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NJ Disorderly Persons Offenses in Municipal Court Can Get You Deported!

On Behalf of | May 23, 2022 | Criminal Law & Municipal Court |

In a recent precedential decision out of the Third Circuit, the Board of Immigration Appeals ruled that findings of guilt in proceedings that afford defendants all of the basic constitutional protections are “convictions” for immigration purposes.  This is an important decision that particularly affects immigration cases with criminal convictions out of New Jersey, especially given that the individual involved had pled guilty to a criminal violation out of New Jersey (Theft by Deception, contrary to 2C:20-4(a), but later argued that the guilty finding did not constitute a conviction since it was a disorderly persons offense (where the maximum possible punishment is 6 months in jail and/or up to $1000 in fines).  The Board in Matter of Kwok, 28 I & N Dec. 518 (BIA 2022) disagreed, holding that as long as the judicial proceeding afforded the defendant certain minimum constitutional safeguards, the judgement would be considered criminal in nature and hence, a conviction for immigration purposes to potentially trigger deportability.

In plain language, what this means is that disorderly persons offenses in New Jersey will be considered criminal in nature and can constitute convictions, notwithstanding the fact that these types of cases are heard in municipal court and do not require the defendant to be tried before by a jury.  Municipal court proceedings still require the State to prove the defendant guilty beyond a reasonable doubt and guarantee the same fundamental panoply of constitutional rights that people facing indictable or felony charges are entitled to, including the right to confrontation; speedy trial; a public trial; right to be informed of the charges; right to cross examine and compel witnesses; and double jeopardy.  Given this, foreign nationals charged with or facing disorderly persons offenses in New Jersey should not underestimate the potential impact of a municipal court proceedings just because the case is not a 4th degree (or higher) or being heard in Superior Court. (Along the same lines, non-US Citizens should be cognizant that Covid-19 has changed the landscape and dramatically altered criminal practice and procedure: just because a hearing is conducted virtually by Zoom in no way minimizes the gravity or import of the proceeding.) Being found or pleading guilty to certain offenses—even in municipal court—can trigger potentially disastrous immigration consequences for those individuals who are not US Citizens.

For more information about potential crimes that can potentially cause immigration issues, please check out our crimmigration blog.