Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Deferred Action Fee Exemption

Most applications for a deferred action cost $465 (which includes an $85 biometric fee), but for some, it may be possible to avoid paying those fees. USCIS is careful to say that they do not offer a “fee waiver” for deferred action applications, but instead only offers a “fee exemption.” The difference probably does not matter to the average person. In effect, it means that instead of submitting the usual fee waiver form, each applicant sends a letter explaining the reason they believe they are eligible for an exemption, along with documentation to support the claim. Such documentation should include proof of annual income along with other documents proving the specific exemption.

The applicant then waits for approval of the exemption, and then, after approval, submits the application for a deferred action along with the exemption letter from USCIS.

There are three stated reasons that a person may be granted a fee exemption for a deferred action and all of them require that the applicant earn less than %150 of the U.S. poverty level, which is recalculated each year.

    1. The applicant is under 18 years of age and homeless, in foster care, or otherwise lacking any family support.
    2. The applicant suffers from a serious chronic disability and consequently cannot care for themselves.
    3. The applicant, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as the result of unreimbursed medical expenses for themselves or an immediate family member.

Anyone who qualifies for an exemption is in a desperate situation. Some attorneys would be willing to accept your case pro bono or at a discounted rate, and it would be worth talking to attorney to make sure it is done correctly.


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Renewals for Deferred Actions for Childhood Arrivals

Immigrants who successfully applied for the Deferred Action for Childhood Arrivals (DACA) program soon after it went into effect in August 2012 will soon have their paperwork expire. The terms for both the deferred action and the accompanying employment authorization document are for 2 years. That means the first approvals will expire in late summer and early fall. USCIS is in the process of designing the renewal paperwork for deferred actions.

First, the bad news. It appears the filling fee is going to remain the same. It will cost $465 to file, regardless of whether someone is renewing or applying for DACA the first time. Applicants will also have to submit the same three forms that were submitted the first time: I-821D, I-765, and I-765WS.

Now, the good news. Applicants will not have to resubmit the supporting documentation. Only a handful of documentation should be necessary for applicants who have had no new criminal charges and have not been in any removal proceedings over the last 2 years. Also, USCIS is assuring immigrants that most applications will be processed in under 120 days (about 4 months).

It is worthwhile for applicants to prepare in advance, resubmit their paperwork, and ensure that there is no interruption in their eligibility to work.


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Court Will Soon Clarify Cell Phone Searches

Tomorrow, the Supreme Court is scheduled to hear oral arguments in two cases that will decide the extent law enforcement officers can search a person’s cell phone after an arrest. I have written about this issue before, and about how much sensitive data most people keep on their cell phones. Once the Court issues its ruling, we will know where whether our cell phones are really private.

People put embarrassing and deeply personal information on their cell phones, but most data files do not relate to criminal acts. The couple depicted in the commercial below probably would not want anyone looking through their cell phones. If the Court allows it, police departments will routinely copy all the information from seized cell phones and upload it to a database for permanent storage. Government officials could peruse the data whenever it suits them.

The capabilities of cell phones allow for nearly unlimited personal information to be stored. Some smartphones now hold 64 gigabytes of data. Right now, phones have enough space to store thousands of personal emails, pictures, videos, and text messages simultaneously, and data storage capacity increases each successive year.

If the Court rules that an arrest does not necessarily justify a search of a suspect’s phone, the police will still have the option to request a warrant. With electronic warrants, it is possible to issue a search warrant within a couple of minutes. The importance of this is that you have a neutral judge deciding whether there is probable cause to search the phone. Otherwise, we will have police officers fishing for evidence for each person they arrest, and the private lives of everyone will be a little less private.


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Anonymous Tip? Enough for a Traffic Stop

A Supreme Court decision came out today, and it now appears the police can pull over anyone with just an anonymous tip. The case, Navarette v. California, involved a tip from an unknown caller describing the truck and license plate of the defendants.

The driver in this case drove perfectly, at least while the police observed. An anonymous caller alerted 9-1-1 dispatch that a truck had allegedly run her off the road. Concerned about possible drunken driving, police located the truck and followed it for five minutes, but they failed to observe a single traffic violation. It is extraordinarily difficult to drive perfectly for five minutes. The police usually can find a traffic violation to pull over a vehicle, but they did not find a single reason. They pulled over the car anyway. But the Court said that is fine.

This should concern anyone who drives or rides in a car. The Court has put the threshold for pulling over someone at a very low point. Someone can now identify your car and allege some sort of traffic violation, and you may be pulled over. Anyone with a grudge can use the police to harass citizens. Jilted exes, disgruntled coworkers, or stalkers need to allege something, and the police can make a traffic stop, and detain the unfortunate victim. The Court’s rationale hinged on the fact that 9-1-1 calls can be traced, but if no one is motivated to investigate, callers will remain anonymous.


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Sorcery and the Law

You think it’s just memorizing a bunch of spells and throwing them at him, like you’re in class or something? The whole time you’re sure you know there’s nothing between you and dying except your own—your brain brain or guts or whatever…

—Harry Potter, chapter 15, Harry Potter and the Order of the Phoenix

Most people have a decidedly magical view of lawyering. Speak the right Latin phrase and—presto!—the judge rules in your favor. A police officer fails to give you a Miranda warning and—abracadabra!—the charges are dismissed.

The law is magic.

Lawyers are wizards.

People ask me for ways to handle their own case. For myriad reasons, this is a bad idea, but the biggest reason is that most people have no idea what to expect in court. They do not even know the reason for their next court date, let alone what they are supposed to do once they get there. They say, “if you just told me what to do, I’ll save myself a lot of money and you can save yourself the the hassle.” If only it were so simple. This is the simplistic view that Harry Potter says people have about magical duels. There is more to lawyering than just muttering a Latin incantation to a judge, and nothing is simple once you get to court.

In truth, it would be easy to give a naive client a plan A for when they get to court, but they will also need a plan B, C, and D. Whenever the client is throwing “incantations” about the law, the other side is throwing them right back at you. Anyone unprepared will lose a case that they could have won. Nearly any case can be lost through bad lawyering. There are many rules of the courtroom that are not forgiving to the uniformed. For example, if someone fails to object in a timely manner, the law considers the objection waived. Miss a crucial objection and it will sink the case and its appeal, too. Knowing how and when to make objections is something that takes years of study and practice.

People often think that because they are innocent they do not need a lawyer. A proper resolution to a criminal case can take months or even years. This is no less true for those who have a good case for defense and are factually not guilty of the crime. There is no way to quickly teach someone how to fight a case.

People think they can show up to the arraignment, and (Perry Mason style) the judge will see how wronged they have been, and the charges will be magically dismissed. Even if you have a good issue for suppression, you have to know when and how to raise the issue. In my experience, laypeople are bad at even identifying issues for suppression and do not know what will happen even if they win. Sometimes, a prosecutor can proceed with charges without the piece of suppressed evidence.

For so many reasons, it is best to hire a lawyer. Let them do their magic and fight the battle for you.


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Bootleg Video Renews Debate about Cameras in Supreme Court

On ongoing debate among Supreme Court observers concerns whether or not the Supreme Court should allow cameras into the Court. “Debate” might not be the right word since no one seems to be making a strong case for the opposing argument. The consensus among observers is that the Court should allow cameras, and the Court seems not to care. It just quietly continues to forbid cameras in the courtroom.

Last month a youtube video emerged (shown below) which appears the be the first video of the Court in session. This has rekindled the old argument. Professor Erwin Chemerinsky is the latest to take up the mantle. His argument essentially is that open government proceedings are a necessary part of a functioning democracy.

I cannot disagree with Chemerinsky, but this will likely decrease the public’s estimation of the Court. For the most part, the way the Court operates is a mystery. Most decisions are ignored, but occasionally there is an important case that catches the public’s interest. At those times people seem to care more about the outcome of the case and not necessarily about the reasons the Court made its decision. Idealistic notions about the Court will end once everyone sees the behavior of individual justices. It is only a matter of time until a justice is lampooned on late night television for an impolitic jab made during oral arguments.

That is not to say that I am necessarily against cameras in the courtroom. Perhaps the public could use a little healthy distrust of the Supreme Court.


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Is Prosecutorial Misconduct Becoming Common?

That certainly seems to be the opinion of a growing number of judges, and a few opinion writers have have followed their lead and registered complaint. The most prominent judicial critic thus far has been Chief Judge Kozinski of the Ninth Circuit Court. Writing a scathing dissent of the Court’s refusal to rehear United States v. Olsen last December, Kozinski characterized the panel opinion as a free pass for prosecutors to shirk their duties. He wrote, “the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway.”

Prosecutors have a constitutional duty in the United States to turn over evidence that could be favorable for the defendant. To fail to do so would be a due process violation and should be grounds for a new trial and sanctions against the prosecutor. You would not know it, however, by examining appellate court decisions. All too often, appellate judges shrug theirs shoulders and decide to do nothing.

It has been just over fifty years since the Supreme Court explicitly stated a prosecutor has a duty to turn over evidence to the defendant. In Brady v. Maryland the Court held, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” As United States v. Olsen shows, however, appellate courts find that a lot of evidence is not “material.” Taping unparalleled powers of mind-reading, appellate judges regularly express “confidence” that a jury would have convicted even if they had heard the evidence favorable to the defendant. Kozinski thinks this has lead to rampant unethical prosecutorial behavior. “Some prosecutors don’t care about Brady because courts don’t make them care,” he wrote in his dissent.

The bottom line is that there are plenty of incentives for prosecutors to shirk their duties, but few disincentives. Formal sanctions from state bar associations are rare. Appellate courts are reluctant to overturn convictions. In the rare instances where a conviction is overturned, a prosecutor is rarely personally punished. It is very difficult to bring civil suits against prosecutors for constitutional violations. They enjoy qualified immunity which means—without getting too technical—there is a threshold a person has to show before they are even allowed to get their day in court and sue for damages. And if someone happens to prevail in spite of those difficulties, taxpayers pay the settlement.


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Smaller is Better!

According to the Utah Bar Association, the number one official complaint they receive about lawyers is that a lawyer did not return the client’s phone calls or emails. A large percentage of attorney-client problems stem from poor communication. That has not a problem for me. I do not have a secretary; I answer all my calls and write my emails. If I miss a call, I call the person back within a matter of hours.

Regardless of the type of case, people hire a lawyer for a reason. Usually, that is because they do not understand what exactly to expect or how to proceed. When people hire a lawyer that does not communicate, the legal job may be done sufficiently, but that does not mean the client’s mind will be at ease during the process. How much money is it worth to the average person to avoid the dread of the unknown? To avoid worry about what, exactly, their lawyer is doing for them?

When you hire a lawyer at a small firm like Natty Shafer Law, you do not have to worry about an associate lawyer (or worse, a paralegal) doing all the work and then the lawyer signing off on everything. I write my own briefs, fill out my own paperwork, and schedule my own appointments. Phone calls and emails are always returned, usually the same day. I talk to my clients about what to expect and what specifically I am doing for them. Good communication and client peace of mind are what makes the difference at Natty Shafer Law.


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And Down the Slippery Slope We Go

The Utah legislature is considering a bill that requires police departments to collect a DNA sample from every person arrested for a felony. This is the logical extension of last year’s Supreme Court decision Maryland v. King, which I discussed at the time. The Court limited its decision to the collection of DNA for “serious offenses,” but it did not say what constitutes a serious offense. The Maryland law that the Court condoned limited DNA collection to those arrested for violent crimes (specifically enumerated under Maryland law), for an attempted violent crimes, or for burglary. The Utah bill (HB212) expands DNA collection to everyone arrested for any felony.

The Supreme Court justices are not known for being imprecise with language. If the Court had intended to say it was acceptable to collect the DNA of everyone accused of a felony, it could have done so. Instead it chose the undefined phrase “serious offenses.” It is a phrase vague enough to not raise initial concern—I do not remember any non-lawyers expressing concern about the decision—but allows the Court to later expand DNA collection for all arrestees. This should worry anyone concerned about civil liberties. Utah already collects the DNA of everyone convicted of felonies. The only people a change in the law would negatively affect are people who are arrested but later acquitted. This is another way the criminal justice system is eroding civil liberties of everyone, whether or not they are guilty of anything.

UPDATE: The legislature passed this bill, and it was signed by governor Gary Herbert. It went into law on May 13, 2014.


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Just Say ‘No’ to the Police

A new 10th Circuit court case came out this morning that highlights why everyone should just refuse to give the police officers consent for just about anything. The defendant, Michael Harmon, had multiple opportunities to tell the officer “no” and missed them all.

After speaking with the police officer outside his car, the defendant was issued a written warning for failing to maintain a lane and then he was told he was free to go. As Harmon was walking back to his car, the officer called out to him and asked him if he would mind answering a few more questions. As far as the law is concerned, at this point, everything Harmon did and said to the officer was voluntary. If he had just answered that he had to get going, the officer would have had to let him go. Obviously, Harmon did not do that. The officer then asked if he could search the car, and once again, Harmon missed an opportunity to just say, “no.”

Imagine for a moment that Harmon was innocent and had nothing to hide. There still would have been no benefit for talking with the officer. It could only delay him from wherever he was headed. Yet there he was, answering questions and letting the officer search his car for evidence.

Personally, I would rather be anywhere else other than watching passively as an officer rifles through my car. He would not find anything illegal, but it would be a complete waste of my time (and potentially embarrassing) as he snoops around my personal belongings. Everyone has the right to tell a police officer they need to leave, and everyone should do so. Nothing good will come from letting an officer look around.