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Legal Analysis of the Tonya and Ethan Couch situation

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Flamingo
viajero
Lady Otter Latté
CHILLIN
benjji
Ms.Thang
Trailrunner
Zedinmexico
CanuckBob
Intercasa
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Legal Analysis of the Tonya and Ethan Couch situation Empty Legal Analysis of the Tonya and Ethan Couch situation

Post by Intercasa Thu Dec 31, 2015 2:29 pm

Im trying to answer all questions in one article, anything missing or unclear? Typos, comments?

Legal Analysis of the Tonya and Ethan Couch situation

Why does everybody run to Mexico? Is it a good hiding place? Are there no laws?
Why did they stop Ethan Couch´s deportation?

I have been interviewed by various news sources as many have questions about the legal system in Mexico and to many there are more questions than answers as many are unaware about the inner workings of the Mexican legal system.

I have not seen the papers filed against the alleged fugitive mother and son nor any amparo filings in the federal court. My intent is to inform people about general Mexican and international law and procedure for immigration cases so that they understand what is going on in this case and that the authorities are following the law and due process. Just as the US is a nation of laws, so is Mexico with an extensive, albeit different system with checks and balances to ensure justice and due process for all within its borders.

Using the statement released to the press from the Jalisco State immigration head that the two did not register upon entering Mexico, I make the following analysis:
Visitors coming from the United States to the border areas of Mexico do not need to have any type of immigration document if their stay is only for a few days and restricted to the "free" zones along the border which may be narrow strips along the Texas border, to about half the state of Sonora or the whole state of Baja California.

If people who entered this way wish to go further inland then they will need to request an immigration document, usually a tourist card (FMM) which is good for up to 180 days.
The US has a similar system, Mexicans visiting the US by land use their visa to be able to arrive at the border and then the decision to admit them is up to the border agent, that permission only allows them to be for short periods in the border area and if they wish to stay longer or go further north than the 25 kilometer limit, they would need to request a form I-94 or else they would be illegally in the US.

This policy by both nations is a balance between control and encouraging tourism and shopping in the border areas where there are large numbers of people crossing.
Once the two went further south then they were in violation of Mexican law by not obtaining a tourist card and registering, the same in the US would be the equivalent of entering the US "without inspection" as there was no record of their entry into Mexico.

The two were apprehended in Puerto Vallarta by the Mexican authorities and then many assumed they would be promptly deported. While this usually is the case, in Mexico there are no immigration courts or judges. The National Immigration Institute of a federal administrative authority who can issue deportation orders and detain people to ascertain their legal status in the country.
Foreigners detained in Mexico have rights under international law and Mexican law, even ones accused of crimes or illegally in the country. They have the right to an attorney, a translator and to have their consulate or embassy notified so that they may receive consular assistance.

Many people assume it is like in the movies where a van pulls up and they take a guy and drive him to the airport and stick him on a place. This is illegal and would be kidnapping. All people in Mexico must follow the law, the authorities as well as the inhabitants. Many dont oppose their deportation orders as it can be expensive and in cases as this one just postponing the inevitable.
Those foreigners exercising their right to counsel and who have the funds may pay for their attorney to file an amparo. An amparo is a federal constitutional lawsuit. It can be used as an appeal or may be an extraordinary writ such as a writ or prohibition or writ of mandate or even habeus corpus. Part of the amparo filing is a stay of execution on any deportation order. That stay of execution is automatically granted upon filing in cases of deportation, exhumation or depriving someone of their liberty.

The temporary relief is granted without reviewing the merits of the case, just like in the US many attorneys say you can indict a ham sandwich, here in Mexico you can get an automatic stay pretty easily. Remember that any deportation order was not made by a judge and the detainee is using their right of redress to ask a judge to maintain the status quo so that their case may be heard and the evidence and allegations of procedural violations heard. The federal district court specializing in administrative law will then set a hearing date to decide if the stay of execution should be extended. The initial stay on the deportation order really means nothing as a judge has not ruled on the merits of the case.

One of the conditions for a stay is that it is not against the public interest. The law also states that a stay shall not be granted where a crime may be consummated or continued or its effects which in the present case the judge could use to deny an extension of the stay as keeping the son in Mexico is causing foreign laws to be violated.

What options are available? When people are caught in Mexico and turned over to immigration authorities there are 3 options, if the person has a valid immigration document that fact will be verified and the person will be released. If the person does not have a valid immigration document than there is a possibility that the person may be able to obtain a document or regularize their immigration situation. Under present immigration law only people with Mexican family members or spouses can change their immigration status within Mexico.

The son does not appear to have Mexican family and would have to apply for a tourist visa which authorities would probably deny due to the immigration law that states they have the right to deny entry or renewal or immigration documents to people who have pending or past criminal charges against them, they may also cancel residency visas of people who already have them if they learn of this information.

This would leave the only option of deportation. It should only be a matter of time before the legal filings run their course in a matter of days or months depending on how much effort and money Ethan Couch wishes to spend and the workload of the federal court that was assigned the case as well as any appellate 3 judge panel courts. If the federal district court judge does not extend the stay of execution on deportation then he can appeal that order (Queja) and if the amparo is denied it can still be further appealed but it is only stalling the inevitable.

Generally amparos in the federal district court can take a few months to be resolved. The stay on execution of the deportation order could be heard within days or extended. If the outcome is not favorable to Ethan Couch then his attorneys could appeal it and that appeal could take a week or more. The underlying amparo, if not favorable to him could then be appealed to a three judge federal court where resolutions are taking anywhere from a month to a year.

Lic. Spencer Richard McMullen is a litigating attorney and official court translator in the State of Jalisco.
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Post by CanuckBob Thu Dec 31, 2015 3:57 pm

Looks good Spencer. Hopefully young Ethan will be held in a nice Mexican prison awaiting his appeals and hopefully this appeal process drags on for a few years.......
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Post by Zedinmexico Thu Dec 31, 2015 3:57 pm

Thanks for taking the time to write this!

Z

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Post by Trailrunner Thu Dec 31, 2015 4:09 pm

I think it's a good article, Spender, it answered questions I had. In terms of grammar etc, I saw a "don't" that needed an apostrophe (but can't find it again) and maybe a comma after "albeit different".

"Why does everybody run to Mexico?" It's handy. And I think people think they could just hop a bus or hitchhike down to Argentina or something if it got a bit warm for them in Mexico. Clearly, people don't think it through much, but then again some pedophiles and other undesirables have been caught in PV where they had been living a charmed life for several years! Even here!

I do have a question though. . .after crossing the border as 'day trippers' - WITH A DOG AND A GUN - how did they get to PV? WITH A DOG AND A GUN? I've read several reports on this case and haven't seen anything regarding their transportation or how they got around.
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Post by Ms.Thang Thu Dec 31, 2015 5:25 pm

They must have driven across the border , that way they were able to skip applying for an immigration document or car permit by claiming they were going to stay in the border zone. No one checks for papers unless there's a problem. Maybe they bought the gun in Mexico? At the strip club maybe:) Or maybe there was no gun, obviously there wasn't a gun with them when they were arrested or they would be facing weapons charges instead. Hopefully, there wasn't a dog either.

So can his case move to adult court without him being there? Or will time for that run out if he can stay in Mexico until he's 19?

Great Article, Spencer.



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Post by Trailrunner Thu Dec 31, 2015 5:41 pm

That's a good question, MT. He may skate again.

Ok, I figured it out. They drove across (Where did they cross?) as day-trippers and just kept going. Miraculously, they didn't get stopped by any retenes or cops or military where they had no papers to show anyone, and when they finally got to PV - our heroes, romantic desperados that they were, traded the car for the gun!

Where's the car?
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Post by benjji Thu Dec 31, 2015 6:41 pm

They crossed in a red pick-up truck with current Texas plates.

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Post by CHILLIN Sat Jan 02, 2016 3:41 pm

typo "drive him to the airport and stick him on a place"

Maybe you should mention that one reason that deportation must be carried out with an internationally recognized sequence is that once a person is deported, they can never return to that country (barring political overthrow of course). For reasons of expediency and cost saving, the governments usually encourage a "voluntary departure order", and after a period of time, that person could ask for a visa.

I would really like to hear from the Couch's point of view. The press and public opinion have certainly ganged up on him. The District Attorney is obviously political grandstanding. I doubt very much if he is going to receive a fair legal treatment there upon his return. This may be a factor the Mexican adjudicator will have to consider. This is even grounds for asylum in Mexico. I also wouldn't be surprised at all if Couch, and his family, have received multiple death threats.
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Post by Lady Otter Latté Sat Jan 02, 2016 4:01 pm

Really, Chillin? What do you imagine the Couches' side of the story might be? That after his drunk driving was responsible for the deaths of four people and his young friend being paralyzed for life the terms of his probation were too harsh? Was not being able to drink alcohol cruel and unusual punishment?
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Post by Intercasa Sat Jan 02, 2016 5:29 pm

Thanks, FYI after deportation you can file an amparo to bring the person back and annul the proceedings, I have a pending case where a client was snatched off the street and held and deported, no consulate, nor attorney nor translator, etc.
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Post by viajero Sat Jan 02, 2016 5:40 pm

Intercasa wrote:Thanks, FYI after deportation you can file an amparo to bring the person back and annul the proceedings, I have a pending case where a client was snatched off the street and held and deported, no consulate, nor attorney nor translator, etc.
What were their reasons for snatching your client off the street?

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Post by CHILLIN Sun Jan 03, 2016 7:33 am

Lady Otter Latté wrote:Really, Chillin? What do you imagine the Couches' side of the story might be? That after his drunk driving was responsible for the deaths of four people and his young friend being paralyzed for life the terms of his probation were too harsh? Was not being able to drink alcohol cruel and unusual punishment?

You don't understand how sentencing in the U.S.A. and most of Canada works then. These are common law based systems, the judges cannot sit like a mighty King Solomon, weighing each case. They are bound by precedent, which is the average sentence reached in other similar decisions by other judges. There are some boundaries as to lower and upper range, but generally any judgment wildly outside those boundaries will be dismissed in appeal, or much more rarely, filed as a new charge if too lenient. This is very rare because of the laws relating to evidence and the concept of double jeopardy. Mexico (and Quebec) are civil law systems and judges can be much more innovative, not so much bound by precedent. Civil law systems most often look to why the laws were created, what was the intention.
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Post by Lady Otter Latté Sun Jan 03, 2016 8:20 am

Nice response, Chillin. Thank you for restating what most of us know. What does it have to do with you wanting to hear the Couches point of view? Point of view of what? Do you think his mother Has something to say that justifies her enabling his violation of parole? Do you think his father can explain why his son should continue to be protected from future consequences as he always has in the past?
What "side" of the Couches story do you want to hear?
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Post by Flamingo Sun Jan 03, 2016 6:41 pm

From what I have read, a slap on the wrist for white juvenile offenders is pretty common in Texas. Very different if you happen to also be DWB.
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Post by sm1mex Mon Jan 04, 2016 8:51 am

His new Mexican attorney said they had broken no laws in Mexico, but coming across the border without registering (illegal aliens) and without getting tourist visas and a dog with no papers and possibly a gun, isn't that breaking Mexican laws?

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Post by brigitte Mon Jan 04, 2016 9:10 am

Remember what happened to the marine who brought in guns..I would think that entering Mexico without registring and with a gun is a crime , inot why did the marine go to jail?

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Post by Lady Otter Latté Mon Jan 04, 2016 9:17 am

sm1mex wrote:His new Mexican attorney said they had broken no laws in Mexico, but coming across the border without registering (illegal aliens) and without getting  tourist visas and a dog with no papers and possibly a gun, isn't that breaking Mexican laws?

His lawyer can say anything he wants. It does not have to be true.
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Post by brigitte Mon Jan 04, 2016 9:19 am

You are right one of the first word I got from a Mexican lawyer was they lie you lie...It is up to the judge to decide..

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Post by Ms.Thang Mon Jan 04, 2016 9:37 am

It has been reported that they left gun behind in the room of the first hotel they stayed at and they claim that Ethan picked it up. There have been no reports of a gun being in their possession when they were arrested. The hotel is also the source of the first mention of the dog and the lawyer confirmed that there was a dog, but no mention of a gun.

Being undocumented in Mexico is a civil offence, not a crime.

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Post by viajero Mon Jan 04, 2016 9:42 am

brigitte wrote:Remember what happened to the marine who brought in guns..I would think that entering Mexico without registring and with a gun is a crime , inot why did the marine go to jail?
He did,for awhile,his mommy was good at PR and she got the backing of some republican politicians and he walked.
I'd still like to know why Spencer's client was "snatched" off the street and deported.

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Post by brigitte Mon Jan 04, 2016 9:43 am

so a hotel said they had a gun but no gun found therefore no gun, another hotel said they had a dog so no dog found but they had a dog..pretty convenient no?

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Post by brigitte Mon Jan 04, 2016 9:45 am

Viajero are you getting worried all of a sudden? What did you do with your neighbor and her dogs?

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Post by Ms.Thang Mon Jan 04, 2016 10:19 am

brigitte wrote:so a hotel said they had a gun but no gun found  therefore no gun, another hotel said they had a dog so no dog found but they had a dog..pretty convenient no?

The dog that the hotel talked about has been recently mentioned by his lawyer .He said that Ethan and his mother were illegally separated from their dog.,
No weapons charges have been mentioned, we can assume they were not in possession of a gun when they were picked up.

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Post by slainte39 Mon Jan 04, 2016 10:37 am

Ms.Thang wrote:
brigitte wrote:so a hotel said they had a gun but no gun found  therefore no gun, another hotel said they had a dog so no dog found but they had a dog..pretty convenient no?

No weapons charges have been mentioned, we can assume they were not in possession of a gun when they were picked up.
And that is a huge legal criminal point.  Here say without strong witness verification before proper legal authorities, doesn't hold much water in Mexico.

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Post by brigitte Mon Jan 04, 2016 10:41 am

yes I know, same in France..

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