inside immigration information about marriage green cards and work visas in America
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Sometimes the temptation to steal something from an American department store is overwhelming. It looks easy. It looks like no one is watching. The shopping selection is amazing compared to another country’s stores. The temptation can sweep a person away when they have gone without for so long, or don’t have a steady paycheck to buy nice things.
Even when married to a U.S. citizen, it gets old having to ask a husband or wife to buy every little thing. A new dress makes all the difference. What could it hurt?
Here is Amelia’s story:
This is Amelia Smith and my husband is Richard Jones. I am from Uzbekistan. Remember, we live in California and you helped us successfully in getting my green card this year in June? It is a conditional two year green card based on my marriage to Richard, who is a U.S. citizen.
On July 21th I made a terrible mistake and I am experiencing the worst time in my life. I am so embarrassed to say that I was accused of committing a misdemeanor California Penal Code 484(a) petty theft and today the Criminal Court Judge sentenced me to 12 months probation and a fine of $360. I also have to finish 30 hours of volunteer work. The Judge believed I was sincere when I said I was so sorry for what I did to American Society . . . I promised Richard I am never going to put my legal status at risk again… I learned my lesson!!! even though it was most shameful thing according to my own personal standards. I don’t know what I was thinking when I took those items from the department store. It was very humiliating to get caught.
I want to turn to you for legal advise since you know me and handled my green card case . . . I was told by my criminal defense attorney that I am not going to have trouble getting the 10 year green card but I may have to wait 2 additional years in order to apply for citizenship — are those things true?
Of course I must STAY OUT OF TROUBLE for a year so I can seal my record BUT Immigration and the American Government will always know what I did (I was booked and fingerprinted).
Dear Danielle, could you please let me know is anything I should be aware of? The information I got is correct? I’m just so worried even though today was a relief after all my tortured time waiting to see the Criminal Court Judge. Thank you, I will appreciate your response.
Amelia should have contacted her immigration attorney before pleading guilty to anything, to learn the answers to her legal status questions. If she didn’t have an immigration attorney she should have hired one. Often, criminal defense attorneys are not aware of the negative consequences that can happen to a green card holder (or the law has changed since they last checked), so it is best to talk to your immigration attorney before going before the Criminal Court Judge. There are many immigration attorneys who specialize in helping green card holders who have been accused of a crime.
In Amelia’s case, was stealing the new pretty dress worth it? No. She spent money for the criminal defense attorney and for an immigration attorney. She had to pay court fines. She did damage to her relationship with her new husband, who began to doubt his trust in her with regard to all money matters. However, eventually he started to understand how hard it is to adjust to a new country, a new culture, and the pressure that put on her – and to forgive her. And her USA citizenship was approved.
Many other countries do not punish people for stealing – if they are caught they are just asked to return the item and the whole incident is forgotten. In the U.S., however, it is common for the store security guard or the store manager to call the police when they catch someone stealing. For people not used to seeing open displays of merchandise, the urge to pick up a few items may be very tempting. But they must try to control the urge to commit this minor crime becaues the cost can become very expensive if they have to pay for a criminal defense attorney, an immigration attorney, and possibly lose their job.
Do Your Research Before Filing for Citizenship with a Petty Theft Conviction
Shoplifting (often called petty theft) is normally considered a misdeanor if the value of the merchandise is less than a certain amount, usually $300 or $500. When applying for citizenship it is necessary to show that a person has been a person of “good moral character” for the past 5 years (3 years for persons married to a U.S. citizen).
A single arrest for one petty theft sometimes may be excused under the “petty theft exception” so long as the person is not on probation at the time of the citizenship interview, and so long as they were not sentenced by the judge to 12 months jail time (even if the jail time was “suspended” and they spent no time in jail). There are other considerations too numerous to list here – because all 50 states have different petty theft laws, and because the criminal court state judges vary so much regarding how they sentence violators.
Suspended Jail Sentences: When is a Petty Theft Conviction Really Considered an Aggravated Felony by Immigration Officials (Even if the Criminal Conviction Paperwork Says “Misdemeanor”)?
In some American states, the criminal conviction paperwork says that a petty theft is just a “misdemeanor.” Do not let that fool you. That does not mean that immigration will agree that the petty theft is a misdemeanor.
Immigration (using federal laws) sometimes has a different definition of petty theft (and other crimes) than states do (using state laws). For example, I was recently contacted by a green card holder who was convicted of stealing $18 worth of clothes from Penny’s. A state criminal judge sentenced her to 12 months in jail and then “suspended” the 12 months in jail and put her on probation. She got off of probation and filed for citizenship, which was denied – and she was placed in deportation proceedings. What did she do wrong?
In her case, was the green card holder technically sentenced to 12 months jail, even though she did not go to jail? Yes! If a person is sentenced to 12 months in jail, immigration defines the petty theft as an aggravated felony due to the 12 month sentence, not a misdemeanor. She stands convicted of an aggravated felony due to the 12 month sentence. The fact that the sentence was suspended is irrelevant for immigration purposes.
In a case where there is a jail sentence (even suspended) of 12 months, immigration will not excuse the petty theft for citizenship; instead immigration will deny citizenship and put the green card holder into deportation (called “removal”) proceedings. The green card holder should have hired a criminal defense attorney to get the sentence for the petty theft conviction reduced before applying for citizenship.
TIP: Please have your criminal conviction paperwork reviewed by an immigration attorney before submitting your N400 or I-485 or I-751 even if you think it is a simple petty theft. I am not trying to be overly dramatic . . it is very sad to get contacted by someone who is now in deportation proceedings when all they did was take $10 worth of food for their family but they never took their court paperwork to an immigration attorney to review.