If an individual charged with an indictable criminal offense is fortunate enough, he or she will be given the opportunity to participate in PreTrial Intervention or PTI. PTI is a mechanism in New Jersey’s criminal justice system by which certain cases that meet a specified criteria are diverted from the prosecution track. The specific guidelines are delineated in Court Rule 3:28. If the defendant successfully completes the program, which entails a probationary period, not to exceed thirty six months, during which he or she must keep out of trouble, the charge or charges will ultimately be dismissed. For a US Citizen, PTI is often one of the first options a criminal defense attorney will explore on behalf of the client. However, for the foreign national who is not a US citizen, PTI-while, for the most part, still an excellent alternative-can be perilous, particularly when it comes to a plea or admission of guilt, which sometimes happens before entry into the program. The reason is that while the PTI ordinarily disposes of the charge and actually results in a dismissal of the charge-the guilty plea still exists or counts for immigration purposes despite the fact that the criminal charge has been dismissed. And as many people know or should know, a conviction of certain criminal offenses will expose an alien to potential removal.
The issue is what constitutes a “conviction” for immigration purposes. The Immigration and Nationality Act (INA) defines “conviction” as follows:
(A) The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
INA §101(a)(48). See also Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).
A straight PTI without any admission or plea of guilty would not be considered a conviction. However, should the alien enter a plea of guilt or admit sufficient facts during the hearing in which he/she is admitted into PTI, he or she may very well unknowingly be triggering adverse immigration consequences because the probationary program and terms and conditions of the PTI program arguably constitute a form or penalty or restraint on the alien’s liberty.
It is important to remember that Guideline 4 of the Rule states: “Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilt. Enrollment of defendants who maintain their innocence should be permitted unless the defendant’s attitude would render pretrial intervention ineffective.”
So, the takeaway here is that if you are charged with a criminal offense in New Jersey and are offered a PTI disposition, do not rush into anything without seeking immigration counsel. The immigration attorney can be helpful in this scenario because he/she will work with your criminal defense attorney to ascertain the exact terms of the proposed disposition and ensure that everyone is aware what the potential immigration ramifications are of entering into such an agreement.
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. 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.