While immigrant and refugee families face the same challenges any other family faces, it's undeniable that these families also face unique challenges specific to their immigration status such as their ability to work, language barriers, trauma from relocating, etc. If you are a documented or an undocumented immigrant living in New Jersey, the Child Abuse Division of the Attorney General's Office may have a direct effect on your immigration status. A child abuse investigation may affect the immigration status of parents, guardians, and other family members. It's important to note that even if a criminal conviction for child abuse was not significant enough to result in any jail time it can still result in severe immigration consequences.
What Exactly is a DCP&P Investigation?
Under New Jersey Law, N.J.S.A. §9:6-8.10 requires individuals who suspect child abuse or neglect to report their concerns to the New Jersey Division of Child Protection and Permanency (“DCP&P.”) These reports are usually referred to as DCP&P reports/reporters. This simply means that under New Jersey law, any resident who has “reasonable cause” to believe a child has been abused or neglected to report the suspected abuse to the New Jersey Department of Children and Families (“DCF.”) Although every case of suspected child abuse or neglect is unique, some suspected signs of child abuse might include:
- Frequent absences from school;
- Unexplained injuries such as bruises; tender areas; broken bones;
- Lack of clothing, food, or school supplies to meet physical needs;
- Poor personal cleanliness; and
- Sexualized behavior.
After receiving a report of suspected child abuse, a DCP&P caseworker will determine if they need to conduct a thorough investigation. If a caseworker proceeds, they will arrive at the child's home within 24 hours of receiving the call. During the investigation, the caseworker will screen for possible abuse or neglect. The caseworker may seek more information from the parents such as:
- The names of the parents, caregivers, family members, etc. residing in the home;
- Relationship between the alleged perpetrator and child;
- Current or previous injuries the child may have sustained;
- Circumstances surrounding the alleged incident of abuse;
- How urgently the parents responded to claims of abuse or injury, etc.
Aside from speaking with the Parents, caseworkers can also conduct inspections. Often, caseworkers will observe the cleanliness of the home, the child's sleeping arrangements, and whether there is adequate food and water in the home. The caseworker may also ask to interview the child(ren) and speak with anyone else residing in the home. Outside of the home, a caseworker may also speak with doctors, teachers, neighbors, etc. to determine whether the environment appears safe for the child(ren).
If after conducting their investigation a caseworker believes the child is in imminent danger, they may proceed with filing a request to remove a child from a home and/or file a formal complaint against the parents. It should be noted, however, that even though DCP&P may launch a formal complaint against the parent, they must make every reasonable effort to keep the child in the home.
Do My Rights Change Because of My Immigration Status?
First and foremost, it's important for any parent who is also an immigrant to understand that they are afforded the same rights and legal protections throughout a DCP&P investigation and case as a United States Citizen. While DCP&P investigators should strive to keep cultural complexities in mind, they must also address the unique needs of every family and child regardless of the family's race, ethnicity, culture, etc. While it may feel incredibly nerve-wracking to have government officials showing up at your house and demanding to speak with your children, you have the right to be treated fairly and equally under the law, regardless of your immigration status.
Throughout a DCP&P investigation, parents and caregivers are under no legal duty to speak to the department's investigator or allow them to enter the home. You also have the right to refuse drug tests, evaluations, and any requests to sign releases that the DCP&P investigator may request. Of course, it's important to understand, however, that DCP&P cases are complex and if the department feels as though a parent is being uncooperative because they are hiding the fact that they are abusing or neglecting their child(ren), the department may choose to remove the child from the home. Therefore, while you are under no legal obligation to cooperate with every aspect of a DCP&P investigation, it is prudent to work with an experienced criminal defense attorney at the onset who can help you strike a balance between being cooperative with the investigation and protecting your legal rights and interests.
While it is not uncommon for DCP&P investigators to threaten parents, especially immigrant parents, with the threat of losing their children or being reported to the immigration authorities, the investigators have no authority to force parents to speak with them or comply with their demands. When in doubt about how to proceed, speak with an attorney who can help you navigate the complexities that a DCP&P investigation can have on your criminal record and immigration status.
A DCP&P Investigation Does Not Automatically Trigger a Criminal Case
In New Jersey, a DCP&P investigation or case is not considered a criminal matter. Unlike a criminal matter, if the court in a DCP&P case determines that the parent was guilty of child abuse and/or neglect, the consequences do not include financial penalties or jail time. Instead, DCP&P matters focus solely on the minors' health, safety, and welfare. Parties to a DCP&P matter do not “win” or “lose” a case but should instead be working towards reunifying a child with their parents.
This does not mean that parties to a DCP&P case should not proceed with caution. A DCP&P investigation can trigger a synchronous criminal matter. For instance, while a child welfare worker may respond to investigate claims of domestic violence, they may also inform law enforcement of possible related criminal activity such as possession of illicit substances, intent to distribute, etc. At that point, the district attorney's office may choose to proceed with criminal charges and the DCP&P matter would run simultaneously with the criminal matter, which could result in drastic immigration consequences. For this reason, it's important to retain a qualified criminal defense attorney who can help you navigate the overlap between the two matters and ensure that your rights are being upheld by any public office investigating your family.
Even if Law Enforcement Gets Involved, Officers Can't Call ICE
Although law enforcement officers may become involved, New Jersey state law limits the type of assistance that police officers may provide to federal immigration authorities such as the Immigration and Customs Enforcement agency (“ICE.”) Specifically, in November of 2018, New Jersey issued new rules designed to “strengthen trust between law enforcement and immigrant communities.” Under new rules, police officers in New Jersey may not stop, question, arrest, search, or detain an individual simply because the officer suspects that the individual may be undocumented. In fact, police officers are not even allowed to inquire about your immigration status, unless it is specifically relevant to the type of criminal investigation at hand. This means that if law enforcement agencies respond to investigate claims of criminal child abuse and determine that no such abuse is ongoing, they may not arrest or detain parents based on their immigration status alone.
If you were subject to a DCP&P investigation that also included law enforcement and officers inquiring about your immigration status, work with a qualified criminal defense attorney immediately to ensure your legal rights are upheld and respected throughout the remainder of the criminal investigation and/or case.
Will a Child Abuse Conviction Affect My Immigration Status?
As noted earlier, a DCP&P investigation and case are separate and apart from a criminal investigation, case, and conviction. On its own, A DCP&P case will not automatically trigger any consequences on a parent's immigration status. In cases where the criminal case is triggered because of the child abuse or neglect allegations or if criminal charges arise during the investigation, a child abuse conviction can have drastic consequences on the criminal defendant's immigration status.
United States Immigration law is complex and everchanging. Unlike other areas of law which are more rooted in tradition and time (referred to as “common law,”) Immigration Law is uniquely beholden to present-day circumstances ranging from wars and foreign policy to the presidential administration in office. Therefore, if you are worried that a current or possible conviction for child abuse may affect your immigration status, it is pertinent to speak with a qualified criminal defense attorney who can help you navigate the unique and complex difficulties you may be facing.
That being said, there are some crimes that the United States viewed as so morally reprehensible that if convicted, the criminal defendant may face automatic deportation. These crimes, listed in the Immigration and Nationality Act, include crimes for:
- Narcotic-related offense;
- Firearm-related offenses;
- Human trafficking;
- Espionage on behalf of a foreign government or membership in a terrorist organization; and
- DUI or DWI offenses that are aggravated by other serious factors such as an accident resulting in a severe injury or death to another driver, passenger, pedestrian, etc.
Crimes Involving Moral Turpitude
In other cases, a criminal defendant may face deportation if their crime involved a certain level of “moral turpitude.” Crimes of moral turpitude are less defined but involve some level of dishonesty, violence, sexual elements, or harm to children. While no cut-and-dry definition exists, individual courts will determine whether a defendant's conduct “shocked the public conscience” so much that their crime was inherently vile, depraved, or contrary to the rules of morality. Given the societal urge and responsibility to protect innocent children, courts are not reluctant to determine that crimes against children meet the requisite standard of moral turpitude.
Under the Immigration and Nationality Act, a crime of moral turpitude may lead to deportation if the immigrant has been either:
- Convicted of a crime involving moral turpitude that was committed within five years after the date of admission to the United States and resulted in a sentence of imprisonment for at least one year; or
- Convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, with neither the time of the commission of the offense nor the sentence imposed being relevant.
In other words, a criminal defendant may face deportation if they faced at least a year's imprisonment for a crime involving moral turpitude within five years after arriving in the United States. They may also face deportation if they have been convicted of two crimes involving moral turpitude, regardless of when the crimes occurred.
Because DCP&P investigations and cases can trigger criminal investigations and charges, it is imperative that any documented or undocumented immigrant work with a qualified criminal defense attorney to ensure that their immigration status is not affected by criminal charges and convictions.
Child Protection and Permanency Defense Attorney in New Jersey
While the stress of losing your child to a DCP&P investigation can be scary enough, the effect a DCP&P matter can have on your immigration status cannot be understated! If you are a documented or undocumented immigrant dealing with a DCP&P investigation, attorney Joseph D. Lento and his Team at the Lento Law Firm can help carve a path forward for you and your family. Contact us online or by calling us today at 888-535-3686.