When a person wishes to apply for a U.S. visa, change status in the U.S., apply to adjust status, become a naturalization U.S. citizen or reenter the United States after overseas travel, he or she may have to answer specific yet broad questions about any prior arrest and criminal convictions. Although admitting one minor mistake will not necessarily bring about a denial of an immigration benefit, a failure to answer these questions truthfully can result in the finding of fraud or misrepresentation, initiation of immigration investigations, and stripping of immigration privileges.

I have in the past dealt with questions regarding drunken driving convictions and other general criminal issues. In this article, I will address some important concerns regarding one of the most common criminal charges – shoplifting.

Shoplifting or theft, even if for a very small amount, is taken very seriously in the immigration realm. Because such a crime has an element of intent to steal or defraud, it is considered what we call in the Immigration Law, a ‘crime involving moral turpitude’, which often brings about serious immigration consequences.

Let’s now consider the following questions and fact situations to understand the immigration consequences of shoplifting or theft.

1) Am I convicted? I am not sure if I have a criminal record?

One often wishes that somehow with dismissal or expungement, that one’s past brush with the law can be erased. Under the Immigration Law, ‘conviction’ is very broadly defined; a finding or confession of guilt is sufficient to establish a conviction for purposes of immigration laws. Thus, expungements, withdrawals of pleas, and deferred judgments pursuant to state rehabilitative statutes do not serve to erase convictions for purposes of immigration laws, unless there is a constitutional basis for the withdrawal of plea, dismissal or expungement. Some criminal lawyers try to vacate convictions in order to help their clients to avoid immigration consequences. However, as recently as in 2003, the Board of Immigration held that even if the conviction has been vacated, it is deemed ineffective to eliminate its immigration consequences unless the quashing of the conviction is based on a legal defect in the conviction or in the proceedings underlying the conviction; it must not be solely for immigration purposes.

Therefore, when you are unsure whether you have a criminal record or not because or dismissal or expungement, etc., do explain the charge and the result in order to avoid a bigger problem of facing immigration fraud or misrepresentation.

2) I was convicted of a shoplifting and paid a small fine; my court document says:

"You are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States..." Can I now enter the United States?

Because shoplifting is a crime involving moral turpitude, it normally triggers the inadmissibility provision. However, if this is the applicant’s only offense anywhere including the United States and any other country, she might be eligible for the petty offense exception. To be eligible, she must meet the following requirements: the alien has committed only one crime of moral turpitude; the maximum penalty possible for the crime for which the alien was convicted did not exceed one year of imprisonment; and the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied. If there are multiple convictions, inadmissibility will likely be triggered.

3) While in the United States, I have been convicted of shoplifting. Will the Immigration deport me now?

Under the immigration law, an alien is deportable if: the alien is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status) after the date of admission, and the alien is convicted of a crime for which a sentence of one year or longer may be imposed.

If the maximum period of incarceration possible for this offense is less than one year, which is usually the case for minor shoplifting convictions, this should have no application. However, some States treat more serious theft offenses or burglary offense as aggravated felony for which the term of imprisonment is at least one year. In such cases, of course, deportation grounds can apply to the violator.

4) Is there an immigration waiver for my shoplifting offense?

If the shoplifting conviction occurred while under age 18, this will not have immigration consequences. If the conviction occurred after the age of 18, petty offense waivers exist if the immigrant has been convicted of only one crime involving moral turpitude and the maximum possible punishment for the crime was not more than one year in prison, and the immigrant was sentenced to six months or less. In other situations, general discretionary waivers exist and the following three criteria are considered: risk of harm to society if the immigrant is applicant is admitted; the seriousness of the applicant’s prior violations of laws; and the nature of the applicant’s reasons for seeking entry.

In conclusion, non-citizens must understand that a minor infraction such as shoplifting can have some serious consequences such as inadmissibility or deportation. If unfortunately, one has already been arrested or charged for such a crime, the alien must consult with a qualified immigration attorney and truthfully disclose all the facts about the charge and its outcome when questioned on consulate or immigration documents or by the border inspectors.

The information contained in article is provided for general information only and should not serve as a substitute for legal advice.