On February 10, 2020, a three-judge appellate panel decided the Monmouth County case of State v. L.G.-M. The principle issue under N.J.S.A. 2C:43-2 was whether defense counsel was required to advise his client that successful completion of PTI could still trigger immigration consequences.
Judge Rose held in relevant part: Our courts have not specifically considered whether Padilla and Gaitan require defense counsel to advise their clients whether – and under what circumstances – the successful completion of PTI would permit a defendant to avoid immigration consequences. Under the Immigration and Nationality Act (INA): The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. [8 U.S.C. § 1101(a)(48)(A) (emphasis added).]
Accordingly, where a defendant has neither acknowledged guilt, nor entered a guilty plea, successful completion of PTI would not constitute a “conviction” under the INA. See Pinho v. Gonzales, 432 F.3d 193, 215-16 (3d Cir. 2005) (holding a conviction vacated on ineffective assistance of counsel grounds was not considered a “conviction” that would otherwise mandate deportation under the INA because defendant was ultimately admitted into New Jersey’s PTI program without admitting guilt). Conversely, the successful completion of PTI, where a defendant has not pled guilty – but has acknowledged guilt – could result in removal.
Neither Padilla nor Gaitan expressly limits its holding to cases in which a defendant enters a guilty plea, and we decline to narrowly construe their application only to those dispositions. Instead, we interpret Padilla and Gaitan to impose an obligation upon defense attorneys to advise their clients of the potential immigration consequences of any criminal disposition whether that disposition will result from a guilty plea, trial, or diversionary program.
The Gonzales holding highlights the need for defense counsel to prepare clients for their PTI application interviews with probation officers. Applicants are routinely asked about the circumstances of their offenses. Admitting involvement with the offense can be a basis for deportation. At the same time, denying any involvement could, under certain circumstances, be a basis for PTI rejection. The proper balance usually involves a statement to the effect that the applicant is “not looking to dispute the claims contained in the police reports.”
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