Suzanne Spencer

Suzanne Spencer is a bi-lingual (Spanish) Criminal Defense Lawyer. Ms. Spencer is the owner of the Law Office of Suzanne M. Spencer in Austin, Texas and is Of Counsel to the Law Office of E.G. Morris. Suzanne is a former Assistant City Attorney for the City of Austin. She prosecuted Class C offenses and City Code Violations in the Austin Municipal Court. Ms. Spencer is a former Social Worker and holds a Master of Social Work Degree. Her law practice focuses on representing indigent persons accused of criminal offenses who have Mental Health issues and/or Immigration issues. She secured 53 dismissals during the first half of COVID-19 for her clients. Ms. Spencer represents clients in Expunction, Non-disclosure, ALR and ODL matters as well. She is a current Board Member of TCDLA and served as a course director in the 2020 TCDLA Sexual Assault Seminar. She received a TCDLA Presidential Award in 2021. Suzanne is also a member of the National Association of Criminal Defense Lawyers and serves on the Membership Committee. Additionally, Ms. Spencer is a long-time member of the College of the State Bar. Suzanne can be reached at sms@ egmlaw.com or at 512-476-5677.

Fighting the TSA and Getting Off with a Warning

Background:

I was court‑appointed to represent a non‑citizen who will be referred to by the pseudonym Mr. Juan Pérez on the State criminal charge of Criminal Trespass upon the Austin Bergstrom International Airport (ABIA) grounds.

Mr. Pérez immigrated to the U.S. from El Salvador. He lived in Arizona with his mother, but had moved to Austin, Texas. Upon contact with his mother, Ms. Juana Pérez, I discovered that she had received a letter written in English with an emboldened title which read “SENSITIVE SECURITY INFORMATION” on U.S. Department of Homeland Security ABIA (AUS) letterhead. Neither Mr. Pérez nor his mother spoke or read in English. This document was a formal notice of a “Letter of Investigation” with an Enforcement Investigative Report (“EIR”) case number stating that the TSA was investigating alleged violations by Mr. Pérez of the Transportation Security Regulations (TSR), in Title 49 Code of Federal Regulations (CFR) §1540.105(a)(1) and §1540.105(a)(2). The letter further stated that said violations are subject to a Civil Penalty of up to $13,910.00 per each violation. There was no mention that a written “Warning” could be issued in place of a fine.

The Law – Alleged Violations of the TSR:

Transportation, 49 C.F.R. §1540.105: Security Responsibilities of Employees and Other Persons

  1. No person may:
    1. Tamper or interfere with, compromise, mod‑ ify, attempt to circumvent or cause a person to tam‑ per or interfere with, compromise, modify or at‑ tempt to circumvent any security system, measure or procedure implemented under this subchapter. Transportation, 49 C.F.R. §1540.105 (2008) https://ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑C/part‑1540#p‑1540.105(a)(1).
    2. Enter, or be present within, a secured area, AOA (Air Operations Area), SIDA (Security Identification Display Areas) or sterile area without complying with the systems or procedures being applied to control access to or presence or movement in, such areas. Transportation, 49 C.F.R. §1540.105 (2008) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑C/part‑1540#p‑1540.105(a)(2).

Civil Penalties:

§ 1503.401 Maximum Penalty Amounts: Transportation, 49 CFR §1503.401 (2009) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑A/part‑1503/subpart‑E/section‑1503.401#p‑1503.401(a).

The Civil Penalties are subject to the Enforcement Sanction Guidance Table https://www.tsa.gov/sites/default/files/enforcement_sanction_guidance_policy.pdf.

Warning Notices and Letters of Correction:

§ 1503.301 Warning Notices and Letter of Correction: Transportation, 49 CFR §1503.301 (2009) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑A/part‑1503/subpart‑D/section‑1503.301.

Working The Case:

The client interview revealed that he had had some sort of psychotic break. He did not appear to be competent to stand trial. I sought an expert for the competency evaluation through our private Managed Assigned Counsel organization rather than the CCP Article 46B Court Appointed Expert route. Mr. Pérez was found incompetent to stand trial but likely to regain competency with treatment in a competency restoration program.

Discovery on the Criminal Trespass case revealed that Mr. Pérez had caused the ABIA Airport runway to be shut down for several hours. On consecutive days, Mr. Pérez is alleged to have attempted to circumvent a security system, measure, or procedure at the ABIA by gaining unauthorized access to the secured area of the airport. Then the following day, he is alleged to have gained unauthorized access to the Air Operations Area (AOA) of the ABIA.

The TSA “Letter of Investigation” was offering Mr. Pérez the opportunity to submit in writing his side of the story regarding the allegations within 20 days from the date of the letter. This writing was to be submitted to the Transportation Security Inspector for the ABIA. However, the letter was written in English and was sent to Mr. Pérez’ Mother in Arizona. TSA at the ABIA did not have the required documents or paperwork in Spanish. At this point, I realized that in addition to my usual duties and obligations as a criminal court‑appointed attorney, I was going to handle this TSA Civil Violation matter for my client on a pro bono basis. Fortunately, I’m fluent in Spanish and can interpret and translate for Mr. Pérez.

Ms. Pérez (mother) received the TSA letter around the 1st of the month. I became aware of said letter on the 16th of the month. The due date was four days away on the 20th of the month. I located contact information for the Transportation Security Inspector at the ABIA. After three detailed voicemails over two days, the Inspector returned my call late on a Friday night. I Introduced myself. I explained that Mr. Pérez had not received the TSA letter as it was sent to his mother in Arizona. I further in‑ formed the inspector of the language barrier and that I would be writing and presenting Mr. Pérez’ response. I further requested an extension of time. The Inspector responded that my request would be presented to the Assistant Federal Security Director.

The next day I was informed that the Director granted my request. I now had until the 30th of the month to submit the letter of response.

After completing discovery and investigation in the related criminal case, I did a quick review of the DSM‑5 (5th Edition of the Diagnostic and Statistical Manual of Mental Disorders). Mr. Pérez’ mental health status, the language barrier, including the fact that TSA had Mr. Pérez sign a Criminal Trespass Notice that he could not read or understand because it was written in English and no official interpreter was provided to properly trans‑ late was key to obtaining a “Warning” rather than a Civil Penalty from TSA. I sat down and began to write. The following is based upon the actual statement that I wrote to TSA on Mr. Pérez’ behalf:

The Statement to TSA: Statement on Behalf of Mr. Juan Pérez
Re: Letter of Investigation Case No.: EIR 2021 AUS0000

I was court‑appointed to represent Mr. Juan Pérez on the related State criminal charge of Criminal Trespass upon the Austin Bergstrom International Airport (ABIA) grounds. Said charge is alleged to have occurred on 00/00/21 .

I am writing this statement on Mr. Pérez’ behalf because he does not speak, read or write English. In addition, he is currently incarcerated in the Travis County Correctional Complex on the charge referenced‑above and on a Writ of Attachment for transportation to a State Hospital for competency restoration. Mr. Pérez was found Incompetent to Stand Trial on 00/00/21 per Competency Evaluation.

Mr. Pérez suffers from a delusional disorder that, to my knowledge, had not been formally diagnosed or treated until this incident. Delusional disorder is defined in the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM‑5, section 297.1 (F22). It is a psychotic disorder in which the patient has delusions, i.e., thoughts and beliefs that have no basis in reality. He is currently prescribed and taking psychotropic medication. I spoke to the forensic psychologist yesterday who reports that Mr. Pérez’ symptoms appear to be intensifying which necessitates a change in medication. The diagnosis has changed to Schizophrenia Unspecified, defined in the DSM‑5 section 298.9, which is a psychotic disorder manifested by delusions and a rift in perception of reality.

Mr. Pérez moved to Austin from Arizona to live with a cousin. The cousin asked Mr. Pérez to return to Arizona due to Mr. Pérez’ erratic mental health behavior. On the day of arrest, Mr. Pérez was at an HEB grocery store in Austin. He claimed he had been at the bus station and walked to the HEB. He said that a large group of people were following him and threatening to kill him. He made his way to the HEB parking lot and was asking customers for help because people were after him. The police responded. Mr. Pérez continued to point out customers and particular vehicles that were after him. The Austin Police Department (APD) placed Mr. Pérez on a Police Officer Emergency Detention (POED) due to his paranoid behavior. Sadly, he was later released. In my opinion, APD should have deployed their CIT (Crisis Intervention Team) officers who are trained to handle situations like Mr. Pérez’, i.e., mental health crisis and make appropriate referrals for treatment, e.g., possibly held on an Order of Protective Custody (OPC) in the Austin State Hospital where he would receive psychiatric treatment.

Mr. Pérez contacted his mother in Arizona. She arranged to meet her son at the airport to fly him back home to Arizona. She arranged an Uber ride for him to ABIA. Mr. Pérez claims that the Uber driver was threatening him and kicked him out of the Uber car near the perimeter fencing/gate area by the Air and Terminal Operations. He said that he jumped the fence into ABIA property. Mr. Pérez says he was approached by ABIA officials and detained. He was told to sign some papers that were in English (Criminal Trespass Notice). He did not understand what he was signing. Adding to his confusion, he was allowed to stay at ABIA by the same ABIA officials to wait for his mother to fly in the next day.

Mr. Pérez began feeling paranoid. Somehow, he ended up outside of the fenced ABIA AOA (Air Operations Area) area and fell asleep. The next morning, he panicked because he thought he had missed his mother’s arrival. He climbed the fence in an effort to try to reach the terminal as soon as he could to search for his Mother. As an immigrant from El Salvador, he does not read English. He did not know that he was in an unauthorized area. He was experiencing delusions as well. He claims that people started chasing him so he climbed the fence to leave the airport property. He was eventually detained just outside ABIA property and arrested by APD officers for Criminal Trespass.

It should be noted that APD Investigator, John Doe #1234, tried to interview Mr. Pérez. However, Investigator Doe stated that Mr. Pérez was too agitated and erratic. He stated that Mr. Pérez thought that the officers were taking him away to kill him. He further stated that Mr. Pérez was trying to get to the terminal to meet his Mother. Investigator Doe was unable to have a coherent conversation with Mr. Pérez. Investigator Doe stated that he requested that the jail have Mr. Pérez evaluated for paranoia and thoughts that police officers were going to kill him.

Based upon the foregoing and in the interest of justice, I respectfully request that Mr. Pérez be issued a “Warning” rather than a Civil Penalty. He is obviously mentally ill due to his delusional disorder which appears to be worsening. He intended no harm to anyone or to ABIA. He is an immigrant who may know a few phrases in English. However, he neither speaks, reads or writes in English. In my many years of representing Spanish speaking non‑citizens, it is my impression that law enforcement often mistakenly assume that these immigrants comprehend English just because they can speak a few phrases in English. This assumption is wrong and often leads to mistreatment and illegal detention/arrest of non‑citizens for violations of laws, warning signs and failure to comply with verbal commands of Law Enforcement. In reality, the language barrier is to blame.

Moreover, Mr. Pérez is indigent as evidenced by the fact that I am court‑appointed to represent him. This indicates that Mr. Pérez was vetted by the State Court and deemed to be indigent. Therefore, paying the costly TSA Civil Penalty will be impossible.

Conclusion:

The day after this statement was tendered to the Inspector, he informed us that the case file would be submitted to the General Attorney for TSA. The General Attorney would decide how to proceed. According to the Inspector we could expect a decision in a few weeks. However, four days later, we received an email with an attachment that stated a recitation of the allegations and the following:

WARNING NOTICE RE: Case No.: 2021AUS0000

“In view of the circumstances in this case and the Letter of Response from the Attorney at Law Suzanne M. Spencer on your behalf, received on the 30th day of the month of 2021, we have elected to send you this Warning Notice rather than seek a Civil Penalty. The Warning Notice is now a matter of record and part of your compliance history. A Warning Notice is not a formal adjudication or a legal finding of the matter and, therefore, there are no rights to appeal this Notice.”

“A repeat incident of this type would be an extremely serious matter and would call for a more severe sanction which may include the assessment of a Civil Penalty.”

By this time, Mr. Pérez had regained competency as evidenced by an Order of Restoration signed by the County Court at Law Presiding Judge. Mr. Pérez’ mother arranged a trip to Austin to collect her son and fly him back to Arizona. Mr. Pérez was cleared by TSA for air travel. In addition, the Criminal Trespass case was dismissed in the interests of justice. Mr. Pérez was very grateful and happy with the resolution of these matters. My work here was done.

Get What You Need for the Indigent Non-Citizen Client With an ICE Hold During COVID-19

I. Introduction

When you speak Spanish and have an indigent defense practice, it will consist of many Spanish speaking non-citizen clients who have immigration holds due to entering the US without inspection, i.e., no documentation. Much to the chagrin of many, these clients will be in removal proceedings after the criminal case is completed. Many of these clients have no funds to retain an Immigration lawyer.  In Austin, Travis County lawyers vetted to accept appointed cases are managed by a Managed Assigned Counsel group. Fortunately, the group provides an Immigration attorney to help us meet our obligations to the client as mandated by the Supreme Court case of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The holding in Padilla essentially states that a lawyer who has a non-citizen client charged with a criminal offense has a constitutional obligation to inform the client whether a guilty plea will result in deportation for the client.

However, the goal is not only to properly advise the client regarding deportation, but to craft a plea bargain that will give the client the best chance of: (1) being released on an immigration bond while removal proceedings are pending; (2) of remaining in the US; and/or (3) preserving the eligibility to apply for (a) Lawful Permanent Resident(LPR) status, commonly referred to as a ‘Green Card’ or (b) eligibility for US citizenship in the future.

II. Immigration Consultation

The Immigration consultation is key to the strategy for attaining an acceptable disposition on the criminal case. One of the first things to do with a non-citizen client is to make a referral to the Immigration lawyer, hereinafter referred to as ‘IL’. The next step is to prepare the client for the consultation. 

The IL will need to know the following from your client: criminal history; date of entry into the US; immigration status, i.e., (a) LPR, (b) Refugee1 or (c) granted  Asylum2; entered with a visa or entered without documentation; any immigration action including the date of action, i.e., (a) removed from US, (b) actual deportation, or (c) denial of admission into US; previous settings in immigration court; previously filed for immigration relief; any contact with an immigration officer; the immigration status of all family members including spouse, partner, children and their ages, the client’s parents, siblings and even grandparents; if client enrolled in High School, has a High School diploma, or a GED; has the client been a victim of crime that was report to law enforcement; and has the client been a victim of domestic violence or trafficking.

The IL will work up the case and prepare a legal memo. The memo will contain what forms of relief, if any, the client has from removal proceedings from the US and recommendations for the type of plea bargains that will support the client’s goals of bond eligibility and of remaining in the US or preserve eligibility for future LPR status or citizenship. This is where the work on the criminal case really begins.

III. Putting the Immigration Advice and Criminal Case Into Perspective

After all the necessary investigation, and of course, the discovery process, plea bargaining can begin with the option of setting the case on the jury docket…because of COVID-19 most of us have not had the benefit of a jury docket.  In my experience, my non-citizen clients tend to be reluctant to participate in any criminal trial proceeding out of fear of ICE agents appearing to remove and detain them in immigration custody. Regardless of the reason for not going to trial – COVID-19 or client fear – the fact remains that you as the criminal defense lawyer have the task of handling your client’s criminal cases in a manner that meets your client’s immigration goals.

Here is an example of an actual case with a non-citizen client where we got what we needed without the specter of a jury trial. Mr. Garcia (not actual name) was charged with a DWI 1st (.12 blood test) and Evading Arrest on Foot.

The client was prepped for the immigration consultation. The consultation revealed that he had entered the US without inspection in 2008, was detained by ICE after his arrest for two Robbery cases that were dismissed, was placed in Removal Proceedings3, and was granted Voluntary Departure4, meaning that he was allowed to leave the US without an Order of Deportation. However, he re-entered the US in 2011 without inspection. He was arrested for the DWI and Evading Detention on Foot in 2020.  An ICE hold was thereafter lodged against him. This client is not eligible for relief in the form of Cancellation of Removal for Non-LRP’s5 as he has no qualifying relatives such as an LRP or US citizen spouse, child, or parent. Cancellation of Removal would have allowed the client to apply to the immigration judge to adjust his status from deportable to one lawfully admitted for Permanent Residence. Assuming he has a credible fear of returning to his home country, his only remedies are to apply for Asylum, Withholding of Removal6, and Relief under the Convention Against Torture (CAT)7. It was further revealed that the client’s criminal history only consisted of a Juvenile Deferred Prosecution for Evading Arrest and the two dismissed robbery cases mentioned above.

Per the IL, a conviction for the DWI 1st charge under TPC §49.04 will not make the client ineligible for any relief for which he is otherwise eligible at this time. However, a single DWI conviction will reflect negatively on his request for bond from ICE custody. Many immigration Judges consider a DWI conviction as evidence that the client is a danger to public safety. If the Judge is so inclined, they can deny bond or set an exorbitantly high bond.

Per the IL, a conviction for the Evading Detention on Foot under TPC §38.04(a) is not considered to be a Crime Involving Moral Turpitude. This offense would place Mr. Garcia under discretionary detention. Therefore, he could be released from custody on bond if he is not a flight or security risk. Nonetheless, a conviction for the Evading on Foot may also cause the request for bond to be denied as he may be considered a flight risk.

IV. Immigration Lawyer Recommendations

The IL’s recommendation for resolution of the DWI case under TPC §49.04 is to negotiate the case to a non-DWI disposition in which the DWI is dismissed and  the client pleads to TPC 1§42.03(a) Obstructing Highway or Passageway. Although a conviction for a single DWI 1st offense will not prevent the client from seeking Asylum, Withholding of Removal, and relief under the Convention Against Torture at this time, it could in the future. The Department of Homeland Security and the Department of Justice have issued a ‘Notice of Proposed Rulemaking’ which would make an individual ineligible for Asylum if convicted of operating a motor vehicle while intoxicated. In addition, a non-DWI disposition will improve the client’s chances of being granted bond by the immigration Court. Immigration Judges view individuals with DWI convictions as a danger to the community.

The IL’s recommendation for the Evading on Foot is to try to negotiate a dismissal. A conviction for Evading can negatively affect the client’s chances for bond. The immigration Court may consider an individual with such a conviction to be a flight risk.

V. Working the Criminal Case

Now the criminal defense lawyer has been tasked to negotiate the DWI to the reduced charge of Obstructing a Highway or Passageway and a dismissal for the Evading on Foot charge. No problem, right?

My strategy is to work the case up as though preparing for a Jury Trial. Comb through all the discovery. In these cases, there were 15,188,376 KB of discovery in the Discovery Portal, including 14 Body Cams, 1 DMAV (in-patrol car video) and the Blood Draw video. Locate and interview the lone witness. Investigate the scene of the alleged crimes, etc., etc. After this, I email the prosecutor in charge to give a heads-up regarding what I am seeking and why. I write a detailed fact-based memo explaining the vast weaknesses in the State’s cases. As we know there are usually many. Be specific and direct in pointing out the deficiencies in the State’s case if you believe doing so will help accomplish the desired plea bargain. It is helpful to include video references and times in the memo to support your position. Remember, too, in a case like Mr. Garcia’s with so much discovery, it is unlikely that the prosecutors will have reviewed it all thoroughly before receiving your memo and request. This gives the defense lawyer the advantage.

VI. Plea Bargaining

  1. Begins with what the harsh Immigration consequences are for Mr. Garcia. I explain what my tasks and obligations are to the client. I will elaborate on how I can accomplish them with their cooperation.
  2. Always obtain and tender to the prosecutor a letter from the IL explaining the immigration consequences and recommendations. I use this letter to bolster the arguments for the disposition that is needed.
  3. Numerous offers will be made that don’t quite meet my objectives, i.e., dismiss the Evading with a plea to the DWI, plead to Evading and Reduce the DWI, etc. Don’t despair and carry on.
  4. On occasion I will have to involve the upper chain of command. As in these cases, when the trial Court chief told me that the DWI case was not a reduction worthy case and we were at an impasse. I will remind the State that we cannot set the cases for Jury Trial because of COVID19.
  5. In the end, we prevailed. Mr. Garcia was elated with the result: Obstructing Highway or Passageway was filed to which Mr. Garcia plead to back time and the DWI and the Evading on Foot were dismissed.