Last week, we wrote about New Jersey Attorney General Law Enforcement Directive 2018-6, which directs state law enforcement to refrain from actively enforcing immigration law except in narrowly defined circumstances. Two salient aspects of the directive prohibit law enforcement from providing notice of an immigrant detainee's upcoming release from detention to ICE; and continuing detention of an immigrant detainee, pursuant to a detainer, beyond the time the person would be eligible for release. It is important to note that these two guidelines do not apply in the case in the case of foreign nationals charged with, convicted of, or adjudicated delinquent of a "violent or serious offense." Fortunately, this classification is much less ambiguous than some federal immigration terms, many of which are amorphous and subject to interpretation.
For purposes of Sections II.B.5 and II.B.6 of the directive, a "violent or serious offense" is defined as the following:
1. Any first- or second-degree offense, as defined in NJSA 2C:43-1;
2. Any indictable domestic violence offense defined in NJSA 2C:25-19;
3. The following indictable offenses:
· 2C:12-1, Assault
· 2C:12-1.1, Knowingly Leaving Scene of Motor Vehicle Accident Involving Serious Bodily Injury
· 2C:12-10, Stalking
· 2C:12-13, Throwing Bodily Fluid at Officers
· 2C:14-3, Criminal Sexual Contact
· 2C:16-1, Bias Intimidation
· 2C:17-1, Arson
· 2C:17-2, Causing Widespread Injury or Damage
· 2C:18-2, Burglary of a Dwelling
· 2C:24-4, Endangering the Welfare of Children
· 2C:28-5, Witness Tampering and Retaliation
· 2C:29-2B, Eluding a Law Enforcement Officer
· 2C:29-3A(5), Hindering Apprehension of Another Using Force or Intimidation
· 2C:29-3B(2), Hindering Apprehension of Oneself Using Force or Intimidation
· 2C:29-9, Criminal Contempt (Violation of Restraining Orders, Domestic Violence Orders, etc.)
· 2C:40-3B, Aggravated Hazing
4. Any indictable offense under the law of another jurisdiction that is the substantial equivalent to an offense described in paragraphs 1-3 above.
If a foreign national is charged with, convicted of, or adjudicated of any of the above listed offenses, jails and detention facilities may still inform ICE of an impending release, or choose to comply with a detainer request to hold an individual for up to an additional 48 hours to allow ICE to assert custody. Once the Department of Homeland Security takes a person into custody under these circumstances, it is unlikely to release the individual absent compelling circumstances or judicial intervention. As such, it is imperative for any immigrant charged or accused of any criminal conduct to assess possible ramifications at the outset of the case. Any exposure to incarceration, even under these new guidelines, can significantly increase the chances of immigration getting involved and seeking to remove the individual.
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.