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Shoplifting Charge Criminal Law

Discussion in 'Immigration Issues' started by Noor, Dec 29, 2004.

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  1. Noor

    Noor Law Topic Starter New Member

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    I recently got married. My wife needs to apply for an H-4 visa.

    She visited the US in 2001. Four days before she was scheduled to leave the country, she got caught mistakenly walking out of a department store with a $30 dollar bag. She was arrested, -- she was not handcuffed -- taken to the precinct, fingerprinted, and then presented to the magistrate. He told her that she'll get a court notice to appear in court and pay a fine. She was charged with shoplifting an item under $500. Then she was told to leave and wait for a court notice. She was also told that she was on a 6 month probation. Right about then, she left the country as scheduled and did not receive any court notices. (We have found out that a notice was indeed received by her relative while my wife was still in the country, and the relative did not pass the information along.)

    Earlier this year she applied for an H-4 visa. Having forgotten the past incidence, she checked "No" against the question regarding arrests and convictions. The consulate received her application and took her fingerprints. At the interview her application was temporarily refused on the grounds that she lacked an original I-797 and her birth certificate. She was told to come back with the missing documents. No mention was made of the past arrest.

    The 2001 incident was brought up by someone after the first visa interview. We immediately hired a lawyer in Maryland, who moved to recalendar the shoplifting case, settle it, and get the bench warrant withdrawn. The administrative judge in Maryland has refused to recalendar. So the case is awaiting final adjucation. I don't know how that will be resolved.

    Meanwhile, we are uncomfortable about getting a visa based on an application that we now know is misleading. We have withdrawn it today. We plan to file another application mentioning the arrest. We don't think there has been a conviction on this case yet; something we are trying to find out now. What are our chances of getting an entry visa for my wife?

    This is robbing me of my nights' sleep, so your help will be greatly appreciated.

    Thanks
     
  2. NYClex

    NYClex New Member

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    It was smart to withdraw the application, because the USCIS really frowns upon untrue statements.

    A first time conviction for theft usually falls under an exception from the rule that makes any criminal inadmissible to the United States under the following conditions:

    the crime for which the person is convicted must not carry a sentence for more than one year in jail and she must not actually have been convicted for more than 6 months.

    Usually theft of an item worth less than $ 500 falls under this condition, but it depends on the state's law and the final disposition of the case.

    If the case falls under the exception, she would not be inadmissible because of this conviction.

    You should talk with your lawyer about this.
     
  3. Noor

    Noor Law Topic Starter New Member

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    More update

    NYClex, thank you for the answer.

    I am currently out of the country, but have asked for a flight back ASAP so that I can deal with this situation myself. One of my wife's relatives hired an immigration lawyer. The lawyer tried to settle with the DA for a lesser offense, but the DA wont talk unless there is a court date scheduled for the case. The lawyer filed for recalendaring but his request was denied, since the accused is not in the country. So we are against a brick wall. Any advice on this matter will help us greatly.

    We do know that there is no conviction. The case is still unresolved since my wife never had a hearing, and didn't admit to the crime. Does that count as a "final adjucation of guilt"?

    We have two options available:

    1. Apply for a visa telling them about the arrest, and that we will go and resolve it. The other complication is that a bench warrant might have been issued against her.

    2. Try to resolve the case in Maryland, by settling with the D.A. But I am not sure how that would work, since we can't get a recalendaring. Personally I am not happy with what the lawyer wrote to the administrative judge. No mention was made of the fact that my wife had a ticket booked for that day way before the commission of the crime; that she was enrolled in medical school; that she was never told by people whose place she was staying at, that a court notice was received; that she is married and plans to unite with her husband who lives in the US and is an H-1 visa holder in good standing.

    3. The court record says that she was charged with Theft under $500 in Maryland. Can anyone please help me find the maximum sentence for this charge?

    I will really appreciate if you can shed some more light on this. Thank you very much.
     
  4. NYClex

    NYClex New Member

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    Maryland State Code has this provision:

    (2) Except as provided in paragraphs (3) and (4) of this subsection, a person convicted of theft of property or services with a value of less than $500, is guilty of a misdemeanor and:
    (i) is subject to imprisonment not exceeding 18 months or a fine not exceeding $500 or both; and
    (ii) shall restore the property taken to the owner or pay the owner the value of the property or services.
    (3) A person convicted of theft of property or services with a value of less than $100 is guilty of a misdemeanor and:
    (i) is subject to imprisonment not exceeding 90 days or a fine not exceeding $500 or both; and
    (ii) shall restore the property taken to the owner or pay the owner the value of the property or services.

    MSC § 7-104(g)

    So for you the important part is subsection 3: If the stuff was worth less than $ 100 the maximum penalty is 90 days.
    If the stuff was worth more than $ 100 it is bad, since then the maximum penalty is 18 months.
     
  5. Noor

    Noor Law Topic Starter New Member

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    Need some more help

    NYClex thank you for your excellent advice. It turned out that the lawyer hired by my wife's relatives was basically a fraud. I hired a well-regarded local defense attorney who says that a conviction on this count is unlikely. My wife might have to do community service and get the charges dismissed. But there's another complication:

    Unthinkingly, in her visa application my wife ticked "No" to the question of "have you ever been arrested..". Actually, she was arrested. Upon realizing this mistake, we didn't go to the embassy for the interview. Instead, we wrote a letter saying that we made a mistake in the visa form, and would like to withdraw our application and file a new one. Yesterday my wife got a call from the embassy asking her why she wants to withdraw the application. She said that she made a mistake, and wants to correct it. Now she's told that it's up to the individual counselor to accept or reject a withdrawal application. I don't know what to do. If we tell them what mistake we made, they might charge us with willful misrepresentation, even though it was anything but wilfull, and we sought to correct it as soon as we realized that we had made a mistake.

    What do you suggest that we do?
     
  6. NYClex

    NYClex New Member

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    As I said, even with a conviction, and I agree with your attorney, that a conviction of record is unlikely here, but even with a conviction she would most probably not be inadmissible.

    Sometimes the people in the embassy are very helpful and you could explain it all to the embassy officer, provide the paperwork from the court and have the problem settled without a new application. On the other hand, if one has a bad day...

    There is an excellent immigration attorney in Maryland, they deal a lot with the embassy in India (I am just guessing here where your wife is from based on your name), may be you give them a call. It might be worth the investment.

    www.murthy.com
     
    Last edited: Jan 13, 2005
  7. Noor

    Noor Law Topic Starter New Member

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    NYClex, another question

    I got the papers for this incident. It turns out that the bag was worth $60 as I had guessed. However, there is a catch:

    At the time the crime was committed, there was no statute related to theft under $100 dollars. That was added after the crime was allegedly committed. What does the law say relating to that? Is the maximum penalty still 18 months for immigration purposes?


    Thanks a lot for your help
     
  8. NYClex

    NYClex New Member

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    Oh, this could be a problem. What counts, though, is the actual disposition of the case.

    I think you definitely should consult an immigration attorney asap, and have him or her work together with your criminal defense attorney on this. The goal would be to either avoid what immigration law considers to be a "conviction" or to plead to lesser charges that would not have a maximum sentence over one year.
     
  9. Noor

    Noor Law Topic Starter New Member

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    Update for NYClex

    We managed to get a good criminal lawyer who convinced the DA to drop the charges and get the warrant cancelled. We're waiting for the final paper work.

    However, our immigration lawyer is now saying that the misleading answer to the arrest question in the withdrawn application could be a problem, even though we wrote a letter to the consulate saying that we made a mistake on the form, and we are asking to get our application withdrawn for that reason. He says that they could still slap you with misrepresentation.
     
  10. NYClex

    NYClex New Member

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    First of all: congratulations for getting the case dismissed.
    Second: Your immigration attorney is right, they "can". But it is not a given, that they "will". Your attorney should try to argue for you in case that they will.
     
  11. Noor

    Noor Law Topic Starter New Member

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    Materiality of Misrepresentation

    NYClex:
    I did some google lawyering and this is what I found, and my take on this case:

    1. Misrepresentation:
    Clearly ticking "No" on the arrest question was a misrepresentation.

    2. Willfulness:
    My wife ticked "No" to the arrest question because she forgot about the original incident, therefore the criterion of willfulness is not quite satisfied, especially considering the fact that we retracted our application before the consulate brought up the arrest.

    3. Timely Retraction:
    A misrepresentation is purged per State Department guidance (FAM Ch.9) if there is a timely retraction. The general guidance is that the retraction should be made at the first opportunity. However, any retraction prior to a decision, and prior to the consulate discovering it, is at least in spirit, a timely one. The consulate can dispute that.

    4. Materiality:
    There are two criteria for establishing materiality. The first one is that had the actual facts been known, the applicant would have been disqualified. Clearly our case doesn't come under this rubric because there is no disqualifying fact.

    The second one, that the misrepresentation should shut off a line of inquiry that might have resulted in the discovery of a disqualifying fact might be applicable here. BCIS can argue that this is the case.

    However, there are two pieces of DOS guidance that might help us. The regulation says that if the visa is refused anyways, because of some other reason, then the misrepresentation is not material because it would not have affected the consular decision. In our case the visa was refused under 212 (g). She is reapplying with a different application. So I am not sure if the earlier misrepresentation would be considered material.

    State Department guidance also says that if the consular post (through their files and lookout system) could have discovered the misrepresentation themselves, then it is not a material misrepresentation because it did not shut off a line of inquiry. The line of inquiry was always available to the consular post.

    I am not arguing our case here, but putting this down for the benefit of others.

    What has transpired since my last post is that my wife got a call from the embassy again, asking why she wants to withdraw and if she is going to reapply with a different passport number. My wife told them why she wants to reapply, and that the shoplifting charge has been dropped. They told her to not set an appointment, but just walk in with a corrected application form. Let's see how it goes.
     
  12. NYClex

    NYClex New Member

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    Very good!
     
  13. Noor

    Noor Law Topic Starter New Member

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    Another Update, and a question

    My wife went for the interview at the embassy in Islamabad. She told her story, showed them a copy of the docket sheet showing that the case was nolle pros'ed. They asked her how it had happened, and she explained it to them. They took her fingerprints and told her that they will check them against some database in Washington DC, and that this will take a couple of days.

    I had sent my wife with my original I-797, which she showed to the visa officer. However, the visa officer said that a separate I-797 for my wife is needed, since my wife will be travelling alone. My immigration attorney says that the INS does not issue I-797 for H-4 applicants who are not in the country yet, and that the approval is given at the port of entry. He said that my wife should get back to the embassy people and tell them this. I have searched everywhere to find out about this issue, but to no avail. Can someone help me on this? Thanks.
     
  14. NYClex

    NYClex New Member

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    This is the official position of the state department:

    After the BCIS approves the petition, it will inform the embassy or consulate where you will apply for your visa. Applicants must present proof of the petition when they apply for visas. Form I-797 Approval Notice is considered proof of an approved petition.

    http://www.unitedstatesvisas.gov/business_temp.html
     
  15. Noor

    Noor Law Topic Starter New Member

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    Update

    Just wanted to give people an update on my wife's case, in case this might be of help to someone.

    My wife had a NP'ed (nolle pross'ed) shoplifting charge when she went to apply for an H-4 visa at the US Embassy in Islamabad. They took her fingerprints, and send them for a check -- presumably an NCIC check. They also asked her to get a I-797 in her own name, instead of her spouse's.

    The embassy later received clarification from the DOS that for first time entrants in H4 status, the spouse's I-797 should suffice. The fingerprint check took about 10 weeks, and she received the visa around the end of May.

    She's scheduled to get here tomorrow. I will let people know how it went at the port of entry.
     
  16. NYClex

    NYClex New Member

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    Very good!!
     
  17. YAS24

    YAS24 New Member

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    Need Help

    Hi,
    Please please help me.I am so sad,upst and depressed.I can't stop thinkg abot the stupid biggest mistake in my life.I am in Canada and I got married to a U.S citizen,my application for permenent resident is under processing and I am supposed to have my visa interview for k3 visa soon.4 months ago I was stopped by security in one of the Canada's big malls.I did shoplifting.The security hold me,police came .they asked me couple of question and then the officer said that because I didn't have any previouse record they wouldn't charg me.They didn't give me and citation or ticket.They didn't fingerprin me.Onlt the store gave me a paper about a two year ban,It means I shouldn't enter any of their branches in canada for two years.Know I am filling the application for immigration.I ma really worried if they would be able to find any thing about this incident,the police officer said that they will not put that in my records.I have my polce check done and there is no record.In the imm!
    igration forms they asked this question:
    Have you ever commited a crime or oofence for whihc you were not arrested?
    I DON'T KNOW HOW TO RESPOND TO THIS QUESTION.
    pLEASE HELP ME.
     
  18. yamaha

    yamaha New Member

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    That is tough question hey!! So what happened did you BS or did you answer it honestly? I think anyone that can get away with telling something that could hurt them would definitely try and get away from it... The question though is how the hack can immigration get everything about you?

    In my opinion they only get a FBI print out and nothing else. That report alone is not freely given I am sure. I had to get clearance for working in a financial company handling money as a database programmer with access to a whole set of security report, etc... For that I had to take a drug test as well as tell them any type of arrest for the past 10 years including being drunk in public, etc... I do remember having been arrested being drunk and put in a 4 hour tank on multiple occasions within 1996 and 2006 but none of it appeared on my FBI print out. The only time such think gets written into your records, I believe, is when another offence is committed such as caused trouble, was loud, got into a fight, and whatever you do when you really drunk... But if you were just drunk and thrown in the tank for 4 hours to sober up and nothing else then it simply does not make it to your records...

    The best think to do is to get your detailed FBI report for ANY crimes from the smallest imaginable crime since the day you set foot in the US.

    Armed with that document you can simply copy its contain to your N-400 application or even better consult with a good immigration lawyer by going to http://www.aila.com.

    All I tried to say here is at what point do we need to incriminate ourselves in answers questions such as: "Have you ever committed a crime or offence for which you were not arrested?" Goodness what a damn question!!!

    Yamaha
     

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