.legally (having been inspected by a customsocial on a valid passport not obtainedthrough raud) then you have hit the jackpotimmigration-wise. You are then eligible orthe easiest and quickest path to a greencard

Adjustment o Status. Right now this processtakes about 6 months rom ling to the

interview, and your spouse can have their green

card in hand in 6-7 months. In immigrationtime, this is the equivalent o the 40 yard dashand is the absolute astest way to become aLawul Permanent Resident, and 2nd placeisnt even close. By having entered legally thisoption is available as long as you have stayed inthe U.S. the entire time since your last lawulentry, have not been removed rom the country,nor have let the country on your own, ando course are not disqualied by a criminalconviction that makes you deportable.

You do have to be careul about the questiono immigrant intent, which could cause you

to be denied at your interview i the review

ocer believes that your immigrant spouseintent rom the moment they entered on thnon-immigrant visa was to actually immigI have seen immigrants who were denied atheir interview because they admitted thatthey knew when they came into the U.S. otheir non-immigrant visa that they were goto le or residency through their spouse.Immigration ocials take very seriously thhonest intent o the immigrant when theyapply or admission. The most commonexample is an immigrant entering the U.S.a tourist visa with their U.S. anc, who hthe intent o marrying once inside the U.S

and applying or papers. Immigration willtell you that this is noallowed. However, this a bit o semantics totheir argument, becauthe exact same couplecame in on a tourist v

who did have the inteo returning back to thhome country, but thechanged their mind oninside the U.S., wouldallowed to stay and ad

their status. A small bimportant detail whicbe the dierence betwan approval or a denia

Its also important tonote that this process adjusting to status is eeligible to someone whhas overstayed their vi

or any amount o time (as long as they nevlet the U.S. ater entering legally). So, orexample, an immigrant who enters legally a tourist visa, overstays her permitted time

15 years, but never leaves the U.S. and 15 later marries a U.S. Citizen, is still eligible

Adjust Status, despite having accumulatedyears o unlawul presence.

However, it is equally important to note tthis privilege is only extended to the spouso U.S. Citizens. A spouse o a PermanentResident does not have the luxury to enterlegally, overstay and adjust his or her status

2


3/8

Criminal Defense Case Victories

February 13, 2013 (Federal Charge):Client is a Mexican citizen charged withhe ederal crime o alien smuggling aterntering into the United States with

ve other individuals. He was acing apotential sentence o 10 years when hehired Peek & Toland Law Firms ederalriminal deense team to represent

him. On cross-examination o the leadnvestigator during the examination trialnd detention hearing, it became clearhat our client had not smuggled thether individuals, but rather had joined

with them in a joint eort to illegallynter the United States. As a result ohe strategies employed during the initial

hearings, the Peek & Toland ederalriminal deense team negotiated a very

avorable plea agreement resulting in aentence o eight months, or time served!

February 20, 2013 (State-FelonyCharge): Client was originally chargedwith Assault on a Security Ocer, a thirddegree elony, ater becoming involved ina physical altercation in the parking loto his apartment complex with anothertenant. Peek & Toland Law Firmscriminal deense team obtained adavitsrom witnesses to the altercation who notonly were never interviewed by the police,but whose testimonies contracted thestatements contained in the police report.As a result, the attorneys were able tonegotiate an agreement with the Statethat reduced the case to a misdemeanorcharge o assault. Over a year later theclient was oered a better job out o statebut needed permission to be released early

rom his probation. Peek & Tolandscriminal deense team successully arguedor his early discharge resulting in theclient being able to move his amily out ostate or a better job.

March 14, 2013 (State-MisdemeanoCharge): Client was pulled over bythe police or allegedly nearly strikingan 18-wheeler while driving on theinterstate. Ater a brie investigation,ocers arrested Client and charged hewith DWI. Ater reusing to providea breath specimen, an ocer obtainedclients blood draw through a warrantwhich allegedly purported to show ablood alcohol level well above the legalimit. Peek & Tolands criminal deenteam attacked the suciency o the bldraw warrant and the results o the blodraw eventually resulting in the Statedismissing the DWI and allowing theClient to be placed on probation or anon-alcohol related oense.

Immigration Case Victories

On-Going Case: Client is a Mexicanitizen who was pulled over orpeeding and arrested whenhe couldnt provide proper

dentication. Client hired Peek& Toland Law Firm to help withher immigration removal case. Theprosecution submitted a Notice to Appearn immigration court stating client hadntered without inspection. However,lient entered with inspection aschild on a visitors visa with

her mother. The prosecutionailed to amend their Notice Appear to document thatlient had entered the U.S.

with inspection; allowing Peek& Tolands immigration teamo argue that clients removal

proceedings should be terminated.The judge agreed and client waseleased rom immigration custody ands now ree to pursue deerred action orhildhood arrivals to stay with her amilyn the U.S.

March 18, 2013 (CancellationCase): Our client is a legal permanentresident who was arrested and placed in

cancellation proceedings. Peek &

Tolands immigration teamwas able to argue thatdespite our clients

ormer procession ocontrolled substanceconviction, the

Court should cancelremoval proceedingsagainst our client.Peek & Tolands

immigrationteam argued

that our clientwas not an

aggravated elon and met allthe statutory requirements under

U.S. immigration law and thus,should not be removed. The Court

agreed and thanks to Peek & Tolandsimmigration team, client will remain inthe U.S. with his amily.

March 18, 2013 (DACA Case): Cliena Mexican citizen who came to the U.as a child with her Aunt. Although climet all the requirements or deerred

action or childhood arrivals (DACA)lacked strong proo o evidence to shoshe had lived in the U.S. or the past years, a requirement or DACA, becaushe had not worked a great, opting insto care or her sick and ailing aunt. Wclients DACA application came backrom USCIS with a request or evidenclient was disappointed. However, Pee& Toland stepped encouraging clientsaunt to sign a sworn adavit to clientpresence and care, along with aunts

medical records to show o aunts illneUpon re-submission, client was approor DACA and thanks to Peek & Tolaclient is now able to stay in the U.S. tcare or her ill aunt.

3


4/8

Criminal Defense

In a YouTube video titled, Cop Gets AngryWhen Driver Tells Him He Needs A Warranto Search His Car, a gentleman is stopped byolice while driving his SUV. See YouTube

Video Titled: Cop Gets Angry When DriverTells Him He Needs A Warrant to SearchHis Car, http://www.youtube.com/watch?v=_XnOqSZhug. Following a brie investigationhe police ocer asks the driver or his consento search the vehicle. The driver calmly reusessearch without a warrant. There is a pregnant

moment o silence beore the police ocerecomes irate and begins spewing a barrage obscenities towards the driver. The angeredcer then gets in his patrol car and leaves. Noearch was conducted.

As criminal deense attorneys, we are oten

sked what rights the people have regardingolice searches involving vehicles. Generallypeaking, our analysis must begin by lookingt the protections provided by ederal and stateaws. The Fourth Amendment o the U.S.Constitution, as applicable to the states underhe Fourteenth Amendment, protects us andur property against unreasonable searchesy the government. What constitutes anunreasonable search is act specic. I theehicle search involves a search warrant the

Bill o Rights says that search warrants shallnly be issued when accompanied by a sworn

tatement supporting probable cause describinghe place to be searched and the thing to beeized. Texas has nearly identical provisionsn her constitution under Article 1, Section, as well as in the Texas Code o Criminalrocedure Article 1.06. Irrespective o theresence o a warrant, these laws protect usrom unreasonable searches and seizure. Howo police get around these laws?

The most common way police gain access tovehicle is through consent. As the examplebove shows, law enorcement can ask to searchour person or property without any suspicion

contraband being present or probable causeo believe a crime is being committed. Theequest to search can be as simple as, do you

mind i I have a look inside your car? or amore orward statement, such as I want toook in your car. These are simple requests byaw enorcement akin, in the eyes o reviewingourts, to a simple good morning, or, hello.

Once consent to search is given, the police can,n most cases, search without oending warrantequirements under the Fourth Amendment

or Texas law.

However, even i consent is given, the scopeo the consent can be limited. A person maylimit the time, intensity, duration, and areao the search. For example, a person can tell

the police that they can only search the trunko the vehicle, not open any containers; orcan instruct the police that they may onlysearch or 10 seconds. In other words, thepolice authority to search based on consentallows them to only search within the boundso the consent given. As the video abovesuggests, such limitations will not endearone to the police. Generally, in the course oconducting vehicle searches ocers are tryingto circumvent the stringent requirements othe ederal and state constitutions enumeratedabove so speak up or orever hold your peace.

O course, analysis into the scope o theconsent is irrelevant i the consent to search

was not voluntarily given in a positive andunequivocal manner. Complicating thisanalysis though is the consistent holding bycourts that consent may be given either orallyor through ones actions. Thus, we as criminaldeense attorneys constantly scrutinize the actsto see the manner in which the consent wasgiven. For example, silence is not consent, noris saying, I dunno. Otentimes, police will tella person that he can simply arrest the driverand then conduct the search. The consent

to search cannot be a product o coercionor threats. Unlike ederal law, Texas requiresprosecutors to prove that consent was reelygiven by clear and convincing evidence. Thatstandard is more dicult to meet i it can beshown that an ocer threatened the deendantor i the deendant never actually consented.

Due to the high number o minority driversbeing stopped and having their persons andvehicle searched without probable cause, somecities, such as Austin, have adopted policies

which require consent to search be given inwriting and recorded by audio and/or video,

i available. The Austin Police Department(APD) administration ound that such a highnumber o consensual searches negativeimpacts the Departments relationship withinthe community. In order to collect data orstatistical analysis, APD requires all consentorms be routed through their chain ocommand regardless o whether contrabandis ound.

APD also requires the person giving consentto be in a position to withdraw his or herconsent. While this does not necessarily mean

that theocer mustconduct thesearch in

plain view othe persongivingconsent, theyshould keepthe personin a position where he or she can withdrawconsent. I the consent is revoked, the ocmust stop his or her search unless probablecause to continue searching has developedcan be odder or a deense attorney to arguthat his client was handcued and in the bo a patrol car with the windows rolled up

while an ocer was conducting a consensusearch. How can he get the ocers attentito withdraw his consent? More oten than the ocer testies that he simply did not hthe deendant. Should a drive then consensearch o their vehicle?

Like most decisions involving interactiowith the police, a certain cost-benet analyshould be applied. What does a person gainby giving consent? Besides time and possibinconvenience, what could be the harm?The gains are minimal; the harm can bepotentially devastating.

Years ago, the son o a highly-respected estate attorney was arrested or possession oa controlled substance. The police had pulhim over or an expired inspection sticker. asked him or permission to search his car,

which the young man consented to. A smabaggie o cocaine was ound in the back sehis vehicle. The young man tried explaininthe police that the drugs were not his; he hgiven a ride to several riends a couple o wearlier, driving everyone to the coast or spbreak. His explanation made little dierento the police. He went to jail and was char

with a state jail elony.This young man believed that he had

nothing to hide, and certainly nothing illegin his car. Most o us, i similarly situated,

would likely eel the same way. The youngsubsequently explained to his criminal deelawyer that he was araid o what would hato him i he reused to give consent. Such are not entirely unounded. Visit the link tthe YouTube video reerenced above or sominsight into that scenario.

Consent Searches of Vehiclesby Alex Aguirre, criminal deense attorney and Steve Toland, partner

4


5/8

How to Immigrate Your Foreign Born Spouse to U.S.: The Basics and How New Waiver Procedure Can Re-Unite Families continued....

But, i the Legal Permanent Resident spousean ever naturalize, then they too would beligible under this provision.

Option 2: The illegal entry spousewho is eligible to Adjust Status

under I.N.A. 245(i)

The most amous and most commonly usedxception to the rule (that one who enterslegally cannot Adjust Status and get papersnside the U.S.), is the process commonlyeerred to in Immigration legal circles as45(i). To be eligible under INA Section45(i), the alien must have previously been theeneciary (or derivative beneciary) o either

labor certication under INA Section 212(a)5)(A) or a amily based petition under INAection 204 (including I-140, I-130, I-360,-526) that was led on or beore April 30,001. A beneciary can adjust status based onn immigrant visa petition or labor certicationhat was approved ater April 30, 2001, so longs his petition or application or certication

was properly led (postmarked or received by

he Department) on or beore April 30, 2001,nd approvable when led. The immigrantlso must have been physically inside the U.S.eore December 21, 2000. 8 C.F.R. Section245.10(a)(2). Approvable when led meanshe qualiying petition or application wasroperly led, meritorious in act, and non-rivolous (rivolous being patently withoutubstance). 8 C.F.R. Section 1245.10(a)(3).

What does all that mean? Essentially, as longs your intending spouse was physically present

in the U.S. beore December 21, 2000, andsomebody led a petition or them on or beore

April 30, 2001, then they can pay a $1,000 neand adjust status and get their greencard herein the U.S. without having to leave the country.

And this can be done with the previously led

petition on its own (assuming the petition isnow current) or it can be done by combiningthe previously led petition with a new spousalpetition. For example, i a young womanillegally entered the U.S. when she was 10years old in January 2000, and her ather wasPermanent Resident and led a amily petitionor her in April 20, 2001, but she never

adjustedstatus underthat originalpetition (or

whatever

reason, lacko money,laziness, lostcontact withher dad, etc),but then latershe marries aU.S. Citizen,that U.S.Citizen canle a newpetition orher along

with anAdjustmento Statusand she can

combine the prior petition rom her ather toqualiy or 245(i) and be able to pay the $1,000ne to stay here in the U.S., and combineit with the new petition rom her new U.S.Citizen boyriend, and in 6 months or soshould be able to adjust status to a PermanentResident (again, assuming she stayed here the

whole time and had no criminal disqualiers).

Option 3: The Consular Processspouse or the Fianc Visa

Option 3 is the least desirable o the optionspresented here, because o the requirement toleave the United States (assuming the person

was already in the U.S. illegally and doesntqualiy or one o the exceptions) or in cases

where there immigrant spouse is alreadyoutside the U.S., to have to wait outside theU.S. or almost a year until your Consular

Appointment arrives. In cases where a waiveris not needed it can also take rom 10 months

to a year, i the process is being driven bysomebody who knows what they are doinghave seen cases delayed 3 and 4 years due tspouse who was doing it by themselves andaware o the requirements and processes.

The absolute worse position o the optioin this article is to be in is an immigrant sp

who has accumulated over 1 year o unlawpresence in the U.S. which triggers the 10 bar (INA 212(a)(9)(B)(i)(II)) and who is oeligible to process their immigrant petitionvia outside the U.S. at their home countryconsulate. Not only must they leave the U(and presumably their spouse and amily),but or almost 2 decades the process requirling or a waiver (I-601) at the Consular pand then waiting or that Waiver packet toreviewed and decided on by State Departmocials, and this process kept many spous

waiting rom anywhere rom 3 months to year. And the approval is not a sure thingeither. There must be enough evidence in

Waiver packet to show the U.S. Citizen spwould suer extreme hardship i the immispouse is not allowed to come into the U.Sto live.

Luckily, starting March 4, 2013, the Obadministration made some procedural chan(note: Procedural changes, not changes tothe law) about how these waivers would beprocessed. Now USCIS will allow or the

waiver applicant to apply while still here in

the U.S. thus negating the long wait outsidand apart rom their amily and minimizinthe time they will spend out o the countryless than 2 weeks (once approved). It also away the ear o applying and eventually lethe U.S. because an applicant will obviouslonly leave i they have been approved.

Spouses o U.S. Citizens have always beein the best position to receive their papersthe astest out o all the immigrant relativecategories, and now the new Stateside Waivprocess has even made it better by easing thburden on amilies who need a waiver or

unlawul presence. Its never been better toan immigrant married to a U.S. Citizen!

5


6/8

6

Chaidez Court says Padilla Rule is NOT Retroactive continued....

A hundred and eight years later the SupremeCourt declared in its INS v. St. Cyr(2001)decision that [p]reserving the clients righto remain in the United States may be moremportant to the client than any potentialail sentence.

But it was not until March 31, 2010, whenhe Supreme Court, in Padilla v. Kentucky,

nally held that the immigration consequencesderived directly rom criminal convictionsan be so detrimental that criminal deensettorneys are required to advise their noncitizenlients about the potential consequences oguilty plea. I suchdvice is not given to a

noncitizen client, thelient may raise a claim ineective assistance

counsel. When thisuling came down,

many immigrationdvocates understoodt to be a clarication a rule that would bepplicable retroactively.

Unortunately, onFebruary 20, 2013, theU.S. Supreme Courtheld in Chaidez v. UnitedStatesthat the Padilla

decision created a newule and that, accordingo Court precedent

under Teague v. Lane1989), it will not applyetroactively to cases that had nal convictions

prior to the Padilla decision. The reasoningn Chaidezhas received much criticism romcholars and advocates alike. But the Court hasnswered the question oPadillaretroactivitynd has created a clear line o its application.o, what is that line, what are the obligations deense attorneys, and what options do

noncitizens have?

. Padilla Rule: as o March 31, 2010,criminal deense attorneys have beenrequired to advise noncitizen deendantsabout the risk o deportation as aconsequence o guilty pleas. I such adviceis not given, deendants may raise a claimo ineective assistance o counsel.

2. Final Convictions Prior to March 31, 2010:Individuals will not be able to raise aPadillaclaim o ineective assistance ocounsel i their convictions were nalizedbeore March 31, 2010, and they did notreceive advice rom their deense counsel

regarding deportation consequences o theirguilty pleas.

3. Final Convictions on or ater March 31,2010: These individuals will be able touse Padillato challenge convictions whereno advice was given as to the deportationconsequences o their guilty pleas.

4. Strickland Standard Untouched: TheStrickland v. Washington (1984) standardo reasonableness still applies in cases withnal convictions prior to or ater the Padillaruling where deense counsel misadvised thenoncitizen deendant about the collateralconsequences o his guilty plea.

5. Violation o Other Constitutional Duties: Anoncitizen may be able to raise an ineectiveassistance o counsel claim in cases wherehis deense counsel violates a recognizedconstitutional duty such as eectivelynegotiating a plea in order to mitigate harm.

Legal representation o deendants violatesthe Sixth Amendment i it alls below the

objective standard o reasonableness underprevailing proessional norms. What was oreasonable in 1984 in the representation ononcitizens, may not necessarily be reasonin 2013. This is because immigration law hgone through many changes in the last thr

decades and these changes have increasedthe number o deportable oenses anddecreased eligibility o immigration relie criminal oenders. Justice Sotomayor notin her Chaidezdissenting opinion that asthe immigration consequences or criminaconvictions have increased, the standardso proessional responsibility relating to

immigration ha[ve] becomore demanding. ThePadillaruling ormallyrecognized this responsibas part o the criminal

deense o noncitizensand the Chaidezrulingset the marker o whenthis responsibility beganRemaining silent on theimmigration consequenco guilty pleas will no lonbe an option or criminadeense attorneys. Crimideense counsel will nowneed to know their clienimmigration status, as w

as how a guilty plea canaect that status or theimmigration relie option

For online resources on this subject go to:

Immigrant Deense Project:

http://immigrantdeenseproject.org/deender

Immigrant Legal Resource Center:

http://www.ilrc.org/

National Immigration Project o National Lawyers G

http://www.nationalimmigrationproject.org/


7/8

CriminalDefense lawUpDate

Bailey v. United States, 568 U.S. ___ (2013)(Slip Opinion).Police were outside an apartment

preparing to execute a search warrantor a gun, when two men, Bailey andMiddleton, exited the apartment andlet in a vehicle rom the complex.Some detectives began a search othe apartment and other detectivesollowed the two men or over amile beore instructing them to pullover. Police then searched the twomen and uncovered keys on Baileysperson. When asked Bailey admittedthat the keys were to his apartment,but did not say where he lived andthe detectives had no evidencelinking Bailey to the apartmentbeing searched. When the detectivesreturn to the apartment complex,they learned that other police ocershad uncovered a gun and illegaldrugs inside the apartment.

Bailey challenged the admissibility

o his statement regardingthe keys and his apartment, as wellas the taking o his keys ound onhis person during the vehicle stop.The issue beore the Supreme Court

became whether the evidence oundon Baileys person and his admissionswere incident to the execution othe search warrant underMichiganv. Summers.

The U.S. Supreme Court heldthat that the rule in Summersislimited to the immediate vicinity othe premises to be searched and doesnot apply in this case, because Baileywas detained at a point beyond any

reasonable understanding o theimmediate vicinity o the premises inquestion. The Court reasoned thatSummersprotected three importantlaw enorcement interests. The rstinterest is to detain occupants oundwithin or immediately outside theresidence being search so ocerscan search without ear that theoccupants will become disruptive,dangerous or otherwise rustrate

the search. The second interest isthe acilitation o the completion othe search to prevent unrestrainedoccupants rom hiding or destroyingevidence, distracting ocers, or

simply getting in the way. The nalinterest is to prevent the occupantsrom fight or rushing the search.

In applying the rst two interestedrom Summersto the Baileycase, theCourt ound that Bailey did not posea threat to the ocers conducting thesearch o the apartment because hadlet the premises without knowledgeo the search. Additionally, the Courtound that Bailey was not physically

present at the search, so he could nothave hidden or destroyed evidence,distracted ocers or simply been inthe way o the search. The Courtdid note that Bailey could have beena fight risk, however the Courtnoted that, the mere act that lawenorcement may be more ecientcan never by itsel justiy disregardor the Fourth Amendment. Thus,the Court ound that ocers erred

in detaining Bailey when he was amile away rom the premises to besearched.

immigration lawUpDate

Chaidez v. United States, 568 U.S. ____ (2013).

Last month, one o the partnersat Peek & Toland, Je Peek, wrotean article outlining the legal issues

beore the U.S. Supreme Courtin Chaidez v. U.S. In Padilla v.Kentucky, 559 U.S. ____, the U.S.Supreme Court held that under theSixth Amendment, criminal deenseattorneys are required to inormnon-citizen clients o the deportationrisks o a guilty plea. The issue beorethe U.S. Supreme Court in Chaidez,involved whether Padillacould beapplied retroactively to cases already

nal on direct review. The Supreme

Court in Chaidez, ound that Padilladoes not apply retroactively to casesalready nal or on direct review. The

Court reasoned that Padillacreated anew rule. Under Teague v. Lane, 489U.S. 288, a person whose convictionis already nal may not benet roma new rule o criminal procedure oncollateral review. Thus, those clientswhose attorneys ailed to advise themo the immigration consequences otheir guilty plea are unable to seekineective assistance o counsel ortheir claims under Padilla.

However, the U.S. Supreme Courtmaintained that an attorney maynot armatively misrepresent his

expertise or mislead his client as toan important matter. In other words,an attorney may not armativelyadvise his non-citizen client that hisclients guilty plea will not result inimmigration consequences, such asdeportation, i the opposite is true.

Legal Update

5


8/8

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 3Spring 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

investing in exCellenCe

Peek & Toland would like to Welcome Attorneys Natalia Peralta and

Dawn Salas to the frm.

Natalia Peralta, Esq. Natalia joined Peek & Toland inJanuary rom the Law Oces o Humberto Izquierdo inAtlanta, Georgia. Natalia earned her Juris Doctor Degreerom Emory University Law School in Atlanta, Georgia andher Bachelor o Arts rom Georgia State University. She is alicensed attorney in Georgia and has plans to take the Texasstate bar this July. Natalia has already exhibited a true passionor immigration law, winning removal cases or Peek &

Tolands clients acing removal proceedings. Peek & Toland is eager to welcome Nataliao the immigration team.

Dawn Salas, Esq. Dawn joined Peek & Toland in Marchrom the Azarmehr Law Group in Austin, Texas. Dawn earnedher Juris Doctor Degree rom St. Johns University School oLaw in Queens, New York and her Bachelor o Science romSt. Johns University. She is licensed to practice law in New

York and Texas. Dawn brings a great deal o business-relatedimmigration experience to the Peek & Toland Law Firm and

we are eager to explore her wealth o knowledge and excited to

welcome her to the Peek & Toland immigration team.

peek & toland immigration, state and federal criminal defense newsletter for spring 2013

Documents