Beware : Serious Immigration Consequences of Shoplifting
Posted Jun 21, 2002

For people not accustomed to the open displays of merchandise typical in the U.S. and 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 consequences. Caution dictates that one control any urge to commit a "minor" crime like shoplifting. The cost of even a small item can become very expensive for the offender when paying the criminal attorney, the immigration law attorney, possibly losing a good job, losing green card eligibility, having the green card revoked, or losing eligibility to apply for U.S. citizenship -- all based on this "small" crime.

We have been told that shoplifting is more likely to be prosecuted in the U.S. than in many other countries. For this reason, those from abroad may think that if they are caught with merchandise they did not pay for, they just have to return it and the whole incident will be forgotten. In the U.S., however, 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." Take these warnings seriously.

Under state laws, shoplifting is considered a misdemeanor (often called petty theft) if the value of the merchandise is less than a certain amount, usually $300 or $500. (Note that criminal laws vary from state to state.) A higher amount 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 on whether the issue arises in connection with the application for a nonimmigrant visa or for permanent status; a removal (deportation) proceeding; or a naturalization (citizenship) application.

Inadmissibility Issues

Section 212 of the Immigration and Nationality Act lists various grounds upon 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; when a person arrives at a U.S. Port of Entry and applies to enter the country; or when a person files an Application for Adjustment of Status (Form I-485), which is the final stage of the green card process when applying from within the U.S. 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 under 212(a)(2). One of these grounds is if the person 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 often crimes of moral turpitude under the law. Therefore, committing even a minor theft can have serious consequences.

The law provides a limited exception for very 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.

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 may not apply after all. That is, the application would not be denied on criminal grounds. However, since the charge of petty theft includes, in many states, theft up to amounts of $500, or even greater, the maximum possible penalty can often exceed one year. This means that one who steals a pack of gum may be charged under the same provision of the criminal law as one who steals a much more valuable item. While it would be unlikely that such a person would not spend any substantial time in jail, if the jail time of over one year is possible under the provisions of the law for that offense, then the person could not use the petty offence 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 INS or the consular officer.

Removability (Deportability) Issues

While a person who is applying for a visa or for entry to the U.S. or Adjustment of Status to Permanent Resident (I-485) may be able to avoid severe consequences if all the requirements are met for an exception, one who is in removal (formerly known as deportation) proceedings has a much bigger problem. If a person is convicted of a crime of moral turpitude committed within five years of entering the U.S., s/he could face removal even if the crime was shoplifting or "petty theft."

For one in removal proceedings there is no exception for so-called petty offenses. If this person has a spouse, parent, or child who is a U.S. citizen or permanent resident, it may be possible to apply for a discretionary waiver, but such waivers are very difficult to obtain and require a showing of "extreme hardship" to that relative.

Furthermore, under the immigration law, it is possible a misdemeanor conviction for a crime such as shoplifting could qualify as an "aggravated felony." One convicted of an aggravated felony faces restrictions on his/her ability to apply for relief and avoid being deported. A shoplifting conviction is an aggravated felony if the sentence imposed is at least one year in jail, even if that sentence is suspended. A permanent resident of the U.S. with an aggravated felony conviction is not eligible to apply for the type of waiver described above and is also barred from most other forms of relief.

Naturalization Issues

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 was any criminal conviction during that period, however minor, the application will likely be denied. For certain, more serious crimes the INS may even look back beyond than that 3-year or 5-year period.

If a criminal conviction comes to light when one is applying for naturalization, s/he may well be placed in removal proceedings. While typically notified when a non-citizen is convicted of a crime, there are times when the INS is unaware of the situation and only finds out later. It is possible to be put into proceedings for a conviction that happened quite some time before. A naturalization applicant who is put into proceedings may be able to request that the proceedings be terminated to allow the naturalization application to be processed. The Immigration Judge has the discretion whether to grant such a request. The applicant must show "exceptionally appealing or humanitarian factors." As with all types of discretionary relief, the approval rate is not high.

Strategic Considerations for Criminal Cases

In addition to avoiding the temptation to engage in any illegal behavior, like shoplifting, it is also wise to associate with people who do not violate the law, in order to avoid the appearance of involvement in criminal activity. A good criminal attorney, with little or no knowledge of U.S. immigration laws, will generally recommend that a client 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 client, 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.