Criminal Convictions and Green Cards aka Legal Permanent Residents

Criminal Convictions and Green Cards aka Legal Permanent Residents

Even if you have a green card aka Legal Permanent Residence, the US government can still deny you the residence in the USA if you have certain criminal convictions. There are two sets of rules that apply when it comes to criminal convictions and legal permanent residents. One is called inadmissibility and the other deportation/removability.

Inadmissibility

Admissibility only comes into play if a permanent resident left the USA for whatever reason and upon entry back into the USA was stopped by immigration services. At this point the government will determine if you deserve to be admitted into the United States. They will ask you for your immigrant visa and will look at any criminal convictions you have. The reason they will look at your criminal history is to determine if you have been convicted of any crimes that make you inadmissible. If you are found to have a crime that makes you inadmissible, the immigration officer has the discretion to not let you into the country and will place you in court proceedings.

Deportation or Removability

Now let’s pretend the green card holder never left the USA but instead got arrested and convicted here in the USA. Depending on what the crime was he may or may not have immigration consequences. Let’s assume it’s a crime that carries immigration consequences and the green card holder is placed in immigration proceedings. At this point Immigration Judge has the right to remove his green card and deport them from the country.

Relief for Green Card Holders (Cancellation of Removal)

If a green card holder finds themselves inadmissible at an airport or deportable inside the USA, there is still something that maybe done. Depending on the certain facts of the green card holder, they may be eligible for Cancellation of Removal 42A. If the green card holder can prove everything needed by law the judge could grant their application and they would be allowed to remain within the country.

It is very important to consult with an experienced immigration and criminal attorney to see if they are eligible for Cancellation of Removal. This is a very important application that if granted by the judge can only be done once in a lifetime. Therefore, it’s very important you put a very strong case together and make sure that you will be able to win the case in front of the immigration judge.

Difference between THC and CBD in Marijuana

“Wax, Oil and Buds… Oh my!” Difference between THC and CBD in Marijuana

It is no surprise that marijuana laws are starting to relax in the United States. As of today 8 states allow legal recreational use with another 22 states who allow marijuana in some sense. Since marijuana is turning into a booming industry, many companies have started to find other marijuana products to sell such as oil and wax.

Marijuana 101

Originally, marijuana is a plant that is grown from a seed. People smoke the flower of the plant and it gives the “high” feeling. The active ingredient in marijuana that creates the high feeling is THC aka  tetrahydrocannabinol. It is ingested in the body most commonly by smoking. More recently however people have created ways to extract other ingredients from the marijuana plant such as CBD aka Cannabidiol. This CBD is collected and is sold in forms of wax or oil in states where recreational marijuana is legal.

CBD vs THC

Even though THC and CBD both come from the same plant the law views them differently and because of that they have different classifications. Under the Texas Health and Safety Code, the definition for marijuana is

“Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.The term does not include:

(A)  the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;

(B)  the mature stalks of the plant or fiber produced from the stalks;

(C)  oil or cake made from the seeds of the plant;

(D)  a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or

(E)  the sterilized seeds of the plant that are incapable of beginning germination”

At the time there was not a definition for CBD because it was not a known substance to the general public. Technically it could not be called marijuana because it fell under the first exemption of the definition above. Therefore in 2015 Texas added a new definition to cover these new compounds.

THC – CBD – Marijuana Consequences

A big difference between THC and CBD is how Texas law punishes possession of the substance. Assuming you only have a small personal amount, marijuana is a Class B misdemeanor. CBD is however a State Jail Felony and can carry up to 2 year jail time. Many people think smoking wax or oil is the same as marijuana, unfortunately the law does not view it that way. The law classifies them differently and treats CBD harsher.

Conclusion

Even though marijuana is still illegal in Texas it can commonly be seen used by people. Things to remember next time you are with people consuming marijuana is whether they are smoking the plant or the oil/wax. It may be a good idea to minimize risk and stick to the plant to help protect yourself. If you find yourself in a tough situation and need legal help, feel free to contact us at Zavala Texas Law. We are here to help and have helped many Houstonians with their drug charges.

What happens during a criminal case?

Criminal Case Process

Ever wondered what happens in a criminal case after someone gets arrested? We decided to explain to you the steps and the outcomes of a criminal case. If you have any questions please feel free to ask or just check out the following info-graph.

Criminal Case Process
How a criminal case is handled

What is 12.44a and 12.44b?

12.44a vs 12.44b

The Texas Criminal Penal Code is full of statutes and procedures to navigate the criminal justice system. Knowing these rules can greatly increase the support and help you can give your client. Today I will explain the difference between an important section of the law to know, 12.44a and 12.44b. These two sub sections of the law can help make a big difference in your criminal case.

Who does this apply to?

12.44a and 12.44b only apply to people who are being charged with a State Jail Felony. This is the least serious of all felony crimes and can be punishable by imprisonment of 180 days up to 2 years. The downfall about State Jail Felony crimes is that the time you serve must be day for day. Which means you don’t get any 2 for 1 or any deals. You have to spend your entire sentence in jail.

Because the defendant would  have to spend the entire time in jail, lawmakers decided to create 12.44a and 12.44b to help lawyers negotiate better deals. Both sides must agree however for these rules to take effect.

12.44a

The exact law reads as follows,

“Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.

(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.”

What 12.44a means is that instead of giving you the punishment of a State Jail Felony (180 days-2 years), they will instead give you a punishment of a Class A misdemeanor which is maximum 1 year of jail. When you are given jail for a misdemeanor you CAN get 2 for 1 and even 3 for 1 on your jail time. Thus greatly reducing your sentence, however the conviction still remains as a felony. The punishment is the only part reduced to a misdemeanor.

12.44b

(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

12.44b is better than the previous one because now they reduce the felony to a misdemeanor. Even on your record it will show as a misdemeanor not a felony. This is much harder to obtain but is much better for the client.

Contact Us

If you are charged with a State Jail Felony, please contact us so that we can help you with your case. An experienced criminal defense lawyer will help you get the best outcome for your case.

 

Immigration Hold

The Criminal Justice System and Immigration Courts are two entirely different judicial proceedings, though they ultimately can be tied in together for certain defendants. When a person is in this country illegally, they are by default “removable” (the politically correct term for deportable).

The truth is that the number of undocumented people in this country far exceeds the Department of Homeland Security’s (DHS) capacity to deport. So, in 2014, the DHS created a “Removal Priority System,” a ranking system for people who are to be deported based on the country’s priority to deport them. At the top of the list are people with criminal convictions and they will have an Immigration hold placed on them.

I frequently see clients who either already have or fear an immigration hold. An immigration hold is a form of detention placed by Immigration Customs Enforcement (ICE), the immigration police arm of DHS. ICE will instruct the local jail housing the inmate not to allow them out under any circumstances until ICE comes and gets them. Remember, DHS is trying to remove people with criminal convictions.

At this point, the defendant is at the mercy of DHS. Even if the defendant bonds out of jail, the jail will notify ICE who will take him or her into custody. If the defendant pleads guilty, the same will happen. The only way to remove an ICE hold is if a defendant’s case is dismissed or if he is determined not guilty. At that point, since the defendant no longer has criminal proceedings against him or her, the defendant drops to DHS’ second priority, dramatically reducing the likelihood for deportation.

I have found that in Harris County, due to the immense amount of criminal proceedings occurring daily, ICE will only apply an immigration hold if the charge is a felony or a serious misdemeanor. The reason being that serious criminals should be the highest priority of removal from this country.

If ICE does detain and transfer a defendant to immigration jail, the defendant may or may not be eligible for a bond under Immigration Nationality Act 236, depending on the criminal conviction. The Immigration Nationality Act sets the rules governing immigration proceedings, while the Texas Penal Code is what governs criminal proceedings.

Sometimes serving undocumented clients means an attorney has to face both criminal and immigration issues. Criminal convictions can have serious consequences in the immigration realm, and it’s important to have a lawyer who knows that.

Always consult with an immigration attorney if the defendant is undocumented because after the criminal case, there may be an immigration case following.

Immigration Law: Aggravated Felony

An “aggravated felony” conviction can be a lifetime bar to almost all forms of immigration relief. Under United States immigration laws, an aggravated felony is the highest form of criminal charge one can face and can make any non-citizen deportable, even one with legal status.

Even more troubling, a crime classified as a misdemeanor under state law could be considered an aggravated felony under immigration law. Today’s tip explains a certain type of aggravated felony and how to handle those situations to avoid immigration consequences.

Under the large umbrella of aggravated felonies, the Immigration Nationality Act sub-divides crimes into multiple categories. One category is termed “crimes of violence.” These usually include assaults and aggravated assaults. While states may define these crimes differently, immigration law establishes its own definition.

If the state definition of a given crime matches the immigration definition of an aggravated felony, then that charge is treated as an aggravated felony for immigration purposes. Unfortunately, this means that a person can be convicted of a misdemeanor in state court, yet that charge will be viewed as an aggravated felony in the eyes of immigration.

I hope I haven’t lost your attention just yet.

Admittedly, the world of aggravated felonies under immigration law is a highly complex area of law because it differs from state to state. One way to prevent being convicted of an aggravated felony of a crime of violence is to avoid 365 days or more in prison.

What this means is, if you are charged with assault here in Texas and are sentenced to 365 days in jail, it is automatically considered an aggravated felony of a crime of violence under immigration laws. While it may sound arbitrary, if you are being convicted of a crime of violence, the one-year marker is the determining factor of whether immigration law considers the charge an aggravated felony.

So, let’s consider a hypothetical situation. Diego has a green card thus is in the USA legally. Green card holders have the best immigration status achievable aside from being a citizen. Green card holders can only get deported if they commit aggravated felonies or other certain specific crimes established by law.

Diego gets arrested in Texas for assault. He got in a fight at a bar, and now Texas is bringing criminal charges against him. Assault under Texas law can be punishable up to 1 year in jail. Let’s assume Diego is found guilty and sentenced to 365 days in jail. After Diego completes his time, Immigration Customs Enforcement will pick him up and place him in deportation proceedings because he has an aggravated felony that stems from 365 days in jail.

Now, let’s assume Diego is in the same situation, except he hired a lawyer who knows about immigration law. The lawyer should work for an outcome that does not involve 365 days of prison. For example, the lawyer could negotiate a deal for 364 days and avoid causing an aggravated felony of a crime of violence under immigration law, and Diego would not need to worry about deportation proceedings.

This is a critical factor to be mindful of when dealing with crimes of violence in a state court. Knowing this little fact can help prevent a permanent bar to immigration relief.

If you have any questions regarding aggravated felonies or the cross-over between criminal and immigration laws, please feel free to contact me at (832) 819-3723.

Criminal Bars to DACA

Donald Trump has promised important changes to immigration policy within his first 100 days in office, and the last few days have certainly borne that out.  As an immigration attorney, I have been anxiously awaiting his policy decisions about Deferred Action for Childhood Arrivals (DACA), also known as “the Dream Act”.

DACA is a program that benefits children who entered this country illegally at a young age. If you are accepted into the DACA program, the government essentially overlooks your illegal entry into this country and you can remain. The policy reason for this act was to prevent children who had entered at a young age, through no fault or act of their own, from being removed to a country they never knew.

The prerequisites are that the child be in school or have graduated, and been physically present in the United States before June 2007. Once the application is approved the child has DACA status. Once you have DACA your only responsibility is to renew it. However, you can lose your DACA status if you are convicted of certain criminal charges.

I want to cover the criminal side of the DACA program and how to best maneuver the situation for criminal defense attorneys. First, if an applicant has plead guilty to a state or federal felony, they will become ineligible for DACA renewal. This includes BOTH convictions and deferred adjudication.

Therefore, reduction to a misdemeanor could be the difference between your client’s ability to stay in the US and being subject to deportation. In fact, many other forms of immigration approval are balanced on felony convictions, as well, and will likely cause problems for the non-citizen client. To classify as a felony under Immigration law, the crime must be punishable by one year or more in prison.

Therefore misdemeanors, which carry a maximum of one year jail time in Texas, cannot constitute a felony for immigration purposes. Example, if you are convicted of a crime which is punishable for more than a year, it doesn’t matter if you get deferred or probation. It will make you ineligible for DACA.

Immigration also has its own definition for “Aggravated Felony”, which is more complicated but doesn’t apply to DACA standards.

If an individual pleads guilty to a “significant misdemeanor” they will also become ineligible for DACA. To classify as a significant misdemeanor the individual must have been convicted of a state misdemeanor and sentenced to more than 90 days of confinement OR be convicted of one of these enumerated charges:

A lawyer should see if the charge can be changed so it doesn’t fit within the meaning of “significant misdemeanor.” For example, if a DACA applicant were charged with Driving Under the Influence, a conviction would render him ineligible for approval or renewal. However, a conviction for a lesser offense, such as Reckless Driving, would not affect DACA acceptance.

An applicant is also rendered ineligible for DACA by pleading guilty to three non-significant misdemeanors. Essentially, it’s a three strikes you’re out rule. If you are convicted of any three misdemeanors not arising out of the same situation, you will be ineligible for DACA.

It doesn’t matter if you got them 5 years apart from each other. Three strikes and you are out. Interestingly, the law specifies that traffic offenses and other minor offenses, in some places categorized as citations rather than misdemeanors, don’t count toward the three misdemeanors. If you can, explore reduction to a traffic offense.

When an applicant’s DACA application is under review the United States Customs Immigration Service (USCIS) has complete power over the application. An agent looks over the application and they have the discretion to approve or deny it. Despite never being convicted of a crime, if the agent finds that you are a “threat to national security or public safety,” they can deny an application outright.

I am concerned that this may be where the Trump administration exercises its discretion, and denies good DACA applicants out of misguided and discriminatory intent. In my experience, under the Obama administration, the Dream Act was meant to benefit more than to punish.

I have had a few clients who lost DACA status due to a criminal conviction, but I have also seen the happiness a family gets when they open their acceptance letters.

The connection between immigration and criminal law is an important factor when dealing with the government. On one side, you have the United States who wants to make sure they aren’t allowing bad people into our country to do harm. On the other side, you have good immigrants who just got caught in a bad situation.

It is for this reason that having a lawyer who knows both areas of the law will greatly affect the outcome. With Trump mentioning he will sign more Executive Orders soon, I am curious to see the implications it will have on the DACA program.

If you are considering DACA and have had previous arrests, please call us for a free consultation with a Houston immigration lawyer at (832) 819-3723.