Wednesday, March 3, 2010

A Petit Larceny Conviction Can Result in Deportation. In Fact, It Can Render a Person an "Aggravated Felon"

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. Take for example the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia. He went to a local store and stole an item worth less than $50. Petit Larceny in Virginia is a Class 1 Misdemeanor punishable by a maximum of 365 days in jail and/or a fine. The individual hired a criminal law attorney that was not aware of the immigration consequences of pleading guilty to this offense. The individual pleaded guilty and was sentenced to 365 days in jail but with everything suspended. Everyone went home happy that day until later on that afternoon when Immigration and Customs Enforcement (ICE) stopped by his house to arrest him and placed him in deportation proceedings.

How could things go terribly wrong for this Lawful Permanent Resident? For starters, a suspended sentenced does not count for immigration purposes. As in this case, although the individual did not spend one full day in jail, immigration law only considers the actual sentence of 365 days. Additionally, this theft offense, coupled with a sentence of 365 days, made this individual an "aggravated felon" for immigration purposes. Because his offense is an aggravated felony, he remained in jail and was deported straight from ICE custody. A little bit of negotiating with the prosecutor would have avoided his deportation. For example, he would have been able to retain his LPR status had he actually spent 179 days physically in jail rather than having his entire sentence suspended. This is so because a sentence of 179 days (time served) wouldn't meet the definition of "aggravated felony" for a theft offense since it's less than 365 days. Given that the judge suspended all 365 days, he wouldn’t have had a problem with a 179 day sentence (or less) of actual time served.

There are many things that can be learned from this, apart from the obvious - don't take anything that's not yours. One of those things should be that anyone facing a criminal charge, that is not a U.S. citizen, should consult with an experienced immigration attorney before he or she pleads guilty to an offense or moves forward with their criminal case.