Immigration Status and Its Role in New Jersey Criminal Cases

If you are an immigrant facing criminal charges in New Jersey, your immigration status can have a major impact on your case. Understanding how immigration status factors into NJ criminal proceedings is crucial. This article provides an overview of key issues related to immigration status in New Jersey criminal matters. We will cover immigration inquiries, potential immigration consequences, and strategies immigrants should consider when navigating the criminal justice system.

Questioning Immigration Status

While police may inquire about immigration status when booking arrestees, prosecutors are prohibited from questioning defendants about their status during criminal trials. In State v. Cacho, the NJ Supreme Court ruled such questions are improper and risk denying immigrants a fair trial. If asked about your status by prosecutors, your attorney will object and request the line of questioning cease. Immigration inquiries by the state have no bearing on determining guilt or innocence under NJ law.

Risk of Deportation or Removal

One major concern non-citizens face when charged is the risk of deportation or removal. Under federal law, many types of crimes can trigger immigration consequences. These include:

• Drug offenses
• Firearms offenses
• Domestic violence
• Sex crimes
• Theft
• Fraud

An experienced criminal immigration attorney can advise which charges may lead to deportation or removal risks if convicted.

Negotiating Immigration-Safe Pleas

To avoid immigration pitfalls, defense counsel may negotiate with prosecutors to craft a plea to charges that don't trigger deportation. For example:

• Amending drug distribution charges to simple possession
• Pleading theft charges down to disorderly persons offenses
• Avoiding any plea admitting to a controlled substances offense

Immigration-safe pleas seek to prevent conviction of charges that would make deportation mandatory.

Obtaining an Immigration Bond

If detained by ICE following an arrest, your criminal attorney may be able to help you obtain an immigration bond for release until criminal charges are resolved. Factors considered in setting bond include:

• Your ties to the community
• Prior criminal record
• Flight risk
• Danger to the community

Your criminal lawyer and immigration lawyer can coordinate on bond efforts for your temporary release.

Fighting Criminal Charges More Aggressively

Since the stakes are higher, immigrants may fight criminal allegations more aggressively by:

• Taking cases to trial vs pleading guilty
• Seeking dismissal of charges earlier
• Pursuing motions to suppress evidence
• Mounting constitutional challenges

Vigorously contesting charges or angles for dismissal could help avoid immigration pitfalls.

Using Pretrial Intervention

Participating in pretrial intervention (PTI) programs can also mitigate immigration consequences. If completed, PTI results in charges being dismissed, avoiding a formal conviction. However, any admission of guilt in applying for PTI could still be used against you in immigration proceedings.

Challenging Guilty Pleas

If you plead guilty without knowing the immigration consequences, you may be able to challenge the plea by arguing you received ineffective assistance of counsel. This involves showing:

• Counsel failed to advise you of immigration risks
• You would not have pled guilty had you known the risks

Succeeding on these claims is very difficult, underscoring the need for thorough advice before pleading guilty.

Using Cultural Backgrounds in Sentencing

Your criminal defense lawyer may be able to present mitigating factors at sentencing related to your cultural background. For example:

• Cultural attitudes toward certain conduct
• Trauma or circumstances in country of origin
• Stresses of immigration and assimilation

Cultural factors may persuade a judge against jail time to prevent deportation.

Consulting Immigration Counsel

Non-citizens charged with crimes should immediately consult an immigration attorney in addition to their criminal defense lawyer. An immigration expert can:

• Assess risks to your immigration status
• Craft an immigration-safe defense strategy
• Advise on potential waivers or relief from removal

Retaining competent immigration counsel early is crucial for immigrants in criminal proceedings.