The Jersey Lawyer

In the case of State v. Nunez-Valdez, decided on July 27, 2009, the New Jersey Supreme Court held that a defendant that is misinformed about the immigration consequences of a guilty plea to criminal charges in state court may withdraw the guilty plea if he would not have pled guilty had he been properly advised of the immigration consequences.  Criminal convictions and guilty pleas may have severe immigration consequences for undocumented aliens and even legal permanent residents.  Therefore, it is important for criminal defendants to discuss their immigration status with their New Jersey criminal defense lawyer and the possible effects of guilty pleas or convictions on that status.

In Nunez-Valdez, the defendant, a legal permanent resident of the United States, pled guilty to fourth degree criminal sexual contact.  Defendant had originally been charged with one count of second-degree attempted sexual assault and four counts of fourth-degree criminal sexual contact.  The second degree charge carried a presumption of imprisonment for a term between five and ten years.  The defendant accepted a plea deal wherein he pled guilty to one count of fourth degree criminal sexual contact in exchange for a sentence of probation.

Shortly thereafter, a United State Immigration Court ordered defendant to be deported to his native Dominican Republic because of his conviction of fourth degree criminal sexual contact.  After exhausting his appeals in the immigration system, the defendant was eventually deported.  Defendant then sought post-conviction relief from the New Jersey state court system arguing that he would not have accepted the guilty plea if he had known that he would be deported.  Even though the plea form that all criminal defendants must fill out and sign before they are permitted to plead guilty advises defendants that they may be deported as a result of the plea, the defendant in this case argued that neither his attorney, nor the Spanish interpreter explained or read the form to him.

Under New Jersey law, the possibility of deportation, like other penal consequences of guilty pleas, is a consequence that a defendant must have notice of before he can knowingly enter into the plea.  Under the immigration laws in effect at the time that the defendant entered into the guilty plea in this case, the classification of a legal permanent resident as an “aggravated felon” was a complete bar to relief from deportation.  The term “aggravated felony,” was defined by the federal government as “murder, rape, or sexual abuse of a minor.”  Therefore, because defendant pled guilty to fourth degree criminal sexual contact with a seventeen year-old girl, deportation would be mandatory.  In the present case, defendant’s attorney at trial had told defendant that there would be no immigration consequences of his guilty plea. 

After determining that the defendant had not been adequately advised of the immigration consequences of his plea and allowing the defendant to withdraw the plea, the New Jersey Supreme Court examined the larger issue of ensuring that non-citizen defendant’s are fully aware of the immigration consequences of guilty pleas to criminal charges in state court.  The Supreme Court accepted the suggestion of the Association of Criminal Defense Lawyers of New Jersey and the American Civil Liberties Union that plea forms should inform non-citizens that “if your plea of guilty is to a crime considered an aggravated felony under federal law you will be subject to deportation/removal.” 

As this case illustrates, criminal charges in New Jersey can have very serious consequences.  It is important to discuss all of the consequences of criminal charges with a New Jersey criminal defense lawyer to get the best possible outcome under the circumstances.