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.

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).

Theft Values

One of the most basic criminal charges that we hear about and most people understand is theft. In one way or another, the public has the same definition for it. Ultimately it means someone took something from someone else and didn’t give it back. Here in Texas, theft is found in the Texas Penal Code under section 31.03. The legal definition of theft in Texas is “A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of said property.” What makes theft interesting and why I chose to make it the topic of this blog is because of the punishment. The punishment for theft depends on the value of the property stolen. Theft punishment can range all the way from a simple fine to a first degree felony, depending on the value of the property stolen.

I recently had an interesting case where the defendant was accused of stealing furniture from a home furniture store that he worked for. The furniture was purchased by an online customer who was going to pick it up later that day but unfortunately was stolen by defendant. The total value of the furniture stolen was estimated to be $1,529.48. With the property value being that much, it falls under a state jail felony (a value between $1,500 and $20,000). A state jail felony carries a punishment range of a minimum 180 days and a maximum of 2 years in jail with a heavy fine. It bugged me that we were just $29.48 over the limit making it a state jail felony. I knew that if I were to reduce the value of the property to under $1,500, the case would drop down to a class A misdemeanor which only carries a maximum punishment of one year. The evidence I was given by the prosecutor’s office showed that the furniture was listed for $1,529.48 on the internet; however, my client knew that the store was a second hand furniture store and the prices online never were what the items actually sold for in the store. This triggered a light bulb in my head and I thought that if I can show that they were sold for cheaper then maybe my client could get it reduced to a misdemeanor. Remember, all I needed to do was reduce the value by $29.48.

I filed a motion for discovery with the court, which allowed me to get my hands on any evidence that is “material to the defense of the accused.” Here the argument to the court was that I wanted to get a receipt between the store and the customer who purchased the furniture to prove that the value of the furniture was in fact $1,529.48 and not sold at a discounted price. The prosecutors tried to counter and say that the online price should be evidence enough of the value but I was able to defend it by saying, “furniture stores always have deals and specials, it could be that this furniture was discounted at the time of purchase.” Ultimately the judge granted my motion for discovery, and I was able to force the store to show me the receipt of that transaction. After about two weeks of waiting, the transaction paperwork finally arrived. The furniture WAS sold at a discounted price and the total was $1,398.16! Since the value of the property was actually below $1,500, the theft charge was no longer a felony but instead a class A misdemeanor.

In conclusion, sometimes when you are dealing with a case that involves a certain monetary amount, be sure and do extra investigation to make certain the amount in question is legitimate. In this case our best chance was reducing the amount by $29 and luckily we were able to do so. A motion for discovery should always be filed because it lets you get your hands on the information that you need to protect your client. Sure, sometimes it may be more work and more papers to go through, but upholding justice goes both ways and it’s not fair to be accused of stealing a certain amount of property when in reality that the value was different.

Criminal Conduct and Immigration Holds

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.

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.