Imagine this: you've lived in the United States for years. You have two children who are US Citizens. You made a silly mistake and had to plead guilty to a misdemeanor offense…then, ICE put you in handcuffs, and arrest you. For the undocumented, this is a real fear – it is however a known fear. The undocumented either remain here in the U.S longer than is legal, or they have entered without proper documentation. The undocumented know the fear that someday they will be detained by the authorities and face deportation.
Sometimes unknown consequences can be surprising, harsh and severe. Imagine that after a guilty plea that you thought was a safe plea, given your immigration status, they give you paperwork saying that you have pleaded guilty to what they say is an “aggravated felony”, and you are to be deported in two weeks, without a hearing, and without the opportunity to see a judge. Imagine the fear and worry that would come over this individual, and his family. Now, he has a very humble educational background. Not extremely sophisticated at all in US Immigration Law. The power and resources of the U.S. Government versus this individual is an extremely one-sided situation.
I recently had such a situation with one of my clients. Since I've always rooted for the underdog, I had a strong desire to help this client.
How this came to be is rather interesting to me.
This client was accused of possessing items that did not belong to him. Being charged with theft, he asked his defense lawyer to help him out. Theft is an offense that carries a significant amount of possible immigration consequences, such as mandatory detention, extremely limited options in immigration court, if any, and most certain deportation, especially at the felony level. It can be a crime of moral turpitude and an aggravated felony — not good for the client.
Many lawyers in Utah know that pleading a client to a different crime – Wrongful Appropriation, under U.C.A. s76-6-404.5 is a safe haven in the Crime Involving Moral Turpitude context. In other words, instead of pleading guilty to Theft or Retail Theft, if a non-US Citizen pleads to wrongful appropriation, then his offense should not be a Crime Involving Moral Turpitude. This is because the law says that in order to be a crime of moral turpitude, there has to be an intent to permanently deprive the owner of his property. Wrongful Appropriation only requires an intent to temporarily deprive the owner of his or her property.
The problem is, ICE and the Department of Homeland Security have charged people who pleaded to Wrongful Appropriation as an A Misdemeanor, or as a Felony, with having an aggravated felony! This means that they argued that under the federal definition for a theft aggravated felony, there was no requirement for a permanent taking, and thus Utah's Wrongful Appropriation crime was an aggravated felony, if the sentence (even a suspended sentence) was for 365 days or more. It may not be a Crime Involving Moral Turpitude, but worse – it could be an aggravated felony!
My client was charged with having an aggravated felony for this conviction. ICE issued an administrative removal order and intended to deport him within days. My client had a conviction for Wrongful Appropriation with a 365 days suspended sentence and he was facing imminent deportation! I responded to the DHS and showed them that Utah's Wrongful Appropriation statute was much broader than the generic definition of theft used in federal law, and that my client did not plead to all elements found in the generic definition. ICE and DHS agreed with that argument, and stopped their attempts to deport my client without a hearing.
Now we know that one strategy that criminal defense attorneys should use in Utah, when faced with a theft charge, is to use the Wrongful Appropriation offense. When done correctly, this offense may be a safe haven in the sense that it may avoid an aggravated felony determination as well as a crime involving moral turpitude determination. This isn't the only strategy to use, and there may be other consequences to this strategy, in fact there most likely will be other consequences to a non-US Citizen pleading to almost any criminal offense. Any non-citizen facing criminal charges, or any criminal defense attorney representing a non-US Citizen should work with a knowledgeable immigration attorney before settling any criminal case with a plea.