Bar News - January 15, 2014
Criminal Law: Out of the Store & Out of the Country
By: Jillian LaCroix
• Do not allow a client to plead guilty to a theft (shoplifting) if the statutory elements of theft are not met.
• Whenever possible negotiate down to a conviction for willful concealment.
• Closely examine prior convictions for theft under RSA 637 : 3, II (or shoplifting under the prior statute) as there may be grounds to vacate the conviction under State v. Thiel (See also State v, Arsenault, 153 N.H. 413 (2006)). It is important to consider whether the defendant knowingly, intelligently, and voluntarily pleaded guilty to the crime, even if she did not actually commit all the elements of that crime.
In law school we were taught to examine each word of a statute and to parse every possible meaning. As a lawyer, I did not understand the real-life impact of that attention to detail until, during a recent case, I discovered the disparate immigration consequences of a conviction for willful concealment under NH RSA 644: 17,I [now NH RSA 637 : 3-a, I (Supp.2009)] and theft (formerly shoplifting) under NH RSA 644: 17, II [now NH RSA 637 : 3-a, II (Supp.2009)].
In State v. Thiel, the New Hampshire Supreme Court held that RSA 644:17 defined “two separate crimes: willful concealment, RSA 6434:17, I, and shoplifting, RSA:17; II.” Thiel, 999 A.2d at 466 (2010). This distinction is crucial when analyzing the New Hampshire statute. Under RSA 637:3-a (and 644:17) a person is guilty of willful concealment if, without authority, he or she willfully conceals the goods or merchandise of any store while still upon the premises of such store. Whereas, a person is guilty of theft (formerly shoplifting) under the relevant variant of RSA 637:3, II if, with the purpose to deprive a merchant of goods or merchandise, he or she knowingly removes goods or merchandise from the premises of a merchant.
In State v. Thiel, the New Hampshire Supreme Court held that a defendant cannot be guilty of shoplifting until they have left the merchant’s premises with goods that are unpaid for. Thiel, 999 A.2d at 466 (2010). While this distinction is important in distinguishing the two separate offenses, it also is the element of intent or mens rea that truly distinguishes the offenses in the context of immigration law.
Under federal immigration law, most, but not all, convictions for theft are crimes involving moral turpitude (CIMTs). Those crimes considered to be CIMTs under immigration law are noteworthy because they can render a person subject to removal or prevent a person from legalizing her status. The First Circuit distinguishes those thefts that are turpitudinous, and thus CIMTs, and those that are not by asking “ whether the defendant intended to permanently deprive the owner of the purloined property”. Patel v . Holder, 707 F.3d 77, 80 (1st Cir. 2013) (emphasis added)(quoting In re Grazley, 14 I. & N. Dec. 330, 333 ( BIA 1973). The consequences of this distinction are palpable when translated into their immigration consequences.
Practical Advice. For criminal law attorneys, the practical consequences are simple. A non-citizen client who is convicted of willful concealment (under RSA 637: 3-a,I) will not face adverse immigration consequences based on that conviction alone. Whereas, a person convicted of theft (under RSA 637:3-a,II) may face collateral immigration consequences, such as deportation, inadmissibility, or ineligibility for future immigration benefits.
Jillian LaCroix is the associate attorney at Drew Law Office, PLLC. She focuses exclusively on the practice of immigration law and regularly handles matters before the Department of Homeland Security, Department of Justice and the Department of State.