Stores in the United States are known for their open displays, which might make it tempting to pick up a few small items here and there. Many newcomers don’t realize that even minor crimes like petty theft can have severe immigration and criminal consequences. One must be in control at all times to avoid committing a small crime like shoplifting. Even taking an inexpensive item can prove expensive in court. You often have to pay both an immigration attorney and criminal attorney. There is also the possibility that you will lose a good job, risk losing your green card and forfeiting your citizenship eligibility, all from a small crime.
Shoplifters are typically prosecuted in the United States because many stores have a zero-tolerance policy. Don’t think that a merchant will forgive the theft if the items are later paid for or returned. Most security guards will immediately call the police as soon as the theft is noticed. You will commonly see many stores with posters that read, “shoplifters will be prosecuted.” Even stores without these posters will usually prosecute suspects.
According to state laws, shoplifting is commonly charged as a misdemeanor if the value of the stolen goods is below a certain amount. This amount depends on the specific state’s laws, which means that petty theft in one state might be a felony in another state. Amounts higher than this are considered a felony and are known as grand larceny or grand theft. Petty theft may sound innocent enough, but the consequences may be severe. You may have to face issues with your immigration status or even deportation.
The Immigration and Nationality Act, Section 212, lists several grounds on which the defendant can be found inadmissible. These rules can make it difficult to apply for entry into the United States, change or extend one’s nonimmigrant status or apply for citizenship. To obtain any benefits, one must be considered admissible.
Criminal grounds are one of the aspects covered by Section 212. The most general ground says that individuals admitting to or convicted of crimes that involve moral turpitude are considered inadmissible. It’s not clear what these crimes may be because each judge may have a different view on moral turpitude, and the definition has changed as laws have evolved. The unfortunate problem is that theft is often considered a problem of moral turpitude in most countries, which means that even a small theft can make one inadmissible.
There are exceptions for specific minor crimes, but these exceptions can seem confusing initially. The exceptions depend on possible, not actual, maximum jail sentences carried by crimes committed by the immigrant. For example, committing a crime with a maximum jail sentence of five years, even if you haven’t received any jail time, will count towards this exception. This means that you can still be considered inadmissible even if you haven’t served jail time. Repeat offenders cannot use this exception because you can only excuse one specific type of crime under this rule. This means that if you committed two felonies and one misdemeanor, then you can excuse the misdemeanor and one felony, but the other felony cannot be excused.
This is commonly called the “petty offense exception” because only petty offenses are small enough to slip under the radar. The main criteria is that the maximum penalty can be no more than one year and that the actual sentence was six months or less. If you can pass this exception, then you may still be admissible. At the same time, this is still problematic because the maximum penalty for theft in the United States often exceeds one year. This means that committing the crime in the United States can easily lead to inadmissibility.
You should also note that suspended sentences are considered when applying for this exception. A suspended sentence means that the defendant was given jail time, but he or she did not have to serve it if certain conditions were followed. For example, someone may have a five-year sentence, but he or she didn’t have to serve that sentence as long as that person follows a period of probation. Actual jail time isn’t considered when applying for this exception, which can make it difficult for anyone who has been convicted of a crime.
In order to ensure one’s eligibility for this exception, one must be able to provide the state criminal statute during the time of the crime. You must able be able to clearly outline the nature of the offense and the maximum and actual penalties when the offense was committed. You will have to submit the court record from the case. Make sure that it clearly states the charge and sentence at the end of the case. In some cases you may also have to obtain a letter from a criminal law attorney to help explain the court document to the USCIS officer.
As stated above, an immigrant who is applying for admission to the United States, a visa or filing a I-485 or I-539 form might be able to skirt around extreme consequences by fulfilling all of the requirements for the petty offense exception. At the same time, the analysis of past crimes is different if deportability becomes an issue. If one commits and is convicted of a crime within five years of admission that shows moral turpitude, then that person can face deportation charges even if it was petty shoplifting. On this basis, the person is considered removable, or applicable for deportation, if the maximum possible sentence exceeds one year. The actual sentence is not considered, so escaping jail time does not prevent you from possibly facing deportation charges.
Another issue is that even a misdemeanor like shoplifting or petty theft can be upgraded to aggravated felony under immigration law. Shoplifting is considered aggravated felony if the actual sentence from the court is one year or longer of jail time, even if you don’t serve jail time due to a suspended sentence. Any foreign national who has been convicted of an aggravated felony is subject to removal. You will likely be barred from most types of immigration relief and benefits, and it can be very difficult to return even years after the removal.
One of the qualifications for citizenship is to show that you have been a person of good moral standing and character for the last five years. This is lowered to three years if you have been married to a citizen for three years or longer. If you faced any convictions during those three to five years for crimes of moral turpitude, then your application will likely face challenges and may be denied. Even if you haven’t committed a crime in the last three to five years, the USCIS may look further back if you have been convicted of a serious crime in the past.
If these criminal convictions are revealed during the naturalization application process, then the applicant might have to face removal proceedings. The USCIS is typically alerted when prosecutors and police convict an applicant or non-citizen with a violent or serious crime, but they may not be aware of misdemeanors as soon as they occur. You might also have to face removal charges even if they discover a conviction that occurred years ago. If one faces this issue, then one of the only ways to get around it is to show exceptional humanitarian or appealing factors that makes one still admissible for naturalization. The judge rules on this, and it is very difficult to be approved for such a request.
Strategies for Criminal Trials and Cases
Along with avoiding the temptation to initiate any sort of illegal activity, like shoplifting, it is also a good idea to be around people in good standing who don’t violate the law. This helps you avoid the appearance of criminal involvement. If you are convicted or charged with any crimes that can threaten your immigrant status, then it’s essential that you get information from an immigration and criminal attorney. Pleading guilty to misdemeanors may seem like a good idea due to the lower penalty, like probation, but this is only good for domestic citizens. Even probation can lead to deportation. There are some crimes that may not be looked at as convictions under state law, but they are convictions under immigration law. Any non-citizen facing criminal charges should seek advice from both immigration and criminal attorneys before proceeding with any case.
Even the smallest of misdemeanors can be devastating for immigrants because these crimes can threaten your immigrant status, lead to deportation or make naturalization impossible. Be sure to get competent advice from a legal professional before following through with any case to ensure that you can stay within the country without having your status threatened.
Are You At Risk Of Being Deported In Virgina, Maryland or Washington D.C.?
If you are at risk of being deported you need to speak with an experienced immigration attorney as soon as possible. Please contact us online or call our Vienna, Virgnia office directly at 703.991.7978 or our Rockville, Maryland office at 301.637.5392 to schedule your case consultation.