The impact of shoplifting on eligibility for naturalization: the petty offense exceptionPosted on Thursday, April 26, 2012
There is a misconception by many of our Permanent Resident clients as to whether they are eligible for naturalization if they had been arrested for shoplifting (“retail theft”) at some time in the past. It is commonly thought that their arrest record renders them permanently ineligible for the benefit of citizenship, or even potentially deportable. As a result, a number of permanent residents who would otherwise be eligible for naturalization may be afraid to apply. In order to try to make sense of the law, let us take a look at an actual case involving someone who had an arrest on her record, but was still eligible to apply for naturalization.
We were recently contacted by a permanent resident who was the single mother of a small child and needed to petition for her parents’ permanent residence as soon as possible so they could help her with child care. Unfortunately, she had been arrested and convicted of retail theft within the last five years. She was worried that this would prevent her from filing for naturalization and was also concerned that the arrest would be considered a crime involving moral turpitude (“CIMT”).
The immigration law places heavy penalties on a person convicted of a CIMT, including the possibility of deportation in the case of a permanent resident. Despite an otherwise clean record, our client was very apprehensive. A CIMT, as defined in the law, refers to conduct this is inherently contrary to the accepted rules of morality and the duties owed by all individuals to other people and society in general. It is characterized as conduct that is intrinsically wrong because its essence is evil or malicious intent.
Although retail theft is often an impulsive act, that does not make it any less deliberate in the eyes of the law. Even when the charge only reaches the level of a misdemeanor, retail theft is almost always considered to be a CIMT. In order to be eligible for naturalization, an applicant cannot have been convicted of a CIMT within the last five years. However, there is one exception to this rule that may apply to an applicant who has committed only one CIMT in his or her lifetime if the crime is considered to be a petty offense.
A petty offense is defined as a crime meeting two very specific conditions. First, the maximum possible penalty for the crime in the state where it occurred must not exceed a year of imprisonment. Second, if the offender was actually convicted and sentenced, the actual term of imprisonment given (even if suspended by the court) must not exceed six months.
The petty offense exception does not apply to someone who has been convicted of more than one crime involving moral turpitude, even if only one of the CIMTs was committed during the past five years. However, an applicant who has committed more than one petty offense, only one of which is a CIMT, may still be eligible for the exception as long as both criteria are satisfied.
After reviewing our client’s arrest and court records and studying the criminal laws of her state, we determined that she was eligible to apply for naturalization despite her shoplifting conviction. We knew that our client had committed only one crime in her lifetime. The maximum possible sentence for this crime was less than one year, and when she was sentenced, she was given less than six months of probation.
We advised our client that the petty offense exception did not change her responsibility to disclose her arrest on her N-400 and provide a certified court disposition with her application. This would have been her obligation even if the conviction had been expunged from her record. The criminal background checks conducted by USCIS include all arrests, even if there was no conviction or the record was eventually sealed. It does not matter when an arrest may have occurred or what its outcome was. Failure to disclose could lead to a charge of fraud or misrepresentation, which can be very hard to overcome.
Our experience in the field of immigration law enabled us to identify our client’s eligibility for naturalization and help her obtain the documents USCIS would require in order to approve her case. We assisted her with her application, and carefully prepared her for her interview. Five months later, she passed her citizenship examination with flying colors and soon took the oath of allegiance to become a U.S. citizen.