Salt Lake Criminal Defense Attorney - Clayton Simms

new_clayton_about A criminal charge, whether it is a felony or misdemeanor, can be a life changing event. Clayton Simms is a fierce advocate for people who have been charged with misdemeanor and felony offenses. He represents clients who are facing charges in Salt Lake City and Greater Salt Lake County. In addition, he also represents clients along the Wasatch front. Clayton Simms represents defendants in other crimes Clayton has represented athletes, doctors, lawyers, and other notable people and has been featured on the news. Do you have a legal question? Contact Clayton Simms today!

Illegal Immigrants Who Are Victims of Crimes Eligible for Temporary Visa

Illegal immigrants who are victims of crime may be eligible for a temporary U Visa in order to help police make an arrest.

U Visa

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Many victims of crimes who are in the country illegally are afraid to come forward during an investigation for fear of being deported. The U Visa is a temporary visa, good for up to four years that is reserved to protect victims of crimes by ensuring the victims will not face deportation if they are able to help law enforcement investigate and prosecute their aggressors.

Eligibility requirements

According to the Department of Homeland Security, a person may be eligible for a U visa, otherwise known as U nonimmigrant visa, if they:

• “are the victim of qualifying criminal activity.
• have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
• have information about the criminal activity. If [they] are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf (see glossary for definition of ‘next friend’).
• were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If [they] are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on [their] behalf.
• The crime occurred in the United States or violated U.S. laws.
• are admissible to the United States. If [they] are not admissible, [they] may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.”

Also listed by the Department of Homeland Security, U.S. Citizenship and Immigration Services are the ‘qualifying criminal activities” which are:

• Abduction
• Abusive Sexual Contact
• Blackmail
• Domestic Violence
• Extortion
• False Imprisonment
• Female Genital Mutilation
• Felonious Assault
• Fraud in Foreign Labor Contracting
• Hostage
• Incest
• Involuntary Servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of Justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual Assault
• Sexual Exploitation
• Slave Trade
• Stalking
• Torture
• Trafficking
• Witness Tampering
• Unlawful Criminal Restraint
• Other Related Crimes*†”

Abuse of a well-intended program

While the U visa was created originally to help those who were victims of sex trafficking through the Victims of Trafficking and Violence Protection Act of 2000, it is swelled into a free-for-all for any illegal immigrant willing to prosecute another person who has wronged them in order to be granted temporary citizenship. Otherwise minor offenses such as stalking, blackmail, and witness tampering are now qualifying criminal activities that can secure a victim a temporary citizenship. Those who are victims of more heinous crimes such as female genital mutilation, rape, and sex trafficking now have to fight for one of the 10,000 U visas granted annually.

Used ONLY if/when needed

Another concern over the U Visa program is the lack of a deadline between when a crime is committed and when a petition for a U visa is accepted. Victims of qualifying criminal activities can apply for a U Visa immediately after the crime or even over a decade later which was the case for Javier Flores Garcia of Philadelphia. Garcia and his brother were attacked by two other illegal immigrants, with Garcia and his brother suffering several stab wounds. The incident took place in 2004 yet Garcia did not apply for a U Visa and offer to help prosecute his assailants until 2016. Twelve years had passed, and Garcia only agreed to help police make a case against the two men when he himself was suddenly facing deportation.

Unfair tool to obtain a conviction

Although the U Visa has its place to help victims of crimes suffering from physical and mental abuse, many feel it is being overused and/or abused. Until the U Visa program is reexamined and revised to only help those who truly need it, its use in obtaining a conviction or rising a case from the dead should be strictly limited.

Racially Motivated Traffic Stops and Searches

The topic of racially motivated traffic stops has been up for debate national wide as well as in Utah, with many claiming drivers who are not of Caucasian decent are overly scrutinized while suffering through more search and seizures than other drivers.

Minorities and traffic stops

According to the Office of Justice Programs Bureau of Justice Statistics regarding traffic stops that resulted in searches, “a lower percentage of white drivers stopped by police in 2011 were searched (2%) than black (6%) or Hispanic (7%).“ While 6-7% of minorities beings searched to 2% of whites may not seem like enough of a spike to be considered excessively abnormal, it begins to raise eyebrows when one takes into account the total population of each race. In the year prior to the traffic stop statistics shared by the OJP, the 2010 census stated that:

• 72% of the U.S. population identified as being white alone;
• 28% identified as being Black, Hispanic, or another minority race.

6-7% of a lesser population of Americans being searched by police versus 2% or a larger population should be cause for concern.

Unbalanced prison population

Since research has shown that those of color or ethnic backgrounds face more scrutiny during traffic stops than whites who are the predominate race, it isn’t a surprise to know that the prison population is unbalanced rationally as well. According to the Prison Policy Initiative, a non-profit non-partisan group that organizes statistical information on incarceration rates nationwide, in Utah jails and prisons in 2010:

• there were seven times more Black inmates than Whites;
• over twice as many Hispanics to whites; and
• four times more American Indian/Alaska Natives to Whites.

These numbers are even more alarming considering Utah is predominately white (78.8% white non-Hispanic).

Racial profiling defense

If the amount of traffic stops resulting in searches and seizures was not ethnically discriminatory, there is a good chance the racial divide of those incarcerated in Utah would even out as well. For those who wish to discuss charges attained following a traffic stops and search that could have been racially driven, contact a criminal defense attorney who is impartial to racial differences.

Reviewing Gun Laws in Utah

Utah is known as being one of states with lenient gun laws, but how does it compare to other states around the nation?

Constitutionally protected right

Photo by: Teknorat

All 50 states allow residents to own firearms, but some have stricter regulations than others. Utah Code 76-10-500 states: “The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:

a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control;”

Background check

According to Utah Code 76-10-526, “An individual purchasing a firearm from a dealer shall consent in writing to a criminal background check, on a form provided by the bureau.” While a background check is required when purchasing a firearm from a dealer, it is not if the done through a private sale. Only D.C. and 19 states including California and Nevada require background checks prior to every purchases of a firearm.

Licensing and registration

Not only does the state of Utah protect the right to bear arms and not require a background check or registration for all gun purchases, it also doesn’t require those packing to “have a permit or license to purchase, own, possess, transport, or keep a firearm.” This goes along with federal law that also does not require gun owners to be licensed. The District of Columbia along California and 12 other states are the only states that require their residents to have a permit to purchase a firearm. Several of those that require permits for handguns, do not require permits for long guns. In the state of Utah, residents are also not required to register the firearms they own. Only D.C. and 8 states including California require gun owners to register the firearms in their possession.

Open carry

Utah residents are permitted to carry a firearm on their person as long as there is not a round in the firing position. The firearm must be two (mechanical) actions away from being able to be fired. Utah’s relaxed open carry laws do not allow residents to have a firearm in areas where firearms are restricted such as airports. Person’s carrying firearms are also warned not to “cause a reasonable person to fear for the safety of any person”. Utah is not alone in its decision to let residents carry firearms on their person. Only five states and D.C. have bans regarding open carry of handguns.

Concealed weapon

Concealed weapon laws are one area where Utah is somewhat controlling with firearms. Residents are allowed to carry a concealed weapon, but they must obtain a concealed weapons permit first. According to the Utah Department of Public Safety, the requirements to obtain a concealed firearm permit are:

• “Applicant must be at least 21 years of age
• Proof of good character…whereas the applicant;
• has not been convicted of a felony;
• has not been convicted of any crime of violence;
• has not been convicted of any offense involving the use of alcohol;

• has not been convicted of any offenses involving the unlawful use of narcotics or other controlled substances;
• has not been convicted of any offenses involving moral turpitude;
•has not been convicted of any offense involving domestic violence;
• has not been adjudicated by a court of a state or of the United States as mentally incompetent, unless the adjudication has been withdrawn or reversed
• is qualified to purchase and possess a firearm pursuant to Section 76-10-503 and federal law.”

42 other states allow residents to carry a concealed weapon with a permit. Only eight states including neighboring Arizona and Idaho allow concealed weapons without a permit.

Changing laws

In light of recent traumatic events, Utah’s lenient gun laws could be back up for review. Anyone desiring to purchase or carry a firearm, whether open or concealed, is recommended to review current state laws to ensure they are within the law.