PTI and Immigration/Deportation, Recent Results

What happens when you are accepted into the Pre-trial intervention program (PTI), but the state requires that you plead guilty to gain admission? Short answer, you will probably get deported. It may not happen the week after, or even the year after, but at some point you will likely be served with the dreaded notice to appear or NTA for removal proceedings.

A non-citizen must be ultra careful in this type of situation because there are two issues. First, for immigration purposes, if you plead guilty, it counts as a conviction. It does not really matter that you may have the charges dismissed at a later time. The definition of conviction under the federal law is controlling, and when a defendant admits the factual basis for a deportable offense, and tells the court that he/she is guilty, it s likely going to be construed as a conviction. Even if a year passes and the defendant has the charges dismissed following PTI, if the state requires that you plead guilty to get into PTI, then it will be construed as a conviction for immigration consequences regardless.

Secondly, it is illegal for the state to make admission into PTI contingent on a guilty plea, plain and simple. However, the state (the prosecutor) has great discretion regarding who gets into PTI and who does not. In order to challenge a PTI denial, the defendant must prove that the denial was arbitrary and capricious. This is a difficult burden for the defendant to meet, although not impossible. Yet, most prosecutor’s will simple deny acceptance if they really want the plea that bad. However, if your acceptance was made contingent upon a plea, you may have a real shot at PCR, especially if you are facing deportation or removal as a result of the underlying conviction.

Immigration and criminal law are inextricably intertwined. In my opinion, any lawyer handling criminal matters should have a thorough understanding of immigration laws and how they pertain to a non-citizen defendant. This includes legal permanent residents or LPR’s. Attorneys frequently over look these very important issues. This could result in extraordinary and unforeseen consequences for immigrant criminal defendants charged with deportable criminal offenses. Categories of offenses such as aggravated felonies and crimes of moral turpitude are legal terms of art and need definition. But you can unknowingly plead guilty to one and be stuck.

You should contact a NJ criminal defense attorney who understands these laws before going to court.


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