Beware: Serious Immigration Consequences of Shoplifting22 Nov 2017
For people not accustomed to the open displays of merchandise typical in the United States, the opportunity to pick up a few small items could prove tempting. Many newcomers to this country do not realize that seemingly minor crimes can have very serious immigration, as well as criminal, consequences. Caution dictates that one control any urge to commit a seemingly “minor” crime like shoplifting. The cost of taking even a small item can become very expensive for the offender. At a minimum, shoplifting often results in paying a criminal attorney and an immigration attorney. There is the potential for losing the ability to remain in the U.S. and/or the ability to enter the U.S. Even for those who can remain in the U.S., there are risks of losing job opportunities, green card eligibility, and losing or delaying eligibility to apply for U.S. citizenship – all based on this crime, erroneously presumed to be considered small.
Shoplifting is likely to be prosecuted in the United States, with some stores adopting a zero-tolerance policy. It is a mistake to assume that the merchant will forgive the theft if the items are returned or paid for. In the U.S., it is common for the store security guard or manager to call the police. It is quite common for shop owners to even post notices in their windows or dressing rooms: “Shoplifters will be Prosecuted.” These warnings should be taken seriously.
Under state laws, shoplifting generally is considered a misdemeanor (often called petty theft) if the value of the merchandise is less than a specified amount. (Note that criminal laws vary from state to state.) A higher amount generally is considered a felony, often known as grand theft or grand larceny. “Petty theft” may sound minor, especially if it involves merchandise of very low value, but the consequences can be major. The type of consequence depends upon whether the issue arises in connection with the application for a nonimmigrant visa, a change of status, or for permanent resident status; a removal (deportation) proceeding; or a naturalization (citizenship) application.
Section 212 of the Immigration and Nationality Act lists various grounds on which a person can be found “inadmissible” to the United States. These provisions can affect one’s application for a nonimmigrant (temporary) or immigrant (permanent) visa at a consulate. They also apply when one arrives at a U.S. port of entry and seeks to enter the country. The same provisions come into play when one files an application to change or extend nonimmigrant status (I-539) or for adjustment of status (I-485), which is the final stage of the green card process when applying from within the United States. To obtain any of these immigration benefits, one must be admissible to the U.S.
Among the various grounds of inadmissibility in Section 212, there are criminal grounds. One of these grounds is if the individual is convicted of, or admits to having committed a “crime involving moral turpitude.” The issue of what crimes involve moral turpitude is not always clear, and the definition of that term has evolved over the years through case law. However, it is established that theft offenses are almost universally considered to be crimes of moral turpitude under the law. Therefore, committing even a minor theft can have serious consequences.
The law provides a limited exception for certain minor crimes. However, the availability of this exception depends upon the possible (not actual) maximum jail sentence allowed under state law for the crime, as well as the actual sentence the person receives. Therefore, it is erroneous to assume that if one avoids actual time in jail the crime is insignificant in immigration cases. This exception only applies to a single charge against an individual. Repeat offenders are not eligible to use this exception to forgive more than one conviction.
The exception is sometimes termed the “petty offense exception.” The criteria are that the maximum penalty under the particular criminal law is no more than a year in jail and the sentence actually imposed was not more than six months in jail. If one meets these criteria, the bar to inadmissibility would not apply after all. That is, the application would not be denied on criminal grounds. However, since the charge of petty theft is fairly broad, in many states, the maximum possible penalty can often exceed one year. One who steals a pack of gum may be charged under the same provision of the criminal law as one who steals a television. While it would be unlikely that the gum thief would spend any substantial time in jail, if jail time of more than one year is possible in the state for that offense, then the person could not use the petty offense exception.
Note that even a suspended sentence is considered a jail sentence. A suspended sentence is one that does not have to be served, provided the defendant complies with conditions imposed by the court. A person could have a three-year sentence, for example, but the sentence could be suspended on the condition that a period of probation is completed. In such a case, one may be under the mistaken impression that there is no jail sentence, since s/he has never gone to jail. It is necessary to read the court documents very carefully.
In order to establish that one qualifies for the exception, one must provide the actual state criminal statute clearly outlining the nature of the offense and the penalty at the time the offense was committed. It is also necessary to submit the court record, showing the charge and the sentence. If those documents are unclear, it may be necessary to provide a letter from a criminal law attorney to explain the document to the USCIS or the consular officer.
Removability (Deportability) Issues
As explained, a person who is applying for a visa or for admission to the United States or filing the I-539 or I-485 form may be able to avoid severe consequences if all the requirements are met for the petty offense exception. However, the analysis is different in the removal (formerly known as deportation) context. If one is convicted of a crime of moral turpitude committed within five years of admission to the United States, s/he could face removal even if the crime was shoplifting or “petty theft.” Such a charge renders an individual removable if the maximum possible sentence is one year or longer. The actual sentence, if any, is not taken into consideration.
Furthermore, in certain situations under immigration law, it is even possible for a misdemeanor conviction of a crime such as shoplifting to qualify as an “aggravated felony.” A shoplifting conviction is an aggravated felony if the sentence actually imposed is at least one year in jail, even if that sentence is suspended. A foreign national with an aggravated felony conviction is removable and is barred from most forms of immigration benefits and relief.
When applying for citizenship it is necessary to show that one has been a person of “good moral character” for the past five years (three years for certain persons married to U.S. citizens). If there were any convictions during that period for crimes including moral turpitude, the application will face challenges and could be denied. For certain, more serious crimes the USCIS may even look back beyond than that 3-year or 5-year period.
If certain criminal convictions come to light when one is applying for naturalization, an applicant may be placed in removal proceedings. While typically notified by police or prosecutors when a non-citizen is charged with a serious or violent crime, the USCIS often is unaware of shoplifting and related charges when they occur. It is possible to be put into removal proceedings for a conviction that happened even years earlier. Individuals with any criminal history should seek advice from a qualified immigration attorney before filing for naturalization.
Strategic Considerations for Criminal Cases
In addition to avoiding the temptation to engage in any illegal behavior, like shoplifting, it is also wise avoid associating with people who violate the law, in order to avoid the appearance of involvement in criminal activity. If such an incident occurs, it is important to get input from both a criminal and immigration attorney. Absent consideration of U.S. immigration laws, it may seem like a good idea to plead guilty to minor charges in exchange for a lesser penalty, such as probation. While such a plea may be wise for the typical U.S. citizen, it can be a problem for a non-citizen. A guilty plea counts as a conviction with potential immigration consequences. There are also other possible arrangements, such as “probation before judgment,” that may not be considered convictions under state law, but are convictions under U.S. immigration law. A non-citizen charged with any crime should seek competent advice from both a criminal attorney and an immigration attorney before making decisions on how to proceed.
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