UNAUTHORIZED PRACTICE OF IMMIGRATION LAW
(N.J.S.A. 2C:21‑31b) model jury charge
Count of the indictment charges the defendant with
the unauthorized practice of immigration law. The statute upon which this
charge is based reads as follows:
Any immigration consultant not licensed as an attorney or
counselor at law who: (1) engages in this State in the practice of law; or (2)
holds himself out to the public, either alone or together with, by or through
another person, whether such person is licensed as an attorney or counselor at
law or not, as engaging in or entitled to engage in the practice of law, or as
rendering legal service or advice, or as furnishing attorneys or counsel, in
any immigration or naturalization matter; or (3) assumes, uses, or advertises
the title of lawyer or attorney at law, or equivalent terms, in the English
language or any other language, is guilty of a crime.
In
order for you to find the defendant guilty of this crime, the State must prove
beyond a reasonable doubt that: (1) the defendant was an “immigration
consultant,” (2) the defendant was not licensed as an attorney, and (3) the
defendant either (i) engaged in the practice of law in New Jersey, (ii)
publicly held himself/herself out as engaging in or entitled to
engage in the practice of law, rendering legal advice or furnishing counsel in
an immigration or naturalization matter, or (iii) assumed, used or advertised
the title of lawyer or attorney.
1. The first element which the State must
prove beyond a reasonable doubt is that the defendant was an immigration
consultant. The law defines an “immigration consultant” as “any person
rendering services for a fee, including the completion of forms and applications,
to another person in furtherance of that person’s desire to determine or modify
his status in an immigration or naturalization matter under federal law.”[1] An
“immigration or naturalization matter” means “any matter which involves any
law, action, filing or proceeding related to a person’s immigration or
citizenship status in the United States.”[2]
2. The second element which the State must
prove beyond a reasonable doubt is that the defendant was not licensed as an
attorney or counselor at law. An attorney or counselor at law is defined as
“any person who is a member in good standing of the bar of the highest court of
any State, possession, territory, commonwealth, or the District of Columbia,
and is not under any order of any court suspending, enjoining, restraining,
disbarring, or otherwise restricting him/her in the practice of law.”[3]
3. The third element which the State must
prove beyond a reasonable doubt is that the defendant:
[CHOOSE ONE OR MORE AS APPROPRIATE]
1. knowingly engaged in this State in the
practice of law;
OR
2. knowingly held himself/herself out to the public, either alone or
together with, by or through another person, whether such other person is
licensed as an attorney or counselor at law or not, as engaging in or entitled
to engage in the practice of law, or as rendering legal service or advice, or
as furnishing attorneys or counsel, in any immigration or naturalization
matter;
OR
3. knowingly assumed or advertised the
title of lawyer or attorney at law, or equivalent terms, in the English
language or any other language.
In
determining whether the defendant knowingly engaged in the practice of law or
held himself/herself out as engaging in or entitled to
engage in the practice of law, you should bear in mind that while the “practice
of law” does not lend itself to precise definition,[4] it is
not limited to litigation of cases in court. The practice of law is engaged in
whenever and wherever legal knowledge, training, skill and ability are
required.[5] It
includes the drafting of pleadings and other legal documents, paralegals’ work
and providing legal advice.[6]
A
person acts knowingly with respect to the nature of his/her conduct or the attendant
circumstances if he/she is aware that his/her conduct is of that nature, or that
such circumstances exist, or he/she is aware of a high probability of
their existence. A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically
certain that his/her conduct will cause such a result.
Knowledge
is a condition of the mind which cannot be seen and can only be determined by
inferences from conduct, words or acts. A state of mind is rarely susceptible
of direct proof, but must ordinarily be inferred from the facts. Therefore, it
is not necessary, members of the jury, that the State produce witnesses to
testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is
within your power to find that such proof has been furnished beyond a
reasonable doubt by inference which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time
and place, and from all of the surrounding circumstances.
[AFFIRMATIVE DEFENSE - N.J.S.A.
2C:21-31d]
[CHARGE IF APPLICABLE]
The
defendant alleges that he/she acted as an accredited
representative of ,
an organization authorized by the Board of Immigration Appeals to provide
immigration services.[7] Federal
law authorizes individuals accredited by the Board of Immigration Appeals to
provide “immigration services,” which include practice before the Immigration
and Naturalization Service, the Board of Immigration and Appeals and/or the Immigration
Court, to individuals who request such representation.[8] The term
“practice” means “the act or acts of any person appearing in any case, either
in person or through the preparation or filing of any brief or other document,
paper, application, or petition on behalf of another person or client before or
with the [Immigration and Naturalization] Service, or the Board [of Immigration
Appeals].”[9]
Therefore, in order for you to find the defendant guilty, the State must also
prove beyond a reasonable doubt that the defendant was not an accredited
representative who was authorized under federal law to provide immigration
services.
[CHARGE IN ALL CASES]
If
you find that the State has proven every element of the crime beyond a
reasonable doubt, then you must find the defendant guilty. If you find that the
State has not proven every element of the offense beyond a reasonable doubt,
then you must find the defendant not guilty.
[4] In re Opinion No. 26 of the
Committee on the Unauthorized Practice of Law, 139 N.J. 323, 341
(1995).
[8] 8 C.F.R. secs. 292.1(a)(4),
292.2(a). See also 8 C.F.R. sec. 1.1(c), (e) and (l) (definitions
of “Service,” “Board” and “immigration judge”). The Board of Immigration
Appeals maintains an alphabetical roster of recognized organizations and their
accredited representatives. 8 C.F.R. sec. 292.2(e).
[9] 8 C.F.R. sec. 1.1(i). See
also, 8 C.F.R. sec. 1.1(k) (defining “preparation”) and sec. 1.1(m)
(defining “representation”).