In a turn of events that would appear baffling to most non-lawyers Vijay Kumar, the Indian filmmaker arrested at an airport in Houston for carrying brass knuckles, had his visa revoked by the immigration authorities and then was deposited in jail for not having a valid U.S. visa.
In his second interview with The Hindu Mr. Kumar’s lawyer, Grant Scheiner, said that U.S. legal rules had literally “tied him into a procedural knot, we are trying to untie that knot.” Mr.Scheiner said that while the U.S. government reserves the right to revoke visas at any time for any reason or no reason at all, the result for Mr. Kumar is that he not only has a criminal case to contend with, but an immigration case as well.
The criminal case against Mr. Kumar relates to his possession of a set of brass knuckles while in a secured premises, namely George Bush Intercontinental Airport in Houston. Under Texas law, such possession is tantamount to a third-degree felony with a prison sentence anywhere between two and ten years.
However Mr. Scheiner said that in Mr. Kumar’s case such a sentence may be unlikely because it was usually not applied when the defendant could show that he had made a mistake in interpreting the law as a result of misreading another official guideline.
In this case Mr. Kumar was carrying the brass knuckles packed within his checked-in baggage, and under federal law that is completely legal. Yet because federal law is not consistent with Texas law – which forbids carrying brass knuckles in any baggage or on one’s person – Mr.Kumar fell afoul of the latter.
Thus Mr. Kumar remains in jail awaiting his September 8 criminal hearing, Mr. Scheiner said, and on that day the legal team will attempt to have the third-degree felony charge reduced to a misdemeanour.
If the court agrees to this lesser charge, the sentence may be no more than “taking credit for time served,” which, according to Mr. Scheiner, implies that Mr. Kumar would simply have to remain in custody for as long as it takes for the authorities to put him on a flight back to his home in Mumbai.
Also, Mr. Scheiner emphasised, under this scenario Mr. Kumar would be departing voluntarily, an important step if Mr. Kumar was to have the right to ever reapply for a U.S. visa.
While an alternative scenario was not likely, Mr. Scheiner said that if the court decided not to reduce the charge to a misdemeanour or for some reason Mr. Kumar decided not to plead guilty and fight the case instead, it could go on for months and Mr. Kumar may face a much longer time in jail.
In any event if Mr. Kumar decided to fight the case, and it dragged on for more than 90 days, then Mr. Kumar would face involuntary, not voluntary departure – and in that case would never be able to obtain a U.S. visa again.
A further update is expected on or after September 8.