It can happen. Don’t give your client the wrong advice.
Yes, that is correct. The title is a hybrid term combining the words “deportation” and “ordinance.” Although the term “deportation” has been subsumed under the term “removal,” for the immigration practitioner they are basically interchangeable. Deportation is the formal removal of an alien from the United States when the alien has been found legally eligible for removal for violating the immigration laws. Prior to April 1997, deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997, aliens in and admitted to the United States may be subject to removal based on deportability. Now called removal, this function is managed by U.S. Immigration and Customs Enforcement (ICE). Here is where the bad advice comes in. I can hear municipal court practitioners scoffing at the seemingly ludicrous idea that an ordinance violation can affect immigration status. “No one was ever deported because he pled guilty to an ordinance!” Well, the sad truth is
that both ordinances and other municipal court petty violations, such as disorderly persons’ offenses, can trigger the removal of your client from the United States. Although disorderly and petty disorderly persons offenses (D/P) are not crimes under the New Jersey Constitution, N.J.S.A. 2C:1-4(b), the federal officials at the Department of Homeland Security (DHS) do not care. The way a state views its own criminal statutes has no impact on federal immigration law. DHS will analyze the specific elements of the underlying conviction, and if they meet the standards of “crimes involving moral turpitude” (CMT), your client may have problems. The definition of a CMT is not in the immigration statutes and has evolved over the years through the case law. As a general rule, a crime involves moral turpitude if it is inherently base, vile or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Matter of Olquin, 23 I&N Dec. 896 (BIA 2006). Whether your client is a lawful permanent resident (LPR) or, worse, if your client has no legal status to be in the United States (i.e., “out of status”), a single D/P conviction for such common offenses as theft, shoplifting and certain assaults could trigger removal proceedings. Let’s take a very common example.
Under INA § 237(a)(2)(B)(i), a noncitizen may be deported for any violation of law relating to controlled dangerous substances (CDS), regardless of statutory classification. The only exception is conviction of simple possession of 30 grams or less of marijuana. In this situation, the conviction does not become a deportable conviction as long as the defendant does not have any prior drug convictions. So here is a practice tip: you should consider a drug paraphernalia conviction as a deportable offense since it could later constitute a prior offense. (For more on CDS, please refer to 21 U.S.C. § 802.) The solution under these circumstances is to reach a plea agreement with the prosecutor to stipulate that the amount of CDS (usually marijuana) was under 30 grams. Elite advocates take it a step further and ask the judge to make it a part of the judgment of conviction (JOC). Super elite advocates go even further and accompany their clients to the violation clerk’s window for payment, and make sure that the JOC reads under 30 grams. Finally, it is always a good idea to attach the state police forensic laboratory report to the court file as an exhibit when the report shows that the amount of marijuana seized was less than 50 grams. Have your client keep a copy of this document as well. He may need it some day. It’s worth mentioning that when your client has been an LPR for five years, his chances of becoming a naturalized U.S. citizen will be greatly diminished following a CDS conviction. Common minor drug offenses can be interpreted by the DHS to mean that your client may not meet the “good moral character” standard required for citizenship. 8 CFR Sec. 316.10. Given the foregoing, it is critical to understand that an ordinance violation may also impact on immigration status. A minor ordinance violation may result in your client’s deportation. Yes, you read that correctly. A conviction for violating a minor local ordinance may provide the legal basis for DHS to initiate removal proceedings against your client. As the fourth smallest state in the Union, New Jersey consists of 565 municipalities. These municipalities are broken down into boroughs (250), cities (52), towns (15), townships (245) and villages (3). Each municipal council adopts ordinances that may be pre-empted by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9. Pursuant to N.J.S.A. 2C:1-5d, municipal ordinances that deal with areas of law covered by the criminal code are pre-empted. All too often these ordinances, which should never see the light of day, are adopted and applied consistently. The New Jersey courts have addressed the issue of pre-emption and municipal statutes in the following published cases: State v. Crawley, 90 N.J. 241, 252 (1982) (municipal loitering ordinance); State v. Felder, 329 N.J. Super. 471 (App. Div. 2000) (municipal loitering for purpose of obtaining narcotics ordinance); State v. Meyer, 212 N.J. Super. 1 (App. Div. 1986) (local obscenity ordinance); Dolecky v. Borough of Riverton, 223 N.J. Super. 354 (Law Div. 1987) (ordinance prohibiting posting of “No Trespassing”
signs). The two most pertinent cases are Crawley and Felder. The defendants in Felder and Crawley were charged in Jersey City Municipal Court with violating a municipal ordinance for loitering in a public place where CDS was being distributed. Both sought dismissal on pre-emption grounds and were denied at the municipal and law division levels. The appellate court reversed. Writing for the court, Judge Skillman noted in Felder: If municipalities were permitted to adopt local counterparts to provisions of the Code, the express legislative policy of eliminating “overlapping and redundant provisions” from the criminal law would be defeated. This policy, then, implies a general legislative intent to exclude local legislation from areas covered by the Code of Criminal Justice. With this background, the municipal court practitioner must be aware that there may be hundreds of ordinances across the state that have not been challenged on preemption grounds and are alive and well. Every day, across the state, municipal councils pass ordinances that directly violate N.J.S.A 2C:1-5d. Judges, prosecutors and defense counsel use these otherwise pre-empted ordinances without hesitation as part of the plea bargaining process. They serve as a convenient tool in disposing of cases in municipal court.
The first step for the municipal court practitioner is to learn whether or not the client is a United States citizen. If he is not, the attorney must learn about his correct status. For example, is the client in the U.S. as an LPR, visa holder or out of status? Secondly, the attorney must investigate whether the charges are considered by the DHS as crimes of moral turpitude. Third, the attorney simply must obtain his client’s criminal case history. Next, discuss with the prosecutor viable options that will help avoid the removal threat. If there are discussions relating to amending the charges to a borough ordinance, the attorney should exercise great care. He should research the ordinance and determine whether it should be considered as pre-empted. Lastly, even if the ordinance should not be pre-empted, he should match the elements of the ordinance against INA Section 212(a)(2)(A) (i)(I), paying particular attention to see if the ordinance involves elements of either fraud or larceny. Keep in mind that if the defendants in Felder and Crawley had been noncitizens, their guilty pleas to an ordinance that prohibited a person from loitering in a public place where CDS was unlawfully distributed could have had adverse immigration consequences. By the time the issue of pre-emption was heard at the municipal, law division and appellate levels, ICE may have already placed them on a plane back to their native countries. So, now you see how it can be bad advice to suggest that your client plead guilty to an ordinance violation as part of a plea agreement.■
Peyrouton is a solo practitioner in Union City. His practice focuses on immigration law and criminal defense.
Reprinted with permission from the JULY 15, 2013 edition of New Jersey Law Journal . © 2013 ALM Media Properties, LLC.
All rights reserved. Further duplication without permission is prohibited.
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