Does the Petty Crime Exception Apply to Retail Fraud Convictions?

For any immigration related issue your best bet is to hire an experienced immigration lawyer.  The information in this blog is subject to change at any time.  Reading a blog is not a substitute for seeking the services of an experienced immigration or criminal defense lawyer.

Retail Fraud is considered to be a crime of moral turpitude (CIMT).  A conviction for retail fraud may or may not disqualify you for a visa in the United States.  The issue becomes whether or not the conviction is classified as a petty offense pursuant to INA section 212(a)(2)(A)(ii)(II).

There is a 2 part test to determine if the conviction is for a petty offense:

  1. the maximum possible period of incarceration that you could have possibly received for being convicted is 1 year or less.
  2. AND the sentence that you actually received was not more than 6 months in jail.

In Michigan there are several types of retail fraud:

Organized Retail Theft is a 4 year maximum felony.  This occurs when the theft of the merchandise from a store was done with the intent to resell it.

Retail Fraud 1st Degree is a 4 year maximum felony.  This offense occurs when the merchandise stolen from a store was $1000 or more, or if the person has a prior theft conviction and the theft in the instant case involved at least $200 of merchandise.

Retail Fraud 2nd Degree is a 1 year maximum misdemeanor.  This offense occurs when the merchandise stolen from a store was between $200 and $1000, of if the person has a prior theft conviction and the instant case involved under $200 of merchandise.

Retail Fraud 3rd Degree and Retail Fraud charged as an ordinance violation (under laws made locally (by a city, township, village)) are both 93 day maximum misdemeanors.  This offense is generally charged when the theft of merchandise from the store is under $200 (the dollar amount is sometimes higher when charged as an ordinance violation).

The following retail fraud offenses are NOT petty offenses in Michigan: 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 6 months was imposed).  The following retail fraud offenses are petty offenses in Michigan as long as the person does not already have a conviction for a CIMT: 3rd Degree Retail Fraud, Retail Fraud under 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 6 months).  A 2nd Degree Retail Fraud in which the person without a prior CIMT  who received under 6 months in jail can become a CIMT if a probation violation occurs.  A probation violation allows the Judge to re-sentence the probationer to additional incarceration.

A jail sentence that includes suspended period of incarceration would constitute a CIMT if the length of the suspended sentence was greater than 6 months.  Also, in cases where a person is sentenced to more than 6 months in jail but serves under 6 months due to jail overcrowding, good time credit, or jail programs that suspend time for completion of the program would still be considered to have committed a CIMT.

It is important to note that advisory convictions/sentences in Michigan are still considered convictions for United States immigration matters.  Advisory convictions/sentences include: Holmes Youthful Trainee Act, 771.1, etc.  Diversion programs that do not require a guilty plea generally are not considered to be convictions.

When submitting an application the government official who is charged with reviewing your visa application may request that you provide a certified copy of your conviction from the sentencing court and a copy of the statute (the applicable law concerning your conviction) and the penalty allowable by law.

If your offense is not a petty offense, then you will have to seek a waiver (a form of legal forgiveness that is sometimes allowed by an Immigration Judge).  Obtaining a waiver is a complicated process.  Not every conviction offense is eligible for a waiver.  Extreme caution is necessary.

If you are applying for cancellation of removal because you are a non-permanent resident, or you are defending efforts by the government to revoke your green card, the information in this blog does not address these circumstances.  INA section 237(a)(2) outlines the criminal grounds for deportability.  Deportation can occur when the maximum possible penalty for your conviction is 1 year or more in most cases where you are convicted and are seeking a visa.  In this instance a Retail Fraud 2nd Degree conviction may lead to deportation because cancellation of removal may not be applicable. Again, immigration law is very complicated – do not represent yourself.  Seek legal representation immediately.

If you are not a United States citizen and you have any immigration related matter it is important to hire an experienced lawyer to address any convictions that you have.  It is highly  recommended that you contact Attorney Sufen Hilf of the law firm Hilf & Hilf, PLC for any immigration related criminal law issues.

If you are not a United States citizen and you are accused of a CIMT you better hire an experienced criminal lawyer to help you.  An experienced criminal lawyer can help properly defend you, or possibly obtain a plea bargain and/or sentence agreement that may make a huge difference to your immigration related circumstances.  It is important to hire a criminal lawyer that has a background in United States immigration law.  In such circumstances your best bet is to hire Attorney Daniel Hilf of the law firm Hilf & Hilf, PLC.