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New Laws Effective September 1, 2019

The Texas Legislature has made some recent changes that have gone into effect as of September 1, 2019. It is important to be aware of these law changes in case you need to alter any everyday behavior. Here are some of those changes:

-Legalization of Brass Knuckles

In House Bill 446, the legislature decided to eliminate the term “knuckles” from those subject to the Texas registration requirement. This change from the previous law will allow you to carry these knuckles in public without risk of punishment.

-Texas Raises Legal Smoking Age to 21

Young vapers could have trouble with House Bill 21, making it illegal for those under the age of 21 to purchase/consume nicotine products, including e-cigarettes. While there is an exemption for those in the military, this new law follows a nationwide trend guided towards decreasing tobacco use among young Americans.

-Gun Law Changes

The most important changes in gun laws Texans need to be aware of are:

Texans who own firearms legally will be allowed to carry them in public following the declaration of a state or natural disaster.

Texas licensed firearm owners can carry weapons into a church or place of worship unless they are given notice that the action is banned. Places of worship may still choose to ban guns from their sites.

Landlords cannot prevent tenants from having legal firearms on their property and schools cannot ban firearms that are stored in a locked vehicle.

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Unlawful Presence: The Art of the Waiver

On September 30, 1996, President Bill Clinton signed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) establishing the harsh penalties presented with the dreaded “unlawful presence” bar. This bar prevents countless of individuals from even applying for legalization out of fear of being barred from the U.S. due to their unlawful presence.

UNLAWFUL PRESENCE BARS

Immigration and Nationality Act 212(a)(9)(B), 8 USC [section] 1182(a)(9) states that an individual triggers the unlawful presence bar when they depart the United States after unlawfully staying in the country for a period of time. Thereafter, the bar must be either waived or extinguished before the individual is eligible to lawfully return to the United States. If an individual has accrued unlawful presence before traveling to a consulate abroad and has not obtained a waiver, they would be barred for 3 or 10 years depending on the time spent in the U.S. unlawfully.

The Art of the Waiver

It is important to understand that unlike most immigration matters, the waiver process does not contain an interview portion. Therefore, the adjudicating officer is the judge, jury and executioner in determining whether the waiver applicant merits this benefit. The applicant must establish that refusing their waiver request would result in extreme hardship to the citizen or lawfully resident spouse or parent of the applicant.

Compiling the waiver is as much an art as it as a practice of law, the attorney must prepare a filing so convincing that forces the officer to not just apply the law to the facts presented, but also reason with them on an emotional level, forcing them to decide in the applicant’s favor meanwhile making them believe it was their idea the entire time.

Proving Extreme Hardship

USCIS has yet to define what extreme hardship is for waiver concerns. However, any experienced immigration attorney will tell you that USCIS tends to look at some of the following:

Family Ties and Impact

Social and Cultural Impact

Economic Impact

Health Conditions and Care

Country Conditions

Family Ties and Impact

This is the area where less experienced attorneys tend to focus most because there is seemingly always an impact regarding family ties if someone is barred from the U.S. for any period of time. However, when analyzing the effect on family ties these newer attorneys only identify the short term effects instead of fully connecting the potential long-term ramifications suffered by the qualifying applicant. In considering your waiver for unlawful presence, a USCIS officer will factor in the qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. They will also take into account any responsibility for the care of any family members in the U.S., particularly children and elderly/disabled adults.

Social and Cultural Impact

In this area the applicant is forced to almost be more creative since most deportations are to other developed countries. However, USCIS will factor in any potential fear of persecution or societal discrimination that an applicant could potentially suffer if barred from re-entry into the U.S., which is something that varies greatly depending on country and region. For example, it is unlikely that many people are aware of the discrimination of handicap individuals in Moldova. These individuals suffer mass discrimination in Moldova to the point that they are just not safe to be there. There have been vast complaints of sexual misconduct in centers that house certain handicap individuals. Unless the attorney performing the waiver is well apprised of international affairs, this kind of detail can fall through the cracks and result in a waiver denial.

Economic Impact

USCIS officers will factor in various economic impacts in determining whether to grant or deny the waiver. The subsection most often focused on is the economic impact of the applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation. Often times, applicants have spent little time at all in their country of origin, causing there to be a potential language barrier, which could limit their ability to obtain certain employment.

The Painting

While those factors previously mentioned briefly touch on just what it is that USCIS will consider. It is important to have an attorney that will be able to arrange these facts in a way that is not just neat and organized to the officer, but also in a manner that is convincing and possesses the ability to tug at their heart-strings. Waivers are some of the most difficult benefits to obtain in immigration law and the stakes are even higher as one decider holds the fate of the applicant and their family. Contact an experienced attorney that can guide you through this process every step of the way.

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Can My Spouse Adjust Their Legal Status in The U.S.?

This is often the biggest question most immigration attorneys get asked when handling a spousal petition. There are two different options when adjusting status, consular processing and processing through USCIS in the states.

Consular Processing

Consular processing occurs when the individual is outside of the U.S. and ineligible to process inside the U.S. Once the I-130 petition is approved, it is forwarded to the National Visa Center who performs their pre-interview process. After receiving payment of proper fees, the NVC then sends correspondence to the attorney/beneficiary. Once the documents are completed, NVC sends the approved documentation to the adequate consular post and an appointment letter is produced. The consulate generated is the place of last residence abroad.

The most important thing to remember when considering processing at a consulate abroad is determining whether the beneficiary is subject to any bars for unlawful presence. In general, if an applicant has been unlawfully present in the U.S. for over 180 days but less than a year, or for one year or more after April 1, 1997, they ill e subject to the 3- or 10-year bars respectively. The only way to prevent this is through a waiver.

Adjusting Status in The U.S.

Processing inside the U.S. what most would prefer if their spouse is already present in the states. In order to be able to adjust status inside the U.S., the beneficiary spouse must have a valid legal entry into the U.S. Contact an experienced attorney today to make sure that you/your spouse qualifies to adjust status in the states.

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Cancellation of Removal for Permanent Residents

Deportation Proceedings

If you find yourself in deportation proceedings as a green-card holder, you may qualify for a cancellation of your deportation, otherwise referred to as Cancellation of Removal.

Eligibility

In order to qualify you must prove to the immigration judge that:

– you have been a lawfully permanent resident for at least 5 years;

– you have resided in the U.S. continuously for 7 years after being admitted in any status;

– you have not been convicted of an aggravated felony;

– and you warrant a favorable exercise of discretion

Cancellation of Removal for Permanent Residents is a very complex and time intensive process. Immigration judges and DHS prosecutors will look for a reason to deny this request so it is pivotal to hire the best immigration attorney you can that understands the various pitfalls that come with this process.

Aggravated Felony

A person convicted of an aggravated felony is ineligible for cancellation of removal and has the burden to convince the judge their offense should not be categorized as an aggravated felony. Regardless of the offense/conviction you are charged with, make sure your attorney thoroughly examines them as applying for this relief with an aggravated felony will result in denial. For example, just because you are considered deportable because of a certain offense, does not mean that offense is an aggravated felony for immigration purposes.

Discretion

The court can weigh a variety of positive factors in determining whether it should permit you to stay in the U.S. such as:

– your family ties in the U.S.;

– how long you were a resident for;

– any hardship you or your family would suffer if you were to be deported;

– any U.S. military service;

– employment history;

– value/service to your community;

– evidence of your good moral character;

– proof of genuine rehabilitation if a criminal record exists.

This is not a process to take lightly as winning a Cancellation of Removal proceeding will put a stop to your deportation and permit you to leave DHS custody and reunite with your family. We have handled these cases before with great success as our reviews speak for themselves. Contact our office for a free consultation.

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Adjustment of Status Through Marriage

If you’re reading this then there is a good chance that congratulations are in order. Besides any blender or bread maker a crazy aunt might get the two of you, the U.S. government may give you something a little better than rising yeast.

So you are married to a foreign national and you would like for them hang around the country for a bit. A vast percentage of this firm’s clients are college students who have decided to marry a foreign national, so this is a process we are quite familiar with. Many individuals try to do this process themselves without the help of an attorney, this is a mistake. Most attorneys usually do not charge very much for this service, and you get the comfort of knowing the process is done correctly and that an attorney will be present with you during the adjustment interview.

Each time the couple enters into my office they usually ask the following questions:

“Can I leave the country while my petition is pending?”

“What forms do I need?”

“What kind of questions will they ask me during the interview?”

“How long will this process take?”

Can I leave the country while my I-485 marriage petition is pending?

Every attorney is different and may answer this question differently. I tell every single one of my clients to get comfortable because if you do leave, there is a chance your application will be seen as being abandoned. There are extreme situations in which the applicant may be permitted to leave, but for the most part, no.

What forms do I need to complete?

USCIS has a vast collection of forms that are for very different things so it is easy to get confused as to which form is for what purpose. Most individuals where the spouse is in status and they have a legal entry will need an I-130, I-485, I-765, and an affidavit of support. The purpose of each of these forms is beyond the scope of this post but these are usually a minimum. However, if there is an issue with an overstay, or illegal entry, you will potentially require other forms and to complete an additional process more complex than the one described here. If this is your situation, contact an immigration attorney and seek their counsel about what steps you should take to get the process started correctly.

What kind of questions will they ask me during the interview?

The USCIS officer conducting the interview can ask you an array of questions to verify that the marriage in front of him/her is a bonafide marriage. They can ask anything from when is your spouse’s birthday, the date of your anniversary, or how many picture frames are on the wall in the bedroom. Either way, if the marriage is bonafide, these questions should not pose a problem.

How long will the process take?

In short, it depends. We have represented couples where their case is resolved in 6 months, and others where it is closer to a year. However, the beneficiary spouse could work while the time is pending with an approved I-765, which may make the process seem a little quicker.

In the end, it is important to get an attorney for this process. These forms are complex and easy to make a mistake on. More importantly, an attorney can avoid any pitfalls in your case so that this process can be as smooth as possible. Contact our office for a free consultation.

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Can I get my record wiped clean?

One of the most common questions an attorney gets from a client is “Will this end up on my record?”Nowadays, it’s important to keep your record as squeaky clean as possible because any potential employer can do a simple google search and find criminal history information about a candidate. One of the best ways to put you in the best light possible if you have a criminal case in the past, is to contact an attorney to see if you qualify for an expunction.

What is an expunction in Texas?

An expunction is a legal process to remove a criminal charge from a person’s record and to seal or destroy the state’s record of the arrest or charge.

Do I qualify for an expunction?

The short answer is– it depends.

In Texas, your eligibility for an expunction depends partly on the offense you’ve been charged with. If you’re charged with only a Class C misdemeanor, you may be eligible to get the entire case expunged immediately depending on the final result of the case.

If you’re charged with a Class A or B misdemeanor, you may still be eligible depending on how much time has elapsed from the date of arrest and what the final result of the case was. Even if you’re charged with a felony, you may still be eligible for an expunction depending on the facts of the case.

What is the difference between an expunction and an order of non-disclosure?

While an expunction permanently erases the offense from your past so that no individual will ever know, an order of non-disclosure prevents the clerk of the court from disclosing the case information to most people, more importantly–background checks.

How do I get started?

The best thing you can do to see if you qualify for either of these is seek the advise of an attorney who can guide you through this process. You don’t want to waste your money on an attorney on an expunction if a judge is unlikely to grant it. So make sure the attorney you contact is experienced and wiling to speak about their credentials.

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Attacking DWI Blood Evidence

Without a lawyer that understands the complexities of DWI/blood evidence issues, the odds are stacked against the citizen accused. Under Texas law, a person is driving while intoxicated if their blood results demonstrate a blood alcohol content greater than .08 or the individual exhibits loss of physical/mental faculties.

Most DWI arrests in Texas are the result of either a warrant for a blood draw, or if the individual provides consent to a blood draw. If the accused refuses consent to provide a specimen, DPS could suspend their license as punishment for refusing to cooperate.

Attacking Blood Evidence Collection

Blood samples are generally drawn by nurses using an antiseptic swab that does not contain alcohol. Experienced attorneys understand the requisites that the individual drawing the blood must possess in order for the sample to be valid. This office has handled cases where charges are completely dismissed solely because of the lack of qualifications of the individual collecting the blood sample.

A variety of different factors can affect the blood sample. For example, the preservation. The blood vial should be stored in a refrigerator soon after the blood is drawn. Additionally, attorneys must be checking the integrity of the sample, comparing the expiration date on the blood kit vs. the date the blood kit was used. Your attorney also has the ability to have the blood retested, something that most attorneys do not do on behalf of their clients.

Make sure that if you find yourself charged with a DWI, you hire an attorney that understands the intricacies of the blood evidence. Contact our office for a free consultation.

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How to get an immigration bond when charged with a crime

Far too often, individuals accused of a crime are arrested and when attempting to post a bond to be released, they are informed that the Department of Homeland Security or ICE has issued a hold on them prohibiting them from posting bond. This is an issue that our firm sees on a daily basis and receives numerous calls from family members in Houston, Dallas, and the Brazos Valley area.

The first thing the accused or their family must do is to contact a criminal defense attorney. While the criminal case is pending, the individual is likely not to be released from jail or transferred to an immigration facility until their case is resolved.

If that criminal attorney does not handle immigration cases on a regular basis, it is imperative that the accused or their family then contact an immigration attorney. The criminal attorney may not be fully aware of immigration consequences as a result of a plea so often times, the immigration attorney will consult with the criminal attorney in order to avoid potential pitfalls. When contact either of them, it is important to ask them about their qualifications and ask how they can help you. Often, the outcome of the immigration bond will be dependent on the outcome of the criminal case.

Once the detained is transferred to an immigration detention facility, the issue of their immigration bond as well as their immigration case will be presented in front of the immigration judge. When determining whether to grant the detained an immigration bond, the judge is permitted to look at a variety of factors including: the severity of the offense, criminal history, safety of the victim, community safety, and the strength of any potential immigration relief. The immigration judge does not have an obligation to grant an immigration bond often times enjoy extensive discretion.

In order to have the best chance at success in front of the immigration judge, it is important to obtain an attorney that is not only knowledgeable in immigration proceedings, but also one that can present the detained’s particular set of facts in the best light in front of the judge. For example, the detained may have a family that they provide for and this may be their first offense. Just bringing that to the attention of the judge will usually not be sufficient. The court will often require persuasion based on applicable law, recent administrative decisions, and equities that not every immigration attorney can argue.

If you or a loved one find yourself in this situation, contact our office for a free consultation and see how we can help you.

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Cancellation of Removal for NonPermanent Residents

THE BIG WIN

Facing removal proceedings is a frightening experience not just for the individual, but for their families and loved ones. When in removal proceedings, the most important thing to understand is what remedies you may qualify for. Cancellation of Removal is only available to those that are in removal proceedings so you can only apply for it if you have an open case in front of an immigration judge.

REQS:

Under section 240A(b) of the Immigration and Nationality Act (INA), an individual may be able to have their removal canceled if:

-they maintained continuous physical presence in the U.S. for 10 years or more

-they have good moral character

-they have no convictions under section 212(a)(2), 237(a)(2), or 237(a)(3) of the INA

-their removal would result in exceptional and extremely unusual hardship to their qualifying relatives and

-they are deserving of favorable exercise of discretion

THE HURDLE

The biggest problem a lot of people face in these kinds of cases is meeting the exceptional and extremely unusual hardship burden as required by statute. To meet this standard, you must show that your deportation would cause your child, spouse or parent to suffer a hardship, which would be substantially worse substantially worse than the hardship that is to be expected from deportation alone. Prior to the hearing, your lawyer should have exhausted every possible avenue in order to present your case in front of the judge in the best light possible.

THE BATTLE

Unlike Cancellation of Removal for Permanent Residents, you do not need to be a greencard holder to qualify for this benefit. However, these cases are among the hardest to win in immigration court. It’s important to contact an attorney as soon as possible so that they could discuss any potential remedies you may have. Call our office for a free consultation and see if there is something that we can do to help you and your loved ones.

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What To Do When Arrested For DWI In Texas

Getting arrested for a DWI can be a scary moment for anyone. William Calderon has handled hundreds of DWI cases and these are what we believe to be the most important things to do after you or a loved one has been arrested for a DWI in Texas.

1. Say nothing. Most police cars in Texas have video cameras that monitor the backseat and have audio recording that would be used against you in trial.

2. Get out of jail. Contacting a bondsman quickly after an arrest can make the booking out of jail after an arrest process much easier.

2. Take note of who was there. Any passengers in the car, any witnesses, and get their names. 3. Hire an experienced attorney you can trust as soon as possible. Under Texas law, a person only has 15 days to have an attorney fight for their license.

4. Do not talk to anyone about your case. Do not post on social media about your arrest. The only person that should know about your arrest are you and your attorney.

The best thing you can do is to contact an attorney as quickly as possible. We have found that the quicker an attorney is in charge of the case the better the outcome. Contact our office today for a free consultation.