In New Jersey, a DWI is most commonly associated with alcohol. However, that is not the only way an individual can be charged with driving while under the influence. Under New Jersey statute 39:4-50, the law encompasses driving under the influence of not only intoxicating liquor, but also narcotics, hallucinogenic or habit-producing drugs. In other words, operating a motor vehicle under the influence of marijuana can give rise to a DWI charge just as easily as driving impaired due to alcohol.
In a disturbing development, the Attorney General indicated in Matter of Thomas and Thompson, 27 I & N Dec. 556 (A.G. 2019), that he will be considering and ultimately rendering a decision on the immigration impact of convictions that are subsequently altered. At issue is "whether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled 'vacatur,' 'modification,' 'clarification,' or some other term-should be taken into consideration in determining the immigration consequences of the conviction." Put plainly, the AG will be examining what effect a modified, vacated, or overturned conviction will have on whether someone is deportable, inadmissible, or qualifies for some sort of relief or benefit. This issue is mostly encountered in the context of a "PCR" or post-conviction relief application where a criminal case is subsequently re-opened. Once a case is reopened, the conviction is normally vacated, and the charge(s) and/or punishment are disposed of in an alternate manner, sometimes in the form of dismissal, amendment of charges, or reduction of sentence. Depending on what result is arrived at, an individual's immigration situation may change. Someone who may have formerly been held deportable on the basis of a crime involving moral turpitude may no longer be removable if the underlying conviction is vacated or changed into an offense that is not one involving moral turpitude. Ever since the Supreme Court's decision in Padilla v. Kentucky in 2010, droves of foreign nationals with criminal convictions have attempted to stave off deportation by reopening their criminal cases due to ineffective assistance of counsel to warn them of the immigration consequences of their convictions. Some have been successful; some not.
In New Jersey, driving while intoxicated in a school zone is a very serious offense with particularly severe penalties that go well beyond the typical punishment associated with a regular drunk driving offense. The offense is punished under Title 39:4-50(g), which provides for enhanced penalties when a violation under 39:4-50 occurs:
In an earlier article, we briefly discussed the impact of a drunk driving allegation on an individual's H-1b stamp or visa. Matters become even more complicated when the charges are criminal in nature. If one has been arrested or charged with a criminal offense-whether misdemeanor or felony-the issue becomes even more precarious. Being charged or worse, convicted, of a criminal offense poses a potential problem of admissibility for the foreign national, especially in the context of an H-1b specialty worker without a visa who has already left the United States. Since he/she will have to apply for a visa to re-enter, the charges will have to be addressed during the visa application process. If a consular officer determines that conviction of a charge constitutes a crime involving moral turpitude ("CIMT") or worse, an aggravated felony, the individual will be refused a visa unless the ground of inadmissibility can be overcome. In some cases, a conviction is not even necessary. Under current US immigration law, if an individual admits to having committed or admits to having committed acts that form the essential elements of 1) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or 2) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21) is inadmissible.
Although legislation to legalize marijuana abruptly stalled late last month, it is only a matter of time before the issue is revived, perhaps as early as June of this year. In spite of this, legalization of cannabis remains a hot legislative priority for a growing number of states around the country. Perhaps with that in mind, USCIS recently issued a policy alert regarding controlled substance activity and good moral character determinations. The thrust of the bulletin essentially highlights what is often misunderstood by the public: marijuana is classified as a Schedule I controlled substances and under federal law, manufacture, cultivation, possession or distribution is prohibited. Even if possession of marijuana is legal in a state jurisdiction, this does not nullify federal immigration consequences for foreign nationals since our immigration law is federal in nature.
This is a very common question that we deal with in the ordinary course of our business. Unfortunately, it is also one that is extremely complex and heavily dependent on a number of factors, including but not limited to the nature of the offense; one's immigration history; as well as one's criminal history. In general, in this climate, any arrest-even for offenses which may not be deportable-can potentially have an impact on one's immigration stay here.
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.
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 order for our government to remove a foreign national on the basis of criminal conduct, a conviction is normally required. In terms of what constitutes a conviction, the Immigration and Nationality Act (INA) states as follows:
Late last week, Chief Justice Stuart Rabner of the New Jersey Supreme Court urged in a letter to Secretary of Homeland Security John Kelly that courthouses be added to the list of "sensitive locations." A sensitive location, according to ICE and CBP policies, is a place where immigration agents are generally supposed to avoid while carrying out enforcement operations. Recognized locations currently include: