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Immigration Attorney

Difference Between Seeking Refugee Status and Asylum

Refugees and asylum-seekers (also called asylees) share many similarities. Both groups are typically escaping prosecution in their home countries and trying to access the safety living within the United States can provide.

In these cases, the definition of “Prosecution” is related to applicant’s race, religion, nationality, membership in a social group, or political opinion comes in the form of threats, harassment, violence, torture, unfair imprisonment, or denial of basic human rights.

The difference between refugees and asylees is less understood by the general public. Most differences are procedural. The Miami immigration attorneys at Pimentel & Castillo have helped many clients successfully apply for asylum and refugee status. Below, they explain some key differences between seeking refugee and asylee status.

Application Procedure for Refugee Status

Section 101(a)(42)(A) of the Immigration and Nationality Act (INA) offers a definition for the term “refugee.”

(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . .

A person who fits this definition can apply for refugee status, but they must apply from outside the United States and then go through the following steps.

  1. Receive a referral to the U.S. Refugee Admissions Program (USRAP).
    Highest priority is given to people referred by the United Nations High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated NGO.
  2. If selected by USRAP, provide proof of persecution and a detailed affidavit explaining the persecution that occurred and reasons why the applicant fears returning to their home country. *Include both in application.
  3. After submitting application, meet with an overseas asylum officer who will make a decision on your case.
Application Procedure for Asylum

People seeking asylum must first fit into the INA definition of “refugee” provided above, then apply within the United States or at a U.S. border. The procedure is slightly different, depending on where the asylee starts the application process.

At a U.S. Border or Entry Point
  1. Explain fears of returning to home country to U.S. officials, ask to apply for asylum.
  2. “Credible Fear” hearing held with a United States Citizenship and Immigration Services (USCIS) that will decide whether the applicant should have their case heard by a judge.
  3. Immigration judge hears case in a hearing in immigration court and decides whether the applicant qualifies for asylum.
Within the U.S.

If the asylum-seeker was able to enter the country legally with a valid visa or entry document, they will have more time to go through the application procedure.

  1. Fill out USCIS Form I-589 and mail together with detailed affidavit and proof of persecution to USCIS.
  2. Attend an interview at a USCIS asylum office where applicant’s case can be approved or denied.
  3. If denied by the USCIS, case will be referred to immigration court where an immigration judge will either approve or deny claim.

For those wishing to escape harsh persecution, applying for refugee status or asylum in the United States may be their only choice. At such stressful times, it is beneficial to have Miami immigration attorneys as guides for the complex procedures.

At Pimentel & Castillo, our Miami immigration attorneys are skilled at assisting clients prepare required applications, petitions, affidavits, and USCIS forms as well as prep them for USCIS interviews and immigration court hearings. Call us today for free consultation.

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Stand Your Ground

Changes to “Stand Your Ground” Deemed Unconstitutional

An amendment to Florida’s “Stand Your Ground” law under Bill 128 in June was recently deemed unconstitutional by Judge Milton Hirsch. Hirsch made the decision on the grounds that the amendment was procedural in nature, and changes that relate to the procedure can be made only by the Florida Supreme Court.

With this recent ruling, the guidance of reputable Miami criminal defense attorneys in criminal cases concerning deadly force is even more valuable.

About “Stand Your Ground”

Florida’s “Stand Your Ground” law was enacted in 2005, allowing carriers of legally purchased firearms to use deadly force as a method of self-defense. Many states require gun owners to retreat to safety if possible, even when in their own homes or vehicles. However, states that have a “Stand Your Ground” law in place do not impose this requirement.

Signed by Governor Rick Scott on June 9, the now null bill required the prosecution to demonstrate “clear and convincing evidence” that a gun owner who used deadly force did not do so in self-defense. This amendment shifted the burden from the defendant to the prosecution for pre-trial proceedings. With its revocation, it will again be the defense’s responsibility to prove that it is more likely than not that the accused was acting in self-defense. Though not quite as high of a standard as the clear-and-convincing evidence and beyond-a-reasonable-doubt standards, demonstrating this still requires a strategic defense lead by an experienced legal professional.

As Miami criminal defense attorneys, we are dedicated to keeping our clients informed about any changes that could impact future criminal defense cases. To stay up to date with all the latest news regarding criminal law, subscribe to our newsletter. If you have been charged with a crime and need a defense lawyer you can count on, schedule a free consultation with a member of our team today.

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Contract Negotiations

4 Tips for Navigating Contract Negotiations

Contracts are an essential component to any successful business partnership. This document, when drafted correctly, will establish expectations and protect your company if the other individual or business does not deliver on what was promised. In order to ensure all parties are satisfied with the terms being agreed upon, contract negotiations will need to take place.

The best way to guarantee your interests are well-represented in these meetings is to enlist Miami contract attorney to negotiate on your behalf, such as those on our team. It is also helpful to go into negotiations with an understanding on how to navigate the meetings ahead. Here are four tips from our Miami contract lawyers for excelling during the negotiation phase.

1. Make a Priority List

Before beginning the negotiation process, it is important to first consider what is important to you. There will need to be compromise on both sides, so identify which areas you are willing to bend on, as well as which points must be met. An easy way to pinpoint these areas is to carefully review your business goals, noting which issues to be negotiated are most influential on whether you meet them.

2. Do Your Research

As with most things concerning business undertakings, research is the key to success. Before entering into negotiations, get familiar with the other party. Take time to review the company’s website, online reviews, and news coverage concerning its business practices. It is also advisable to get informed about industry standards concerning contracts, which can best be explained by a Miami contract attorney.

3. Try to Understand the Other Side

Taking time to understand the other party’s stance on the issues is an effective tactic for opening the lines of communication. Instead of simply arguing against his or her take on the issues, ask questions. Is there a reason why this issue is so important to the other party? How can you compromise? Posing such questions will not only help you reach a fair agreement, but will make the process go much smoother.

4. Avoid Getting Personal

Your personal feelings toward the other individual have no place at the negotiation table. Instead, focus solely on the facts. Approaching the situation as if you were an outsider looking in can be helpful, as it removes emotions from the equation.

If you are preparing to enter into contract negotiations, consulting with a Miami contract attorney is highly recommended. Our office offers free consultations where you can get answers to all of your most pressing questions. Contact us today to schedule an appointment with a member of our experienced team.

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Florida Criminal Law

Florida Criminal Law And Shoplifting

To many, shoplifting is seen as a seemingly insignificant criminal offense, one committed by little children who have sticky fingers. This is a wrong idea to have — shoplifting is taken very seriously under Florida criminal law and a shoplifting charge can result in severe civil and even criminal penalties. An experienced Miami criminal defense attorney can fight for the best possible outcome for those facing shoplifting charges.

Shoplifting According to Florida Criminal Law

 

According to Florida criminal law, shoplifting is referred to as retail theft, which is is committed when a person “knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

  1. Deprive the other person of right to the property or a benefit from the property
  2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property”

Shoplifting is not only committed when someone takes possession of the property of a merchant without paying. The term also encompasses:

  • altering labels or price tags on merchandise
  • transferring merchandise from one container to another
  • taking away shopping carts

Depending on the value of the stolen property, the offender’s theft record, and the circumstances surrounding the criminal act, retail theft can either be classified as petit theft or grand theft — leading to misdemeanor or felony charges respectively.

Petit Theft or Grand Theft Criminal Penalties

 

Stolen Property Value Classification Charge Penalty
Less than $100 Second Degree Petit Theft Second Degree Misdemeanor Prison sentence of up to 60 days

Fines up to $500

$100 or more; less than $300 First Degree Petit Theft First Degree Misdemeanor Prison sentence of up to 1 year

Fines up to $1,000

$300 or more; less than $20,000 Third Degree Grand Theft Third Degree Felony Prison sentence of up to 5 years

Fines up to $5,000

$20,000 or more; less than $100,000 Second Degree Grand Theft Second Degree Felony Prison sentence of up to 15 years

Fines up to $10,000

$100,000 or more; more than $1,000 in property damage caused during the theft First Degree Grand Theft First Degree Felony Prison sentence of up to 30 years

Fines up to $10,000

Charges can be bumped up if the offender has previous theft convictions on their criminal record or if the crime was committed using physical assault, threatened or realized.

In Florida, those charged with misdemeanor shoplifting, especially first time offenders, are sometimes given the opportunity to avoid jail time and keep theft convictions off their record by entering a pre-trial intervention program which often includes paying fees and attending rehabilitation counseling.

Civil Penalties

 

Shoplifting can also result in civil liability. Merchants who fall victim to retail theft can sue adults, emancipated minors, and the parents or legal guardians of unemancipated minors in civil court. First, merchants must make a written demand for payment of the stolen retail damages. If the shoplifter responds and complies with the demand within 30 days, then the merchant must provide a written release from civil liability.

However, if the written demand goes unanswered and the merchant’s lawsuit goes forward, the offender may be liable for:

  • a minimum of $200 in damages
  • three times the actual damages sustained by the merchant
  • reimbursement of merchant’s attorney’s fees and court costs

Someone convicted of any misdemeanor theft may have their driver’s license suspended. Under Florida criminal law, drivers license suspension of six months to one year is required for second and first degree petit theft charges.

Shoplifting is clearly not considered a minor offense under Florida criminal law. A retail theft conviction and the resulting civil and criminal penalties are severe and can have far-reaching consequences on one’s life and financial, educational, or professional future.

If you or a loved one is facing a shoplifting charge, enlist the expertise of a Miami criminal defense attorney. Our attorneys are skilled at defending our clients’ rights in court and working towards achieving the best possible outcomes.

Call Pimentel & Castillo today for a free consultation.

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Florida Divorce with Pets

Deciding Pet Custody in Florida Divorce Cases

For divorcing couples with pets, one of the biggest issues that must be resolved is who gets to keep them. The idea of parting ways with one’s furry friend can be hard to bear, yet it is likely to be a reality for one of the divorcing parties. Though many owners may think of their pets as children, they aren’t considered as such in divorce court. Instead, pets are considered personal property.

Determining Ownership

While Florida’s laws governing child custody provide the courts with extensive discretionary authority, the laws concerning who keeps pets are more concrete. Decisions regarding ownership of pets are governed by personal property laws. Therefore, options like shared custody and visitation are not available for pets. Owners who wish to agree on such terms will need to work with their counsel to come to a legally binding agreement.

If a pet was purchased or adopted by one individual prior to the marriage, particularly one that is still listed as the owner on legal documents, the pet will be considered a non-marital asset. Therefore, the original owner will be permitted to keep the pet. However, if a pet was purchased jointly after marriage, it is considered marital property and will be subject to equitable distribution.

Factors That Judges Consider

The process for deciding pet custody in a Florida divorce is the same as with determining how to distribute other possessions. The judge will entertain arguments from each party as to who should retain ownership of the pet, and then make a final decision. This decision will be based on a number of factors, including some which are similar to those in child custody cases. Though pets are viewed as property in divorce proceedings, it is still important to keep the animal’s interests in mind and determine which individual is best able to care for it.

If you have questions regarding divorce in Florida, our skilled attorneys are always just a call away. Contact our office to schedule a free, no-commitment consultation.

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florida lawsuit

How to Know If the Time Is Right to Sue

The decision to sue another individual or business is not one that should be rushed into. Prior to filing a civil lawsuit in Florida, there are several things one must take into consideration. A Miami civil attorney can help prospective filers determine if the time is right to sue, and if so, litigate on his or her behalf.

Failing to pose these five questions first could result in an unsuccessful lawsuit, ultimately costing the filer both time and money and leaving the issue unresolved.

1. Is there an alternative to suing?

In situations where there is an alternative to filing a lawsuit in civil court, exploring those options is almost always preferred. Before rushing to judgement, one should consider the other party’s side of the issue and whether or not compromise is possible. This process is known as negotiation, and results in each party having some but not all of his/her demands met. Another way to achieve compromise is through consulting a mediator, who will guide both parties through the negotiations. Arbitration may also serve as alternative, where a person fulfilling the role of a judge makes a final decision on the matter.

2. What is the desired outcome, and is it plausible?

It is important for filers to consider whether or not the other party will even be able to meet his or her demands. If the desired outcome is monetary, suing an individual who lacks any assets may be a lost cause.

3. Does the law allow for a suit on this issue?

If there is a statute of limitations that governs the matter, it is critical for the potential filer to ensure it hasn’t expired. It’s also to important to consider jurisdiction, as the lawsuit may need to be filed in a different state depending on the location of the other party.

4. Do you have the means to file a suit?

There are some circumstances where settling a dispute is more favorable than suing over the matter. In order to sue someone, an individual must pay upfront legal fees with no guarantee that the funds will be recovered. A reputable Miami civil attorney will be able to advise the prospective filer on whether or not recovery is likely, taking the filer’s finances into account.

5. Is it likely the suit will be successful?

By far the most important consideration one must make is whether or not the case is likely to be successful. If a business owner hopes to sue over a contract dispute but lacks a written contract, it may be hard to achieve a judgement in his or her favor. It’s also important that the prospective filer take evidence into consideration. If there is little proof of wrongdoing, a lawsuit might not be the best course of action.

If you are considering filing a civil lawsuit in Florida, a Miami civil attorney can help you determine if doing so is the right course of action. Give our office a call today to schedule a free consultation with a member of our experienced team.

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Expungement or Sealing Juvenile Record in Florida

Expungement or Sealing Juvenile Record in Florida

The idea that one event or mistake made in youth can have lasting negative consequences on one’s adult life is a frightening prospect. That is the situation minors face when they are arrested and charged for a criminal offense. An experienced Miami juvenile defense attorney can defend minors’ rights in court and ensure the best possible outcome.

Still, some will be left with a juvenile record that could be an obstacle to their educational and professional futures. Fortunately, in certain cases, a juvenile record in Florida can be sealed or expunged.

Eligibility for Expungement or Sealing

In Florida, a juvenile record is automatically eligible for expungement or sealing when the offender turns 24 years old or, for a serious or habitual offender, 26 years old. However, typical offenders can try to get their juvenile record sealed or expunged at an earlier age.

Minors that were arrested for nonviolent offenses and/or completed a court-ordered diversion program can petition for expungement or sealing of their juvenile record. This petition can only be done once to clear the record of only one arrest. Most juvenile records are eligible unless the offender fits the following characteristics.

      • found guilty or adjudicated delinquent for the offenses on the juvenile record they wish to seal
      • found guilty or adjudicated delinquent for serious criminal offenses, especially violent and sex crime offenses
      • previously had a criminal record sealed or expunged
      • concurrently filed another petition for expungement or sealing

Procedure

In order to seal or expunge a juvenile record in Florida, offenders must first apply for a Certificate of Eligibility for Sealing. Only once they receive this certificate can they petition the juvenile court that handled their case for expungement or sealing of their record. Trying to have a juvenile record cleared is often a complex process and, in such cases, the guidance of an experienced Miami juvenile defense attorney is incredibly valuable.

If you were arrested or charged with a criminal offense as a minor, the attorneys at Pimentel & Castillo can guide you every step of the way toward achieving a expungement or sealing of your juvenile record in Florida. Once your juvenile is record cleared, you will not have to reveal your juvenile offenses to most people and employers, eliminating significant obstacles to your future educational and professional endeavors.

Call us to request a free consultation with a seasoned Miami juvenile defense attorney today.

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Is Teen Sexting a Crime in Florida?

Is Teen Sexting a Crime in Florida?

The answer is yes, sexting between two minors is considered a crime in Florida. In 2011, the Florida legislature passed a law that specifically pertained to teen sexting. Children and teenagers under the age of 18 should have some understanding of this law and the penalties for violating it.

Prior to this law, minors caught sexting would be charged according to more severe Florida child pornography laws. While this is no longer the case, the consequences for minors who violate the current law can still be harsh with long-lasting effects for the offender. If a you are a parent or guardian of a minor cited for a sexting violation, seeking the legal counsel of an experienced Miami juvenile defense attorney is recommended.

What is Sexting and Teen Sexting?

Sexting is defined as people sharing nude or sexually explicit messages, typically photos or videos, through the use of electronic communication channels and devices such cell phones, the Internet, social media, and so on. Teen sexting occurs when the above behavior happens between two minors and the messages in question depict minors.

Under Florida sexting law, sexting between two consenting adults is not a criminal activity. However, teen sexting is considered a criminal offense. Minors commit the crime of sexting when they knowingly distribute, receive, possess, or create a nude or sexually explicit image or video of another minor.

If a minor receives an image or video depicting a minor in situations of nudity or sexual conduct, but they (i) did not solicit the image, (ii) did not distribute the image to another party, and (iii) took steps to report the image to a parent, guardian, school official, or law enforcement official, they are unlikely to be charged with violating the Florida sexting law.

What are the Penalties of Teen Sexting?

The consequences minors may face because of sexting vary in severity and depend on the specific circumstances of each case. Generally, punishments get harsher the more offenses a minor is charged with. Any images or videos transmitted or received within a 24 hour period are counted as one offense.

      • First Offense — Minor charged with non-criminal violation, could face a $60 fine, 8 hours of community service, and/or mandatory classes on the dangers of sexting.
      • Second Offense — Minor charged with first degree misdemeanor, could be faced with steeper fines, probation, and/or placement in a juvenile detention center.
      • Third Offense — Minor charged with third degree felony, could face a prison sentence of up to 15 years and may be required to register as a sex offender.

To learn more about the Florida sexting law and Florida child pornography laws as they pertain to juvenile defendants, speak with a seasoned Miami juvenile defense attorney. The attorneys at Pimentel & Castillo are experienced at defending juveniles from criminal charges, including sexting violations. If you are a parent or guardian of a minor that is facing teen sexting charges, call us today for a free consultation.

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5 Key Dangers of Not Signing a Contract

5 Key Dangers of Not Signing a Contract

The Miami civil litigation lawyers at Pimentel & Castillo have represented countless clients whose cases could have been avoided if only they had operated under a well-constructed contract. The purpose of a contract is to legally hold all parties engaging in business with one another to agreed-upon terms. When one does not exist or is simply not signed, navigating the process of holding another party accountable should those terms be broken is far more difficult. Often, it involves a civil trial that could have otherwise been avoided, costing the party who is not at fault both time and money.

Here are five problems that can be avoided by signing a contract.

1. Unclear Expectations

The only way to judge the success of an outcome is to weigh it against what was expected. If expectations are not clearly communicated by all involved, the likelihood that one of the parties will be left unsatisfied is much greater than if a signed contract outlines what is to be expected.

2. Payment Issues

If a business renders a service, getting paid for that service is expected. Yet, without a contract detailing how much will be charged and when that amount must be paid, clients or customers may be uncooperative. A contract benefits the party receiving the services in this scenario as well, by providing legal protections from additional charges that aren’t noted in the signed agreement.

3. Difficulties Understanding the Law

Very rarely are the parties entering into an agreement legal experts. A contract drawn up by an experienced contract attorney provides a legal framework for the agreement. This makes clear the obligations of all involved and who exactly is liable for what. More importantly, it helps the parties understand if they have legal standing for a dispute should problems arise.

4. Lack of Trust

All relationships are built on trust, whether they be business or personal. A signed contract can help establish this trust, giving all parties a clear understanding of what can be expected from them. Additionally, it provides a reference point for any questions that may arise.

5. Lost Disputes

When there is no signed contract to fall back on, the odds that a dispute will arise increase significantly. Without a written agreement, the party who is not at fault will likely need to seek legal recourse in this situation. In the worst case scenario, the party could lose the dispute due to a lack of legal framework outlining the terms.

Whether you need assistance drafting a solid contract or representation in a civil trial, our Miami civil litigation lawyers are here to help. Give us a call today to schedule a free consultation with one of our skilled attorneys.

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Consequences of Overstaying a Student Visa

Consequences of Overstaying a Student Visa

Overstaying one’s temporary U.S. visa is something immigration officials take very seriously. According to U.S. immigration law, a person who overstays their visa is residing in the country illegally and treated similarly to someone who entered the country illegally – it is a serious matter that should be avoided. However, for some student visa holders, the expiration of their allowed stay may not be as obvious. If you have already overstayed your visa, consult with a Miami immigration attorney to learn more about your options. Below, we will review the potential consequences of overstaying a student visa.

Authorized Period of Stay

Many are unaware that the expiration date on a visa is not what determines a nonimmigrant’s authorized period of stay, the date shown on the card is actually the last day that the card can be used to enter the U.S. The expiration for the stay is specified on the Form I-94 Arrival/Departure Record card or downloadable online document, given by Customs and Border Protection (CBP) officials to those who enter the U.S. If the visa holder stays beyond that date, they are guilty of overstaying.

However, nonimmigrants who enter on an F-1 or J-1 student visa are not given a specific date on their I-94 cards and online records. Instead, the I-94 will say, “D/S” which stands for Duration of Stay. Taking into account that the duration of many academic programs is not fixed, D/S allows for F-1 and J-1 students to stay until their studies program is complete and the grace period ends, assuming that the visa holder is fully compliant with the rules of the visa. If students stay past the allowed period and make no effort to apply for a Change of Status within a reasonable time, they are likely “Out-of-Status,” and therefore overstaying.

Consequences of Overstaying

The following are possible consequences of overstaying a student visa.

    • Existing visa is automatically voided and can no longer be used to enter the U.S.
    • Restricted from applying for an Extension of Stay or Change of Status
    • Cannot obtain another visa at any U.S. consulate outside of country of nationality
    • Barred from re-entering the U.S. for three to ten years if “unlawful presence” accrued

Unlawful Presence and Time Bars

One of the harshest consequences of overstaying a student visa is a time bar. Those guilty of overstaying are only subject to time bars if they are deemed inadmissible for accruing “unlawful presence,” meaning they overstayed for more than 180 days. For M-1 students, it is easy to determine whether unlawful presence has occurred because the accrual to time starts after the specific “Out-of-Status” date in their I-94.

On the other hand, F-1 and J-1 students can only be guilty of unlawful presence if U.S. Citizenship and Immigration Services (USCIS) or a related government authority formally determines they were residing in the country unlawfully. Only after that official determination is made does the counting off of days start for F-1 and J-1 students. Thus, F-1 and J-1 student visa holders are rarely subject to any of the two types of time bars.

        1. Three-Year Time Bar — Unlawful presence of more than 180 days but less than one year.
        2. Ten-Year Time Bar — Unlawful presence of more than one year.

The best course of action for nonimmigrants should be to avoid overstaying a student visa. However, if you or a loved one has overstayed a temporary U.S. visa, consult with a knowledgeable Miami immigration attorney.

Out team of U.S. immigration law professionals is experienced at defending our clients from deportation as well as having grounds of inadmissibility waived. Call Pimentel & Castillo today for a free consultation.

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