APPENDIX A Quick Reference Chart for Determining Key Immigration Consequences of Common New York Offenses

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1 APPENDIX A Quick Reference Chart for Determining Key Immigration Consequences of Common New York s For information on the applicability of these consequences to a specific noncitizen, see Chapter 3. For detailed information on the following: (AF) deportability, see Appendix G, section 1 (and for aggravated felony practice aids, see Appendix C) Controlled Substance (CSO) deportability, see Appendix G, section 3, & inadmissibility, see Appendix H, section 1 deportability, see Appendix G, section 5 (CIMT) deportability, see Appendix G, section 2, & inadmissibility, see Appendix H, section 2 (and for sample moral turpitude determinations, see Appendix D) Crime Of Domestic Violence (CODV) and Stalking and Violation of Protection Order deportability, see Appendix G, section 5 Firearm (FO) deportability, see Appendix G, section 4 inadmissibility, see Appendix H, section 4 For strategies to avoid these grounds of deportability and inadmissibility, see Chapter 5. NEW YORK PENAL LAW OFFENSES [For New York Vehicle and Traffic offenses, see the chart beginning on page A-45.] CRIMINAL SOLICITATION solicitation CONSPIRACY Conspiracy Might be deemed an AF if the underlying offense is an A conspiracy to commit an AF would also be deemed an considered a CIMT if the underlying offense is A conspiracy to commit a CIMT would probably be Firearm (FO) Conviction might be considered a CSO, etc., if the underlying offense is a CSO, etc., but there is some case law supporting a contrary argument (See Appendix E). Conviction would be considered a CSO or FO if the underlying offense is a CSO or FO. (5/03) A 1

2 APPENDIX A ATTEMPT Attempt An attempt to commit an AF would also be deemed an CRIMINAL FACILITATION facilitation Might be deemed an AF if the underlying offense is an ASSAULT AND RELATED OFFENSES Assault, 3rd degree Assault, No, unless maximum term of imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, in which case conviction under subsection (1) might be deemed a crime of violence AF If term of imprisonment imposed, conviction under subsection (2) would probably crime of violence AF and conviction under any other subsection might be deemed a crime of violence An attempt to commit a CIMT would probably be considered a CIMT if the underlying offense is Conviction under subsections (1) or (3) might be considered a CIMT; conviction under subsection (2) would NOT be considered a CIMT, particularly under subsections (1), (2), (4), (5), (7), (8), and (9). Firearm (FO) Conviction would be considered a CSO or FO if the underlying offense is a CSO or FO. Conviction might be considered a CSO, etc., if the underlying offense is a CSO, etc., but there is some case law supporting a contrary argument (See Appendix E). Conviction under subsection (3) might be considered a FO if record of conviction establishes that offense involved a firearm. If the victim was a current or former spouse or similarly situated individual and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, a conviction under subsection (1) might also be considered a CODV. Conviction under subsections (2) or (4) might be considered a FO if record of conviction establishes that offense involved a firearm. If the victim was a current or former spouse or similarly situated individual, a conviction might also be considered a CODV. A 2 (5/03)

3 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES ASSAULT AND RELATED OFFENSES (continued) Assault on a peace officer, police officer, fireman or emergency medical services professional If term of imprisonment imposed, might crime of violence Might be considered Firearm (FO) Class C felony Assault, Class B felony assault upon a police officer or peace officer Class B felony If term of imprisonment imposed, conviction under subsection (1) would probably crime of violence AF and conviction under subsections (2), (3) and (4) might crime of violence If term of imprisonment imposed, would probably be deemed a crime of violence considered a CIMT, particularly under subsections (1), (2), and (3). Conviction under subsection (1) might be considered a FO if record of conviction establishes that offense involved a firearm. If the victim was a current or former spouse or similarly situated individual, a conviction might also be considered a CODV. Conviction might be considered a FO if record of conviction establishes that offense involved a firearm. (5/03) A 3

4 APPENDIX A ASSAULT AND RELATED OFFENSES (continued) assault upon a person less than eleven years old Menacing, If term of at least one year is imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence AF if record of conviction shows the crime committed is assault as defined under subsection (1) of If term of imprisonment imposed, might crime of violence AF if record of conviction shows the crime committed is menacing as defined under subsection (1) of If term of at least one year is imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence AF regardless of what record of conviction establishes. Might be considered a CIMT depending on subsection of 3rd degree assault under which defendant is charged, see above Assault, 3rd degree. Firearm (FO) Conviction would probably be considered a CAC. Conviction might be considered a FO if record of conviction establishes that offense involved a firearm. If the victim was a current or former spouse or similarly situated individual, a conviction might also be considered a CODV. A conviction might also trigger deportability under CODV clause regarding crime of stalking. A 4 (5/03)

5 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES ASSAULT AND RELATED OFFENSES (continued) Menacing, Menacing, 3rd degree Class B Reckless endangerment, No, unless maximum term of imposed in which case conviction under subsection (1) might be deemed a crime of violence If maximum term of imprisonment of imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, conviction under subsections (2) and (3) might also be deemed a crime of violence AF No. Might be considered No, unless maximum term of imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, in which case might be deemed a crime of violence Might be considered Firearm (FO) Conviction under subsection (1) might be considered a FO if record of conviction establishes that offense involved a firearm. If the victim was a current or former spouse or similarly situated individual, a conviction might also be considered a CODV. A conviction might also trigger deportability under CODV clause regarding crime of stalking, and a conviction under subsection (3) might trigger deportability under CODV clause regarding violators of protection orders. If the victim was a current or former spouse or similarly situated individual and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, a conviction might be considered a CODV. A conviction might also trigger deportability under CODV clause regarding crime of stalking. If the victim was a current or former spouse or similarly situated individual and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, a conviction might be considered a CODV. (5/03) A 5

6 APPENDIX A ASSAULT AND RELATED OFFENSES (continued) Reckless endangerment, Stalking, 4th degree Class B If term of imprisonment imposed, might crime of violence No. Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. A conviction would probably trigger deportability as a crime of stalking, or, if the victim was a current or former spouse or similarly situated individual and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, a conviction might also be considered a CODV. A 6 (5/03)

7 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES ASSAULT AND RELATED OFFENSES (continued) Stalking, 3rd degree No, unless maximum term of imposed in which case conviction under subsection (3) might be deemed a crime of violence AF if the record of conviction shows fear of commission of a sex offense, kidnapping, unlawful imprisonment or death (as opposed to physical injury or serious physical injury). If maximum term of imprisonment of imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, conviction under any subsection might crime of violence AF, particularly (if convicted under subsections (1), (2) or (4)) if record of conviction shows the crime committed is stalking as defined under subsection (1) of Firearm (FO) A conviction would probably trigger deportability as a crime of stalking, or, if the victim was a current or former spouse or similarly situated individual, a conviction might also be considered a CODV. (5/03) A 7

8 APPENDIX A ASSAULT AND RELATED OFFENSES (concluded) Stalking, Stalking, If term of imprisonment imposed, conviction under subsection (1) would probably be deemed a crime of violence AF, particularly if the record of conviction shows threatened use of any of the enumerated weapons (as opposed to mere display) and conviction under any other subsection might be deemed a crime of violence If term of imprisonment imposed, would probably be deemed a crime of violence AF if record of conviction shows the crime committed is stalking as defined under subsection (1) of , and otherwise might be deemed a crime of violence Conviction under subsection (2) might also be considered a rape, or sexual abuse of a minor Firearm (FO) A conviction would probably trigger deportability as a crime of stalking, or, if the victim was a current or former spouse or similarly situated individual, a conviction might also be considered a CODV. Conviction under subsection (1) might also be considered a FO if record of conviction establishes that offense involved a firearm. A conviction would probably trigger deportability as a crime of stalking, or, if the victim was a current or former spouse or similarly situated individual, a CODV. A 8 (5/03)

9 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES HOMICIDE, ABORTION, AND RELATED OFFENSES ly negligent homicide Probably not. Would probably NOT be considered Firearm (FO) Vehicular manslaughter, Vehicular manslaughter, Class C felony Manslaughter, Class C felony If term of imprisonment imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence If term of imprisonment imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence If term of imprisonment imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence Would probably NOT be considered Would probably NOT be considered Conviction under subsection (1) would be considered a CIMT; conviction under subsections (2) or (3) might be If the victim was a current or former spouse or similarly situated individual and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, a conviction might be considered a CODV. (5/03) A 9

10 APPENDIX A Firearm (FO) HOMICIDE, ABORTION, AND RELATED OFFENSES (concluded) Manslaughter, Class B felony Murder, -I felony Murder, -I felony SEX OFFENSES Sexual misconduct If term of imprisonment imposed, conviction under subsections (1), (2), and (4) might be deemed a crime of violence Conviction under subsections (1), (2), or (4) would be considered a CIMT; conviction under subsection (3) might be If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV Conviction under subsections (1) or (2) might be deemed a rape, or sexual abuse of a minor AF, OR, if maximum term of imprisonment of imposed, might crime of violence If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC. A 10 (5/03)

11 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES SEX OFFENSES (continued) Rape, 3rd degree Rape, Conviction under subsection (2) would probably sexual abuse of a minor AF, particularly if the record of conviction shows that the victim is under the age of 16; OR conviction under subsections (1) or (3) might be deemed a rape AF; OR conviction under any subsection might be deemed a crime of violence AF if term of at least one year is imposed Conviction under subsection (1) would probably be deemed sexual abuse of a minor AF and conviction under subsection (2) might be deemed rape, or sexual abuse of a minor AF; OR, conviction under either subsection might be deemed a crime of violence AF if term of at least one year is imposed. Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction would probably be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC, particularly if conviction under subsection (2). If the victim was a current or former spouse or similarly situated individual, a conviction would probably be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC. (5/03) A 11

12 APPENDIX A SEX OFFENSES (continued) Rape, Class B felony Sodomy, 3rd degree Yes, rape, or sexual abuse of a minor Conviction under subsection (2) would probably sexual abuse of a minor AF, particularly if the record of conviction shows that the victim is under the age of 16; OR conviction under subsection (1) or (3) might be deemed a rape AF; OR conviction under any subsection might be deemed a crime of violence AF if term of at least one year is imposed. Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction would probably be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC, particularly if conviction under subsection (3). If the victim was a current or former spouse or similarly situated individual, a conviction would probably be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC, particularly if conviction under subsection (2). A 12 (5/03)

13 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES SEX OFFENSES (continued) Sodomy, Sodomy, Class B felony Conviction under subsection (1) would probably be deemed sexual abuse of a minor AF and conviction under subsection (2) might be deemed rape, or sexual abuse of a minor ; OR, conviction under either subsection might be deemed a crime of violence AF if term of imprisonment imposed Conviction under subsection (3) or (4) would be deemed a sexual abuse of a minor AF and conviction under subsection (1) or (2) would probably rape AF; OR, conviction under any subsection might be deemed a crime of violence AF if term of imprisonment one year is imposed. Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction would probably be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC. If the victim was a current or former spouse or similarly situated individual, a conviction would probably be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC, particularly if conviction under subsection (3). (5/03) A 13

14 APPENDIX A SEX OFFENSES (continued) Forcible touching Sexual abuse, 3rd degree Class B Sexual abuse, If the record of conviction shows that the victim was a minor, particularly under age 16, would probably be deemed a sexual abuse of a minor AF; OR, if maximum term of imprisonment of imposed, might be deemed a crime of violence If the record of conviction shows that the victim was a minor, particularly if under age 16, would probably sexual abuse of a minor If the record of conviction shows that the victim was a minor, would probably sexual abuse of a minor AF, OR, if maximum term of imprisonment of imposed, might crime of violence Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC. If the record of conviction shows that the victim was a child, the conviction would probably be considered a CAC. If the record of conviction shows that the victim was a child, the conviction would probably be considered a CAC, particularly if conviction under subsection (2). A 14 (5/03)

15 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES SEX OFFENSES (continued) Sexual abuse, sexual abuse, 4th degree sexual abuse, 3rd degree If the record of conviction shows that the victim was a minor, would probably sexual abuse of a minor AF, OR, if term of at least one year is imposed, might crime of violence a If the record of conviction shows that the victim was a minor, would be deemed a sexual abuse of a minor AF, OR, in other cases, might be deemed rape AF, OR if term of at least one year is imposed, might crime of violence If the record of conviction shows that the victim was a minor, would be deemed a sexual abuse of a minor AF, OR, in other cases, might be deemed rape AF, OR if term of at least one year is imposed, might crime of violence Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction would probably be considered a CAC, particularly if conviction under subsection (3). If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction would probably be considered a CAC. If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction would probably be considered a CAC, particularly if conviction under subsection (1)(c). (5/03) A 15

16 APPENDIX A SEX OFFENSES (concluded) sexual abuse, Class C felony sexual abuse, Class B felony If the record of conviction shows that the victim was a minor, would be deemed a sexual abuse of a minor AF, OR, in other cases, might be deemed rape AF, OR, if term of imprisonment one year is imposed, might be deemed a crime of violence If the record of conviction shows that the victim was a minor, would be deemed a sexual abuse of a minor AF, OR, in other cases, might be deemed rape AF, OR, if term of imprisonment one year is imposed, might be deemed a crime of violence BURGLARY AND RELATED OFFENSES Trespass No. No. Firearm (FO) If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction would probably be considered a CAC, particularly if conviction under subsection (1)(c). If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. If the record of conviction shows that the victim was a child, the conviction might also be considered a CAC, particularly if conviction under subsection (1)(c). Violation trespass, 3rd degree Class B trespass, No. No No. No. A 16 (5/03)

17 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES BURGLARY AND RELATED OFFENSES (continued) trespass, Burglary, 3rd degree Burglary, Class C felony Burglary, Class B felony If term of at least one year is imposed, would probably crime of violence If term of at least one year is imposed, would probably burglary AF, or might be deemed a crime of violence If term of at least one year is imposed, a conviction under subsection (1) would probably burglary AF or a crime of violence AF, and a conviction under subsection (2) would be burglary or crime of violence If term of at least one year is imposed, would be a burglary or crime of violence Might be Would be considered a CIMT if record of conviction establishes that crime intended to be committed was Would be considered a CIMT if record of conviction establishes that crime intended to be committed was Would be considered a CIMT if record of conviction establishes that crime intended to be committed was Firearm (FO) Conviction might be considered a FO if record of conviction establishes that offense involved a firearm. Conviction might be considered a FO if record of conviction establishes that offense involved a firearm. Conviction might be considered a FO if record of conviction establishes that offense involved a firearm. (5/03) A 17

18 APPENDIX A BURGLARY AND RELATED OFFENSES (concluded) Possession of burglar s tools No, unless maximum term of imprisonment of imposed in which case might be deemed an attempted burglary or theft CRIMINAL MISCHIEF AND RELATED OFFENSES mischief, 4th degree mischief, 3rd degree No, unless maximum term of imprisonment of imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, in which case might be deemed a crime of violence If term of imprisonment of at least imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence Might be considered a CIMT if record of conviction establishes that the offense intended to be committed was Conviction under subsections (1) or (2) would probably be considered a CIMT; conviction under subsection (3) might be Firearm (FO) A 18 (5/03)

19 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES Firearm (FO) CRIMINAL MISCHIEF AND RELATED OFFENSES (concluded) mischief, mischief, Class B felony Reckless endangerment of property If term of imprisonment of at least imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, might be deemed a crime of violence If term of imprisonment of at least imposed, would probably be deemed a crime of violence No. Would probably NOT be considered Conviction might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved destructive device (as defined in 18 U.S.C. 921(a)). Class B Making graffiti Possession of graffiti instrument Class B No, unless maximum term of imprisonment of imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, in which case might be deemed a crime of violence Would probably NOT be considered No. Would probably NOT be considered (5/03) A 19

20 APPENDIX A ARSON Arson, 5th degree Arson, 4th degree Arson, 3rd degree Class C felony Arson, Class B felony Arson, -I felony No, unless maximum term of imprisonment of imposed, in which case would probably be deemed a crime of violence If term of at least one year is imposed, would probably crime of violence If term of at least one year is imposed, would probably crime of violence If term of at least one year is imposed, would probably crime of violence If term of at least one year is imposed, would probably crime of violence Might be considered Might be considered Firearm (FO) Conviction might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved destructive device (as defined in 18 U.S.C. 921(a)). Conviction might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved destructive device (as defined in 18 U.S.C. 921(a)). Conviction might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved destructive device (as defined in 18 U.S.C. 921(a)). Conviction might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved destructive device (as defined in 18 U.S.C. 921(a)). Conviction might be considered a FO (or destructive device offense) if record of conviction establishes that offense involved destructive device (as defined in 18 U.S.C. 921(a)). A 20 (5/03)

21 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES Firearm (FO) LARCE Petit larceny No, unless maximum term of imposed in which case would probably be deemed a theft Grand larceny, 4th degree If term of imprisonment imposed, would probably be deemed a theft Grand larceny, 3rd degree If term of imprisonment imposed, would probably be deemed a theft Grand larceny, Class C felony If term of imprisonment imposed, would probably be deemed a theft Grand larceny, Class B felony If term of imprisonment imposed, would probably be deemed a theft (5/03) A 21

22 APPENDIX A ROBBERY Robbery, 3rd degree Robbery, Class C felony Robbery, Class B felony If term of imprisonment imposed, would be crime of violence or theft If term of imprisonment imposed, would be crime of violence or theft If term of imprisonment imposed, would be crime of violence or theft OTHER OFFENSES RELATED TO THEFT Unauthorized use of vehicle, 3rd degree Unauthorized use of vehicle, Unauthorized use of vehicle, No, unless maximum term of imposed in which case might be deemed a theft If term of imprisonment imposed, might theft If term of imprisonment imposed, might theft Firearm (FO) Conviction under subsection 2(b) might be considered a FO if record of conviction establishes that offense involved a firearm. Conviction under subsections (2),(3), or (4) might be considered FO if record of conviction establishes that offense involved a firearm. Would probably NOT be considered a CIMT unless record of conviction establishes permanent taking intended. Would probably NOT be considered a CIMT unless record of conviction establishes permanent taking intended. Might be considered a CIMT, particularly if record establishes intent to use vehicle in the commission of a CIMT. A 22 (5/03)

23 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES OTHER OFFENSES RELATED TO THEFT (continued) Theft of services Violation Jostling possession of stolen property, 5th degree possession of stolen property, 4th degree possession of stolen property, 3rd degree possession of stolen property, Class C felony If term of imprisonment of one year or more is imposed, might theft No. Would probably NOT be considered No, unless maximum term of imposed in which case would probably be deemed a theft If term of imprisonment imposed, would probably be deemed a theft If term of imprisonment imposed, would probably be deemed a theft If term of imprisonment imposed, would probably be deemed a theft considered a CIMT (but note presumption, not actual finding, that person possessed property with intent to benefit himself or another). considered a CIMT (but note presumption, not actual finding, that person possessed property with intent to benefit himself or another). considered a CIMT (but note presumption, not actual finding, that person possessed property with intent to benefit himself or another). considered a CIMT (but note presumption, not actual finding, that person possessed property with intent to benefit himself or another). Firearm (FO) (5/03) A 23

24 APPENDIX A OTHER OFFENSES RELATED TO THEFT (concluded) possession of stolen property, Class B felony If term of imprisonment imposed, would probably be deemed a theft FORGERY AND RELATED OFFENSES Forgery, 3rd degree Forgery, If maximum term of imprisonment of imposed, would probably be deemed a forgery AF; OR, if the loss to the victim(s) exceeds $10,000, might be deemed a fraud AF especially if record of conviction shows element of intent to defraud or deceive (as opposed to injure) If term of imprisonment imposed, would probably be deemed a forgery AF; OR, if the loss to the victim(s) exceeds $10,000, might be deemed a fraud AF especially if record of conviction shows element of intent to defraud or deceive (as opposed to injure) considered a CIMT (but note presumption, not actual finding, that person possessed property with intent to benefit himself or another). Firearm (FO) A 24 (5/03)

25 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES FORGERY AND RELATED OFFENSES (continued) Forgery, Class C felony possession of a forged instrument, 3rd degree If term of imprisonment imposed, would probably be deemed a forgery AF; OR, if the loss to the victim(s) exceeds $10,000, might be deemed a fraud AF especially if record of conviction shows element of intent to defraud or deceive (as opposed to injure) If maximum term of imprisonment of imposed, might forgery AF; OR, if the loss to the victim(s) exceeds $10,000, might be deemed a fraud AF especially if record of conviction shows element of intent to defraud or deceive (as opposed to injure). Firearm (FO) (5/03) A 25

26 APPENDIX A FORGERY AND RELATED OFFENSES (concluded) possession of a forged instrument, possession of a forged instrument, Class C felony OTHER FRAUDS Issuing a bad check Class B impersonation, A If term of imprisonment imposed, might forgery AF; OR, if the loss to the victim(s) exceeds $10,000, might be deemed a fraud AF especially if record of conviction shows element of intent to defraud or deceive (as opposed to injure) If term of imprisonment imposed, might forgery AF; OR, if the loss to the victim(s) exceeds $10,000, might be deemed a fraud AF, especially if record of conviction shows element of intent to defraud or deceive (as opposed to injure) No. Would probably NOT be considered If the loss to the victim(s) exceeds $10,000, might fraud or deceit Firearm (FO) (5/03)

27 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES ESCAPE AND OTHER OFFENSES RELATING TO CUSTODY impersonation, Resisting arrest If the loss to the victim(s) exceeds $10,000, might fraud or deceit No. No. Firearm (FO) Hindering prosecution, 3rd degree Hindering prosecution, Hindering prosecution, No, unless maximum term of imposed in which case might be deemed an obstruction of justice If term of imprisonment imposed, would probably be deemed an obstruction of justice If term of imprisonment imposed, would probably be deemed an obstruction of justice Might be considered Might be considered Might be considered OTHER OFFENSES RELATING TO JUDICIAL AND OTHER PROCEEDINGS contempt, No, unless maximum term of imposed in which case might be deemed an obstruction of justice Might be considered Would probably NOT be considered a CSO, etc., even if the underlying offense was a CSO, etc. (See Appendix E). Would probably NOT be considered a CSO, etc., even if the underlying offense was a CSO, etc. (See Appendix E). Would probably NOT be considered a CSO, etc., even if the underlying offense was a CSO, etc. (See Appendix E). If conviction involves violation of a protection order, might trigger deportability under CODV clause regarding violators of protection orders. (5/03) A 27

28 APPENDIX A Firearm (FO) OTHER OFFENSES RELATING TO JUDICIAL AND OTHER PROCEEDINGS (concluded) contempt, If term of imprisonment imposed, would probably be deemed an obstruction of justice AF; OR, if term of at least one year is imposed, conviction under subsections b(i), (b)(v) and (b)(vi) would probably crime of violence AF, and a conviction under subsections (b)(ii) and (b)(iii) might be deemed a crime of violence If term of imprisonment imposed and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, conviction under subsection (d) might also be deemed a crime of violence Might be considered If conviction involves violation of a protection order, might trigger deportability under CODV clause regarding violators of protection orders. A 28 (5/03)

29 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES CONTROLLED SUBSTANCE OFFENSES CPCS, 7th degree CPCS, 5th degree Would probably NOT be deemed a drug trafficking AF (but may possibly be deemed a drug trafficking AF if record of conviction shows possession of more than 5 grams of crack or any amount of flunitrazepam, or if conviction is for a second or subsequent possession offense) Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802 (but may possibly be deemed not a drug trafficking crime AF if not convicted of intent to sell or possession of more than 5 grams of crack or any amount of flunitrazepam, and later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G, section 1.b). Would probably NOT be considered Would probably NOT be considered a CIMT, although a conviction under subsection (1) requiring intent to sell might be Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. (5/03) A 29

30 APPENDIX A CONTROLLED SUBSTANCE OFFENSES (continued) CPCS, 4th degree Class C felony Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802 (but may possibly be deemed not a drug trafficking crime AF if not convicted of intent to sell or possession of more than 5 grams of crack or any amount of flunitrazepam, and later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G, section 1.b). Would probably NOT be considered a CIMT, although a conviction under subsection (13) requiring intent to sell might be Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. A 30 (5/03)

31 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES CONTROLLED SUBSTANCE OFFENSES (continued) CPCS, 3rd degree Class B felony Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802 (but may possibly be deemed not a drug trafficking crime AF if not convicted of intent to sell or possession of more than 5 grams of crack or any amount of flunitrazepam, and later removal proceedings are held within jurisiction of the Third Circuit U.S. Court of Appeals see App. G, section 1.b). Would probably NOT be considered a CIMT, although a conviction under subsections (1) through (7) requiring intent to sell might be Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. (5/03) A 31

32 APPENDIX A CONTROLLED SUBSTANCE OFFENSES (continued) CPCS, -II felony Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802 (but may possibly be deemed not a drug trafficking crime AF if not convicted of possession of more than 5 grams of crack or any amount of flunitrazepam, and later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G, section 1.b). Would probably NOT be considered Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. A 32 (5/03)

33 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES CONTROLLED SUBSTANCE OFFENSES (continued) CPCS, -I felony CSCS, 5th degree CSCS, 4th degree Class C felony Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802 (but may possibly be deemed not a drug trafficking crime AF if not convicted of possession of more than 5 grams of crack or any amount of flunitrazepam, and later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G, section 1.b) Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802. Would probably NOT be considered Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. (5/03) A 33

34 APPENDIX A CONTROLLED SUBSTANCE OFFENSES (continued) CSCS, 3rd degree Class B felony CSCS, -II felony CSCS, -I felony CSCS in or near school grounds Class B felony ly possessing a hypodermic instrument Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC No. Would probably NOT be considered Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Might NOT be considered a CSO. A 34 (5/03)

35 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES CONTROLLED SUBSTANCE OFFENSES (concluded) injection of a narcotic drug ly using drug paraphernalia, ly using drug paraphernalia, possession of precursors of CS Might be deemed a drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Might be deemed a drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC Would probably drug trafficking AF if record of conviction establishes a controlled substance as defined in 21 USC 802. Might be Might be considered Might be considered Might be considered Firearm (FO) Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Would be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. (5/03) A 35

36 APPENDIX A OFFENSES INVOLVING MARIHUANA Unlawful possession of marihuana Violation possession of marihuana (CPM), 5th degree Class B CPM, 4th degree Would probably NOT be deemed a drug trafficking AF (but may possibly be deemed a drug trafficking AF if conviction is for a second or subsequent possession offense) Would probably NOT be deemed a drug trafficking AF (but may possibly be deemed a drug trafficking AF if conviction is for a second or subsequent possession offense) Would probably NOT be deemed a drug trafficking AF (but may possibly be deemed a drug trafficking AF if conviction is for a second or subsequent possession offense). Would probably NOT be considered Would probably NOT be considered Would probably NOT be considered Firearm (FO) Would be considered a CSO for inadmissibility purposes; however, for deportability purposes, would be CSO only if record of conviction establishes possession of more than 30 grams of marihuana, or if more than one offense involving possession of 30 grams or less of marihuana. Would be considered a CSO for inadmissibility purposes; however, for deportability purposes, would be CSO only if record of conviction establishes possession of more than 30 grams of marihuana, or if more than one offense involving possession of 30 grams or less of marihuana. Would be considered a CSO. A 36 (5/03)

37 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES OFFENSES INVOLVING MARIHUANA (continued) CPM, 3rd degree CPM, CPM, Class C felony Would probably drug trafficking AF (but may possibly be deemed not a drug trafficking AF if later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G., section 1.b) Would probably drug trafficking AF (but may possibly be deemed not a drug trafficking AF if later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G., section 1.b) Would probably drug trafficking AF (but may possibly be deemed not a drug trafficking AF if later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G., section 1.b). Would probably NOT be considered Would probably NOT be considered Would probably NOT be considered Firearm (FO) Would be considered a CSO. Would be considered a CSO. Would be considered a CSO. (5/03) A 37

38 APPENDIX A OFFENSES INVOLVING MARIHUANA (concluded) CSM, 5th degree Class B CSM, 4th degree CSM, 3rd degree CSM, CSM, Class C felony PROSTITUTION OFFENSES Class B Might be deemed a drug trafficking AF (unless later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G., section 1.b) Might be deemed a drug trafficking AF (unless later removal proceedings are held within jurisdiction of the Third Circuit U.S. Court of Appeals see App. G., section 1.b) Would probably drug trafficking Would probably drug trafficking Would probably drug trafficking Might be considered Firearm (FO) Would be considered a CSO. Would be considered a CSO. Would be considered a CSO. Would be considered a CSO. Would be considered a CSO No. Would trigger prostitution inadmissibility. A 38 (5/03)

39 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES PROSTITUTION OFFENSES (continued) Patronizing a prostitute, 4th degree Class B Patronizing a prostitute, 3rd degree If record of conviction establishes that prostitute was a minor, might be deemed a sexual abuse of a minor Might be deemed a sexual abuse of a minor Firearm (FO) Patronizing a prostitute, Patronizing a prostitute, Promoting prostitution, 4th degree Promoting prostitution, 3rd degree Might be deemed a sexual abuse of a minor Might be deemed a sexual abuse of a minor Might be deemed a prostitution business AF; OR, if record of conviction establishes that prostitution promoted was of a minor, might be deemed a sexual abuse of a minor Would probably prostitution business AF; OR, if record of conviction establishes that prostitution promoted was of a minor, might be deemed a sexual abuse of a minor Might trigger prostitution inadmissibility. Might trigger prostitution inadmissibility. (5/03) A 39

40 APPENDIX A PROSTITUTION OFFENSES (concluded) Promoting prostitution, Class C felony Promoting prostitution, Class B felony Permitting prostitution Class B Would probably prostitution business AF; OR, if record of conviction establishes that prostitution promoted was of a minor, might be deemed a sexual abuse of a minor AF; OR, if term of sentence imposed is at least one year, conviction under subsection (1) might be deemed a crime of violence AF, particularly if record of conviction shows compulsion by force (as opposed to intimidation) Would probably prostitution business AF; OR, might be deemed a sexual abuse of a minor Probably NOT. Might be considered OFFENSES AGAINST PUBLIC ORDER Disorderly conduct No. No. Violation Firearm (FO) Might trigger prostitution inadmissibility. Might trigger prostitution inadmissibility. Might trigger prostitution inadmissibility. A 40 (5/03)

41 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES OFFENSES AGAINST PUBLIC ORDER (continued) Harassment, Class B Harassment, Violation harassment, harassment, Loitering Violation Loitering, Class B No. Might be considered No. Might be No, unless maximum term of imprisonment of imposed in which case conviction under subsections (3) or (4) might crime of violence If term of at least one year is imposed, might crime of violence Might be No. Convictions under subsections (2) and (3) might be No. Might be Firearm (FO) If the victim was a current or former spouse or similarly situated individual and later removal proceedings are held outside of the jurisdiction of the Second Circuit U.S. Court of Appeals, a conviction might be considered a CODV. A conviction might also trigger deportability under CODV clause regarding crime of stalking. If the victim was a current or former spouse or similarly situated individual, a conviction under subsection (1) might be considered a CODV. A conviction might also trigger deportability under CODV clause regarding crime of stalking. If the victim was a current or former spouse or similarly situated individual, a conviction under subsections (3) or (4) might be considered a CODV. A conviction might trigger deportability under CODV clause regarding crime of stalking. If the victim was a current or former spouse or similarly situated individual, a conviction might be considered a CODV. A conviction might also trigger deportability under CODV clause regarding crime of stalking. Might be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. (5/03) A 41

42 APPENDIX A OFFENSES AGAINST PUBLIC ORDER (concluded) Loitering for the purpose of engaging in a prostitution offense No. Might be Firearm (FO) Might trigger prostitution inadmissibility. Violation Class B Appearance in public under influence of drug other than alcohol Violation nuisance, No. Would probably NOT be considered No. Might be Might be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. Class B nuisance, Might be deemed a drug trafficking Might be considered Might be considered a CSO if record of conviction establishes a controlled substance as defined in 21 USC 802. OFFENSES RELATING TO CHILDREN AND INCOMPETENTS Endangering the welfare of a child Probably NOT. Conviction under subsection (1) might be considered Conviction might be considered a CAC. A 42 (5/03)

43 REFERENCE CHART FOR DETERMINING KEY IMMIGRATION CONSEQUENCES OF COMMON OFFENSES FIREARMS AND OTHER DANGEROUS WEAPONS possession of a weapon, 4th degree possession of a weapon, 3rd degree Probably NOT unless record of conviction establishes conviction under subsection (4) or an offense akin to one described in 18 U.S.C. 922(g) (1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. 924 (b) or (h), or 26 U.S.C. 5861, in which case might be deemed a firearm offense If term of at least one year is imposed, might crime of violence AF; OR, if record of conviction establishes an offense akin to one described in 18 U.S.C. 922(g) (1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r), 18 U.S.C. 924 (b) or (h), or 26 U.S.C. 5861, might be deemed a firearm offense considered a CIMT if convicted under subsections (2) or (8) requiring intent to use weapon. considered a CIMT if convicted under subsection (1) (when referencing CPW, 4th degree, subsection (2)). Firearm (FO) Conviction under subsections (1) through (6) would be considered a FO but only if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). Would be considered a FO but only if record of conviction establishes firearm or destructive device (as defined in 18 USC 921(a)). (5/03) A 43

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