NJ Conviction Vacated for Purposes of Immigration and Deportation of Permanent Resident

There is little doubt that the consequences of a NJ criminal conviction on citizenship status has become increasingly complicated. The evolution of the law has not been favorable in this regard but permanent residents, visa holders and defense attorneys may have just caught a break based on a recent New Jersey Supreme Court ruling. The Court ruled in State v. Nunez-Valdez last week that a defendant may vacate a prior guilty plea if he was not informed that the conviction would result in deportation.

Federal immigration law provides for deportation of permanent legal residents (e.g. green card holders) if they are convicted of an aggravated felony. The defendant in Nunez was indicted on a charge of 4th Degree criminal sexual contact Рwhich would clearly constitute an aggravated felony. Notwithstanding, this defendant was never informed that deportation was a virtual certainty if he pled guilty to this charge. Following his entry of a plea to the offense, Mr. Nunez was deported and he thereafter sought post-conviction relief to vacate his plea and reopen his criminal case. The Supreme Court concluded that he should be afforded this opportunity insofar as he presented credible evidence that he would not have entered the plea if informed that he would be deported.  The Court also suggested that the administrative office of the courts undertake efforts to revise criminal plea forms such that the consequences to immigration status are clear when a non-citizen enters a plea.

The decision in Nunez offers considerable opportunity for all those seeking to avoid deportation by virtue of a plea to an aggravated felony in New Jersey. Indeed, a good argument can be made in many cases to support vacating a prior plea and obtain relief from deportation proceedings. We anticipate a flurry of post-conviction relief petitions in response to Nunez.