Serious issue ! Deportation - Can I get advise please ?

[Jackolantern]

Theft and trespassing convictions are both CIMTs. Two CIMTs committed during the first 5 years as a LPR they are grounds for deportation (INA 237, 8 USC 1227)

But trespassing isn't always a CIMT. It depends on the circumstances and intent of the trespassing.

http://www.uscis.gov/err/H2 - Waive...ecisions_Issued_in_2007/Jul262007_03H2212.pdf

As described at Fla. Stat. § 810.08(2)(B), the applicant's trespass conviction did not involve the intent to
commit petit larceny. Furthermore, the Felony Information contained in the record does not describe acts that
would constitute malicious trespass. The AAO therefore finds that the applicant's trespass conviction did not
involve a crime of moral turpitude.

Based on the record, the AAO finds that the applicant did not commit a crime involving moral turpitude and
he is not inadmissible under section 212(a)(2)(A) of the Act.

By walking into a shop that has its doors open to the public, years after the original incident, the deportation order could possibly be fought on the basis that the trespassing was not a CIMT because she did not enter the shop with the intent of committing any crime ... especially if her presence was alerted to management when she was at the cash register actually about to pay for something. An immigration officer needs to be consulted immediately to explore this and all other avenues.

 

[Jackolantern]

Now , Do we spend $5000.00 or more on a Immigration Attorney and hope for the best ?

Be prepared to spend double that.

Why wasn't an attorney used when she went to the Notice To Appear? Is it that you didn't understand that NTA is a precursor to deportation?

 

[Bobsmyth]

But trespassing isn't always a CIMT. It depends on the circumstances and intent of the trespassing.

Agreed, but in the OP's case it appears his wife broke a restraining order against her by visiting the store again. You can't claim ignorance as an excuse to breaking a previous order, especially if the original charge involved a CIMT.

An immigration officer needs to be consulted immediately to explore this and all other avenues.

Yes, always best to seek professional help to determine all options.

 

[Jackolantern]

Agreed, but in the OP's case it appears his wife broke a restraining order against her by visiting the store again. You can't claim ignorance as an excuse to breaking a previous order, especially if the original charge involved a CIMT.

I know that claiming ignorance isn't going to escape the trespassing charge itself, given the previous order. The guilt of trespassing itself is well established. But this isn't just about ignorance or guilt; for CIMT it is about whether there was the intent to commit a crime other than trespassing itself.

If somebody jumps a fence and trespasses on my backyard, there is a strong chance that it was for the purpose of doing something more sinister (unless there is some evidence to the contrary like retrieving a ball). The general public doesn't go into strangers' backyards for harmless purposes. But when somebody walks into a shop, the usual intent is to buy something. It could be argued that after having a clean record for years, having walked into shops hundreds of times and paid for stuff without stealing, that her intent was no different than that of other shoppers, or her own intent in other shops for the past few years, i.e. to buy something ... especially if she actually was buying something and wasn't found to be attempting to steal anything again.

 

[Bobsmyth]

If somebody jumps a fence and trespasses on my backyard, there is a strong chance that it was for the purpose of doing something more sinister (unless there is some evidence to the contrary like retrieving a ball).

You can equally argue that if you had a restraining order against your neighbor for theft and he still trespassed onto your property , that he shouldn't be charged with a crime unless there was intent to commit one.

I would argue that the issue of intend becomes clear the moment one breaks a restraining order (even if it wasn't knowingly). In other words, there is intent to commit a crime the moment you disobey a previous order.

 

[Jackolantern]

You can equally argue that if you had a restraining order against your neighbor for theft and he still trespassed onto your property , that he shouldn't be charged with a crime unless there was intent to commit one.

This is not about whether he should be charged with a crime. Obviously he should be charged. It is about whether upon being guilty of trespassing, should it be considered a CIMT based on there being additional criminal intent to do something other than trespassing. For most people's private property which isn't open to the general public, it is more likely than not that there was some additional criminal intent, in the absence of an evident innocent reason like retrieving a ball or runaway dog.

I would argue that the issue of intend becomes clear the moment one breaks a restraining order (even if it wasn't knowingly). In other words, there is intent to commit a crime the moment you disobey a previous order.

Intent to commit a crime other than the crime of breaking the order itself? I think that depends on the circumstances. But ultimately, it's not for me and you to argue, it's for the OP's lawyer and the courts.

 

[Bobsmyth]

This is not about whether he should be charged with a crime. Obviously he should be charged. It is about whether upon being guilty of trespassing, should it be considered a CIMT based on there being additional criminal intent to do something other than trespassing. For most people's private property which isn't open to the general public, it is more likely than not that there was some additional criminal intent, in the absence of an evident innocent reason like retrieving a ball or runaway dog.

Intent to commit a crime other than the crime of breaking the order itself? I think that depends on the circumstances. But ultimately, it's not for me and you to argue, it's for the OP's lawyer and the courts.

Well if the restraining order was for a previous CIMT, it would only make sense that breaking the restraining order would automatically constitute criminal intent, regardless of if it occurred in a public area. Why else have the restraining order in the first place? The whole purpose of a restraining order is to prevent the original crime from happening again, and in this case the original crime was a CIMT.
Without knowing the exact charges and sentences of the OP's spouse we could only speculate scenarios.

 

[Jackolantern]

Well if the restraining order was for a previous CIMT, it would only make sense that breaking the restraining order would automatically constitute criminal intent, regardless of if it occurred in a public area. Why else have the restraining order in the first place? The whole purpose of a restraining order is to prevent the original crime from happening again, and in this case the original crime was a CIMT.
Without knowing the exact charges and sentences of the OP's spouse we could only speculate scenarios.

We don't even know if there was an actual restraining order, or whether it was just the store management declaring that she should not re-enter the store. I'm just throwing out ideas for the OP to bring up with the lawyers who are to be consulted, and pointing out that trespassing isn't automatically a CIMT.

 

[mantaray]

It sounds like there's some information that the OP is not sharing. The whole caught-stealing-then-recognized-when-she-went-back-into-store just doesn't add up.

Did she go back into the store to confront the person who initially caught her stealing? Something else is going on here that we're not privy to.

 

[Jackolantern]

It sounds like there's some information that the OP is not sharing. The whole caught-stealing-then-recognized-when-she-went-back-into-store just doesn't add up.

Did she go back into the store to confront the person who initially caught her stealing? Something else is going on here that we're not privy to.

I agree. Those shops have high employee turnover, and it is hard to believe that an employee would recognize her years later, without her doing something to bring attention to herself.

 

[Vorpal]

But when somebody walks into a shop, the usual intent is to buy something. It could be argued that after having a clean record for years, having walked into shops hundreds of times and paid for stuff without stealing, that her intent was no different than that of other shoppers, or her own intent in other shops for the past few years, i.e. to buy something ... especially if she actually was buying something and wasn't found to be attempting to steal anything again.

It's also important to find out the duration of the restraining order, if, in fact, there even was a restraining order. A lot of stores have a similar policy (I worked at Staples one summer when I was in college, so I speak from experience), but they never specify for how long the shoplifter is banned from entering the store. Whenever a shoplifter was caught, the store manager would detain him/her and instructed them not to come into the store again, while waiting for the police to show up. This brings up the issue of how long this ban is actually in effect. Does it expire after a certain period of time or is it valid for the rest of the shoplifter's natural life? A competent attorney should be able to figure it out. If the ban was in effect for a predetermined time frame and the OP's wife went into the store after its expiration, that would render the trespassing charges unfounded. However, if the ban was still in effect, that could spell trouble. Again, this is something that should definitely be looked into.

 

[Jackolantern]

Whenever a shoplifter was caught, the store manager would detain him/her and instructed them not to come into the store again, while waiting for the police to show up. This brings up the issue of how long this ban is actually in effect.

Also the issue of whether a verbal directive by the store manager is the legal equivalent of a court-imposed restraining order.

 

[Vorpal]

Also the issue of whether a verbal directive by the store manager is the legal equivalent of a court-imposed restraining order.

Exactly. I am not at all familiar with petit larceny laws that shoplifting would fall under, but it's difficult to believe that a court-imposed restraining order would have lifetime validity.

Moreover, as you and Bobsmyth pointed out, something doesn't add up about the circumstances of the trespassing arrest. There's definitely something that the OP is leaving out.

 

[Bobsmyth]

We don't even know if there was an actual restraining order, or whether it was just the store management declaring that she should not re-enter the store. I'm just throwing out ideas for the OP to bring up with the lawyers who are to be consulted, and pointing out that trespassing isn't automatically a CIMT.

From the OP's original post:

"She got banned from the store and she thought the ban was lifted by now"

Sounds like there must have been some legal restraint order against her since they wouldn't be able to arrest her otherwise (I doubt a previous verbal ban would stand up in court for conviction). Or it possibly could have been part of probation of original charge: (ex: don't step into store for next two years.)

 

[Vorpal]

From the OP's original post:

"She got banned from the store and she thought the ban was lifted by now"

Sounds like there must have been some legal restraint order against her since they wouldn't be able to arrest her otherwise (I doubt a previous verbal ban would stand up in court for conviction). Or it possibly could have been part of probation of original charge: (ex: don't step into store for next two years.)

I agree. Still, it would be interesting to find out the exact terms of the ban.

 

[rick92]

I have sent him a private message, to see if he can give us addtl info. He has to be able to give us some more info.

 

[CitatioN10]

Hey all , thats for the info . Today she had 2 interviews with Attorneys, but she hasn't came home yet so I dont know what was said . Also I don't know the limit of the store ban was , It could have very well been a lifetime ban , but again I don't know .. I really didnt pry into all her paperwork because she feels so ashamed of herself as it is , but I will get more facts on this just to help others in this situation . Will post again when she comes home .........IF she does , she's about 4 hours late as it is . :-(

 

[CitatioN10]

Does

 

[CitatioN10]

Ok back from speaking to 2 attorneys , both had to get out the books and do reading to find out whats best for her.

Also to answer a previous question , the ban for Publix was lifetime .

Now we are looking into the 212C form , this might work but I have a very important question on this ..

It states on the 212c form you need to be in legal status in USA for at least 7 years , OK thats fine she has been . >

When you leave America to visit your home country " Bulgaria " does this interupt her status of being in America ?

So if she was here exactly 7 years , but when to Bulgaria last year for a month , she has actually only been here 6 years and 11 months ?

Please let me know .

Thanks

 

[Jackolantern]

Also to answer a previous question , the ban for Publix was lifetime .

A lifetime ban that was imposed by the courts? Or just by the store management?

Now we are looking into the 212C form , this might work but I have a very important question on this ..

You mean INA 212(c), relief from deportation? I thought that was repealed by Congress, and only those convicted before April 1997 can still use it (but it was replaced with INA § 240A(a), which is similar but more stringent). Did the lawyers suggest 212(c), or are you investigating it on your own?

When you leave America to visit your home country " Bulgaria " does this interupt her status of being in America ?

So if she was here exactly 7 years , but when to Bulgaria last year for a month , she has actually only been here 6 years and 11 months ?

Lawyers were consulted; they are there to answer questions like this. Send them an email or give them a quick phone call. However, I don't think a short-term visit like that would break the 7 years.