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Immigration Consequences of New Jersey Municipal Court

ConvictionsMCBA CLE SEMINAR

October 22, 2012

PARIS LEE, ESQ.Tel: (732) 516-1717

MICHELE ALCALDE, ESQ.Tel: (973) 405-1522

EUGENE WISHNIC, ESQ.Tel: (732) 448-1700

Lee & Garasia, LLC

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WHO IS AT RISK OF REMOVAL:

1. Lawful Permanent Resident (green card holder)

2. Undocumented Status (entered without inspection)

3. Refugee or Asylee4. Non-immigrant Visa holder (such as a

student visa)

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Client Interview Information:

► contact information► referral source► charge/court information► missed court dates/warrants/suspensions► prior record► pedigree: DOB/SS#/DL/immigration status/family/job► what happened – develop defenses► admissions/statements to police► witnesses/co-defendants► potential penalties/how you can help► your fee/scope of representation ► advisements to client

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Why Ask Pedigree Information?

► For Mitigation Purposes – family/employment

► To Identify Special Situations ► Immigration Concerns► Public Employee Concerns (2C:51-2)

* Please refer to the AG Guidelines re: Waiver of Forfeiture of Public

Office Handout Lee and Garasia, LLC

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What Constitutes a Conviction?

1. Formal judgment of guilt entered by a court; or2. If adjudication of guilt has been withheld, where:

a. A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

b. The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. See INA § 101(a)(48)(A).

NOTE: Conviction has to be effective after September 30, 1996

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The Consequences of a Conviction for Your Client

► REMOVAL (Deportation): Forcible removal from the United States and the imposition of a legal bar from returning to the US for a certain period of time (INA §237(a) [8 USC 1227 (a)]).

► INADMISSABILITY: Denial of re-entry to the United States attempting to return to the US from abroad (INA §212(a) [8 USC 1182])

► DETENTION: Detention in federal custody pending a deportation hearing (INA §236 [8 USC 1226]).

NOTE: While any or all of the three consequences set out here can flow from criminal activity by a client who is a non-citizen, the consequence that most concerns criminal defense lawyers is removal (deportation). Most crime-related deportation grounds require a “conviction” to trigger a basis for removal.

**See NJ Municipal Court Directive #09-11

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CIMT & Petty Offense Exception:

PETTY OFFENSE EXCEPTION:

For one Crime Involving Moral Turpitude if maximum possible penalty did not exceed one year of imprisonment and actual penalty did not exceed six months of imprisonment

EXAMPLE: Single disorderly persons offense of shoplifting conviction with 90 day sentence

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Immigration Consequences of a Conviction for Your Client:

► 2C: Offenses with Potential Immigration Consequences Drugs, Assault, Shoplifting, Criminal Trespass, Prostitution, Theft, Lewdness

► Title 39 Offenses with Potential Immigration Consequences DWI and DWS offenses where there is jail time

If you do not practice Immigration Law you should advise your client to consult with Immigration counsel

Pursuant to NJ Municipal Courts Directive #09-11 – the Court will generally permit adjournments for this purpose

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PLEA BARGAINING: PRACTICAL APPLICATIONS

► Disorderly Persons Charges (DP’s) Up to Six Months County Jail Up to $1,000 Fine

► Petty Disorderly Persons Charges (PDP’s) Up to Thirty Days Jail Up to $500 Fine

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PLEA BARGAINING RESTRICTIONS:

► Chapter 35 & 36 of the Criminal Code (2C)► 2C:35-10(a)4 Possession of Marijuana/Hash► 2C:35-10(b) Under the Influence of CDS► 2C:36-2 Paraphernalia ► Plea bargaining is prohibited for Chapter 35 & 36 charges

listed above, except that if Defendant pleads to one charge, the others arising out of the same factual transaction may be dismissed on motion of prosecutor

► Notwithstanding plea restrictions, prosecutor may always move to amend or dismiss any charge in the interest of justice where the proofs are unlikely to support a conviction

► Show weaknesses in State’s case File Motions!

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SECTION 36 CONDITIONAL DISCHARGE:

► What is a Section 36?

This is a diversionary program that will result in a dismissal of the charges if the participant complies with all conditions

and is not rearrested while in the program  The fines are approximately $800. The 6 month minimum probation is usually

unsupervised.

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WHO CAN GET SECTION 36?

► Available to first time offenders► For Chapter 35 & 36 Drug Charges

How do you get a Section 36?► Get prosecutor’s consent► Submit $75 application fee & application► Appear in court for formal entry on another date

after approval granted by probation► Upon completion of program, dismissal on the

record

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SHOPLIFTING – 2C:20-11

► Mandatory Minimum of 90 Days Jail for 3rd and Subsequent Offenses

► Try to get a deal to a different offense, such as a borough ordinance, trespassing, disorderly conduct, theft

► Ask for SLAP (Sheriff’s Labor Assistance Program)► Juvenile shoplifting offenses do NOT count as priors for

enhanced penalties► Civil Penalty N.J.S. 2A:61C-1 ($150 civil penalty paid to

retailer) – may be able to get retailer to agree to dismissal► Be careful of local plea bargaining restriction, particularly in

“mall towns” – Paramus, Wayne, Clifton – where they won’t usually plea bargain shoplifting

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SOME COMMON TRAFFIC OFFENSES:

► Driving While Suspended 39:3-40 penalties are enhanced with multiple offenses, including increased fines

and jail 2nd offense: 1-5 days jail 3rd offense: mandatory 10 days jail 2C:40-26 Operating Motor Vehicle During Period of License Suspension –

4th degree

► There are additional penalties if defendant was suspended for DWI/refusal, no insurance, had an accident causing bodily injury, was in a school zone

► Possible license suspension up to six months for all levels of this charge

► Get charge amended: 39:3-10 (expired license) – amend to the section for previously licensed drivers

* Please refer to NJMVC Point Schedule Handout

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2C:40-26 DWS 4TH DEGREE:

►Suspended for 1st offense DWI/Refusal and client gets 2nd offense DWS while driving during the suspension term for DWI/Refusal

►Suspended for 2nd offense DWI/Refusal and client gets 1st offense DWS during the suspension term of DWI/Refusal conviction

►Mandatory minimum 180 jail sentence15Lee and Garasia, LLC

DRIVING WITHOUT INSURANCE 39:6B-1

► 1st offense: one year mandatory license suspension $300-1000 community service

► Subsequent offense: mandatory fourteen days jail mandatory two year suspension up to $5,000 fine 30 days community service

► Amend to 39:3-29 failure to exhibit documents (and bring the insurance card to court)

► No insurance card? See State v. Hochman, 188 N.J. Super. 382 State must prove that defendant's insurance was lawfully cancelled

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LEAVING THE SCENE OF ACCIDENT:

►N.J.S.A. 39:4-129 property damage only: First offense - $200 to $400 fine Up to 30 day jail sentence 6 month suspension of driving privileges

►Subsequent Offense: $400-600 fine 30 – 90 jail sentence 1 year suspension of driving privileges

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LEAVING THE SCENE OF ACCIDENT:

►With Personal Injury: $2,500 to $5,000 fine Jail time of 180 days of the accident

resulted in death or injury to someone other than Driver

DL Suspension of 1 year for a first offense Permanent DL revocation for a

subsequent offense Serious bodily injury is a 3rd degree crime

- 2C:12-1.1 18Lee and Garasia, LLC

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Analyzing Your Client’s Conviction:FOR POST CONVICTION RELIEF PURPOSES

Critical to get a copy of the criminal records, particularly:

► Judgment of Conviction (original raised seal)► Plea form (or jury instructions if trial)► Charging document (original/dismissed and

amended)► Plea and Sentencing Hearing Transcripts

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Criminal Court to Immigration Court

ARREST ► ICE DETAINER ► BOND ELIGIBLE?

CONVICTION ► RELEASE ► 48 HOUR RULE

ICE CUSTODY ► NTA ► ICE BOND?

IMMIGRATION COURT

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For More Information

Contact us at:Lee and Garasia, LLC

190 Route 27Edison, NJ 08820

732-516-1717http://www.njimmigrationattorney.com

Lee and Garasia, LLC