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Deportation Language

March 29, 2014 | Posted In Immigration

The state Supreme Court has been carefully evaluating the existing language in the state’s deportation policies, after a federal-state mandate that immigrants must be informed of the potential for deportation if they plead guilty in court to certain crimes. The level of disclosure hinges on the distinction between “will,” “may,” and “more than likely” in terms of what deportation risk a guilty plea can pose, New Jersey immigration attorneys say, and what language is the most clear—and the most fair—to use going forward. 

In State v. Lipa, the question was raised after Cesar Lipa, originally from Peru, was charged with first-degree aggravated sexual assault in 2009. Lipa had been living in New Jersey illegally, and did not speak English, so an interpreter assisted him in at his trial. Lipa pleaded guilty to the charges against him, and was sentenced to 9 years in jail. At the time of his sentencing, the judge told Lipa that it was “more than likely” that he would be deported to Peru once he served out his time. By using the phrase “more than likely,” immigration attorneys who represented Lipa say that the judge did not make it clear that the deportation was inevitable, and Lipa would be unable to return to the United States ever again. 

If the judge had warned Lipa of the real consequence that his guilty plea had on his life after prison, the man argues that he would never have entered a guilty plea, and instead gone to court. Although he understood that there was a strong possibility that he would be made to leave the country, Lipa was never told that his deportation was definite, as a result of admitting guilt, and that he would never be allowed to see his daughter, who lives in the United States, again after his prison sentence was fulfilled. 

Six months after Lipa’s sentencing, the state Supreme Court ruled that noncitizen defendants had a right to know the possible deportation consequences they faced, and that these consequences should be fully explained. Another ruling the next year confirmed this right. But Lipa’s case, handled before the two Supreme Court rulings, would be applied only prospectively, according to the judges. 

Immigration attorneys in New Jersey argue that even without the state Supreme Court’s 2009 and 2010 rulings regarding deportation warnings, the warning given to Lipa was not strong enough, and was not worded properly to reflect the true situation the man faced. Because there was no chance Lipa would be allowed to stay in the U.S., he should have been told that he “will” or “shall” be deported at the end of his nine years. To leave a determined result open-ended provides false hope and expectations, and does not fully explain the consequences of a guilty plea. The state Supreme Court will be determining what language is best to use for cases going forward. 

The New Jersey immigration attorneys at Helmer, Conley, and Kasselman, PA, have a thorough knowledge of the possible consequences existing in the state’s immigration laws, and represent immigrants who have been charged with criminal activity and face potential deportation. If you need legal help in determining the scope of your case, contact an HCK immigration attorney today. 

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