Legal Question in Criminal Law in Colorado

Re: Shoplifting

You should consult an immigration lawyer. The law is fact-driven, and you don't give many facts here. Your case may turn on one of those undisclosed facts.

A deferred judgment will NOT prevent your deportation. A deferred judgment is, for purposes of immigration law, considered a conviction.

If you are convicted of a crime of moral turpitude (meaning a crime considered immoral), you may be deported if two conditions are met.

1. The crime is committed within five years after the date of admission to this country. It only takes that one conviction to qualify you for deportation.

If you were admitted as a lawful permanent resident under section 245(i) of the immigration code (you'll remember, because you'll have paid a $1000 penalty), the time is within 10 years.

2. If the crime for which you were convicted also carries a POSSIBLE sentence of a year or longer, you may be deported. That means that, even if the judge only gave you a $250 fine, if he COULD have given you a year in jail, you've met this second condition.

Any theft, no matter how petty, is considered a crime of moral turpitude. Shoplifting specifically has been held to be a crime of moral turpitude under immigration law. And if the value of the thing you shoplifted is $100 or more, it qualifies as a Class 2 misdemeanor, which carries that maximum sentence of a year in jail.

Look. I'm guessing, because you are afraid of your husband finding out about this, that despite my best advice -- that you speak with an immigration lawyer -- you won't do it.

So do this. When you speak with the prosecutor at your arraignment (that's your first court date), be honest with him or her. Tell the prosecutor your fears about what will happen to you with immigration if you take a deferred judgment to the theft (or shoplifting) charge. Print this out and take it with you if it will help you remember the points. The prosecutor may have no idea about immigration consequences, and the prosecutor may think a deferred is a pretty damn good deal (and ordinarily it is).

Ask the prosecutor if you might take a DEFERRED PROSECUTION instead. This is different from a deferred judgment, because you don't plead guilty to anything, so there is never a conviction. What happens with a deferred prosecution is that the prosecutor may attach conditions (like staying out of the store, perhaps counseling, and staying out of trouble for six to nine months) to a decision not to prosecute you -- yet. If you meet the conditions, at the end of the time period the charge will be dismissed.

Deferred prosecutions, though, are rarely offered. But if this is your first arrest, with your circumstances it may be offered.

If the prosecutor will not offer the deferred prosecution, ask to plead to disorderly conduct, with a deferred judgment. This is a petty offense. A deferred on a petty offense will likely keep you clear of immigration difficulties, because it is not a deportable offense.

Good luck.