Is Retail Fraud a Deportable Offense? What are the Immigration Consequences?
Retail fraud, otherwise known as shoplifting, is considered a crime of moral turpitude and can result in deportation or inability to re-enter the United States.
A Person Who is Not a U.S. Citizen Needs the Best Defense for Retail Fraud to Avoid Possible Deportation
If you face retail fraud or shoplifting charges and are not a U.S. citizen, you may wonder, “If I’m charged with retail fraud, will I face deportation?” Retail fraud can be a deportable offense under U.S. immigration law because it is considered a Crime of Moral Turpitude (CMT). It is essential to clearly understand the potential immigration consequences of shoplifting, as the stakes are particularly high for non-U.S. citizens. If someone is convicted of a CMT within five years of admission, they may face deportation, even if the crime was as minor as shoplifting. On this basis, U.S. Immigration will consider the person removable, or applicable for deportation, if the maximum possible sentence exceeds one year or the criminal judge orders them to serve six (6) months or more in jail. It is natural to have many questions about retail fraud when someone faces shoplifting charges.
What is Retail Fraud Under Immigration Law
Retail fraud occurs when someone in a store that is open to the public intentionally does the following:
- alters, transfers, removes and replaces, conceals, or in any other way misrepresents the price of an item with the intent not to pay or to pay less than the actual price,
- steals or attempts to steal merchandise from a store open to the public, or
- with intent to defraud, attempts to get money or store property as a refund or exchange for unpurchased property.
Why should non-U.S. citizens be concerned with retail fraud charges?
Retail Fraud is a Crime of Moral Turpitude (CMT) under the Immigration and Nationality Act (INA). A conviction for retail fraud may disqualify you from obtaining or renewing a visa that permits you to live in the United States. The only exception is if immigration law classifies the shoplifting as a “petty offense.”
There is a two-part test to determine if retail fraud is considered a “petty offense” under §212(a)(2)(A)(ii)(II) of the INA:
- The maximum possible penalty is one year or less, and
- You received a sentence of less than six (6) months in jail.
It does not matter how much time you serve in jail or prison if the maximum possible penalty exceeds one year. Conversely, if the maximum is one year or less and you did more than six (6) months, it is not considered a “petty offense.” Additionally, a suspended sentence is considered time served in jail under immigration law. For example, the offense is a Crime of Moral Turpitude if someone convicted of Retail Fraud 2nd-Degree (maximum one year in jail) receives a six (6) month jail sentence suspended if they complete probation. A defense attorney must do everything possible to reduce their client’s potential jail time to prevent the offense from triggering immigration consequences.
Types of Retail Fraud in Michigan for Immigration Purposes
The severity of retail fraud charges depends on the value of the merchandise stolen and the accused’s criminal history. Here is what you need to know about the degrees of retail fraud in Michigan:
- Retail Fraud 1st-Degree: Four (4) year maximum felony. The merchandise value exceeds $1,000.00, or the accused has a prior theft conviction, and the theft involved at least $200 of merchandise.
- Retail Fraud 2nd-Degree: One-year maximum misdemeanor. The merchandise is worth between $200.00 and $1,000.00, or if the person has a prior retail fraud conviction and the instant case involved merchandise valued under $200.00.
- Retail Fraud 3rd-Degree (or just Retail Fraud if charged under a municipal ordinance): 93-day maximum misdemeanor. The theft or attempted theft of merchandise valued at $200 or less from a store. Third-degree shoplifting is a petty offense under the INA.
- Organized Retail Fraud: Five (5) year felony. Organized retail theft occurs when individuals or groups cooperate to commit retail fraud, with the intention of reselling stolen merchandise.
Types of Shoplifting That Are Not Petty Offenses
Immigration law considers some retail fraud and shoplifting convictions as petty offenses. The ones that are not include the following:
- Organized Retail Fraud
- 1st Degree Retail Fraud, and
- 2nd Degree Retail Fraud (when the offense is charged based in part on a previous theft conviction or if a jail sentence of more than six (6) months was imposed).
Federal law considers the following offenses to be petty offenses unless there are aggravating circumstances or if the accused has prior criminal convictions:
- 3rd Degree Retail Fraud
- Retail Fraud under a local ordinance
- 2nd Degree Retail Fraud (again, as long as the person does not have a prior CIMT and is not incarcerated for greater than six (6) months)
A 2nd degree shoplifting can become a Crime Against Moral Turpitude even if the defendant has no prior conviction if they have a probation violation. If the probation violation and the original sentences total six months or more, it triggers immigration consequences. A suspended jail sentence or time cut off a sentence due to good behavior, under immigration law, is not distinguished from a jail sentence served in its entirety.
What type of person shoplifts from a store?
Although many prosecutors and judges might prejudge a defendant charged with retail fraud and assume they are dishonest, that belief is rarely true. Most retail fraud charges result from one of the following:
- a misunderstanding,
- accident,
- thoughtlessness,
- due to a distraction,
- genuine mistake, or
- impulsivity.
The retail fraud defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. have represented over 1,000 clients charged with retail theft and shoplifting. In most cases, the accused has little or no criminal record and is educated and employed. Our experience is that many of our clients suffer from extreme stress, anxiety, or, in some cases, depression. Severe stress often triggers shoplifting charges because someone in distress is more likely to be distracted, make a mistake, or act impulsively. The fact is that good people make mistakes, and no one should be judged based on the worst moment in their life.
Our experienced defense lawyers are skilled at educating the prosecutor and judge so they realize our clients are honorable but made a mistake. We can often negotiate with the prosecutor for reduced or dismissed charges by providing credible and truthful mitigating information. When a judge understands that someone is a good person, they are more likely to focus on rehabilitation rather than punishment.
Aggravated Felony Retail Fraud is a Deportable Offense
A prosecutor can upgrade a misdemeanor shoplifting or retail fraud to an aggravated felony under immigration law. Retail fraud is an aggravated felony if the actual sentence from the court is one year or longer in jail, even if the judge does not impose incarceration due to a suspended sentence. Because First-Degree Retail Fraud, a felony, is punishable by up to five (5) years in prison, this charge can easily become an “aggravated felony.” Any foreign national convicted of an aggravated felony is subject to removal. The government will bar you from immigration relief and benefits. It can be challenging to return even after several years following a conviction.
Naturalization Issues Due to Retail Fraud Offenses
A person must be of good moral character and standing within the last five years to qualify for citizenship through naturalization (three years if married to a U.S. citizen for three years or longer). An application for naturalization will likely be denied in the United States District Court for the Eastern District of Michigan if the applicant has a conviction for a crime of moral turpitude within that period. U.S. Citizenship and Immigration Services (USCIS) can consider a serious crime or aggravated felony conviction older than five (5) years.
The applicant might face removal proceedings if authorities discover certain criminal convictions during the naturalization application process. Prosecutors and police notify USCIS when a non-citizen is convicted of a violent or serious crime, including felonies and misdemeanors classified as Crimes of Moral Turpitude, such as Retail Fraud. If someone faces removal proceedings due to a criminal conviction, the only way to avoid them is to demonstrate exceptional humanitarian or compelling factors. Anyone facing removal proceedings must consult with an immigration expert immediately.
Can a probation violation change petty retail fraud into a deportable offense?
There is a great risk for non-U.S. citizens facing a probation violation. Under federal immigration law, a petty offense can become a deportable crime if a judge orders six months or more in jail. For example, suppose someone is convicted of Retail Fraud, 2nd Degree (a one-year misdemeanor) and receives a probationary sentence without imprisonment. If they violate probation and the judge sentences them to six (6) months in jail, the conviction is no longer considered a “petty offense,” and various immigration consequences result. Anyone facing a retail fraud probation violation must seek experienced legal defense counsel, such as the attorneys with LEWIS & DICKSTEIN, P.L.L.C., immediately.
Why is it worth hiring a top retail fraud defense attorney, such as the ones with LEWIS & DICKSTEIN, P.L.L.C.?
Working with a top defense attorney is vital because they might be able to reduce their client’s exposure to possible immigration consequences. Suppose someone faces a second-degree retail fraud charge. Their lawyer arranges for a plea and avoids triggering immigration consequences by negotiating a sentence with no jail time. Is that a win? No! This person will be placed on probation, possibly for a year or more, with complex terms and conditions that must be strictly adhered to. Often, accidental or unintentional mistakes lead to probation violations. If the judge violates this person’s probation, they could sentence the defendant to more than six (6) months of jail. If this person had a savvy defense lawyer from the beginning who negotiated a reduction of the charge to a third-degree retail Fraud or another minor misdemeanor, the client would face a maximum sentence of only 93 days and have no risk of triggering immigration consequences.
Does a conviction under advisement or the Holmes Youthful Training Act (HYTA) count as a conviction?
Michigan and many local municipalities have laws permitting judges to accept a defendant’s guilty plea without entering a public conviction. Some examples include the First Offender’s Program, 771.1, Holmes Youthful Training Act, a Delayed Sentence, and State Pretrial Diversion. Federal law still considers offenses resolved through these programs a conviction, even though they prevent a public state-level criminal history from being reported. Experienced, resourceful, and influential defense lawyers understand that a way to avoid triggering immigration consequences is to persuade the prosecutor to modify the charge to one not considered a CMT, such as Disturbing the Peace. A plea to retail fraud, even if taken under advisement, can be a deportable offense. A diversion program that does not require a guilty plea and doesn’t result in a conviction might not be considered a CMIT.
Failure to Pay a Retail Fraud Civil Demand Notice is NOT a Deportable Offense
In addition to criminal charges, a store might serve you with a civil demand notice, usually for $200.00. Michigan law provides that a merchant can recover up to $200.00 in a civil fine and criminal restitution. This fine is a civil action in addition to the criminal prosecution. Whether the defendant pays the civil penalty doesn’t impact the criminal charge or immigration proceedings.
Inadmissibility Issues Due to a Retail Fraud Conviction
Under §212 of the INA, there are several reasons someone might be found “inadmissible.” Individuals who have admitted to or been convicted of crimes involving moral turpitude are considered inadmissible. Immigration laws triggered by a conviction for shoplifting, theft, or retail fraud can make it challenging to apply for entry into the United States, change or extend someone’s nonimmigrant status, or render it impossible to apply for American citizenship. Additionally, a person must be “admissible” to receive public benefits and assistance. Any non-citizen facing retail fraud charges must seek the advice and counsel of a qualified, experienced immigration lawyer.
Experienced, Effective, and Respected Criminal Defense Attorneys Protecting Clients in Retail Fraud Cases
Retail fraud, even a first-offense misdemeanor, can be considered a crime of moral turpitude and, thus, a deportable offense. If you are charged with retail fraud, a domestic violence charge, or another crime and face the possibility of deportation or removal, you will want to know what you can expect from retail fraud charges. If you call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation, we will take the time to speak with you, answer your questions, and work with you to develop a winning strategy.
We have extensive experience representing clients facing the possibility of deportation or other immigration consequences for various offenses, and we have a clear understanding of the importance of finding a way to keep the offense off your record and minimize any potential deportation or removal. Sometimes, keeping a crime off your record isn’t enough to protect you. We will find a way to help you!
Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you.
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