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Simple misdemoner is deportable for non-immigrant worker? Criminal Law

Discussion in 'Immigration Issues' started by tim50, Aug 23, 2007.

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  1. tim50

    tim50 Law Topic Starter New Member

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    I took some items worth $177 from walmart.

    when I were leaving, we got detained and security took us and cuffed us.

    they wrote up a report and took my picture and the police came, re-cuffed me and took me to jail.
    I got bail on bond by promise to apear in next 10 days.

    i'm really shocked, confused and mad at the same time. this is our first time being caught and i have no idead what is going to happen to me.

    one of the officer said since this is our first time offense, its like a slap on the wrist and the worst that can happen to us is a fine.

    i dont know wheter to plead guilty, not guilty or no contest. i've read its best to plead not guilty or no contest but i was wondering how should i back it up?

    i'm really worried about this being on my record. so far i've heard about infractions and diversion programs and community service, but are we even qualified for that?

    i've also heard its best to find a public defender and a lawyer. does it cost anything for the service of a public defender?

    I am from not a US citizen and on non-immigranant visa. How soon I can return to india. Will it create any problem ? IF I got a deffered judgement and want to india, will airport persone stop me. ?

    I am not concerning about my comeback to USA again. I don't want..

    A guilty plea counts as a conviction with potential immigration consequences. There are also other possible arrangements, such as "probation before judgment," that may not be considered convictions under state law, but are convictions under U.S. immigration law.

    Any help will be highly appreciated.
     
  2. mafioso

    mafioso New Member

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    What state? What type of visa? Plead not guilty add get a lawyer ASAP>Yes you would need a lawyer with criminal and immigration law background. Not familiar with your state…. 177$ theft should be a misdemeanor. The price of a lawyer varies depending on if it goes to trial or not, the caliber and reputation of the lawyer, and many other factors. It could range from 800$ (if you take a plea) to 4000$ depending on the lawyers reputation. On average 1500$ for a misdemeanor. Given you are not a citizen; it could affect your statues if it does not fall within the “petty theft exception”. It could make you deportable. Misdemeanor sentencing for first time offenders is usual probation, fine (less than 2000$),,,, again that price would depend on the class of the crime. But No jail time. Generally if there is any jail time (in almost all states), the max sentence is usually about a year if there are no other aggravating circumstances. You could also get a public defender if you can't afford one. If you are not a legal permanent resident and try to get a public defender, immigration could put a hold on you and keep you in jail till your trial. But if you don't seek one, they would not care. This incident would affect you in getting a job if it is not under a very low class crime which can be expunged after a couple of years. This being on your record, would affect you more than the sentence in the real world….. So it would not just be a slap on the wrist as the cop said if you have a career. Many people have never been able to use their PHDs for this reason and end up in grocery shops. It would affect you whenever you need a visa to come visit the USA. Most people (99%) never get a visa after being convicted of a crime of Moral turpitude….. Immigration never expunges records no matter what. Once you plead no contest or guilty, it is considered a conviction by immigration. Deferred adjudication is still considered a conviction by immigration even though others don’t. Most employers know that too but you could get your record sealed after probation if necessary. You qualify for all remedies a US citizen is eligible for under the law......community service, probation...etc.. but the difference being you have a statue to worry about and future background checks.A well structured plea would not hurt your statues here or make you deportable if your crime falls under Petty theft exception which from the amount I think it does.For the last part…………No airport person will stop you or care when leaving the USA. No one would care in India as well. You can travel back to India once you complete your differed judgment probation if any...... It would be a mistake to travel before completing it because you might not be let back in, into the USA. Take would make your record even worst. Remember anyone can freely order your record from any site online. You might want to do your probation and seal it before leaving for good as you say. It would help to make it private from the public. Sealing takes some time to work but after a few years most sites comply.
     
    Last edited: Aug 23, 2007
  3. tim50

    tim50 Law Topic Starter New Member

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    Hi mafioso ,

    Thanks a lot for your response. I really appreciate it.

    I am from IOWA state and on L1A Visa valid throuh mid 2009.

    IOWA code - 714.2

    4. The theft of property exceeding two hundred dollars in value but not exceeding five hundred dollars in value is theft in the fourth degree. Theft in the fourth degree is a serious misdemeanor.

    5. The theft of property not exceeding two hundred dollars in value is theft in the fifth degree. Theft in the fifth degree is a simple misdemeanor.

    Here is some more updates about this case.

    They charged me theft degree 4 which is serious misdemnoer in IOWA which lead to jail less than 1 yr and /or fine upto to $1500.

    So I hired a criminal lawyer. He has started discovery process and try to make it serious to simple misdemnor (less than 200$ as actually stolen items are not more than 200$).

    So I have couple of more questions : -

    - Will INS will be communicated for this case. And when they will came to know and when they can start action againtst me. Will my employer get to know about this case since i am on L1Visa. I don't know the outcome of the case. But what can be best deal as far as my US status is concerned.

    - I am not very much worry about my return to US again. I like US and US people very much. A silly mistake made my career in bad path.

    - I also paid money to a bail bond agent to get me out from jail on incident night. My court apearing date in on end of this month ? So when my relation will be end with this bail bond agent ? I mean when he will get his monery back from court ? Sicne my lawyer is handling this case...i will not be apearing in the court.

    - In worst case....and in case CIMT...i have to deported from here....So is deporataion is immediate ? Will a officer come to my home and say..u have to leave right now without packing my luggage ? Or he will arrest me..and put in the jail ? Just wanted to know the whole process of deporation../ removal.....Will tehy stamp any thing in my passport when I leave this country. IS my finger print report is available in any other country and will it create problem to enter into any other country in the world ?
     
  4. mafioso

    mafioso New Member

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    Your L1A visa makes you fall in the category to avoid CIMT. But the good news is even if your lawyer does not succeed to reduce your misdemeanor to the fifth degree, you would still be okay to stay her under the petit theft exception (one time chance ONLY!). This is because the max sentence is a year in jail. So you would still be eligible for all immigration benefits such as change of statues to GC etc…… You would benefit from everything someone who has never violated immigration law is entitled to. I know you said you are not interested to live here long term after what happened. You can get around being denied a visa to come here in the future by living here till your job gets you a GC or incase you happen to marry a US citizen.

    Some states require that immigration be informed once you are indicted of a crime. However, most petty crimes like yours are unusually never reported even when indicted. But immigration would be aware once they run a background check to process any type of statues change for you or other similar applications. They would not use it against you since it falls under the exception. Even though your crime falls under the exception make sure the plea is reviewed by an immigration attorney before you sign it.

    Your employer might know down the road. Some companies run a background check only when they hire you or when you receive a major promotion. So they could know…… others run background checks every couple of years. It depends on your companies HR policy. Some even require you report certain charges. But for the most case, they run it only before offering you a job. So you stay call and see if they contact you or fire you. Most companies don’t like workers with CIMT.

    Since you have a lawyer, ask if your offense is expugnable after he reduces it. That will help you in jobs. Or ask if it will be sealable from employer once you complete probation.

    Your relationship will end with the bail bond agent at the end of your case. When you complete everything required by your plea agreement and then judgment is pronounced.

    No you will not be deported! We now know your offense is not serious enough. Just make sure it never happens again. Even if immigration knows about your case today, they would not care since it falls under the exception and is not serious enough. They will never stamp anything on your passport even in the future. More than 60 million people in the USA have misdemeanors. You have privacy rights to a good extend. Generally your arrest and case is public information. A simple background check anyone does online in the next few months would have the complete details on arrest, charge and how settled... But it could be sealed in many states… ask your lawyer. Generally many visa applications ask if you have been convicted or arrested. Your differed judgment plea makes you to say no to conviction. An arrest alone does not make you a criminal. Many people have been arrested and never convicted. So I think you would be okay in the most part to travel since you where not convicted.
     
  5. tim50

    tim50 Law Topic Starter New Member

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    Thanks a lot....your reply...given me confidance.

    Here is update in the case : -
    Case is filed under simple misdemoner....so it is some extent good news.

    For a simple misdemeanor, there shall be a fine of at least fifty dollars but not to exceed five hundred dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine.

    Now I guess this will not fall under CIMT ? and will not create any problem for me as far as my immigration is concenred.... My lawyer filed "Plea Not Guilty"...Let see..how it will go....And one more question.....Can walmart send me any Fine letter as a civil pently ? Will I need to colsult any immigration lwayer in my case .as I have already a criminal lawyer who don;t do any work in iimigration.....
     
  6. mafioso

    mafioso New Member

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    Theft is always a CIMT unless your lawyer reduces it to something like disorderly conduct. Any thing which questions your moral character is a CIMT. But being a simple misdemeanor, you would get it of your record in most states. The time before which you can get it out of your record varies from one state to another. Usually two years. You would have no immigration problem with a simple misdemeanor. You don't necessarily need an immigration lawyer since it is just a simple misdemeanor now. If you travel out of the USA on vacation, just make sure you always carry all documents and court disposition papers of your case. If it pops out of the system, your paper work would show you are admissible. Never forget it no matter what! Read my previous post on not traveling after your visa expires, and how to get through that. Hope your visa gets converted to GC before it expires. Immigration officials at USA embassies may be bias giving you a new visa(after 2009) because of your CIMT. It is common these days, even though it should not affect you. So if you get your GC before leaving the USA after your visa expires you should be fine.....You have two years to push your employers to file for you.
     
  7. tim50

    tim50 Law Topic Starter New Member

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    Thanks. So according to you disordely conduct is best deal in my case or deffered judegment is best option. If you can tell me what can be best deal which prosecuter can offer and give ?
     
  8. tim50

    tim50 Law Topic Starter New Member

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    Any suggestion advice from experts like "thelawprofessor" and "seniorjudge". You guys are expert in law area........I really appreicate it. Again thanks a lot mafioso........
     
  9. mafioso

    mafioso New Member

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    Disorderly conduct is not CIMT. So would never affect you at getting a job like a CIMT. Disorderly conduct(just an infraction not aMisdemeanor) is a charge like making noise in a public place. That is what I was explaining. But some prosecutors would accept to change the name of the charge some will not. Your lawyer should try…. If you read the treads here, some people had success doing it. It would be your best option. If not take the best your lawyer can get or has gotten. Some counties have hard guidelines against changing charge names in pleas. They would reduce it but not change the name. Many can change the name. Disorderly conduct would be a better charge compared to petty theft. Differed adjudication is a not the name of a charge. It is a remedy to a charge. It would dismiss the case against you after completion of probation. So you would not be a convict. So it is a pretrial intervention which would help you avoid a conviction no matter what the final charge is.
     
  10. tim50

    tim50 Law Topic Starter New Member

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    Since simple misdemeanor is CMT in immigration laws, So it is automatically a POE (petty theft exception) or someone need to make it like that. Also will I be getting a letter that ur offecne is POE like that...Also on what stage i will be getting letters from court.

    Also I belive if case goes in pre-trial or trail or jury trial, it will be expensive for me. So at what stage with minimal expesnes better to resolve it. ?
     
  11. mafioso

    mafioso New Member

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    You would get every paper work regarding the disposition of the case from court. You don’t need a letter from the court telling you it is under the excerption. Immigration would know if and when they check. They have access to criminal penalties in each state and would simple check your charge there and see the max sentence in less than a year. Each case has what is known as announcement settings. Your lawyer would have times to meet with the prosecutor to cut a deal. So it does not need to go to trial. Get a lawyer who has a flat rate for getting a plea. If they know you simply want a plea only it is cheaper. Don’t get one who has a flat rate which includes plea or possible trial. A cheap one would run about 600$ to an expensive one about 2000$. It is your choice.
     
  12. tim50

    tim50 Law Topic Starter New Member

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    Thanks. So plea is good option. since we started no guilty, i get we can get best deal. but when my lawyer meet prosecuter for cut a deal, in this case i guess i will be convicted and found guilty. and they might propose some probation / community services.
     
  13. mafioso

    mafioso New Member

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    All pleas mean you admit some guilt or plead no contest to the charge. But differed judgment, the case will be dismissed after you comply with the terms. It is your best option. If you go to trial and loose, you would be considered a criminal convict (you would never be able to expunge it). The prosecutor will let you cut a plea even if you admit to everything. That is how the system works. Pleas don’t mean you are innocent, they mean you admit some guilt. Pleas are a way of accepting responsibility in exchange for a lower charge and leniency from the justice system. Pleas save the government time and money of going to trials when you admit your fault……So the cut you some slack in exchange. Your lawyer will negotiate the terms with them after seeing what they offer. Read all my post to you carefully and you would understand the whole thing better.
     
  14. tim50

    tim50 Law Topic Starter New Member

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    Thanks a lot. I will keep posted about the case.............status....Hope finally i there will not be any jail time as it is first offence.........jail will lose my job etc..
     
  15. tim50

    tim50 Law Topic Starter New Member

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    I checked with immigration law attorny.

    As you mentioned earlier and now it is confirmed that there will not be any deportation / removal or admission problem for me. Please read below : -

    Simple Misdemoner (Shoplift < $200) is a CMT (Crime of Moral turplutude) under immigration law.
    INA § 212(a)(2)(A)(i)(I).

    In my case : -

    a single, first-time conviction may qualify for the Petty Offense Exception, meaning that the offense doesn’t trigger inadmissibility.

    So, one misdemeanor conviction of a CMT with a maximum of one year in custody (or less) and a sentence imposed of six months (or less), is not inadmissible under the moral turpitude ground.

    To prove all of this, I need to carry below docs while travelling : -

    - Proof of dispostion of the case (I guess court will send this paper)
    - If convicted, proof of punishment
    - Proof of max penality of the offence (Copy of statute) - How to get it ?
    - Info on Petty offence exception

    I checked with my lawyer, as per him DA will send evidence and then we will discuss, how to proceeed further ? I guess this will help us to identify how strong the case against me ?
     
  16. tim50

    tim50 Law Topic Starter New Member

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    One question :- Will is create any problem to bring my parents

    My parent are planing to visit me in next 2 -3 month. (I guess till that time case be desposed). I am not sure. I have coule of questions : -

    - Will it create any problem to get B1/B2 visitor visa for my parents as I will be sponsering them.

    - Will it create any problem of ther entry at POE. Can DHS/POE will came to know about my offence at the POE as my parent will having my passport / visa ?

    Thanks
     
  17. tim50

    tim50 Law Topic Starter New Member

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    Hi mafioso,

    Today I got a letter from my lwayer (also attached court order) to apear in the court for bench trial after 45 days. (some date/time). I coun't get any chance to talk to my lawyer for the same. I will talk to him tomo. I don't know why this trial. It can be settled withoug trial. Like plea bargain etc. Since trial date is set, can we still plea guilty with some less charge or we have to go to trail now ? Please reply..
     
  18. mafioso

    mafioso New Member

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    Nice to know your lawyers simply confirmed all my advice if you read all my post on this issue. Keep us informed if you need more advice….Immigration and criminal law are my areas of research and specialty. Most often, the DA would be willing to reduce the charges as your earlier post said………..simple misdemeanor. Evaluating the charges would not stop your lawyer from getting a plea. Lawyers generally want discover to know how strong their case is, and to know if they can make them drop the charges if there are any procedural or evidentiary flaws. Who knows what your lawyer might find to help you get an even better deal. Keep talking to your lawyer to see if can change the charge to disorderly conduct (it is not a CIMT). That would have zero immigration effects. It is just like a speeding ticket. Many people have had the theft charge on this forum reduce to that. Many counties can do it, some will not.
     
  19. tim50

    tim50 Law Topic Starter New Member

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    Hi mefioso,
    My case has been filed with simple misdemeanor only and not reduced to simple simple misdemeanor. This is only confired by my lawyer. I got a letter today and saying same simple simple misdemeanor only and aksing me to prestant in the counrt after 45 days. I am not sure my lawer has been tried with PLEA bargain or defered judgement. Can we do now the same to avoid trial ? I will speak to my attorny tomo...I am worried if in the trial, they found me guilty and they can give me hard sentance rather settle before any trial .p lease suggest. And how many days this trial will run.. pleases suggest...
     
  20. mafioso

    mafioso New Member

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    You are probably going to court for your first appearance…………It is not a trial just to show up and receive the charge against you formally. After you appear there for the first time, your lawyer and the assistant DA would start talking about a plea (they would negotiate on the day your case would be scheduled for announcements). Your lawyer would see what they are offering for you to plead guilty to so as to avoid a trial. They would have about three opportunities to negotiate over the next couple of months. You would accept the plea (differed adjudication) and not go to trial. If you feel they have enough information which would find you guilty, then accept the best plea your lawyer can get. The DA would not go to trial unless you refuse the plea the DA and your lawyer negotiates. So don’t worry about a trial. You would decide on going to the trial or not; not the DA. DA’s don’t want to was time going to trial if you can accept a plea.
     

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