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Are There Immigration Consequences to New Jersey 2C:33-2.1 Wandering for Drugs?

Foreign nationals charged with drug-related crimes in New Jersey need to be aware that there may be consequences that extend far beyond the criminal penalties associated with the offense. In the immigration context, a conviction for a crime that involves controlled dangerous substances can not only potentially thwart an application for permanent residence but also result in an individual's removal from the United States.

One of the more underestimated drug-related offenses in New Jersey that should be explored with an immigration attorney prior to pleading guilty is the offense of Wandering, Remaining in or Prowling Public Places with Purpose of Obtaining or Selling Controlled Substances, contrary to NJSA 2C:33-2.1. The statute in 2014 reads as follows:

a. As used in this section:

"Public place" means any place to which the public has access, including but not limited to a public street, road, thoroughfare, sidewalk, bridge, alley, plaza, park, recreation or shopping area, public transportation facility, vehicle used for public transportation, parking lot, public library or any other public building, structure or area.

b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.

c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog includes, but is not limited to, conduct such as the following:

(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;

(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;

(3) Repeatedly circling in a public place in a motor vehicle and on one or more occasions passing any object to or receiving any object from a person in a public place.

d. The element of the offense described in paragraph (1) of subsection b. of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.

L.1991, c.383.

Not to be Confused with Disorderly Conduct

It is important to distinguish this offense from the NJSA 2C:33-2, Disorderly Conduct. These offenses are not the same, and while both are disorderly persons offenses, 2C:33-2.1 is something more likely to arouse attention from the Department of Homeland Security and possibly cause trouble because it implicates Controlled Dangerous Substances. What many people fail to realize is that drugs offenses don't necessarily have to be Aggravated Felonies or Crimes Involving Moral Turpitude to cause immigration problems. Controlled Substance Offenses are an independent basis of inadmissibility as well as deportability.

INA 212(a)(2)(A)(i)(II) pertains to issues of admissibility and indicates that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).

On the other hand, if an individual has already been admitted to the United States, but pleads guilty to a drug related offense, he or she is at risk of being deportable due to INA 237(a)(2)(B), which reads: any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

In both cases, the language is large enough to capture many different types of drug violations as long as they "relate" to a controlled substance. Some people might jump at the opportunity to plead guilty to 2C:33-2.1 as a downgrade from a more serious drug offense offense. However, for those who are not US Citizens, they may want to get an evaluation conducted by an immigration attorney to assess the immigration related consequences of such a conviction because it might arguably have an impact on one's status.

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. It does not create an attorney-client relationship nor should it be relied upon as 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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    • 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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