In light of the Supreme Court’s watershed decision, Padilla vs. Kentucky, criminal defense attorneys are now obligated to properly counsel their foreign national clients as to the immigration consequences of a conviction. In cases where the consequences are clear, the defendant should be appropriately advised; in situations where the answer may not be as transparent, clients should be advised to consult with immigration attorneys who can assess the consequences. When major felonies are involved, almost all parties these days recognize the need to cover this base. Unfortunately, even though our municipal courts routinely advise criminal defendants during the opening remarks, many defendants who are not US citizens still fail to appreciate that immigration consequences are not limited to major crimes. Some disorderly persons offenses in New Jersey may also trigger drastic immigration consequences.
A disorderly persons offense, by definition, is not strictly a crime in New Jersey. It is technically a criminal offense. The State may prosecute a defendant without first having to seek an indictment by a grand jury. In our court system, disorderly persons and petty disorderly persons offenses are disposed of in our municipal courts (whereas fourth degree and more serious crimes are prosecuted in the County’s Superior Courts). The punishment for a disorderly persons offense range, but the maximum possible penalty is $1000 and/or six months incarceration in the county jail. While these consequences are serious by themselves, criminal defendants sometimes underestimate the potential impact of these types of charges because they are heard in the same venue as “traffic court” and they may even be told by their criminal defense attorneys that they will in all likelihood not be going to jail. Notwithstanding whether or not they may true, foreign nationals or those who are not US citizens should be cognizant of the immigration consequences of any potential crime. Criminal defense attorneys, your neighbors, your friends, and even what you read on the internet, are not, unfortunately, the most reliable or authoritative sources on immigration consequences.
It is important to distinguish between federal and state classifications. Immigration is federal in nature, and there are certain federal terms of art that may apply to a conviction whether or not it is a felony or misdemeanor, or in the case of a New Jersey offense, whether it is an indictable or non-indictable crime. There are certain crimes in New Jersey that may be considered deportable offenses, even though they may not be considered that grave by the criminal defense community. For example, the crime of shoplifting (NJSA 2C: 20-11) may be considered a crime involving moral turpitude, which can potentially subject an individual to removal. Another example is Possession of Marijuana 50 grams or less, in violation of NJSA 2C:35-10a(4). Of all the drug related type of offenses in New Jersey, this is one of less serious ones. However, there are many ground of deportability that involve controlled dangerous substances, whether they be crimes involving moral turpitude, aggravated felonies, or just controlled substance offenses. Unless an individual can affirmatively prove that he/she has pled guilty to possession of marijuana 30 grams or under, a conviction in municipal court for this type of offense could easily expose the person to portability because the statute punishes possession up to 50 grams. If the person has pled guilty to 2C:35-10a(4) and the quantity, for example, involved 40 grams of marijuana, he or she may very well have pled guilty to a deportable offense. In many cases, such a conviction may turn out to be a ticking time bomb. The Department of Homeland Security may not necessarily find out about or go after the person after such a conviction. The person may even be lucky enough to travel in and out of the country successfully. However, all it takes is one trip or one ill-advised application and one inquisitive immigration officer to start off a whole series of events that could result in removal proceedings.
The moral? Any non-citizen charged with a criminal offense in New Jersey-indictable or not-needs to get an opinion whether potential immigration consequences will be triggered by a conviction or guilty plea. It would be a mistake to equate the treatment of a criminal offense with its relative treatment under our immigration laws.