Quick Reference Chart For Determining The Immigration Consequences of Selected New Jersey Criminal Offenses1
Abbreviations and Notes:
Degree of Intent Degree of Harm Other Abbreviations
K=knowing(ly) P=purpose(ly) N=negligent(ly) R=reckless( ly)
BI=bodily injury SBI=serious bodily injury
CDS=controlled dangerous substance DW=deadly weapon MV=motor vehicle
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
INCHOATE CRIMES
Criminal attempt
2C:5-1
An attempt to commit an AF would also be deemed an AF.
An attemp t to commit a CIMT would pro bably be considered a CIMT.
Conviction would be considered a CSO or FO if the underlying offense is a CSO or FO.
Conspiracy
2C:5-2
A consp iracy to com mit an AF w ould also be deemed an AF.
A consp iracy to com mit a CIM T would probably be considered a CIMT.
Conviction would be considered a CSO or FO if the underlying offense is a CSO or FO.
1Prepare d by Joan ne Gottesm an, Assistant C linical Profess or, Rutgers S chool of L aw-Camd en, with invaluable editorial input and guidance from Manuel D. Vargas, Director, Immigration Defense Project, New York State Defe nders Asso ciation.
The development of the Quick Reference Chart for Determining the Immigration Consequences of Selected New Jersey Criminal Offenses was sponsored by the Defending Immigrants Partnership, which is supported by grants from the Open Society Institute Gideon Project and from the Ford Foundation. Tim Block, Alice Dueker, Regis Fernandez, Leah Morris, Anne Picker, Ruth Anne Robbins, Eliezer Silver and Marianne Yang contributed valuable editorial and/or substantive assistance. Thanks are also due to Melanie Gordon and MaryAnn Purvenas for their technical su pport.
This chart is intended to warn criminal defense lawyers about the possible negative immigration consequences of a particular plea so that they may properly counsel their non-citizen clients. Advocates should be aware, however, that in many cases there are strong counter-arguments that a particular disposition should not trigger deportability or inadmissibility. For additional information on these arguments and strategies for avoiding the immigration consequences of criminal convictions, please refer to: Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law and Crimes (West G roup 19 99), No rton To oby, Crimina l Defense o f Immigr ants, (Law Offices of Norton Toob y 2002), M anuel D. V argas, Represe nting No ncitizen Crim inal Defe ndants in New Yo rk State , 3d. Ed. (New York State Defenders Association 2003).
1
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
CRIMINAL HOMICIDE
Murder
First degree
2C:11-3(a)
Yes.
Yes, for convictions under subsections (1) or (2). Whether conviction under subsection (3) is a CIMT may depend on whether the underlying offense is a CIMT.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV. Conviction might also be considered a FO if the record of conviction establishes that the offense involved a firearm (as defined in 18 U.S .C. § 921(a)).
Manslaughter
First degree
2C:11-4
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “crime of violence” AF.
Conviction under subsection (a) would probably considered a CIMT; conviction under (b) (1) would probably be considered a CIMT; and under (b)(2) and (3) might be considered a CIMT.
Death by auto or vessel
(b)(1), (2) Second degree (b)(3) First degree
2C:11-5
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “crime of violence” AF.
Would probably be considered a CIMT.
Knowingly leaving scene of motor vehicle accident resulting in death Third degree
2C:11-5 .1
If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.
Might be considered a CIMT.
2
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Aiding suicide
Second or fourth degree
2C:11-6
Probably NOT.
Might be considered a CIMT.
ASSAULT, RECKLESS ENDANGERING, THREATS
Simple ass ault
Disorderly persons offense
2C:12-1(a)
NO.
Conviction under (a)(1) or (a)(2) might be considered a CIMT, however if convicted under (a)(1) and the record re flect R, would probably NOT be considered a CIMT; conviction under (a)(3) might be considered a CIMT.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsection (a)(2) might also be considered a FO if the record of conviction establishes that the offense involved a firearm (as defined in 18 U.S .C. § 921(a)).
Aggravated assault
(b)(1), (6) Second degree (b)(2),(7),(9), (1) Third degree (b)(3),(4 ) Fourth degree
(b)(5) T hird or fourth degree (b)(8) Second or third degree
(b)(11) Third degree
2C:12-1(b)
If term of imprisonment of at least one year is imposed, convictions under subsections (1-4) or (7-10) would probably be deemed a “crime of violence” AF. Conviction under subsections (5-6) or (11) might be deemed a “crime of violence” AF.
Conviction under subsections (1-4) or (7-10) wo uld prob ably be considered a CIMT. Conviction under (5-6) or (11) might be considered a CIMT.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsections (4), (9) and (11) wou ld probably be considered a FO; conviction under subsections (2) or (3) might also be considered a FO if the record of conviction establishes that the offense involved a firearm (as defined in 18 U.S .C. § 921(a)).
Assault by auto or vessel Second, third or fourth degree, or disorderly persons offense
2C:12-1(c)
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “crime of violence” AF.
Conviction under subsection (1), (2) and (3) would probably be considere d a CIM T if record of conviction establishes that offense caused SBI.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.
Knowingly leaving scene of a motor vehicle accident resulting in serious bodily injury Fourth degree
2C:12-1 .1
It term of imprisonment of at least one year is imposed, might be deemed a “crime” of violence AF.
Might be considered a CIMT.
3
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Endangering an injured v ictim Third degree
2C:12-1 .2
If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.
Might be considered a CIMT.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.
Recklessly endangering another person Third o r fourth degree
2C:12-2
If term of imprisonment of at least one year is imposed, conviction under sub section (a) wo uld prob ably be deemed a “crime of violence” AF.
Conviction under (a) might be considered a CIMT. Conviction under (b) (2) would probably be considered a CIMT.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.
Terroristic threats
Third degree
2C:12-3
If term of imprisonment of at least one year is imposed, conviction would probably be deemed a “crime of violence” AF.
Would probably be considered a CIMT.
If the victim was a current or former spo use, or similarly situated individ ual, a conviction might be considered a CODV.
Stalking
(b) Fourth degree (c), (d), (e) Third degree
2C:12-10
If term of imprisonment of at least one year is imposed, conviction would probably be deemed a “crime of violence” AF.
Would probably be considered a CIMT.
A convictio n would p robably trigger deportability as a “crime of stalking,” or if the victim was a current or former spouse, or similarly situated individual, a conviction might also be considered a CODV.
Disarming law enforcement or corrections officer First or second degree
2C:12-11
Conviction under subsection (a) might be deemed a “crime of violence” AF; conviction under subsection (b) would probably be deemed a “crime of violence” AF.
Conviction under subsection (a) or (b) would probably be considered a CIMT.
Convictio n would p robably also be considered a FO.
Throw ing bod ily fluid at department of correction employees deemed aggra vated a ssault Third o r fourth degree
2C:12-13
If term of imprisonment of at least one year is imposed, conviction might be deemed a “crime of violence” AF.
Might be considered a CIMT.
4
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
KIDNAPPING AND RELATED OFFENSES
Kidnapping
First or second degree
2C:13-1
If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16). Conviction under subsection (b)(1) might be deemed an "obstruction of justice" AF.
Would probably be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.
Criminal restraint
Third degree
2C:13-2
If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16).
Would probably be considered a CIMT.
False imprisonment
Disorderly persons offense
2C:13-3
NO.
Might be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.
Interference with custody Second, third or fourth degree
2C:13-4
If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16). If term of imprisonment of at least one year is imposed, conviction under subsection (a)(2) or (a)(3) might be deemed an "obstruction of justice" AF.
Might be considered a CIMT.
Becaus e the victim wo uld usually be a current or former spouse or similarly situated individual, a conviction might be considered a CODV.
Criminal coercion
Third o r fourth degree
2C:13-5
If term of imprisonment of at least one year is imposed, conviction under sub section (a)(1 ) would probably be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16), and conviction under other subsections might be deemed a “crime of violence” AF depending on what the record o f conviction e stablishes. Conviction under subsection (a)(2) or (a)(6) might be deemed an "obstruction of justice" AF.
Might be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.
5
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Luring, enticing child Third degree
2C:13-6
If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16); conviction might also be deemed a “sexual abuse of a minor” AF.
If underlying o ffense is a CIMT, conviction would probably be considered a CIMT.
If record of conviction shows purpose to comm it child abuse, child neglect, or ch ild abandonment, might be considered a CAC.
SEXUAL OFFENSES
Aggravated sexual assault First degree
2C:14-2 (a)
Conviction under subsections (1), (2),(5),(6) or (7) would probably be deemed a "rape o r sexual abu se of a minor" AF and conviction under subsections (3) and (4) might be deemed a “rape or se xual abuse o f a minor” AF, especially if record of conviction establishes sexual intercourse between the offender and victim. If term of imprisonment of one year or more is imposed, conviction under subsections (4), (5) or (6) would probably be deemed a "crime of violence" AF and conviction under subsection (3) or (7) might be deemed a "crime of violence" AF.
Would probably be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsection (1) and (2 ) would pr obably also be considered a CAC.
Sexual a ssault
Second degree
2C:14-2 (b)
Would probably be deemed a "rape or sexual ab use of a mino r,"AF or if term of imprisonment of at least one year is imposed, might be deemed a "crime of violence" AF.
Would probably be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.
Convictio n would p robably also be considered a CAC.
Sexual a ssault
Second degree
2C:14-2 (c)
Conviction under subsection (3) or (4) would probably be deemed a "sexual abuse of a minor" AF. If term of imprisonment of at least one year is imposed, conviction under subsection (1) would probably be deemed a "crime of violence" AF and conviction under subsection (2), (3) or (4) might be deemed a "crime of violence" AF.
Would probably be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV. Conviction under subsection (3) or (4) would p robably also be considered a CAC.
6
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Aggravated criminal sexual contact Third degree
2C:14-3(a)
Conviction under subsection (a) would probably be deemed a "sexual abuse of a minor" AF if record shows that the crime was committed under the cir cumstance s set forth in subsection (1),(2), (5),(6) or (7) of 2C:14-2(a) and if under the circumstances of subsection (3) or (4) of 2C:14-2(a), might be deemed “sexual abu se of a minor ” AF if record o f conviction sh ows victim was a minor. If term of imprisonm ent of at least one year is imposed, would probably be deemed a "crime of violence" AF if record shows the crime was committed under circu mstances set fo rth in subsections (4), (5) or (6) of 2C:14- 2(a), and might be deemed a "crime of violence" AF if record of conviction shows the crime was committed under circumstances set forth in subsections (3) or (7) of 2C:14-2 (a).
Would probably be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.
If the record of conviction shows that the victim was a child, convic tion would probably be considered a CAC.
Criminal sexual contact Fourth degree
2C:14-3(b)
If record shows that the crime was committed under circumstances set forth in subsection (1) or (2) of 2C:14-2(c), would probably be deemed a “sexual abuse of a minor” AF if the record shows the crime was committed under circumstances set forth in subsection (3) or (4) of 2C:14-2(c), might be deemed a “sexual abuse of a minor” AF. If term of imprisonment of at least one year is imposed, conviction under circumstances set forth in subsection (1) of 2C:14-2(c), would probably be deemed a "crime of violence" AF and conviction under the
circumstanc es as set forth in subsection (2),(3)or (4) of 2C:14- 2(c)might be deemed a "crime of violence" AF.
Would probably be considered a CIMT.
If the victim was a current or former spo use or similarly situated individ ual, a conviction might be considered a CODV.
If the record of conviction shows that the victim was a child, convic tion would probably be considered a CAC.
Lewdn ess
Disorderly persons offense
2C:14-4(a)
NO.
Might be considered a CIMT.
7
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Lewdn ess
Fourth degree
2C:14-4(b)
Conviction under subsection (1) might be deemed a “sexual abuse of a minor” AF.
Would probably be considere d a CIM T.
Conviction under subsection (1) might be considered a CAC.
ROBBERY
Robbery
First or second degree
2C:15-1
If term of imprisonment of at least one year is imposed, conviction under sub sections (a)(1 ) or (2) wo uld probably be deemed a “theft” or “crime of violence” AF; conviction under sub section (a)(3 ) would probably be deemed a “theft” AF; and, depending on the crime committed or threatene d, might fall into another AF catego ry.
Yes.
If conviction as crime of the first degree is based on charge that the defendant is armed with, or uses or threatens the immediate use of a dea dly weapon, conviction might be considered a FO if record of conviction establishes that offense involved a firearm.
Carjacking
First degree
2C:15-2
If term of imprisonment of at least one year is imposed: conviction under sub sections (a)(1 ) or (2) wo uld probably be deemed a “theft” or “crime of violence” AF; conviction under sub section (a)(3 ) would probably be deemed a “theft” AF and, depending on the crime committed or threatene d, might fall into another AF category; and conviction under subsection (a)(4) would pro bably be d eemed a “theft” AF.
Would probably be considered a CIMT.
ARSON, CRIMINAL MISCHIEF, AND OTHER PROPERTY DESTRUCTION
Aggravated arson
Second degree
2C:17-1(a)
If term of imprisonment of at least oneyearisimposed, wouldprobably be deem ed a “crime of violence” AF; if loss to the victim exceeds $10,000, conviction under subsection (3) might also be deemed a “fraud” AF.
Would probably be considered a CIMT.
Conviction might be considered a FO (or destructive d evice offense ) if record of conviction establishes that offense involved a “destructive device” (as defined in 18 U.S.C. § 921(a)).
If the victim was a current or former spo use or similarly situated individ ual, conviction might be considered a CODV.
8
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Arson
Third degree
2C:17-1(b)
If term of imprisonment of at least oneyearisimposed, wouldprobably be deem ed a “crime of violence” AF; if loss to the victim exceeds $10,000, conviction under subsection (3) might also be deemed a “fraud” AF.
Conviction under subsection (3) or (4) would probably be considered a CIMT; conviction under subsection (1), (2), or (5) might be considered a CIMT.
Conviction might be considered a FO (or destructive d evice offense ) if record of conviction establishes that offense involved a “destructive device” (as defined in 18 U.S.C. § 921(a)).
Failure to control or report dangerous fire Fourth degree
2C:17-1(c)
If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.
Might be considered a CIMT.
Paying or accepting consideration to commit arson First degree
2C:17-1(d)
If term of imprisonment of at least one year is imposed and record of conviction shows a substantial step taken towards completion of an arson offense, might be deemed a “crime of violence” AF.
Would probably be considered a CIMT.
Causing or risking widespread injury or damage (a) Second or third degree
(b) Third degree (c) Fourth degree (d) Fourth degree
2C:17-2
If term of imprisonment of at least one year is imposed, conviction might be deemed a "crime of violence" AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16).
Conviction under subsection (a) or (b) would probably be considered a CIMT, however if record of conviction shows R only, conviction under subsection (a)(2) might not be considered a CIMT. Conviction under subsection (c) or (d) might be considered a CIMT.
Criminal mischief
Third o r fourth degree
2C:17-3
If term of imprisonment of at least one year is imposed, conviction might be deemed a “crime of violence” AF depending on what the record of conviction establishes (see definition at 18 U.S.C. § 16).
If record of conviction establishes P or K intent element, as opposed to R or N, might be considered a CIMT.
Conviction under subsection (a)(1) might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved a “destructive device” (as defined in 18 U.S.C. § 921(a)).
9
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Certain alternations of moto r vehicle trademarks, identification numbers,
prohibited
Third o r fourth degree, o r disorder ly persons offense
2C:17-6
If term of imprisonment of at least one year is imposed, might be deemed a “vehicle traffickin g” AF; if term of imprisonment of at least one year is imposed and record of conviction establishespurpose related to theft, conviction might also be deem ed a “theft” A F.
If record of conviction establishes purpose related to theft or other unlawful purpose involving moral turpitude might be considered a CIMT.
BURGLARY & OTHER CRIMINAL INTRUSION
Burglary
Second or third degree
2C:18-2
If term of imprisonment of at least one year is imp osed and conviction is in the second degree or if record of conviction establishes unlawful entry into a dwelling, would probably be deemed a “crime of vio lence” AF ; if term of imprisonment of at least one year is imposed and record of conviction establishes unlawful entry into a dwelling (see Taylor v. U.S., 495 U .S. 575 (1 990)), wo uld probably also be deemed a “burglary” AF.
Would be considered a CIMT if record of conviction establishes that the offense intended to be committed was a CIMT.
If conviction of crime of the second degree is based on charge that the defendant was armed with or displayed what appeared to be explosives or a DW, conviction might be considered a FO if record of conviction establishes that explosive was a destructive device (as defined in 18 U.S.C. § 921 (a)) or that DW was a firearm.
Criminal trespa ss - unlicensed entry of structures Fourth degree (school, school property, dwelling or research facility) or disorderly persons offense
2C:18-3(a)
If term of imprisonment of at least one year is imposed, might be deemed a “crime of vio lence” AF if record of conviction establishes unlicensed entry into a dwelling.
Probably NOT.
Criminal trespa ss - defiant trespasser Disorderly persons offense
2C:18-3(b)
NO.
NO.
Criminal trespa ss - peering into windows or other openings of dwelling places Fourth degree
2C:18-3 (c)
Probably NOT.
Might be considered a CIMT.
10
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Riding on lan ds; damaging property on lands Third o r fourth degree, o r disorder ly persons offense (depending on amount of loss).
2C:18-5
If term of imprisonment of at least one year is imposed, conviction under subsection (b) might be deemed a “crime of violence” AF.
If record of conviction reflects K, conviction under subsection (b) might be considered a CIMT.
THEFT AND RELATED OFFENSES
Theft by unlawful taking or disposition
2C:20-3
If term of imprisonment of at least one year is imp osed, wo uld prob ably be considered a “theft” AF.
Would probably be considered a CIMT.
Theft by deception
2C:20-4
If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF. If record of conviction shows loss to th e victim of $10,0 00 or mo re, would p robably be deemed a “fraud or deceit” AF.
Would probably be considered a CIMT.
Theft by extortion
2C:20-5
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” offense; or conviction under subsection (a) might also be deemed a “crime of violence” AF.
Would probably be considered a CIMT.
Theft of property lost, mislaid, or delivered by mistake
2C:20-6
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.
Would probably be considered a CIMT.
Receiving stolen property
2C:20-7
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.
Would probably be considered a CIMT.
Fencing
2C:20-7 .1
If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF; if record of conviction also shows that the “property” is a vehicle the identification number of which has been altered, conviction under subsection (b) might be deemed a “vehicle trafficking” AF.
Might be considered a CIMT.
11
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Theft of services
2C:20-8
If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF.
Conviction under subsection (a),(b),(h),(i) or (j) would probably be considered a CIMT; conviction under subsection (c)-(g) might be considered a CIMT.
Theft by failure to make required disposition of property received
2C:20-9
If term of imprisonment of at least one year is imposed, might be deemed a “theft” offense.
Might be considered a CIMT.
Unlawful taking of means of conveyance Disorderly persons offense
2C:20-10(a)
NO.
Probably NOT a CIMT.
Unlawful taking of means of conveyance Fourth degree
2C:20-10(b)
If term of imprisonment of at least one year is imposed, might be deemed a “theft” AF.
Might be considered a CIMT.
Unlawful taking of means of conveyance Third degree
2C:20-10(c)
If term of imprisonment of at least one year is imposed, might be deemed a “theft” or “crime of violence” AF.
Might be considered a CIMT.
Unlawful taking of means of conveyance Fourth degree
2C:20-10(d)
Probably NOT.
Might be considered a CIMT.
Shoplifting
2C:20-11
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.
Would probably be considered a CIMT.
Operation of facility for sale of stolen automobile or parts Second degree
2C:20-16
If term of imprisonment of at least one year is imposed, might be deemed a “theft”AF; or if record of conviction reflects that identification numbers h ave been altered, wou ld probab ly be deem ed a “vehicle trafficking” AF.
Would probably be considered a CIMT.
Use of ju venile in theft of automobiles Second degree
2C:20-17
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “theft” AF.
Would probably be considered a CIMT.
12
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Leader of auto theft trafficking network Second degree
2C:20-18
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deem ed a “theft” or “trafficking in vehicles” AF.
Would probably be considered a CIMT.
Computer theft
2C:20-25
Probably NOT.
Would probably be considered a CIMT.
Unauthorized use of ATP card or food stamp coupons w ith value of $150
or more
Fourth degree
2C:20-36
If term of imprisonment of at least one year is imposed, might be deemed a “theft” offense; or if record reflects loss to the government of $10,000 or more, might be deemed a “fraud” AF.
Would probably be considered a CIMT.
FORGERY AND FRAUDULENT PRACTICES
Forgery and related offenses Third o r fourth degree
2C:21-1
If sentenced to a term of imprisonment of at least one year, would probably be deemed a “forgery” AF; or if the loss to the victim(s) exceeds $10,000, might be deemed a “fraud” AF.
Yes.
Criminal simulation
Fourth degree
2C:21-2
If sentenced to a term of imprisonment of at least one year, would probably be deemed a “forgery” AF; or if the loss to the victim(s) exceeds $10,000, might be deemed a “fraud” AF.
Yes.
Driver’s license or other document issued by governmental agency to verify identity or age simulation
(a) Third degree (b) Third degree (c) Fourth degree (d) Disor derly persons offense
2C:21-2 .1
If sentenced to a term of imprisonment of at least one year, would probably be deemed a “forgery” AF.
Would probably be considered a CIMT.
Frauds related to public records and record able instruments (a)Third degree
(b) Disor derly persons offense
2C:21-3
If the loss to the victim(s) exceeds $10,000, conviction might be deemed a “fraud” A F, especially if record shows intent to deceive (as opposed to intent to injure).
Would probably be considered a CIMT.
13
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Bad checks
Second, third or fourth degree, or disorderly persons offense (depending on amou nt)
2C:21-5
If the loss to the victim(s) exceeds $10,000, conviction might be deemed a “fraud” AF, or if term of imprisonm ent of at least one year is imposed , might be de emed a “the ft” AF.
Would probably not be considered a CIMT.
Credit cards
2C:21-6
If the loss to the victim(s) exceeds $10,000, conviction under subsection (b), (c)(2),(4),(5), (6),(d),(e) or (h), requiring inten t to defraud, w ould probably be deemed a “fraud” AF, or if term of imprisonment of at least one year is imposed, conviction under subsection (c)(1),(2),(4), or(5) might be deemed a “theft” AF.
Conviction under subsection (b), (c)(2),(4),(5), (6),(d),(e) or (h), requiring inten t to defraud, would be considered a CIMT, conviction under other subsections might be considered a CIMT.
Deceptive b usiness practices Fourth degree or disorderly persons offense
2C:21-7
If loss to the victim exceeds $10,000, conviction under sub section (h) o r (i) might be deemed a “fraud” AF.
Conviction under subsection (h) or (i) might be considered a CIMT.
Impersonation
2C:21-17
If loss to the victim exceeds $10,000, convictions under subsections (a)(1) - (a)(4) would probably be deemed “fraud or d eceit” AF, e specially if record o f conviction re flects intent to defraud (a s oppos ed to intent to injure, obtain a benefit or services, or avoid payment of a debt, etc. ); conviction under subsection (b) might be de emed a “fra ud” AF.
Convictio n would probably be considered a CIMT.
Money laundering and illegal investment
2C:21-25
If the value of the property exceeds $10,000, conviction under subsection (b) might be deemed a state analog to federal “money laundering” AF listed at 8 U.S.C. §1101 (a)(43)(D).
If the underlying criminal activity involves moral turpitude, might be considered a CIMT.
14
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
OFFENSES AGAINST THE FAMILY, CHILDREN AND INCOMPETENTS
Endangering the welfare of children
Second or third degree depending on relationship w ith child
2C:24-4
Especially if defendant is more than four years older than victim and record sh ows sexual c onduct with victim, conviction under subsection (a) would probably be deemed a "sexual abuse of a minor" AF and conviction under subsection (b)(3)and (4) might be deemed a “sexual abu se of a minor ” AF. Conviction under subsections (b)(3),(4), or (5), might also be deemed a "child pornography" AF.
Convictio n would probably be considered a CIMT.
Conviction would probably be considered a CAC.
Willful nonsupport
Fourth degree
2C:24-5
NO.
Might be considered a CIMT.
Might be considere d "child neglect or ab andonm ent” CAC.
Endangering the welfare of an incompetent person Disorderly persons offense
2C:24-7
NO.
Might be considered a CIMT.
Endangering welfare of elderly or disabled persons Third degree
2C:24-8
NO.
Proba bly NOT .
Use of 1 7-Yea r-Old or younger to commit criminal offense
One degree higher than underlying offense
2C:24-9
Might be considere d a AF if underlying offense is an AF.
Might be considered a CIMT if underlying offense involves MT.
PERJURY AND OTHER FALSIFICATION IN OFFICIAL MATTERS
Perjury
Third degree
2C:28-1
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “perjury” AF.
Would probably be considered a CIMT.
15
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
False swearing
Fourth degree
2C:28-2
If term of imprisonment of at least one year is imposed, might be deemed a “perjury or obstruction of justice” AF, or if the loss to any victim(s) exceeds $10,000, might be deemed a “fraud or deceit” AF. (Unlike fed eral definition o f perjury, no requirement that the false swearing is on a “material matter”).
Would probably be considered a CIMT.
Unsworn falsification to authorities (a) Fourth degree (b) Disor derly persons offense
2C:28-3
If term of imprisonment of at least one year is imposed, might be deemed a “perjury or obstruction of justice” AF, or if the loss to any victim(s) exceeds $10,000, might be deemed a “fraud or deceit” AF.
Might be considered a CIMT.
OBSTRUCTING GOVERNMENTAL OPERATIONS; ESCAPES
Obstructing administration of law or other governmental function. (a) Disord erly persons offense (b) Fourth degree
2C:29-1
If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF, or an “obstruction of justice” AF depending on what the record reflects.
Probably NOT.
Resisting arrest; Eluding officer (a)(1) D isorderly persons offense (a)(2) Fourth degree (a)(3) Third degree (b) Second or third degree
2C:29-2
If term of imprisonment of at least one year is imposed, conviction under sub section (a)(3 ), or of a second degree offense under subsection (b), would probably be deemed a “crime of violence” AF.
Conviction under subsection (a)(3)(a) or of a second degree offense under subsection (b) might be considered a CIMT.
Hindering apprehension or prosecution Second, third, or fourth degree or disorderly persons offense
2C:29-3
If term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed an “obstruction of justice” AF .
Might be considered a CIMT .*
Bail jumping
Third o r fourth degree, d isorderly persons o r petty disorderly persons offense
2C:29-7
If convicted of the offense in the third degree, would probably be deemed a “failure to appear” AF.
No.
16
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Contempt
(a) Fourth degree (b) Fourth degree or disorderly persons offense.
2C:29-9
If term of imprisonment of at least one year is imposed, might be deemed an “obstruction of justice” or a “crime of violence” AF.
Might be considered a CIMT.
Might be considered a CODV or trigger deportability under "violation of protection order" provision.
RIOT, DISORDERLY CONDUCT, AND RELATED OFFENSES
Riot; Failure to disperse (a)(1), (2) F ourth degree
(a)(3) Third degree (b) Disor derly persons offense
2C:33-1
If term of imprisonment of at least one year is imposed, conviction under subsection (a) might be deemed “crime of violence” AF.
Conviction under subsection (a)(3) wou ld probably be considered a CIMT, or if underlying offense involves moral turpitude, conviction under (a)(1) might be considered CIMT.
Conviction under subsection (a)(3) would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Disorderly conduct
Petty disord erly persons offense
2C:33-2
NO.
NO.
Wandering, remaining in or prow ling public places with pu rpose of obtaining or selling controlled substances Disorderly persons offense
2C:33-2 .1
NO.
NO.
Might be considere d a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
False public alarms
(a) Third degree (b) Third degree (c) Second degree (e) Disord erly persons offense
2C:33-3
If term of imprisonment of at least one year is imposed, might be deemed a “crime of violence” AF.
Might be considered a CIMT.
Harassment
(a)-(d) Pe tty disorderly persons offense (e) Fourth degree
2C:33-4
If a term of imprisonment of at least one year is imposed, conviction under sub section (e), wo uld prob ably be deemed a “crime of violence” AF if record of conviction shows that basis of conviction was for an offense under subsection (b).
Might be considered a CIMT.
If victim was a current or former spo use or similarly situated individual, conviction might be considered a CODV, or trigger deportability under CODV clause regarding “crime of stalkin g.”
Obstructing highw ays or p ublic passages Petty disord erly persons offense
2C:33-7
NO.
NO.
17
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Causing fear of unlaw ful bodily violence Third degree
2C:33-10
If term of imprisonment of at least one year is imposed, might be deemed a “crime of vio lence” AF .
Might be considered a CIMT , particularly if record reflects P or K intent.
If victim was a current or former spo use or similarly situated individual, conviction might be considered a CODV.
Maintaining a nuisance (a),(b) Diso rderly persons offense (c) Fourth degree
2C:33-12
Conviction under subsection (c) might be deemed a “prostitution business” AF.
Conviction under subsection (a) or (b) might be considered a CIMT , particularly if under subsection (a) record reflects K intent and under (b) the underlying offense involves moral turpitude; conviction under subsection (c) would probably be considered a CIMT.
Conviction under subsection (c) might trigger “prostitution or commercialized vice” inadmissibility.
Sexually oriented business Fourth degree
2C:33-1 2.2
Probably NOT (risk that might be deemed a “prostitution business” AF less than with respect to conviction under 2C:33-12(c) because no express pr ostitution elem ent).
Might be considered a CIMT.
Conviction might trigger “prostitution or commercialized vice” inadmissibility.
Interference with transportation Second, third or fourth degree or disorderly persons offense
2C:33-14
If term of imprisonment of at least one year is imposed, conviction under subsection (c), (d) or (e) might be deemed a “crime of violence” AF.
Conviction under subsection (c) or (d) might be considered a CIMT if record reflec ts purposeful or knowing intent; conviction under subsection (e) would probably be considered a CIMT.
Possession or consumption of alcoholic beverage by person under legal age Disorderly persons offense
2C:33-15
NO.
NO.
Solicitation, recruitm ent to join street gang (a) Fourth degree (b) Third degree (c) Second degree
2C:33-28
If term of imprisonment of at least one year is imposed, conviction under sub section (b) o r (c) would probably be deemed “crime of violence” AF.
Conviction might be considered CIMT, particularly if underlying criminal conduct involves moral turpitude.
18
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
PUBLIC INDECENCY
Prostitution and related offenses (b)(1)First time: disorderly persons offense; subse quent: fourth degree
(b)(2) T hird or fourth degree (b)(3), (4) Second degree
(b)(5),(6),(7) Third degree
2C:34-1
Conviction under subsections (b)(2)- (6) might be deemed “prostitution business” AF. Conviction under subsection (b)(3),(4) and (7) might also be deemed “sexual abuse of a minor” AF.
Convictio n would probably be considered CIMT.
Might trigger “prostitution” inadmissibility. Conviction under subsection (b)(3), (4), or (7) might also be considered a CAC.
Loitering for the purpose of engaging in prostitution Disorderly persons offense
2C:34-1 .1
NO.
Might be considered a CIMT.
Might trigger “prostitution” inadmissibility.”
Obscenity for persons 18 years of age or older Fourth degree
2C:34-2
Might be deemed a “child pornog raphy” AF if record reflec ts an offense as described in 18 U.S.C. §§ 2251, 2251A, or 2252.
Might be considered a CIMT.
Obscenity for persons under 18 Third degree
2C:34-3
Conviction under subsection (b) might be de emed a “c hild pornog raphy” AF if record reflec ts an offense as described in 18 U.S.C. §§ 2251, 2251A, or 2252. Conviction might also be deemed “sexual abuse of a minor” AF.
Might be considered a CIMT.
CONTROLLED DANGEROUS SUBSTANCES
Leader of narcotics trafficking network First degree
2C:35-3
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed “drug trafficking” AF.
Would probably be considered a CIMT.
Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Maintaining or operating a controlled dangerous substance production facility First degree
2C:35-4
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking” AF.
Would probably be considered a CIMT.
Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
19
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Boob y traps in manufacturing or distribution facilities; Fortified premises
(b) First or second degree (c) Third degree
2C:35-4 .1
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, might be deemed a “drug trafficking” AF. If term of imprisonm ent of at least one year is imposed, conviction under subsection (b) might also be deemed a “crime of violence” AF.
Might be considered a CIMT.
Might be considere d a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802. Might also be considered a FO if record of conviction establishes that “booby trap” is a firearm or “destructive device” (as defined in 18 U.S.C. § 921(a)).
Manufacturing, distributing or dispensing First, second, third or fourth degree (Depending on substance and amount)
2C:35-5
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking ” AF. Ho wever, if conviction is for distribution of a small amount of marijuana, and the record of conviction does not establish remuneration, may not be considere d an AF. Wilson v.
Ashcroft, 2003 WL 22810289 (3d Cir. Nov ember 2 6, 2003 ); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) . Please see more de tailed note at end of cha rt.
Would probably be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Employing a juvenile in a drug distribution scheme Second degree
2C:35-6
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking” AF.
Would probably be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Controlled dangerous substances near or on school property Third degree
2C:35-7
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking ” AF. Ho wever, if conviction is for distribution of a small amount of marijuana, and the record of conviction does not establish remuneration, may not be considere d an AF. Wilson v.
Ashcroft, 2003 WL 22810289 (3d Cir. Nov ember 2 6, 2003 ); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) . Please see more de tailed note at end of cha rt.
Would probably be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
20
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Distributing, dispensing or possessing within 500 fee t of certa in public property Second or third degree
2C:35-7 .1
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking ” AF. Ho wever, if conviction is for distribution of a small amount of marijuana, and the record of conviction does not establish remuneration, may not be considere d an AF. Wilson v. Ashcroft, 2003 WL 22810289 (3d Cir. Nov ember 2 6, 2003 ); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) . Please see more de tailed note at end of cha rt.
Would probably be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Strict liability for drug induced deaths First degree
2C:35-9
If record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802, would be deemed a “drug trafficking” AF.
Would probably be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Possession, use or being under the influence of or failure to make lawful disposition Third o r fourth degree, o r disorder ly persons offense
2C:35-10(a)
Would probably NOT be deemed a “drug trafficking” AF under current Third Circuit case law, unless conviction is for possession of more than 5g of cocaine base or any amount of flunitrazepam, in which case might be deemed “drug trafficking” AF (see Gerbier v.
Holmes, 280 F.3d 297 (3d Cir. 2002) , Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001)). If later removal hearing takes place outside the Third Circuit, however, conviction for possessio n of a controlled substance as defined in 21 U.S.C. § 802, unles s as a disord erly persons offense, would probably be deemed a “drug trafficking” AF (see Yanez-G arcia, 23 I.& N. Dec. 390 (BIA 2002). Please see the note at the end of this chart for a more detailed discussion of the issues raised by a c onviction un der this section.
Would probably NOT be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
21
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Obtaining by fraud
Third degree
2C:35-13
If record reflects conviction under provision regarding obtaining a CDS by misrepre sentation, etc., wo uld probably NOT be deemed a “drug trafficking” AF under current Third Circuitcaselaw,unless convictionis for possession of more than 5g of cocaine base or any amount of flunitrazepan, in which case might be deemed “drug trafficking” AF (see Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002 ), Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001)). If later removal hearing takes place outside the Third Circuit, however, conviction under this provision would probably be deemed a “drug trafficking” AF (see In Re Yanez- Garcia, 23 I.& N. Dec. 390 (BIA 2002). Please see the note at the end of this chart for a more detailed discussion o f the issues raised by a conviction under this section. If record reflects conviction under provision regarding obtaining a CDS by misrepre sentation, etc., A ND if loss to any victim(s) exceeds $10,000 would probably also be deemed a “fraud or deceit” AF. If record reflects conviction under provision regarding obtaining a forged or fraudulent certificate AND if term of imprisonment of at least one year is imp osed, wo uld prob ably be deemed a “forgery” AF.
Would probably be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Possession of certain prescription drugs Disorderly persons offense
2C:35-24
Probably NOT an AF.
Probably NOT a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
22
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
FIREARMS, OTHER DANGEROUS WEAPONS AND INSTRUMENTS OF CRIME
Prohibited weapons and devices (a) Third degree (b) Third degree
(c) Fourth degree (d) Fourth degree (e) Fourth degree (f) Fourth degree (h) Fourth degree (j) Fourth degree (k) Disord erly persons offense
2C:39-3
If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction under subsection (a), (b), (c), or (d) would probably be deemed a "firearm offense" AF. If term of imprisonment of at least one year is imposed, conviction under subsection (a)-(j) might also be deemed a "crime of violence" AF.
Because statute does not require intent to use, convictio n would probably not be considere d a CIM T.
Conviction under subsections (a),(b),(c) or (d) would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Possession of weapons for unlawful purposes (a) Second degree (b) Second degree (c) Second degree (d) Third degree (e) Fourth degree
2C:39-4
If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction under subsection (a)-(c) would probably be deemed a "firearm offense" AF. If term of imprisonm ent of at least one year is imposed, conviction under subsection (a)-(d) might also be deemed a "crime of violence" AF.
Conviction under subsections (a)-(d) would probably be considered a CIMT; conviction under subsection (e) might be considered a CIMT.
Conviction under subsection (a)-(c) would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Possession of weapons during commission of certain crimes Second degree
2C:39- 4.1(1)(a)
If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed "firearm offense" AF. If underlying offense is considered a “crime of violence” (as defined in 18 U.S.C. § 16) and sentenced to term of imprisonment of at least one year, conviction might also be deemed "crime of violence" AF.
If the underlying offense involved MT, would probably be considered a CIMT.
Would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Might be considere d a CSO if record of conviction establishes that underlying offense involved a controlled substance as defined in 21 U.S.C. § 802.
Possession of weapons during commission of certain crimes Second degree
2C:39- 4.1(1)(b)
If sentenced to a term of imprisonment of at least one year, would probably be deemed a “crime of violence” AF.
Would probably be considered a CIMT.
Might be considere d a CSO if record of conviction establishes that underlying offense involved a controlled substance as defined in 21 U.S.C. § 802.
23
01/07/04
Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Possession of weapons during commission of certain crimes Second degree
2C:39- 4.1(1)(c)
If underlying offense would be considered a “crime of violence” (as defined in 18 U.S.C. § 16) and sentenced to a term of imprisonment of at least one year, might be deemed a "crime of violence" AF.
If underlying offense involved MT, conviction would probably be considered a CIMT.
Might be deemed a CSO if record of conviction establishes that underlying offense involves a controlled substance as defined in 21 U.S.C. § 802.
Unlawful possession of weapons (a), (b), (c), (e) Third degree
(d) Fourth degree
2C:39-5(a)
If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.
Becaus e no intent to use the weapon required, w ould probably NOT be considered a CIMT.
Would be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in18U.S.C.§921(a)). Note that the text of subsection (d) does not specify a type of weapon and should NOT be considered a FO unless record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Certain persons not to have weapons (a) Fourth degree (b) Second degree.
2C:39-7
If record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.
Becaus e no intent to use the weapon required, w ould probably NOT be considered a CIMT.
Would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
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Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances
(a) Third degree (machine guns) (b) Third degree (sawed-off shotguns) (c) Fourth degree (firearm silencers) (d) Fourth degree (weapons)
(e) Fourth degree (defaced firearms) (f) Fourth degree (armor penetrating bullets)
(g) Third degree (assault firearms) (h) Fourth degree (large capa city ammunition magazines)
2C:39-9(a)
If record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)), or an explosive device (as d efined in 18 U.S.C. § 841(c), would probably be deemed an “illicit trafficking” AF ; or if record of conviction establishes an offense akin to one described in 18 U.S.C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.
Becaus e no intent to use the weapon required, conviction under subsections (a),(b), (c),(g) ,would probably NOT be considered a CIMT. Conviction under subsection (d) might be considere d a CIM T if record of conviction demonstrates that the conviction is under the provision requiring intent to use. Conviction under subsection (f) or (h) might be considered a CIMT depending on what recor d reflects regarding intended purpose.
Would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Sale of handcuffs to a person under 18 Disorderly persons offense
2C:39-9 .2
Probably NOT.
NO.
Pawn brokers; loaning on firearms (a) Third degree (b) Disor derly persons offense
2C:39-11
Conviction under subsection (a) might be de emed an “illicit trafficking” AF; or if record of conviction establishes an offense akin to one d escribed in 18 U.S .C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction might be deemed a "firearm offense" AF.
Would probably NOT be considered a CIMT.
Conviction under subsection (a) might be deemed a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
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Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Training, practice or instruc tion in use, application or making of firearm, explosive device or techniqu e capab le of causing injury for illegal activity Second degree
2C:39-14
If sentenced to a term of imprisonment of at least one year, might be deemed a “crime of violence” AF; or if record of conviction establishes an offense akin to one d escribed in 18 U.S .C. § 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. § 924 (b) or (h), or 26 U.S.C. § 5861, conviction would probably be deemed a "firearm offense" AF.
Might be considered a CIMT.
Might be deemed a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
Leader of firearms trafficking network First degree
2C:39-16
If record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)), or an explosive device (as d efined in 18 U.S.C. § 841(c), would probably be deemed an “illicit trafficking” AF. If sentenced to a term of imprisonment of at least one year, might also be deemed a "crime of violence" AF.
Would probably be considered a CIMT.
Would probably be considered a FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 U.S.C. § 921(a)).
VEHICLE AND TRAFFIC OFFENSES
Operating motor vehicle with controlled dangerous substance or prescription legend drug in possession or in mot or vehic le
39:4-49 .1
NO.
Would probably NOT be considered a CIMT.
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
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Offense
New Jersey Code Section
Aggravated F elony (AF)?
Crime Involving Moral Turpitude (CIMT )?
Other G rounds: Controlled Substance Offense (CSO) Crime Against Children (CAC)
Crime of Dom. Viol., Etc. (CODV) Firearm Offense (FO) Prostitution
Driving while intoxicated
39:4-50
Probably NOT (however may be deemed “crime of vio lence” AF if term of imprisonment of at least one year is imposed, and later removal proceedings are held in a jurisdictions in which the Court of Appeals has held DUI to be a “crime of violence” AF).
Without any aggravating circumstanc es, would probably NOT be considered a CIMT; however might be considere d CIM T if record of conviction establishes circumstance such as driving while knowing license suspended or revoked due to prior conviction for driving under influence of alcohol o r drugs. See Matter of Lopez-Meza, Int. Dec. 3423 (BIA 1999).
Would probably be considered a CSO if record of conviction establishes a controlled substance as defined in 21 U.S.C. § 802.
Reckless driving
39:4-96
NO.
Would probably NOT be considered a CIMT.
Careless driving
39:4-97
NO.
Would probably NOT be considered a CIMT.
Action in case of accident
39:4-97 .2
NO.
Would probably NOT be considered a CIMT.
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Warning Regarding Convictions Under N.J.S.A. §2C:35-10(a)
While immigration judges in the Third Circuit should find that a New Jersey defendant convicted of simple drug possession under N.J.S.A. §2C:35-10(a) has not been convicted of a “trafficking” Aggravated Felony, this may not be the outcome for a New Jersey defendant who is placed in removal proceedings in another circuit.
The Board of Immigration Appeals’ Approach
The reason for this potentially divergent result, is a 2002 Board of Immigration Appeals’ decision that declined to adopt a uniform legal standard for determining when a state drug conviction constitutes a “trafficking” Aggravated Felony. Instead, the Board ruled that it would follow the law of the circuit in which the immigration case arose. Matter of Yanez Garcia, 23 I&N Dec. 390 (BIA 2002). Where a circuit court had not previously decided the issue, it would follow the interpretation of the majority of circuits. The majority of circuit courts had determined that a state drug offense classified as a felony under state law was a “trafficking” Aggravated Felony when it was also punishable under one of certain specified federal statutes (the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act) . The Board then followed the majority rule in Matter of Yanez-Garcia to find that the respondent’s Illinois conviction for simple drug possession was a “trafficking” Aggravated Felony because it was classified as a felony in Illinois and punishable under the Controlled Substances Act.
The Third Circuit Court of Appeals’ Approach
In contrast to the majority rule, the Third Circuit Court of Appeals has established a different two-pronged test for determining whether a state drug conviction constitutes a “trafficking” Aggravated Felony. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002). Under this approach, a state drug conviction is an Aggravated Felony if it is either: (1) a state law felony containing a “trafficking element” (unlawful trading or dealing); or (ii) punishable as a felony under the federal Controlled Substances Act (CSA). The defendant in Gerbier had been convicted of drug possession, which while a felony under Delaware law, did not contain a “trafficking” component and was not punishable as a felony under the CSA. Therefore, the Court of Appeals found that it was not a “trafficking” Aggravated Felony. Similarly, because N.J.S.A.§2C:35-10(a) does not contain a “trafficking element” and is not punishable as a felony under the CSA (unless the conviction is for more than five grams of cocaine base or any amount of flunitrazepam) it should not be deemed a “trafficking” Aggravated Felony in the Third Circuit. While a subsequent state simple possession offense will also not be deemed punishable as a felony under the CSA in the Third Circuit under Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), this may not be the case in other circuits. See e.g. U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002, as amended Jan. 23, 2003).
Professional Responsibility of New Jersey Criminal Defense Attorneys
Because the law of the circuit where the immigration proceeding is held will dictate the outcome, New Jersey criminal defense lawyers should warn their clients about the possible risk of an Aggravated Felony determination when they plead to third or fourth degree simple drug possession, or to any conviction under N.J.S.A. §2C:35-10(a), including a disorderly persons offense, if it would follow a prior controlled substance offense conviction. In addition, when entering a plea to this section, it may be
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advisable to ensure that the record reflects the non-citizen defendant's reliance on the Court of Appeals' decisions in Gerbier v. Holmes and/or Steele v. Blackman. This may preserve defenses for an immigration attorney representing the noncitizen in a later removal proceeding in another jurisdiction.
Note on convictions for possession with intent to distribute small amounts of marijuana without remuneration
In Wilson v. Ashcroft, 2003 WL 22810289 (3d Cir. November 26, 2003), the Third Circuit Court of Appeals found that Appellant's conviction under N.J.S.A. 2C35-5 for possession of twenty-eight grams of marijuana with intent to distribute was not a conviction of an aggravated felony under the "hypothetical felony" approach laid out in Gerbier v. Holmes, supra. The Court reasoned that because the offense does not involve sale for remuneration as an element, under 21 U.S.C. Sec. 841(b) it may be punishable under federal law as a misdemeanor. The Court then remanded the case to determine whether or not the offense should be deemed an aggravated felony under the state felony approach laid out in Gerbier. While the final outcome is still unclear, there is a possibility that because sale for remuneration is not a required element, the courts may find that the offense does not contain a "trafficking element" and therefore is not an Aggravated Felony under this approach.
Additional Resources
For the statutory definition of an “illicit trafficking” Aggravated Felony, see I.N.A. §101(a)(43)(B). For additional information regarding this complicated issue, please refer to the practice alerts found on the website of the New York State Defenders Association Immigrant Defense Project at:
http//www.nysda.org/NYSDA_Resources/Immigrant_Defense_Project/03_IMMIGRANTDEFENSEALERT_DrugAlertsCombin ed_.pdf
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