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Foreign National Criminal Defense

“Finding a Safe Haven”

Ron Mondello has a successful and growing practice providing criminal defense counsel, as well as offering essential advice to clients regarding the impact of criminal charges in New Jersey on immigration. His services include a formal opinion letter on the consequences of pending charges and the possibilities of waivers taking into account the client’s personal circumstances. Even more importantly, he works closely with criminal defense counsel throughout the plea negotiation process to “find a safe haven” by fashioning pleas that minimize or eliminate the immigration consequences for clients.

New Jersey jails are used to house not only U.S. citizens, but also foreign nationals accused of state crimes; foreign nationals on “detainers” after conviction for serious crimes while removal proceedings are pending; and foreign nationals awaiting removal under final deportation orders (ICE) that may not involve criminal activity.

The field is particularly difficult for criminal defense counsel because the immigration treatment of crimes can be counter-intuitive and is frequently inconsistent with established criminal laws. Additionally, the consequences to a foreign national of an improvident plea and conviction can be catastrophic: loss of “green card” status, mandatory detention during removal proceedings, and a permanent bar on ever returning to the U.S., regardless of hardship to immediate relatives. Recent case law places the burden on criminal defense counsel to make sure their client is informed of the immigration consequences or face ineffective assistance of counsel claims. Because of these pitfalls, uninformed pleas frequently result in aliens seeking to reopen old convictions by alleging ineffective assistance of counsel.

An Area of the Law in Constant Flux

The law regarding immigration consequences of criminal activity is in a constant state of flux. It is subject to ongoing interpretation and development at the federal level in precedent opinions issued by Board of Immigration Appeals (BIA) and the federal circuit courts of appeal, not to mention the U.S. Supreme Court. Because of this, it is highly advisable for criminal defense counsel to secure the assistance of immigration counsel to “navigate the minefield” in this technical and difficult area. In light of Kentucky v. Padilla and State vs. Nunez-Valdez, such assistance is now seen as a fundamental requirement of professional responsibility and service to one’s foreign criminal defendant.

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