It’s a frightening time for immigrants. Although previous presidents have deported immigrants in large numbers, many – especially those without criminal records – felt a relative sense of normalcy. But with an administration that is outwardly hostile toward immigrant populations, any comfort previously felt is gone. As Donald Trump attempts to tighten immigration laws and cut down on even legal forms of migration into the United States, it can be difficult to keep up with the changing landscape.
That’s why we have launched the Ask an Immigration Lawyer column. Twice a month, Nubia Willman – a Chicago-based immigration attorney with nearly decade of experience – answers your questions about Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and more. This column is not meant to be construed as legal advice. You should not act upon any information provided without seeking the advice of an attorney licensed to practice law in your state.
Dear Nubia: I was stopped for a violation and charged with theft of services. I received a conditional discharge for this issue. The conviction date would be five years old in September 2020. My green card expires in 2021. I was wondering if I can apply for citizenship now or should I wait for October 2020 to apply, as then five years have passed since the issue.
Sometimes simple mistakes are just simple mistakes, and we are able to move on with our lives without much concern, though maybe a little embarrassment. Many states recognize that we make mistakes and use conditional discharge as a way to adjudicate a criminal case that results in no conviction because the person stayed out of trouble and perhaps paid a fine or did some community service during a set period of time. Every state may have a different term for this, some may call it supervision, others call it a suspended sentence. Regardless of the term, the purpose is to give a person a second chance without placing a conviction on their record.
Unfortunately, when it comes to immigration and the criminal justice system, little mistakes are often used against us in overly harsh ways. In the immigration world, even arrests (with no conviction) are something we often must acknowledge. And if one does plead guilty to a lesser charge – even a charge that results in a conditional discharge – it still can come back to haunt you. That is why for anyone in the midst of a criminal proceeding, it’s vital that your criminal defense attorney explain the potential immigration consequences to you before you decide whether to take a plea or not. This isn’t a favor that the attorney does for you, but rather it is part of their duty as your attorney. If, for some reason, your criminal defense attorney decides to not uphold that responsibility, then it would be a great caution for you to seek out an immigration attorney to explain the possible repercussions.
But when you’re past the adjudication stage and are ready to move on in your immigration filings, what are the concerns? As always, it depends. How an arrest and conviction impacts you varies on the actual charge, the potential sentencing of the charge, and what punishment the person received. Retail theft is riskier still because that can be considered a crime involving moral turpitude, which is an odd legal phrase that encompasses crimes that are also considered “extra bad” from a moralistic perspective (yes, immigration is also vested in assessing our morals, not just criminal history, #eyeroll). However, even for crimes involving moral turpitude, there can be exceptions in the regulations that ask immigration to not use those charges against you in assessing your case.
We can go on and on about how the government uses petty crimes and the criminal justice system in general to impede immigrants of color from obtaining lawful status in the US, but that is a post for another day. Instead, whether one should apply five years post conviction or risk it and do it sooner will vary from person to person. If one is eligible to naturalize now and can point to personal growth in their life, the risk may be minimal. If one wants to play it even safer, especially in this climate, there may not be a harm in waiting. An immigration attorney will be able to assess personal factors to help you make a comfortable decision that best fits your needs.
Disclaimer: The information on this column is not legal advice. Legal information is not the same as legal advice, which is the application of law to an individual’s specific circumstances. The information provided in this column is not a substitute for and does not replace the advice or representation of a licensed attorney. Although Remezcla goes to great lengths to make sure the information on the column is accurate and up to date, we make no claim as to the accuracy of this information and are not responsible for any consequences that may result from the use of this column.