Here is my public service announcement for you all today. Shoplifting is bad. We know this, right? When you were a kid and walked out of the store with a kit kat or some marbles (or whatever dumb thing you had in your hand as you wandered out) your mom made you go back in and give it to the manager and apologize. You probably got a good dressing down by your parent and you went on your way. Good. You shouldn’t steal. Lesson learned. Sometimes, people steal stuff though. They steal in the manner of Bernie Madoff or they steal in the manner of pilfering a couple hundred dollars worth of stuff from Macy’s. A lot of the time people get away with it (bastards!) but sometimes they get caught. It sucks because they have to give back the merchandise and probably will have some sort of criminal consequence. In New York State there is also a civil penalty for shoplifting.
I know, I know, you are thinking come on Mirriam. This is so lame. We don’t read this blog for commentary on shoplifting. Not only that, but you’ve barely uttered a swear word and you are already on your second paragraph. What’s going on?
Well, here’s what’s going on. I’m seeing a lot of really good lawyers drop the ball on this immigration stuff with pretty serious consequences for their clients. So, I figured maybe now and then I’d leave the ranting for another day and you know, provide some information. Let’s go with it, shall we?
Shoplifting has very dire consequences in immigration law for a criminal client who is not a U.S. citizen. Let me repeat so that it’s clear: you can be removed from the United States of America, your home sweet home, if you are convicted of shoplifting. If the sentence received is greater than one year (felony theft) you can be removed as an aggravated felon which is very, very bad because it means most avenues of getting back into the country once you are out are closed to you. If the shoplifting conviction comes within five years of your admission into the U.S. and the conviction is for a felony, then it’s considered a crime involving moral turpitude and the client can be removed.
So then, you’re a good lawyer. Your client’s been in the country for 10 years, she’s got no prior criminal history and this was just a terrible lapse in judgment that you are certain will never occur again. You look up some stuff online and you see that if you can get her a sentence under one year she won’t be removable (it’s no longer called ‘deported’) so you convince the prosecutor to reduce the felony theft (over $500 dollars) to a misdemeanor. You get her under just under a year in jail (365 days being the magic number to trigger removal), all of it suspended, and you tell her she’s safe. And she is. Unless she leaves the country. And if she does ever leave to go on vacation with her U.S. citizen husband or see her parents abroad, she won’t be able to get back in. But you don’t tell her this. Because really, you don’t know. How could you possibly know? And really, she’s not going to get a dismissal of the charges since she’s guilty and they can prove it. So, you take the plea thinking you did good. And, you probably did. Until she’s detained at Dulles and sent to a detention facility. Because of the shoplifting conviction.
My dear criminal defense lawyer friends, know this: shoplifting is a crime involving moral turpitude. And the rules for getting into the country (admission) are different than those for being removed. While it does not make her removable, unless the crime falls within the petty crimes exception (1 CIMT for which the sentence that could be imposed is not greater than one year, i.e. a misdemeanor AND the actual sentence imposed is less than six months) your client will be inadmissble. And that is just bad.
I need to tell you one more thing. A sentence of imprisonment is not just the time served in prison. It is any sentence even the part that is suspended. It would have been better for the client in my scenario to have served a four month jail term than to take the 350 days suspended. I’m fairly certain her lawyer did not know that. Also, in most jurisdictions, deferred prosecutions require an admission of guilt that is later stricken. This is a conviction for immigration purposes. FYI, in Maryland, a probation before judgment (PBJ) is a conviction for immigration purposes. (Also, to any MD lawyers who read this, a 2nd degree assault conviction in Maryland with a sentence greater than one year is considered a felony even though we call it a misdemeanor. It’s stupid and makes no sense, but that’s how it is. Do me a favor and stop taking pleas to these so called ‘misdemeanors’ in District Court. Your client gets a five year sentence and we don’t even get a transcript to see if his rights were protected during the allocution)
See, a not guilty post with barely a single swear word. Trust that when I get clients who are stunned at the news I give them about their immigration consequences of their criminal convictions I want to swear. They want to swear. This is very serious, dire stuff folks. My suggestion to my criminal colleagues is this – in your intake questionnaire find out where your client is from. Find out what their immigration status is. If they are not U.S. citizens work a consult fee with an immigration attorney into your fee agreement. The Supremes have said this is no longer a collateral consequence and you and your clients should take it as seriously as they have.
thanks.
Great post, Mirriam! As a new PD, this is one of the scariest things I deal with in my district court. I carry the "removeable" chart from NACDL which really helps, however I had no idea that one would be blocked from reentering.
In the two months I've been practicing I've seen a huge run of problems dealing with immigrants. From lying cops ("He speaks English, he told me all that"), to charging them with possession of a forged document to get the felony rather than giving an officer a false name. I've come in to find out that clients who had been in the local jail for days were fifteen years old because no one bothered to get their real name or age.
I think you should post more of these; it's a really neat way to combine two of your areas of expertise and put some good information out there for us.
Finally, they kind of invented (I think)something in this county which may or may not be kosher. We call it a pre-trial set aside and use it for people whose records we really don't want to mar (young students, old ladies, legal immigrants). It's jail time and usually a bit more than would normally be given but the charge is immediately dismissed after the time is served. This helps because here, as is the case in MD, deferred pros and diversions go on as convictions until they're completed. This has helped a couple of folks, especially kids charged with misdemeanor MJ trafficking so they don't lose their student loan eligibility.
Here is another consequence of committing a crime when you are not a US citizen. I worked on a case involving theft from a big box retailer. He was caught on a security camera and arrested at his home. At his arraignment the Feds showed up in the local court and explained that he was a Pakistani citizen with possible ties to terrorists and had "sophisticated flight simulation software" in his home. It was actually Microsoft Flight. They decided this was enough to treat him as an enemy combatant and that was the last I saw of him.
Dan, that is incredibly frightening. There are lots of stories like yours. Immigration consequences are horrible. I'm dealing with one right now where the client is scheduled to be on a flight out tomorrow because of an aggravated felony conviction. With decent immigration counsel on board at the time of his original criminal charge, there may have been much more that we could've done for him.
Great post, as usual. One question–what about the guy that's in the country illegally already? I often get appointed to represent whichever of the busboys from the local Mexican restaurants that have been picked up for whatever charge they can throw. By the time I get appointed, they've been locked up a couple of days with an ICE hold.