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Results 1 to 9 of 9

Thread: Shoplifting Revisited...

  1. #1
    I have read with interest the other (but quite old) discussions here regarding Immigrants and/or Green Card holders being arrested for shoplifting.

    My wife was recently arrested in Illinois for shoplifting. She is a Green Card holder (2 year card) and the only remaining step she was facing was to file the I-751 (Petition to Remove the Conditions of Residence)... upon successful completion of she would receive the permanent 10-year Green Card.

    My question to the community here is... Does she have any chance of getting through this?? The law that covers this (as described in the other board discussions of committed crimes) is: (8 USC 1182) http://www.washingtonwatchdog.org/documents/usc/ttl8/ch12/subchII/ptII/sec1182.html#(h)(2)

    The key clincher is in section (h) which follows:

    "No waiver shall be granted under this subsection in the case of an alien who has previously been admitted
    to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."

    SO... if you are already a permanent resident (which I beleive my wife is - 2 year Green Card, right?)... this clause makes it sound as if there is no way out of this... i.e. She cannot qualify for the "2 (A) ii (II)" exception because she has already been admitted as a permanent resident.!?

    This kind of boggles the mind ... I mean why would it be okay BEFORE you were admitted and not OK AFTER you are?

    Am I interpretting this correctly? I guess I need a good lawyer!


    The relevant content of this document follows:

    Sec. 1182. Inadmissible aliens

    (a) Classes of aliens ineligible for visas or admission
    Except as otherwise provided in this chapter, aliens who are
    inadmissible under the following paragraphs are ineligible to
    receive visas and ineligible to be admitted to the United States:

    . . .

    (2) Criminal and related grounds
    (A) Conviction of certain crimes
    (i) In general
    Except as provided in clause (ii), any alien convicted of,
    or who admits having committed, or who admits committing acts
    which constitute the essential elements of -
    (I) a crime involving moral turpitude (other than a
    purely political offense) or an attempt or conspiracy to
    commit such a crime, or
    (II) a violation of (or a conspiracy or attempt to
    violate) any law or regulation of a State, the United
    States, or a foreign country relating to a controlled
    substance (as defined in section 802 of title 21),
    is inadmissible.
    (ii) Exception
    Clause (i)(I) shall not apply to an alien who committed
    only one crime if -
    (I) the crime was committed when the alien was under 18
    years of age, and the crime was committed (and the alien
    released from any confinement to a prison or correctional
    institution imposed for the crime) more than 5 years before
    the date of application for a visa or other documentation
    and the date of application for admission to the United
    States, or
    (II) the maximum penalty possible for the crime of which
    the alien was convicted (or which the alien admits having
    committed or of which the acts that the alien admits having
    committed constituted the essential elements) did not
    exceed imprisonment for one year and, if the alien was
    convicted of such crime, the alien was not sentenced to a
    term of imprisonment in excess of 6 months (regardless of
    the extent to which the sentence was ultimately executed).

    . . .

    (h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
    The Attorney General may, in his discretion, waive the
    application of subparagraphs (A)(i)(I), (B), (D), and (E) of
    subsection (a)(2) of this section and subparagraph (A)(i)(II) of
    such subsection insofar as it relates to a single offense of simple
    possession of 30 grams or less of marijuana if -
    (1)(A) in the case of any immigrant it is established to the
    satisfaction of the Attorney General that -
    (i) the alien is inadmissible only under subparagraph (D)(i)
    or (D)(ii) of such subsection or the activities for which the
    alien is inadmissible occurred more than 15 years before the
    date of the alien's application for a visa, admission, or
    adjustment of status,
    (ii) the admission to the United States of such alien would
    not be contrary to the national welfare, safety, or security of
    the United States, and
    (iii) the alien has been rehabilitated; or
    (B) in the case of an immigrant who is the spouse, parent, son,
    or daughter of a citizen of the United States or an alien
    lawfully admitted for permanent residence if it is established to
    the satisfaction of the Attorney General that the alien's denial
    of admission would result in extreme hardship to the United
    States citizen or lawfully resident spouse, parent, son, or
    daughter of such alien; and
    (2) the Attorney General, in his discretion, and pursuant to
    such terms, conditions and procedures as he may by regulations
    prescribe, has consented to the alien's applying or reapplying
    for a visa, for admission to the United States, or adjustment of
    status.
    No waiver shall be provided under this subsection in the case of an
    alien who has been convicted of (or who has admitted committing
    acts that constitute) murder or criminal acts involving torture, or
    an attempt or conspiracy to commit murder or a criminal act
    involving torture. No waiver shall be granted under this
    subsection in the case of an alien who has previously been admitted
    to the United States as an alien lawfully admitted for permanent
    residence if either since the date of such admission the alien has
    been convicted of an aggravated felony or the alien has not
    lawfully resided continuously in the United States for a period of
    not less than 7 years immediately preceding the date of initiation
    of proceedings to remove the alien from the United States. No court
    shall have jurisdiction to review a decision of the Attorney
    General to grant or deny a waiver under this subsection.

  2. #2
    I have read with interest the other (but quite old) discussions here regarding Immigrants and/or Green Card holders being arrested for shoplifting.

    My wife was recently arrested in Illinois for shoplifting. She is a Green Card holder (2 year card) and the only remaining step she was facing was to file the I-751 (Petition to Remove the Conditions of Residence)... upon successful completion of she would receive the permanent 10-year Green Card.

    My question to the community here is... Does she have any chance of getting through this?? The law that covers this (as described in the other board discussions of committed crimes) is: (8 USC 1182) http://www.washingtonwatchdog.org/documents/usc/ttl8/ch12/subchII/ptII/sec1182.html#(h)(2)

    The key clincher is in section (h) which follows:

    "No waiver shall be granted under this subsection in the case of an alien who has previously been admitted
    to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."

    SO... if you are already a permanent resident (which I beleive my wife is - 2 year Green Card, right?)... this clause makes it sound as if there is no way out of this... i.e. She cannot qualify for the "2 (A) ii (II)" exception because she has already been admitted as a permanent resident.!?

    This kind of boggles the mind ... I mean why would it be okay BEFORE you were admitted and not OK AFTER you are?

    Am I interpretting this correctly? I guess I need a good lawyer!


    The relevant content of this document follows:

    Sec. 1182. Inadmissible aliens

    (a) Classes of aliens ineligible for visas or admission
    Except as otherwise provided in this chapter, aliens who are
    inadmissible under the following paragraphs are ineligible to
    receive visas and ineligible to be admitted to the United States:

    . . .

    (2) Criminal and related grounds
    (A) Conviction of certain crimes
    (i) In general
    Except as provided in clause (ii), any alien convicted of,
    or who admits having committed, or who admits committing acts
    which constitute the essential elements of -
    (I) a crime involving moral turpitude (other than a
    purely political offense) or an attempt or conspiracy to
    commit such a crime, or
    (II) a violation of (or a conspiracy or attempt to
    violate) any law or regulation of a State, the United
    States, or a foreign country relating to a controlled
    substance (as defined in section 802 of title 21),
    is inadmissible.
    (ii) Exception
    Clause (i)(I) shall not apply to an alien who committed
    only one crime if -
    (I) the crime was committed when the alien was under 18
    years of age, and the crime was committed (and the alien
    released from any confinement to a prison or correctional
    institution imposed for the crime) more than 5 years before
    the date of application for a visa or other documentation
    and the date of application for admission to the United
    States, or
    (II) the maximum penalty possible for the crime of which
    the alien was convicted (or which the alien admits having
    committed or of which the acts that the alien admits having
    committed constituted the essential elements) did not
    exceed imprisonment for one year and, if the alien was
    convicted of such crime, the alien was not sentenced to a
    term of imprisonment in excess of 6 months (regardless of
    the extent to which the sentence was ultimately executed).

    . . .

    (h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
    The Attorney General may, in his discretion, waive the
    application of subparagraphs (A)(i)(I), (B), (D), and (E) of
    subsection (a)(2) of this section and subparagraph (A)(i)(II) of
    such subsection insofar as it relates to a single offense of simple
    possession of 30 grams or less of marijuana if -
    (1)(A) in the case of any immigrant it is established to the
    satisfaction of the Attorney General that -
    (i) the alien is inadmissible only under subparagraph (D)(i)
    or (D)(ii) of such subsection or the activities for which the
    alien is inadmissible occurred more than 15 years before the
    date of the alien's application for a visa, admission, or
    adjustment of status,
    (ii) the admission to the United States of such alien would
    not be contrary to the national welfare, safety, or security of
    the United States, and
    (iii) the alien has been rehabilitated; or
    (B) in the case of an immigrant who is the spouse, parent, son,
    or daughter of a citizen of the United States or an alien
    lawfully admitted for permanent residence if it is established to
    the satisfaction of the Attorney General that the alien's denial
    of admission would result in extreme hardship to the United
    States citizen or lawfully resident spouse, parent, son, or
    daughter of such alien; and
    (2) the Attorney General, in his discretion, and pursuant to
    such terms, conditions and procedures as he may by regulations
    prescribe, has consented to the alien's applying or reapplying
    for a visa, for admission to the United States, or adjustment of
    status.
    No waiver shall be provided under this subsection in the case of an
    alien who has been convicted of (or who has admitted committing
    acts that constitute) murder or criminal acts involving torture, or
    an attempt or conspiracy to commit murder or a criminal act
    involving torture. No waiver shall be granted under this
    subsection in the case of an alien who has previously been admitted
    to the United States as an alien lawfully admitted for permanent
    residence if either since the date of such admission the alien has
    been convicted of an aggravated felony or the alien has not
    lawfully resided continuously in the United States for a period of
    not less than 7 years immediately preceding the date of initiation
    of proceedings to remove the alien from the United States. No court
    shall have jurisdiction to review a decision of the Attorney
    General to grant or deny a waiver under this subsection.

  3. #3
    She's here already. The text you are citing is for inadmissible aliens seeking visas to come to the USA.
    The above is simply an opinion. Your mileage may vary. For immigration issues, please consult an immigration attorney.

  4. #4
    Member
    Join Date
    Oct 2003
    Location
    East Hampton [Long Island], New York [USA]
    Posts
    812
    Splat:

    Criminal background check is not required for applicants for I-751. Thus, your wife would be ok during the processing of I-751 despite of being recently arrested for shoplifting.

    However, she might be deported before she even files for I-751 if she will EVER get convicted on this shoplifting charge. Since Immigration laws (federal laws) work along the side of State laws (like family laws, criminal laws, etc.) then it is VERY important for you guys to know the criminal statute of your State on this shoplifting charge. The charges of shoplifting fall under felony in some states while misdemeanor in other States. Sometimes, the seriousness of crime also depends upon the amount of shoplifting as well. Nevertheless, the crime of shoplifting does fall under Moral Turpitude under immigration laws.

    It is absolutely true that if a LPR (green card holder, whether conditional or unconditional) is EVER convicted for aggravated felony after becoming a LPR, then no any waiver available for such person to avoid the deportation. Deportation would be a done-deal then. No US citizen (like spouse/children) could even help such person to avoid deportation. Also, such person is barred for LIFTIME to reenter into the US.

    The best strategy for you guys is- try hard to talk to the victim so that victim could agree to drop this charge. If it fails then make some kind of pre-deal with D.A in order to get dismissal on this charge. If your wife has no prior criminal history then D.A. might agree to accept some pre-deal in order to dismiss this case. The pre-deal could be- paying the restitution to victims, doing some community services, having some counseling, etc.

    Good Luck

  5. #5
    "Criminal background check is not required for applicants for I-751. Thus, your wife would be ok during the processing of I-751 despite of being recently arrested for shoplifting."

    You are correct, not specifically. However there is a question on the I-751 that simply asks if you have been arrested, convicted, etc. of any crime since entering the USA. So... if you have, you gotta enter it here and provide all the documents, disposition, etc. right!

    "However, she might be deported before she even files for I-751 if she will EVER get convicted on this shoplifting charge. Since Immigration laws (federal laws) work along the side of State laws (like family laws, criminal laws, etc.) then it is VERY important for you guys to know the criminal statute of your State on this shoplifting charge. The charges of shoplifting fall under felony in some states while misdemeanor in other States. Sometimes, the seriousness of crime also depends upon the amount of shoplifting as well. Nevertheless, the crime of shoplifting does fall under Moral Turpitude under immigration laws."

    Well we haven't yet filed the I-751. In our state, this is a Class A misdemeanor... which the max sentence is One Year. So, as I understand the way the INS will look at it ... they would consider this an aggrivated felony. If you ask me... this looking ONLY at the max sentence is just wrong. How can you group shoplifting in with violent crimes like murder, rape and assault???

    So, to me it looks like we have to try and get this thing dismissed in a pre-trial deal with the DA, or otherwise end the case up as innocent.

  6. #6
    Did she actually go to jail? The possibility of jail is there but did she get probation? The one year in jail and and/or a fine are recommendations and possible sentences on the books. Immigration has decided that driving under the influence (alcohol or drugs) and running over someone is not grounds for denial or deportation so check about shoplifting. In the end, it will be up to the interviewing officer. Under federal law is shoplifting a felony? Shoplifters are not trafficking in persons or prostitutes or a number of other things.

  7. #7
    The criterion used in determining if an alien is removable is the "maximum sentence" possible for the infraction and not the sentence served, suspended or commuted to probation time only. Even if a theft is considered a petty theft or misdemeanor, (in the case of shoplfiting, the charge falls within the scope of CMT) if it carries a maximum sentence of one year it is regarded in immigration purposes as a removable offense if it occurs within 5 years of arrival in the USA.
    The above is simply an opinion. Your mileage may vary. For immigration issues, please consult an immigration attorney.

  8. #8
    "The criterion used in determining if an alien is removable is the "maximum sentence" possible for the infraction and not the sentence served, suspended or commuted to probation time only. Even if a theft is considered a petty theft or misdemeanor, (in the case of shoplfiting, the charge falls within the scope of CMT) if it carries a maximum sentence of one year it is regarded in immigration purposes as a removable offense if it occurs within 5 years of arrival in the USA."

    Yes, this is how I understand this will be interpretted. Even though in our state, this is a "Class A Misdemeanor" because the MAX Possible sentence is One Year, then the INS figures this as an "Aggrivated Felony." Even if you are not sentenced to any time at all. So, as I said... is the only option here a "Not Guilty" verdict, or a "Dismissal?" Will they automatically deport her or does the interviewing officer have any option to forgive this?

    We have not yet been to court, that date is coming up next month. Our lawyer has been made aware of the situation and is looking into how to best plead this. Likewise, I am holding off on filing the I-751 because it's not due until mid January.

    It certainly seems like overkill to group such a petty offence along with rape, murder, assult, etc. But, I guess that's my country hard at work in stupidity. Certainly my wife is sorry and agrees her action was dumb. But is this really worth breaking up a family and separating them by 10,000 miles FOR LIFE! For such a small thing... this is really quite unfair IMHO.

  9. #9
    OK, an update on how this all fell out in court. My lawyer and the DA decided to change the charge to "Disorderly Conduct." This is a Class C Misdemeaner with a MAXIMUM sentence of 30 days in prison.

    My wife DID PLEAD GUILTY to this lessor charge and got "supervision," no fine and has only to perform 20 hours of community service, and pay the court costs... If all of these things are done by next year, the entire thing will be wiped off her record (i.e. it will never go on her record...)

    Is this good enough for the INS? Of course we will have to mention it on the I-751 application. But is this good enough to avoid the "RED FLAG" and potential deportation?

    Thanks for any educated comments regarding this case...

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