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Could NJ Theft of Services (2C:20-8) or 16:87-2.2 Have Immigration Consequences That Get You Deported?

Theft of Services is a common criminal offense charged in New Jersey given that the statute covers a broad range of criminal conduct. Some people may be surprised to learn conduct such as evading or willfully failing to pay transportation fare is potentially a criminal offense that falls under this statute. Title 2C of the New Jersey Criminal Code defines the crime of Theft of Services as the following:

A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. "Services" include labor or professional service; transportation, telephone, telecommunications, electric, water, gas, cable television, or other public service; accommodation in hotels, restaurants or elsewhere; entertainment; admission to exhibitions; use of vehicles or other movable property. Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.

b. A person commits theft if, having control over the disposition of services of another, to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

Occasionally, a skilled criminal defense attorney may be able to work out a plea agreement whereby the defendant pleads guilty to a New Jersey Administrative Code violation instead. The violation is found in NJAC Section 16:87-2.2 (last amended in 2010) which reads in part:

(a) It shall be a violation of the Act and this chapter for any person to use or attempt to use rail passenger service or enter a pre-paid fare area and to:

1. Fail or refuse to pay the prescribed fare;

2. Fail to properly validate the proof of payment receipt by date and time-stamping any single use ticket;

3. Evade or attempt to evade payment of the prescribed fare;

4. Fail to display proof of fare payment immediately upon request of an authorized employee or fare enforcement officer; or

5. Fail to cooperate, when a fare enforcement officer issues or attempts to issue a Special Complaint Summons, by failing or refusing to do such things, as providing the person's name and address, as well as written verification thereof. The following forms of written identification are acceptable: driver's license, student identification card, passport, military identification card, birth certificate or Medicare card.

(b) A person who uses rail transportation service for which payment is required in advance or who enters a pre-paid fare area and who fails to exhibit proof of fare payment upon request shall be in violation of the Act and this chapter and shall be subject to the issuance of a Special Complaint Summons.

Could there be immigration consequences?

Possibly. Anybody charged with fare evasion under 2C:20-8 or even just 16:87-2.2 should consult with immigration counsel to evaluate the possible impact on one's status. The danger is that either one of these violations could be alleged by the Department of Homeland Security as constituting a Crime Involving Moral Turpitude ("CIMT"), which in turn could form the basis of a charge of deportability or inadmissibility. While there is no concrete definition of what a Crime Involving Moral Turpitude is, it is generally considered one in which goes against the rules of morality. These types of crimes are normally ones which are committed with the actor knowing what he/she is doing is wrong or in some cases, committed recklessly. Of course, alleging that an offense is a CIMT does not automatically transform it into one, but the very possibility of it being one creates a certain amount of exposure to the foreign national.

Individuals in New York, for example, should be especially concerned and seek counsel to determine any potential consequences. Individuals who knowingly evade payment for transportation, such as by "turnstile jumping," could be punished under Theft of Services under Penal Law Section 165.15. There is a case, Mojica v. Reno, 970 F. Supp. 130, 137 (E.D.N.Y. 1997), out there that mentions that "public transportation fare evasion charges-turnstile jumping in the New York City subway system leading to a 'theft of services' misdemeanor conviction is considered a 'crime of moral turpitude.'"

Nothing is ever as simple as it seems when it comes to determining potential immigration consequences of even simple violations or infractions. It requires an exhaustive, fact and case sensitive analysis. Defendants and their criminal defense attorneys should not underestimate the ramifications of relatively innocuous violations without first seeking the opinion of a crimmigration attorney.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.

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    • The National Advocates | Top 100 Lawyers
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    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
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    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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