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 – which 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.

We are frequently retained to assist individuals on post conviction relief petitions so as to avoid deportation. The deportation can result from any number of criminal convictions but most often involves some type of drug offense. In this regard, Federal Law allows for deportation whenever an individual is convicted of a drug charge other than one involving possession of less than 30 grams of marijuana.

Monday evening I was consulted by a family in dire need of assistance. The father in the household had immigrated to the US in 1990. In 1995, he was convicted of a drug possession charge that was ultimately dismissed via a conditional discharge in 1996. The gentleman applied for a green card years later in or about 2008. It was his desire to obtain adjustment of his status in the United States to Permanent Resident (Green Card Holder). His application for adjustment was reviewed and he was directed to provide proof that his conviction was based on possession of less than 30 grams of marijuana. Unfortunately, there was no lab report to indicate the weight of the drugs and, based thereon, Homeland Security concluded that he was not only not entitled to adjustment but should be detained for deportation. The gentleman had been in detention for almost two weeks by the time the family got to me. The indication was that he would be deported within 10 days.

I immediately prepared a petition for post conviction relief that sought an Order concluding that, as a matter of law, the conviction was based on less than 30 grams of marijuana. Based on the fact that the police report confirmed that the marijuana comprised one joint and a small tin foil of green vegetation believed to be marijuana, it was my position that our client could not have possessed a prohibited amount of drugs. The Court agreed with my claim that these items simply could not amount to 30 grams of marijuana and filed an Order confirm that this was the case. The Order shall prevent the gentleman from being deported and it is also hoped that it will allow him to obtain the waiver necessary for him to become a permanent resident of the United States.