In 2009, the United States Supreme Court published two decisions which said that non-citizens must receive specific and unequivocal warnings about the prospects of deportation resulting from a criminal conviction.

A few weeks ago,  two separate appellate panels in New Jersey decided cases that address this very issue. In one case the defendant was a Canadian citizen convicted of possession of a CDS within a school zone, as well as the unlawful possession of a weapon. Each of these offenses were third-degree crimes.  As a result of a plea arrangement, the defendant signed a plea form that said, in essence he “may” be deported as a result of his conviction. During the allocution before the trial court, the judge said, in essence, that he did not know if the defendant would be deported because of the conviction. The judge further told the defendant that, if he had any immigration problems in the future, he could not come back and request to retract his plea. The defendant later appealed the trial judge’s sentence claiming that it was excessive. While on appeal, the defendant was subjected to deportation proceedings.  This event caused the defendant to argue before the appellate court that the instructions he received from the sentencing court relative to the prospects of deportation was not unequivocal. The appellate court remanded the case to the trial court to determine whether the defendant could retract his plea given the circumstances of the case.

The second defendant was found guilty of a third-degree possession of the CDS in 2000.  He too signed a plea form that said in essence that he “may” be deported because of his plea.  Later, the defendant made an application for permanent residency which was denied because of his earlier conviction.  The defendant then file a post conviction relief application claiming ineffective assistance of counsel.  That application was denied at the trial level. The defendant appealed. That case was also remanded, with instructions from the appellate court, to require the trial court to allow the defendant the opportunity to present evidence at a plenary hearing as to why his plea should be retracted. The court noted that the record did not disclose whether defendant’s attorney specifically informed him of the consequences of a conviction on his status as an immigrant.