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New Jersey Shoplifting Theft Offense Held Not To Be Deportable

Late last month, attorneys in New Jersey were pleasantly surprised to learn of a one-year-old immigration court decision that directly implicates many issues currently impacting foreign nationals charged with disorderly persons offenses in our state. Although unpublished and hence, non-precedential (in other words, courts are not bound to follow the ruling of this case), In re: Mario Harold FLORES may afford defense counsel with greater weight to argue that misdemeanor offenses-technically non-indicatable offenses-in New Jersey are not "convictions" within the meaning of the Immigration and Nationality Act. (A "conviction" under section 101(a)(48) can form the predicate basis of a ground of removability.)

In the case, the defendant was apparently convicted of shoplifting under the general rubric of NJSA 2C:20-3, relating to theft by unlawful taking or disposition. Citing to a precedential BIA decision Matter of Eslamizar, Mr. Flores argued that his shoplifting offenses were not convictions which would render him deportable. Without delving into the convoluted history of the case, the BIA ultimately reopened his case, ruling that in the absence of a response from the government, his prosecution for disorderly persons offenses were not convictions (within the meaning of the INA) and therefore not removable as charged.

While not controlling, this is a significant and potentially seminal holding. In New Jersey, nearly all "criminal" offenses in our municipal court system are charged and prosecuted as disorderly persons or petty disorderly persons offenses. More serious offenses are prosecuted as 1st, 2nd, 3rd, and 4th degree crimes in Superior Court and are termed "Indictable" offenses because, as the term denotes, a defendant must be indicted by a Grand Jury for the charges to go forth. Conversely, disorderly persons and petty disorderly persons are not presented to a grand jury and are classified as "non-indictable" offenses. This is an important distinction going beyond the nomenclature. Besides the disparity in exposure to incarceration, individuals charged with non-indictable offenses are not afforded the same protections that defendants facing indictable crimes enjoy. Some of the more prominent safeguards accompanying a Superior Court criminal proceedings include but are not limited to the right to counsel, the right to be indicted, as well as the right to a jury trial-aspects that do not characterize a prosecution in municipal court. This contrast buttresses the argument that municipal court proceedings in New Jersey are not inherently criminal proceedings in the context envisioned by the INA necessary to trigger a deportable conviction. Logically then, even if a defendant pleads or is found "guilty" in New Jersey municipal court, he or she has not been "guilty" of a criminal offense for immigration purposes.

The potential ramifications extend beyond shoplifting charges in municipal court. They encompass nearly all types of disorderly persons offenses in New Jersey, arming defense counsel with viable grounds to contest deportability if premised on guilty findings in municipal court. Again, it is extremely important to stress that this ruling is unpublished: courts are not bound or compelled to follow this decision. In any case, though, it does illuminate and confirm a novel angle that courts might be inclined to entertain.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.

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    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationally Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • 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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