N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-31b

Approved 6/21/99

UNAUTHORIZED PRACTICE OF IMMIGRATION LAW

(N.J.S.A. 2C:21-31b)

Count

of the indictment charges the defenda nt 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 th e 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 furn ishing counsel in an immigrati on or naturalization matter, or

(iii) assumed, used or advertised the title of lawyer or attorney.

1. The first element which the State mu st prove beyond a reas onable doubt is that

the defendant was an immigration consultant. The law defines an “immigration consultant” as

“any person rendering services for a fee, includi ng the completion of forms and applications, to

another person in furtherance of that person’s de sire 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 a ttorney 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

1 N.J.S.A. 2C:21-31a(1).

2 N.J.S.A. 2C:21-31a(2).

UNAUTHORIZED PRACTICE OF

IMMIGRATION LAW

(N.J.S.A. 2C:21-31b)

order of any court suspending, enjoining, restrain ing, 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 St ate 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 furnis hing attorneys or counsel, in a ny immigration or naturalization

matter;

OR

3. knowingly assumed or adver tised the title of lawyer or attorney at law, or

equivalent terms, in the English language or any other language.

In determining whether the defendant knowingl y engaged in the practice of law or held

himself/herself out as engaging in or entitled to engage in the pr actice 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 th at 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 practica lly 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

3 8 C.F.R. sec. 1.1(f).

4 In re Opinion No. 26 of the Committee on the Unauthorized Practice of Law, 139 N.J. 323, 341 (1995).

5 State v. Rogers, 308 N.J. Super. 59,66 (App. Div. 1998), certif. den. 156 N.J. 385 (1998).

6 Id., 308 N.J. Super. at 67-69.

UNAUTHORIZED PRACTICE OF

IMMIGRATION LAW

(N.J.S.A. 2C:21-31b)

by inferences from conduct, words or acts. A state of mind is rarely suscep tible 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 particul ar act. It is within your power to find that such proof has been

furnished beyond a reasonable doubt by inference which may arise fr om 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 repres entative of , an

organization authorized by the Board of Immigra tion Appeals to provide immigration services.7

Federal law authorizes individuals accredited by the Board of Immigration Appeals to provide

“immigration services,” which include practic e 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 prep aration 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 I mmigration 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 represen tative who was authorized under federal law to

provide immigration services.

[CHARGE IN ALL CASES]

If you find that the State has proven ever y 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.

7 N.J.S.A. 2C:21-31d; C.F.R. sec. 292.2(a) and (d).

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 main tains 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”).