About Charles Zavala

Charles Zavala is an Immigration and Criminal Defense Attorney in Houston, Texas. Combining his experience of Immigration law and Criminal Defense work, he is able to help many people who face Immigration consequences. Aside from Immigration work, Charles also enjoys working on 4th Amendment Search and Seizure cases.

Immigration Bond 101

When an individual is in custody with Immigration Customs Enforcement (ICE) they may be eligible for a bond depending on a few factors. Bond is the ability to pay money to have the individual released from custody while their current case is pending. It does not mean that his case is over and he is free to go but instead he can enjoy the liberties of being outside of custody during his proceedings. Bond is not an exclusive right when it comes to Immigration.

There are two ways to obtain an Immigration bond. The first is if ICE determines you are eligible for a bond and sets a price. However, if ICE doesn’t set a bond or if they set one too high you can always ask for a bond through an Immigration Judge.

The Immigration Judge will look at the following to make his decision on whether to allow bond and at what price to set it.

  • He finds that the alien is not at flight risk and will attend all future court hearings.
  • The alien is not deemed a danger to the community and/or is rehabilitated after any crimes which might have been committed in the past.
  • That alien has relief from removal. The greater the chance for the alien to win the immigration case, the more likely the judge is to give a lower bond.

In some situations, the individual must be in mandatory detention and is not eligible for a bond. This occurs when the person has been convicted or has admitted facts to any of the following crimes.

  • a crime involving moral turpitude, unless the maximum sentence possible is one year or less and the actual sentence you received is less than six months OR if you were under 18 when you committed the crime, it was more than five years ago
  • multiple convictions where the combined sentences are five years or more of imprisonment
  • a controlled substance offense (any drug offense, including if the immigration authorities have reason to believe that you are a drug trafficker)
  • a prostitution-related offense
  • terrorist activity
  • significant human trafficking
  • money laundering.

One of the biggest perks of getting an Immigration bond is that you no longer need to reside in custody while your case is going. However, another strategic perk is that since you are no longer in custody you are now transferred to the “Non-Detained” docket which in the past has gone by slower and grants the individual more time in this country while his case is being processed.

Example:

Individual #1 is not eligible for bond therefore he is on the “Detained” docket. He will see an Immigration Judge who only deals with individuals who are detained. This docket is much faster because they are trying to settle these cases quicker due to limited availability in the detention centers. An entire case from start to finish could be over within 5 months.

Individual #2 is eligible for bond and is now placed on the “Non-Detained” docket. This individual will be seen by an Immigration Judge who handles people who are not detained. Because there are so many individuals who make bond, the docket is MUCH larger. Some cases are even set for hearings as far as 2019. Thus, buying the individual another two years in the country while his case is processing.

Age of Sanctuary: End Times

On May 7, 2017, the governor of Texas Greg Abbott, signed a new document that would go into law September of this year. This new law addressed the controversy around “Sanctuary cities” and now requires police to ask about a person’s legal status. In simple terms this new law would require local police to question a person’s legal status and arrest them if they are undocumented. If they do not, the police can face criminal charges as well as fines. This new law is being met with extreme resistance from Pro-Immigration groups and the American Civil Liberties Union but also applauded by many. I will try to highlight the viewpoints from both sides to help easily paint the picture.

The easiest way to explain the idea of a sanctuary city is to first understand the difference between Federal and State law. Immigration is Federal law and handled by Department of Homeland Security (DHS) and the Department of Justice. In the past, it was the duty of DHS to find and catch undocumented people, not state/local  law enforcement. However, once an undocumented person was arrested and convicted by a State Judge they are SUPPOSED to be reported to Immigration for deportation. This is where the term “Sanctuary City” comes into play. There are certain cities/counties that even after conviction they do not report the undocumented person to DHS and let them leave jail after completing their sentence. With the new President, he vowed to put an end to “sanctuary cities” and Texas quickly followed. The catalyst for this action occurred in San Francisco (which is a Sanctuary city) in 2015, when a girl was killed by an undocumented individual despite him having been in jail multiple times. The argument is if San Francisco complied and notified Immigration officials, the individual would have been deported and this murder never would have happened. By implementing this new law, Texas hopes to facilitate the deportation of undocumented individuals.

However, the opposition of this new law argues many different points. One complaint of many local law enforcement is that they would be spread too thin. They do not have the manpower nor would that be a good use of local law enforcement.  Their view is that our police have bigger issues to deal with than doing the work for DHS. They can’t do the work of DHS and still keep up with their local duties. Others say that we can’t hold all the undocumented people in jail because there just isn’t enough room. A similar law had been tried in Arizona a few years back which gave the police the power to ask for an individual’s legal status. Ultimately this law was removed but many people argue that this new Texas law is the same wolf in different sheep’s clothing.

Even though this new law is supposed to come into effect on September 1, 2017, it will be met with much opposition and legal challenges. It will be interesting to see if other states follow Texas’s example and implement similar laws. Below is an excerpt from the Associated Press regarding the new bill.
The Associated Press reports:

“The new Texas law was blasted by opponents as the nation’s toughest on immigrants since Arizona’s crackdown in 2010, disparagingly known as the ‘papers, please’ provision. They are now vowing a court challenge in Texas similar to what unfolded in Arizona.

“Every major police chief in Texas, which includes some of the largest cities in the U.S., opposed the measure that allows police to inquire about the immigration status of anyone they detain, a situation that can range from arrest for a crime to being stopped for a traffic violation.

“It also requires police chiefs and sheriffs — under the threat of jail and removal of office — to comply with federal requests to hold criminal suspects for possible deportation. Republicans have a strong majority in the Legislature and shoved aside Democratic objections, even as President Donald Trump’s efforts to withhold federal funding for sanctuary cities have hit roadblocks in federal courts.”

The Future of the Dream?

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:

-Domestic Violence

-Sexual Abuse

-Unlawful possession of a firearm

-Burglary

-Driving under the influence

 

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 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.

Today’s Tip: The Aggravated Felony and Immigration

immigrationAn “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 aggrevated 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.

V O T E

votingElection day is upon us! In a few days the United States of America will have had elected a new President and the Election 2016 Extravaganza will be over, but we’re not there yet.

I urge you to please go vote. I don’t care which party you vote for just please go vote. One of the most precious things about our country is that it gives us citizens the RIGHT to choose who we want to lead our country. Too many people believe that they have to vote for either Hillary or Trump. Wrong, you can vote for who you want to be the leader of your country. If it’s Hillary so be it, if it’s Trump so be it; if you want it to be your uncle Ted, you can write him in. But remember you vote for who you want to be the President and leader of this country.

Aside from the national elections, local elections that affect your daily life are occurring at the same time. At least in my line of work the election for District Attorney can be very impactful to my day to day as well as the citizens of Houston.

Today is the day; I urge everybody to vote. Below I attached some instructions and information regarding polling. So put on your walking shoes and get yourself to a polling center and vote. It’s your right as a citizen and let’s be honest we’re all interested to see where this election goes.

 

If you are unsure of where you are registered to vote, Google has made it easy. In your Google search bar type “Where to vote” and it will prompt you to enter your home address. It will show you polling locations that are within your area. You can also visit VoteTexas.gov to get information on polling locations and what you need to bring.

 

You will need acceptable identification. If you have one, bring one of the following. The ID must be current, or be expired by less than 4 years:

 

Texas driver license issued by the Department of Public Safety
Texas election ID certificate
Texas personal ID card
Texas license to carry a handgun
US military ID card with your photograph
US citizenship certificate containing your photograph (doesn’t need to be current)
US passport

 

If you don’t have any of these, you’ll need to (1) sign a sworn statement that there is a reason why you don’t have any of the IDs listed above, and (2) bring one of the following:

Valid voter registration certificate
Certified birth certificate
Current utility bill
Government check
Paystub or bank statement that includes your name and address
Copy of or original government document with your name and an address (original required if it contains a photograph).