If you have been placed in deportation / removal proceedings because of a criminal conviction in New Jersey, help is available. Call to speak with a New Jersey Immigration lawyer. An alien who has been convicted of certain types of crimes will be put in deportation (removal proceedings).
These crimes include those classified under federal law as aggravated felonies and crimes of moral turpitude. One way to avoid deportation in this situation is to retain an immigration post conviction relief lawyer.
An immigration defense lawyer can file what is known as a petition for post conviction relief ("PCR") on your behalf. The petition must be sworn to by you, in a verification, and may be accompanied by a memorandum of law and supporting documentation. The petition should argue that basically, your rights were violated in the underlying criminal case.
One such way that aliens rights are often violated in criminal proceedings in New Jersey is where their criminal defense attorney gives them no, or even bad immigration advice. If the attorney tells the defendant that there will be no deportation as a result of plea, and that advice is incorrect, that should constitute ineffective assistance of counsel. More recently, the courts have broadened this doctrine to attorneys who give no immigration advice to their clients.
The practice of law now is highly specialized. It is unlikely that an attorney who practices primarily criminal defense will be an expert, or even proficient in immigration practice as well. A simple solution is that clients should be advised, on the record and in writing, that they have the right to consult with an immigration lawyer before entering a guilty plea.
The rules governing petitions for post-conviction relief in New Jersey center around Rule 3:22-(a). In the context of ineffective assistance based on bad immigration advice, the following cases may be helpful. as well as the holdings of the Supreme Court of New Jersey in State v. Preciose, 129 N.J. 451, 460 (1992); State v. Nunez-Valdez, 200 N.J. 129, 137 (2009); and State v. Gaitan, 2011 N.J. Super. LEXIS 22 (App. Div. Feb. 7, 2011)(approved for pub.), and; State v. Slater, 198 N.J. 145 (2009).
Unfortunately, some clients who have been given bad immigration advice do not realize how much trouble they are in until they have been placed in removal proceedings. This is triggered after the alien is served with a "Notice to Appear" by Immigration and Customs Enforcement agents.
Sometimes, this is after the 5 year limitations period on PCR applications has already expired. Immigration defense attorneys should vigorously argue in these cases that the normal 5-year limitation on similar applications for post-conviction relief under Rule 3:22-12 should be relaxed.
The papers should show a prima facie case of ineffective assistance and excusable neglect. This is because before the alien was placed in removal proceedings, he or she had no idea that they had been prejudiced. The nature of this type of application would be moot notwithstanding the issuance of a Notice to Appear in Removal proceedings filed after the 5-year benchmark. This was unforeseeable at the time of the client's plea since he or she was misadvised of its immigration consequences. This therefore constitutes excusable neglect pursuant to Rule 3:22-12. See Gaitan, supra.
