Probation vs Deferred Adjudication: 5 Key Differences

Probation vs Deferred Adjudication: 5 Key Differences

As a criminal lawyer, I often find clients eager to know more about how probation works in Texas. It is always best to fight the prosecution and prove your innocence. But when there is indisputable evidence to establish your guilt, you may want to explore the option of probation, community supervision, as mentioned by Article 42.12 of the Texas Code of Criminal Procedure, enables you to avoid jail time.

No doubt, it is better to plead guilty and be placed on probation than going to prison. However, probation is not the sole option. You may avoid prison and substitute the jail term with community supervision in two ways – probation and deferred adjudication. Let’s find out the similarities and major differences between the two.

  • Conviction and Sentence

Probation follows your conviction if you opt to plead guilty. The court determines that you are at fault and pronounces the sentence. However, in the interest of justice, public, or your favorable record, the judge may suspend the sentence and order you to remain under community supervision with certain conditions. Though listed as guilty, you can avoid incarceration if you can maintain a clean record during the period and adhere to set conditions.

However, with deferred adjudication, the court spares you by not convicting you. Deferred adjudication means the court is postponing your prosecution. Following your plea to no contest, the judge may find evidence sufficient to establish your liability. However, he puts the process on hold and orders community supervision for a period. After successful completion of deferred adjudication one can seek a way to have their records sealed.

In both instances, supervision conditions remain the same, but probation will show as a guilty and deferred adjudication can be sealed/hidden.

  • Eligibility and Charges

You may get a straight probation only after you are convicted by a jury verdict  or plea bargaining. The judge must approve the plea of probation negotiated between the prosecutor and the defense attorney. Since probation is a negotiated deal, repeat offenders or more serious crimes may not be eligible for probation.

In Texas, all charges in and above Class B misdemeanor are punishable with prison terms. Deferred Adjudication can apply to both misdemeanors and felony cases. However, as deferred adjudication is viewed as more lenient, it is less likely to be granted when you face serious charges depending on the facts.

  • Violation and Punishment

If you violate probation terms, you have to go through the original sentence. For example, you are found guilty of a charge that carries 2-10 years of jail. You got a 5-year sentence after pleading guilty and the court sends you on probation. You may end up in prison for 5 years if you infringe the probation.  

But if you are on a deferred adjudication, this violation may cause more trouble. The prosecution will restart and you may be awarded anywhere between 2 to 10 years sentence. The judge may not favor a regular probation and even announce the maximum punishment. However, if you have a competent criminal lawyer defending you, you have a chance of securing probation or lower the sentence.

  • Termination of Supervision

According to the Texas state law, no straight probation can be terminated before half the term. You can claim specific time credits for your good work and accelerate your reach to the half-way mark. However, their application may vary from one case to another.

In the case of deferred adjudication, your sentence is not fixed yet. So, you have a chance that the court may terminate your supervision at any time. Having an experienced criminal defense attorney who is familiar with the local court system may help you reach these results.

  • Criminal Record

If you were on  probation that means you were convicted and the police have records of it. The probation period is equivalent to your sentence, though without any jail term. But with a deferred adjudication in Texas, you can potentially hide your criminal record from potential employers and the public.

However, it is a myth that the offense disappears once you complete the deferred adjudication. Once you complete deferred adjudication you can request what is called an Order of Non-Disclosure. This will allow you to seal your record so that the public cannot see it.

Even if you receive deferred adjudication, the federal laws consider deferred adjudication a conviction for the purposes of immigration. Therefore if someone is applying or in immigration proceedings, they should know that deferred is a conviction.

Contacting an experienced criminal defense attorney can be a big difference in your case. Call us at Zavala Texas Law (832) 819-3723.

 

Notice to Appear – Houston Immigration Court

What is a “Notice to Appear” in Immigration Court?

Immigration court proceeding is the name given to the process when the Department of Homeland Security is trying to remove someone from the USA. Under the Immigration and Nationality act, a person being removed from the country has the right to a court appearance.

To initiate court proceedings the DHS has to serve a Notice to Appear to the “respondent.” Respondent is the term given to the person who is in the process of deportation. DHS will serve upon the respondent a Notice to Appear, which notifies the respondent that they must present themselves at an immigration court on a certain date and time. Serving the Notice to Appear is the first step to start immigration removal proceedings. After the respondent has been given the notice, they should hire a experienced immigration attorney to help on their case.

What is in a Notice to Appear?

A Notice to Appear will contain a lot of useful information about your immigration case. Your immigration lawyer will need to see a copy of the Notice to Appear so that they can see the formal charges the government is bringing against you.

Information within the Notice to Appear

-Respondent’s name

-Alien Number

-Designation of Immigrant Class

-The facts against you

-The reason they are trying to deport you from the USA.

-Location and Time of Immigration Court

 

What happens after you have been served a Notice to Appear ?

After you have received your Notice to Appear, the Department of Homeland Security can now start its case against you. If you or someone you know received a Notice to Appear, it is extremely important you consult an immigration lawyer. Under no circumstance should you ignore the date and location given on the Notice to Appear. If you do not present yourself to court as indicated on the NTA, the judge will automatically grant you an order of deportation in absentia. Just by not showing up, you lose your case and have now been ordered deported from the USA.

 

USCIS Travel Document (I-131)

The importance and understanding of a USCIS Travel Document (Form I-131)

What is a Travel Document? (I-131)

Depending on what your immigration status in the USA a form I-131 Travel Document may or may not apply to you. However, for certain immigrants who are in this country under certain status such as DACA or a Temporary Protected Stay (TPS), a travel Document is extremely important if you intend to leave the country and return. The way the law is written right now, people with DACA or TPS are not allowed to reenter the country if they leave. So, let’s pretend you have DACA or TPS and you leave the USA to go on vacation. Upon your entry back into the USA it’s very possible that the Department of Homeland Security does not let you enter the country. That is why you need to apply for a Travel Document before you leave.

Applying for a Travel Document (I-131)

To apply for a travel document, you must fill out application with USCIS on form I-131. The purpose of the document is to acquire USCIS approval so that you can leave and then return into the country. You can only get a travel document for the reasons listed by law. The most common one is for humanitarian reasons such as a sick family member or a special event that USCIS deems worthy. Once your travel permit is granted you can leave the country and then upon entry show them your travel permit and they will let you back into the country. If you leave the country without it, you risk not being allowed to enter the country again.

Using the Travel Document as a Legal Entry

However, the travel document also has another function. People who are here under DACA or TPS and have an immediate relative who can petition for their green card, the travel document can be a game changer. Currently the rules state that if you entered the USA legally you can apply to get your green card while being in the USA. However, in the 5th Circuit (Houston), the law doesn’t recognize DACA or TPS as a legal entry. Therefore, if they want to get a green card they must leave the USA. However, now that we know about the travel document it is possible to apply for one and if granted use it as your legal entry. Let’s pretend someone gets a travel document, leaves to Japan and comes back in. The government will allow them entry because of their travel document and now they have a LEGAL entry into the country and can now apply for their green card in the USA.

Therefore, applying for a travel Document for people who have DACA or TPS can be a game-changer when it comes to getting a green card.

Contact Zavala Texas Law

Feel free to contact us to discuss whether you’re eligible for a travel permit and how it can help you get your green card.

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.

Factors to consider before applying with Immigration

Applying for a Green Card or Visa

If you’re trying to obtain a non-immigrant Visa or legal permanent resident status AKA green card, there are two major things you should consider before applying for your visa.

Eligibility

The first step to come to United States is to see if you are eligible for an immigrant or non-immigrant visa. There are multiple visas one can apply for ranging from tourism all the way to employment-based. Each type of visa has eligibility standards and if you don’t qualify they will deny your application. Let’s take a very common B2 Visa, this also known as a tourism Visa. Let’s pretend foreign national wants to apply for a B2 tourist visa. However, at his interview, he claims that he wants to go to USA so that he can work and make money. This would be a violation of the visa guidelines because you are not allowed to work on a tourist visa. Therefore, if he intends to work, he will not be eligible for a tourist visa because he has an ulterior motive. On the employment side there are other visas such as an E2 investor visa which requires a foreign national to open and operate a business in the United States. You must prove your eligibility through business plans and documents. It’s important to determine your eligibility for the intended visa you are applying for. Consult with us at Zavala Texas Law, to help you determine your eligibility.

Inadmissibility

When the United States reviews your current visa or green card application, they will also decide whether you are inadmissible.  The term inadmissible means based on the rules of the Immigration and Nationality Act, you are a person who the USA cannot admit into the country. In my experience most all inadmissibility ground usually come from criminal backgrounds, prior illegal entries, being associated with a criminal organization.

A common example would be if you entered the country illegally or if you overstayed a visa. Both of those examples could find you inadmissible. Depending on the inadmissibility reason, you may be eligible for a discretionary waiver. A waiver is essentially a pardon by immigration. Therefore, if you get your waiver approved cancels out your inadmissibility and you are now admissible into the country.

If you have more questions regarding obtaining a Visa or green card, please feel free to contact us we are here at your disposal.

USCIS: I-797C Explained

What is an I-797C Receipt?

Anytime you file applications with USCIS they will send you what’s called an I-797C receipt. This is a confirmation that USCIS received your application and it is currently being processed . I-797C  receipt is called that because on the upper right hand corner it says I-797C. No matter what application you submitted you will receive an I-797C receipt once USCIS receives your application.

Receiving a receipt does not mean that your application has been approved nor has been denied, all it means is that USCIS has received it and it’s currently processing. Each I-797C document will give you current case updates or will notify you if you were approved or denied.

On the  I-797C receipt it is customary to have a receipt number so that you can track your case with USCIS. When you hire an experienced immigration lawyer, they will receive the majority of the paperwork USCIS sends you. They will keep you informed on your case status and let you know of anything that is needed.

Travel Considerations for Immigrants

Travel considerations for immigrants

If you are here on an immigrant visa or green card, there are a few things you should consider before traveling out of the United States. If you plan on entering the USA again you will be inspected by Department of Homeland Security upon your entrance. They will check if you have a valid immigrant visa and if you have a criminal record that would make you inadmissible.

Valid Immigrant Visa

Make sure you have a valid immigrant visa that will not expire while you are out of the country. When you enter the country, DHS will look to make sure you have a valid visa that allows you to be in the country and hasn’t expired.

If you have an immigrant visa that will it be expiring soon please consult with an immigration lawyer to make sure there will be no complications upon your arrival back into the country.

Criminal Background

If you have been convicted of a crime or have pending criminal charges, it is very important you consult with an immigration lawyer before you travel outside the country. The reason why is because when you try to enter USA they will look at your criminal background. If you have a criminal record they may not let you back in the country. There are many crimes that can make you inadmissible and ultimately will result in your denial into the country.

The criminal consequences vary depending whether you have a green card or an immigrant visa.

Pending USCIS application

If you are currently in the process of getting an immigrant visa or getting your green card, you should speak with an immigration attorney before you leave the country. The reason why is you don’t want to cause any delays in your green card or visa if you leave the country. They may also schedule interviews while you are out of the country. There are some instances where if you leave the country during your application they will deem it abandoned. Therefore you may have to ask for a travel document to let you leave the country and come back in.

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

Termination of DACA

DACA Memo – September 4, 2017

Earlier this month, the President of the United States, Donald Trump, terminated an executive order known as the Dream Act. The Dream Act (aka DACA) was created by the Obama Administration back in June 15, 2012. DACA protected people from deportation who were brought here illegally as children. A person had to apply and if granted they would get a work permit and permission to remain within the United States. The policy reason was to protect children from deportation due to the actions of the parents bringing them illegally.

After many months of debate whether Trump would terminate or prolong DACA, the answer finally came on September 4, 2017. In an official memo released by Department of Homeland Security, the Attorney General and administration put an end to the 2012 Dreamers Act. The termination isn’t immediate but will be phased out over a 6 month period. This leaves approximately over 800,000 people at risk of deportation unless Congress is able to enact a law within 6 months. Many activists are urging Congress to pass a law to protect these people from deportation.

In the memo by DHS they also set out guidelines on how they will address applications moving forward.

  • Any DACA application submitted before September 4, 2017 will go under the usual review process and maybe approved
  • DACA applications submitted or received after September 4, 2017 will be rejected
  • Current DACA holders whose DACA status terminates between 9/4/2017 and 3/5/2018 will have a chance to renew their status as long as they apply by October 5, 2017.

As of now Congress has proposed some ideas such as the SUCCEED Act which can help protect the people who qualified as Dreamers. Congress has until 3/5/2018 to pass a law or else many people who have lived here most of their lives will be forced to go to a foreign country of birth.

If you have any questions please feel free to contact us and we will love to talk you through it.

ICE Hold under the Trump Administration

I recently wrote explaining how an Immigration and Customs Enforcement (ICE) Hold affects undocumented people who are in criminal proceedings. It is a simple concept, if an undocumented (politically correct way of saying illegal) person is booked into jail for a crime, ICE can place a hold on that person. A hold is a detainer that gives ICE 48 hours to pick up the individual and transfer them into ICE custody and be placed in deportation proceedings. In the past, if an undocumented person was arrested for a crime, they had the right to post bond and could be free while their case is pending. If they were then found guilty, ICE then had the choice to place an ICE hold on them and take them into deportation proceedings. Since the new Presidential Administration has taken over there has been a big shift in policy regarding ICE holds that place undocumented people at a huge disadvantage.

I would say that 90% of my clientele are Hispanic and majority of them undocumented. What use to be a straightforward process of bonding out your family member has now turned into a lengthy nightmare with in my opinion various constitutional rights being violated. For the sake of my example let’s say my client is called “Alex” and he is undocumented. Let’s say Alex gets pulled over for DWI and goes in front of a judge and is given a $500 bond. Prior to the Trump Administration, Alex’s family or friends could pay that bond and he would be processed out no problem. However, recently due to new leadership in the Department of Homeland Security (DHS) and in the White House, ICE has been a lot more involved with criminal cases.

Under the new policy, Alex’s family can still pay that $500 bond, however instead of being released and handed over to his family he would be released into ICE custody. ICE would then transfer him to a Federal Detention Center and begin deportation proceedings against him. So not only does the family lose their money they paid for bond, Alex now has two cases against him! The original DWI and the Immigration case. Under the Immigration and Nationality Act (INA), an undocumented person is eligible for Immigration bond if they qualify. An Immigration Bond hearing is very similar to a Criminal Bond hearing in that the Judge listens to the pro’s and con’s of releasing Alex out on bond. Where it gets extremely unfair and prejudicial in my opinion is that the Immigration Judge can consider the pending DWI charge and is free to ask Alex about the incident, which is a HUGE constitutional violation of the 5th amendment, the right to not self-incriminate and the idea of innocent until proven guilty. So not only does DHS use the pending DWI against you even though you haven’t been found guilty of it yet, the Judge is free to ask questions concerning the DWI that can later be used against you in the criminal case.

So let’s believe that Alex had a good lawyer and despite the unfair Immigration Bond hearing he still gets a bond in the amount of $10,000. Alex’s family now must pay $10,000 bond however, in the famous words of Billy Mays, “wait, it gets better!”. After Alex’s family pays the bond, ICE instead of releasing him to the family, ICE now takes him back to the original jail to finish out his criminal case and places ANOTHER ICE hold on him. Therefore, Alex is back in jail and cannot bond out because ICE has a hold on him. This gives Alex the only option of fighting his criminal case while being stuck in jail. The reason ICE takes him back to Criminal jail is because they claim he still has a case pending therefore they have jurisdiction to take him. So, after spending $10,500 and still technically being innocent, Alex is stuck in jail until his criminal case is over. This unfortunately causes many people frustration of being in jail for many months so they plead guilty just to get it all over with. Once they plead guilty, ICE is right there to take them back to Immigration detention.

It used to be that ICE wouldn’t get involved unless it was a serious offense and you were convicted and found guilty. Now due to the new policy by DHS, ICE is exercising their power much more which is leading to unfair court proceedings for undocumented people and an extreme overcrowding of jails.

So, we are left with the question… What should we do? As I tell everyone you should absolutely consult with an experienced lawyer so they can explain the process and the solutions to you. Nothing is more important than your freedom so it’s worth to talk to an experienced immigration and criminal defense attorney to help you.