Quick Reference Chart for Determining. Immigration Consequences of Common New York Offenses (Updated Jan. 2016) Quick Reference Chart for Determining

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1 Quick Reference Chart for Determining A P P E N D I X Immigration Consequences of Common New York s (Updated Jan. 2016) Quick Reference Chart for Determining Immigration Consequences This chart is intended to provide New York criminal defense lawyers with preliminary guidance regarding key potential immigration consequences of select New York offenses. For some important additional consequences not listed in this chart, see IDP s Immigration Consequences of s Summary Checklist (including, e.g., ineligibility for DACA/DAPA temporary administrative status). The user should investigate whether there have been relevant developments in the law since this chart was last updated. For more detailed information on the immigration law consequences referenced in this chart, see IDP Manual Appendix listed below: Felony (AF) deportability, see Appendix G, 1 (for AF practice aids and sample caselaw determinations, see also Appendix C) (CIMT) deportability, see Appendix G, 2, and inadmissibility, see Appendix H, 2 (and for CIMT caselaw determinations, see Appendix D). deportability, see Appendix G, 3, and inadmissibility, see Appendix H, 1 Against Children (CAC) deportability, see Appendix G, 5 Of Domestic Violence (CODV) and Stalking and Violation of Protection Order deportability, see Appendix G, 5 Firearm (FO) deportability, see Appendix G, 4 Prostitution and commercialized vice inadmissibility, see Appendix H, 4 For information on the applicability of each of these consequences to a specific noncitizen defendant, see IDP Manual Chapter 3, which discusses possible immigration consequences based on the noncitizen defendant s particular immigration status. This chart includes some strategies and tips for criminal defense lawyers to avoid possible negative immigration consequences, but these strategies and tips are by no means exhaustive. For additional strategies, see IDP Manual Chapter 5. NOTE! The main purpose of this chart is to warn New York criminal defense attorneys of the immigration risks connected with conviction of the listed New York offenses, so that they may provide proper advice and minimize immigration risks to their noncitizen clients charged with these offenses. The assessments of whether a conviction will or might trigger a particular immigration consequence are therefore conservative they err on the side of avoiding underestimating the risk that an offense would fall within a particular unfavorable immigration law classification (for example, aggravated ). Accordingly, even if the chart lists the offense as probably or even definitely falling into a particular classification, practitioners using this chart to defend a noncitizen in later immigration proceedings are advised not to assume lack of any viable arguments to challenging these classifications. A-!1

2 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s NOTE ON DESCAMPS In Descamps v. U.S., 133 S. Ct (2013), the U.S. Supreme Court applied a strict version of the categorical approach for determining when a prior conviction triggers a criminal sentence enhancement provision. The Board of Immigration Appeals ( BIA ) has determined that the Supreme Court s approach applies also when determining whether a conviction triggers a negative immigration consequence. See Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), stayed pending review by the Attorney General, 26 I&N Dec. 686 (A.G. 2015). Under the categorical approach, a conviction does not trigger an adverse consequence unless the minimum or entire range of conduct covered under the statute of conviction falls within the immigration law generic crime classification at issue (e.g., aggravated, crime involving moral turpitude, controlled substance offense, firearm offense, etc). However, if the statute of conviction is deemed divisible into separate offenses, the immigration adjudicator is permitted to look beyond the statutory language to the record of conviction to determine if the noncitizen was convicted under a divisible portion of the statute that does fall within the immigration law classification at issue. The Supreme Court in Descamps adopted a strict approach to divisibility analysis and ruled that a criminal statute may not be deemed divisible if the statute is not divided into subsections or disjunctive alternative phrases or terms representing distinct crime elements. Thus, the chart has been updated to reflect the possibility that certain New York offenses may no longer trigger adverse immigration consequences based on a strict application of the categorical approach and divisibility analysis set forth in Descamps. For example, the chart now states that many New York controlled substance or weapon-related offenses only might be deemed a controlled substance offense ( CSO ) or firearm offense ( FO ) or aggravated ( AF ) for immigration purposes -- whereas in the past the chart may have indicated that these offenses would definitely or probably be so deemed -- because the New York definitions of controlled substance and firearm include substances or weapons that do not fall within the relevant federal definitions of these terms, and because strong arguments have already been developed that, under Descamps, the NY statutes defining these offenses are not divisible into separate crimes permitting an immigration adjudicator to look at the record of conviction to determine the specific substance or weapon at issue. Defense counsel should be aware, however, that, since Descamps was decided in 2013, there remains uncertainty on the test for when a statute may be deemed divisible into separate offenses permitting an immigration adjudicator to look at the record of conviction. Some courts require only that the statute be divided into subsections or alternative disjunctive phrases or terms -- If such an approach were followed with respect to New York controlled substance or weapon-related offenses, such offenses might be deemed divisible simply because New York s definitions of controlled substance and firearm disjunctively list substances and weapons many of which (but not all) fall within the relevant federal definitions. Other courts follow Descamps more strictly and require more, i.e., that the alternative phrases or terms represent distinct crime elements that the prosecution must specifically prove beyond a reasonable doubt by juror unanimity, as opposed to being merely different means of committing one offense. Thus, defense counsel should take care in using this chart as the arguments based on Descamps are relatively new and untested, and where the entry in the CSO, FO, AF, etc., column refers to this Note, defense counsel should research or make inquiry regarding the latest developments in the case law applying Descamps to such offenses. In addition, counsel should be aware that there may be arguments under Descamps that other New York offenses are not divisible, which arguments are not yet reflected in this chart. A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

3 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s New York Penal Law (For New York Vehicle and Traffic Law offenses, see the chart beginning on page A-204) Against Child (CAC) Firearm (FO) Criminal solicitation Might be AF if underlying offense is AF. Probably if underlying offense is CIMT. Probably CSO, etc., if underlying offense is CSO, etc., but there is some case law supporting a contrary argument (see App. E). Tip for defense lawyers: 1. To reduce risk of CSO, consider alternate plea to criminal facilitation (see PL , below). Conspiracy A conspiracy to commit AF also is AF. A conspiracy to commit CIMT probably is CIMT for deportability purposes and triggers CIMT inadmissibility. Is CSO or FO if underlying offense is CSO or FO. Tip for defense lawyers: 1. To preserve an argument that the conviction is not CIMT, plead to a conspiracy to commit a crime that requires a mens rea of recklessness or less. Cf. Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 3 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

4 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Attempt An attempt to commit AF also is AF. An attempt to commit CIMT probably is CIMT for deportability purposes and triggers CIMT inadmissibility. Is CSO or FO if underlying offense is CSO or FO. Tip for defense lawyers: 1. To preserve an argument that the conviction is not CIMT, plead to an attempt to commit a crime that requires a mens rea of recklessness or less. See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). Criminal facilitation Might be AF if underlying offense is AF. Probably if underlying offense is CIMT. Might be CSO, etc., if underlying offense is CSO, etc., but there is some case law supporting a contrary argument (see App. E). A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

5 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Assault, 3rd degree Class A misdemeanor No, unless term of imprisonment year, in which case subsection (1) might be crime of violence AF in some jurisdictions outside 2d Circuit. Subsection (1) is CIMT; subsections (2) and (3) are probably NOT CIMT. Subsection (3) might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. If the complainant was a current or former spouse or person otherwise protected under U.S. or state domestic violence laws, i.e., NY CPL (1), subsection (1) might be CODV in some jurisdictions outside 2d Circuit. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To avoid AF risk, avoid sentence of one year (get 364 days or less). 2. To reduce risk of CIMT, seek alternate plea to attempted reckless assault. See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). If this is not possible, have client plead to subsection (2) and specifically negate serious injury or use of weapon. 3. To avoid FO, have client plead to subsection (2). If must plead to subsection (3), try to keep out of record of conviction that the weapon was a firearm. 4. To reduce CODV or CAC risks, keep age/relationship of complainant out of record of conviction (but note that this may not defeat removability with respect to CODV). Tips for immigration lawyers: IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K. 5

6 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Reckless assault of a child Class D If term of imprisonment year or more, probably is crime of violence AF. Yes. Is a CAC. 1. To avoid AF, avoid sentence of one year or more (get 364 days or less) if possible. 2. To reduce risk of CIMT, consider alternative offense of subsection (2) of Assault, 3rd (see above, PL (2)) if possible. 3. To reduce risk of CIMT, seek alternate plea to attempted reckless assault. See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). 4. To avoid CAC, consider plea to alternate offense that does not specify minority of complainant as an element and keep minority of complainant out of record of conviction. A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

7 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Assault, 2nd degree Class D If term of imprisonment year or more, subsection (2) is a crime of violence AF, subsections (1), (3), (7), (11) and (12) probably are crime of violence AF, subsections (4) and (4a) probably not crime of violence AF, and any other subsection might be crime of violence AF. Subsections (1), (2), (3) and (4) are CIMT. Subsections (7), (8), (9), 10, (11), and (12) probably are CIMT and any other subsection might be CIMT. Subsections (2) and (4) might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. Subsections (8) and (9) are CAC. Subsection (10)(b) and other subsections might be a CAC if the record of conviction establishes that the complainant was a child. If the complainant was a current or former spouse or similarly situated individual, subsections (1), (2), (3), (6) and (7) might be a CODV (and subsection (4) might be a CODV in jurisdictions outside 2d Circuit). Subsection (5) might be a CSO if ROC establishes a controlled substance as defined in 21 USC To avoid AF, avoid sentence of one year or more (get 364 days or less) if possible. 2. To decrease CIMT risk, consider alternative offense of an attempt (PL ) to commit subsection (4). See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). 3. To reduce CODV or CAC risks, keep age/relationship of complainant out of record of conviction (but note that this may not defeat removability with respect to CODV). Tips for immigration lawyers: 1.Argue not crime of violence AF or CODV under various subsections. See Leocal v. Ashcroft, 543 U.S. 1 (2004) (crime of violence AF requires at least reckless mens rea); Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 7 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

8 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Assault on a peace officer, police officer, etc. Class C If term of imprisonment year or more, probably is crime of violence AF. Probably. A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

9 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Assault, 1st degree Class B If term of imprisonment year or more, subsections (1) and (2) probably are crime of violence AF and subsection (4) might be crime of violence AF, and subsection (3) probably not crime of violence AF. Subsections (1) and (3) are CIMT. Subsection (2) is probably CIMT and subsection (4) might be CIMT. Subsection (1) might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. If the complainant was a current or former spouse or similarly situated individual, might also be CODV. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To preserve argument that conviction under this statute might not be AF, keep the record of conviction clear of mention of which subsection defendant has been charged and convicted under. 2. To decrease CIMT risk, consider alternative offense of an attempt (PL ) to commit subsection (3). See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). Tips for immigration lawyers: 1. Argue that subsection (3) is not a crime of violence AF because it requires merely reckless conduct. See Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (holding that NY reckless manslaughter is not COV); see also U.S. v. Castleman. 134 S. Ct (U.S. 2014) (listing cases finding recklessness is not sufficient for crime of violence);. IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 9 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

10 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) assault upon a police officer or peace officer Class B If term of imprisonment year or more, probably is crime of violence AF. Yes. Might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

11 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) assault upon a person less than eleven years old Class E If term of imprisonment year or more and record of conviction shows crime committed is assault as defined under subsection (1) of PL , might be crime of violence AF. Maybe depending on subsection of 3rd degree assault under which defendant is charged (see above, PL ). Is a CAC. Might be Probably FO if record of conviction establishes that underlying offense was (3) (negligent assault with weapon) and involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. 1. To avoid AF, avoid sentence of one year or more (get 364 days or less) if possible. To argument against crime of violence AF, plead to attempt as a misdemeanor conviction of even subsection (1) of 3rd degree assault should not be a crime of violence under 18 USC 16(a) in removal proceedings in the 2d Circuit. See Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003). 2. To preserve an argument against CIMT, consider alternative offense of an attempt (PL ) to commit PL based on an underlying PL (2) (reckless assault). See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). 3. To avoid CAC, consider plea to alternate offense that does not specify minority of complainant as an IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 11 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

12 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Menacing, 1st degree Class E If term of imprisonment year or more and record of conviction (ROC) shows underlying offense is subsection (1) of PL , probably is crime of violence AF. If ROC shows underlying offense is subsection (2) of PL , might be crime of violence AF. If term of imprisonment year or more, might be crime of violence AF even if crime comes under subsection (3) of PL in some jurisdictions outside 2d Circuit. Probably. Might be FO if record of conviction (ROC) shows that the crime committed is menacing as defined under subsection (1) of PL and that the offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. If the complainant was a current or former spouse or similarly situated individual, might also be CODV. Subsection (2) might also trigger deportability under CODV clause regarding crime of stalking. If the record of conviction establishes that complainant was a child, might be a CAC. A-! 12 IMMIGRANT DEFENSE PROJECT, Updated January To avoid AF, avoid sentence of one year or more (get 364 days or less) if possible. To preserve argument against crime of violence AF, plead to attempt. A misdemeanor conviction of 2nd degree menacing should not be crime of violence under 18 USC 16(a). See Matter U. Singh, 25 I&N Dec. 670 (BIA 2012) (finding California stalking offense to be COV under 16(b), not 16(a)). 2. To minimize CODV or CAC risks, keep age/relationship of complainant out of record of conviction (but note that this may not defeat removability with respect to CODV). Tip for immigration lawyers: 1. Argue subsection (1) of PL is not FO because deadly weapon is overbroad as the minimum conduct to violate the statute does not require a firearm. See, e.g., People v. Richards, 30 A.D. 3d 750 (3 Dept. 2006) (bb gun is a deadly weapon); People v. Jones (2 Dept. 1976) 54 A.D.2d 740 (holding that an air pistol is not an explosivepowered weapon and thus does not meet the definition of firearm, but is a deadly weapon as defined in ); People v. Madeo, 103 A.D. *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

13 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Menacing, 2nd degree Class A misdemeanor If term of imprisonment year, subsection (1) probably is crime of violence AF, subsection (2) might be crime of violence AF, and subsection (3) might be crime of violence AF in some jurisdictions outside 2d Circuit. Probably. Subsection (1) might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. If the complainant was a current or former spouse or similarly situated individual, might also be CODV. Subsection (2) might also trigger deportability under CODV clause regarding crime of stalking, and subsection (3) might trigger deportability under CODV clause regarding violators of protection orders. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To avoid AF, avoid sentence of one year or more (get 364 days or less) if possible. 2. To minimize CODV or CAC risks, keep age/relationship of complainant to defendant out of record of conviction (but note that this may not defeat removability with respect to CODV). 3. To minimize FO risk, keep record clear of subsection of conviction and/or of mention of type of weapon or dangerous instrument employed under subsection (1). Tip for immigration lawyers: 1. Argue subsection (1) of PL is not FO because deadly weapon is overbroad as the minimum conduct to violate the statute does not require a firearm. See, e.g., People v. Richards, 30 A.D. 3d 750 (3 Dept. 2006) (bb gun is a deadly weapon); People v. Jones (2 Dept. 1976) 54 A.D.2d 740 (holding that an air pistol is not an explosivepowered weapon and thus does not meet the definition of firearm, but is a deadly weapon as defined in ); People v. Madeo, 103 A.D. 2d 901 (3 Dept. 1984) (air pistol is a deadly weapon). Argue subsection (1) is also not FO because "dangerous instrument" as defined in IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 13 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

14 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Menacing, 3rd degree Class B misdemeanor No. Maybe. If the complainant was a current or former spouse or similarly situated individual, might be CODV. If the record of conviction establishes that complainant was a child, might be a CAC. Tip for defense lawyers: 1. To minimize CODV or CAC risks, keep age/relationship of complainant to defendant out of record of conviction (but note that this may not defeat removability with respect to CODV). Tip for immigration lawyers: 1. Argue that the offense punishes conduct equivalent to a simple assault and is therefore not a CIMT. See Matter of Solon, 24 I&N Dec. 239, 244 n.5 (BIA 2007). A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

15 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Menacing a police officer or peace officer Class D If sentence of one year or more is imposed, is probably crime of violence AF. Probably. Might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. Tip for immigration lawyers: 1. Argue not FO as the minimum conduct to violate the statute does not require a firearm. If the statute is deemed divisible and ROC does establish a firearm under NY law, argue NY PL definition of firearm is broader than the federal definition in 18 USC 921(a)(3), which excludes antique firearms as defined in 18 USC 921(a) (16) and as a single indivisible offense is not a FO. See Moncrieffe v. Holder, 569 U.S., 133 S.Ct 1678 (2013); see also 18 USC 921(a)(3) (excluding antiques from definition of firearm); see, e.g., U.S. v. Aguilera-Rios, --F.3d--, 2014 WL , No (9th Cir. June 17, 2014) (California felon in possession of firearm statute is not deportable as firearms offense because antiques were prosecuted under the Calif. statute). NY has prosecuted antique firearms that are excluded from the definition of firearms. See, e.g., People v. Mott, 112 Misc.2d 833 (NY Sup Ct 1982) (upholding conviction for possession of antique muzzle-loading pistol under NY PL ). IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 15 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

16 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Reckless endangerme nt, 2nd degree Class A misdemeanor No, unless term of imprisonment year, in which case might be crime of violence AF in some jurisdictions outside 2d Circuit. Maybe. If the complainant was a current or former spouse or similarly situated individual, might be CODV in some jurisdictions outside 2d Circuit. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To avoid AF, avoid sentence of one year (get 364 days or less). 2. To preserve an argument against CIMT, plead to an attempt (PL ) to commit PL See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, first degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5thth Cir. 2010) (collecting cases). 3. To minimize CODV or CAC risks, keep age/relationship of complainant to defendant out of record of conviction (but note that this may not defeat removability with respect to CODV). A-! 16 IMMIGRANT DEFENSE PROJECT, Updated January 2016 Tips for immigration lawyers: 1. Argue not crime of violence AF or CODV. See Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (holding that NY reckless manslaughter is not COV); see also U.S. v. Castleman, 134 S.Ct (U.S. 2014) (listing cases finding recklessness is not sufficient for crime of violence); Chrzanoski v. *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

17 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Reckless endangerme nt, 1st degree Class D Probably not crime of violence AF. Probably. Probably not CODV. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To reduce risk of AF, avoid sentence of one year or more (get 364 days or less) if possible. 2. To preserve an argument against CIMT, plead to an attempt (PL ) to commit PL See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, first degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). 3. To minimize CODV or CAC risks, keep age/relationship of complainant to defendant out of record of conviction (but note that this may not defeat removability with respect to CODV). Tips for immigration lawyers: 1. Argue not crime of violence AF or CODV. See Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (holding that NY reckless manslaughter is not COV); see also U.S. v. Castleman, 134 S.Ct (U.S. 2014) (listing cases IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 17 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

18 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Stalking, 4th degree Class B misdemeanor No. Maybe. Might trigger deportability as a crime of stalking. If the complainant was a current or former spouse or similarly situated individual, might also be CODV in some jurisdictions outside 2d Circuit. If the record of conviction establishes that complainant was a child, might be a CAC. Tip for defense lawyers: 1. To avoid crime of stalking CODV or CAC risks, consider alternative offenses such as Disorderly Conduct or Trespass (see below, PL & ). To minimize CAC risk if this is not possible, keep minority of complainant out of record of conviction. Tip for immigration lawyers: 1. Argue that not stalking as established in Matter of Sanchez- Lopez, 26 I&N Dec. 71 (BIA 2012). Argue statute lacks element of the generic definition. does not require specific intent to cause an individual fear of bodily injury or death, but only requires general intent to engage in conduct. People v. Stuart, 100 N.Y.2d 412, (Ct.App. 2003). Also argue that subsections (1) and (3) do not have both the requirement that a reasonable person be placed in fear and that the person was actually placed in fear. See Sanchez-Lopez at 74 (declining to decide whether the subjective and/or objective fear or are required to be a stalking offense). Subsection (1) and (3) only requires objective fear. See, e.g., A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

19 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Stalking, 3rd degree Class A misdemeanor No, unless term of imprisonment year, in which case subsection (3) might be crime of violence AF and subsections (1), (2) and (4) might also be crime of violence AF in some jurisdictions outside 2 d Circuit if ROC shows crime committed comes under subsection (1) of PL Probably. Might trigger deportability as a crime of stalking. If the complainant was a current or former spouse or similarly situated individual, might also be CODV. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To avoid AF, avoid sentence of one year or more (get 364 days or less). 2. To avoid CIMT, consider alternative offenses such as Disorderly Conduct or Trespass (see below, PL & ); if that is not possible and if client has no prior CIMTs, consider alternative offense of attempt (PL ) to commit , which as a B misdemeanor will not trigger deportability as 1 CIMT within 5 years of admission. 3. To avoid crime of stalking, CODV or CAC risks, consider alternative offenses such as Disorderly Conduct or Trespass (see below, PL & ). To minimize CAC risk if this is not possible, keep minority of complainant out of record of conviction. Tip for immigration lawyers: 1. Argue offense is broader than the stalking definition established in Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012). Argue stalking in the 4th degree lacks element of the generic definition. does not require specific intent to cause an individual fear of bodily injury or death, but only requires general intent to engage in conduct. People IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 19 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

20 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Stalking, 2nd degree Class E If term of imprisonment year or more, might be crime of violence AF. Probably. Subsection (1) might be FO if record of conviction establishes that offense involved a firearm or destructive device (as defined in 18 USC 921(a). See Note on Descamps, supra. Any subsection might trigger deportability as a crime of stalking. If the complainant was a current or former spouse or similarly situated individual, might also be CODV. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To avoid AF, avoid sentence of one year or more (get 364 days or less) if possible. If this is not possible, to reduce risk of AF, avoid conviction under subsection (1), subparagraph (i) (involving threatened use, as opposed to mere display or possession, of weapon). 2. If a weapon (but not a gun) was involved, to avoid CODV or CAC risks, consider subsection (1). Tips for immigration lawyers: 1.Argue not stalking as defined in Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012) because subsections (1), (2), (3), (5) lacks an element of intent to cause fear of bodily injury or death. See other arguments that 4th degree stalking is overbroad in Tips for PL Argue subsection (1) is not FO because deadly weapon is overbroad as the minimum conduct to violate the statute does not require a firearm. See, e.g., People v. Richards, 30 A.D.3d 750 (3 Dept. 2006) (bb gun is a deadly weapon); People v. Jones (2 Dept. 1976) 54 A.D.2d 740 (holding that an air pistol is not an explosivepowered weapon and thus does not meet the definition of firearm, but is a deadly weapon as defined A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

21 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Stalking, 1st degree Class D If term of imprisonment year or more, might be crime of violence AF. Subsection (2) might also be rape, or sexual abuse of a minor AF. Probably. Might trigger deportability as a crime of stalking or, if the complainant was a current or former spouse or similarly situated individual, a CODV. If the record of conviction establishes that complainant was a child, might be a CAC. 1. To avoid crime of violence AF, avoid sentence of one year or more (get 364 days or less) if possible. 2. To avoid rape, or sexual abuse of a minor AF risk, avoid subsection (2) if possible. Tips for immigration lawyers: 1.Argue not stalking as defined in Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012) because subsections (1), (2), (3), (5) of and subsection (3) of lack an element of intent to cause fear of bodily injury or death. See other arguments that 4th degree stalking is overbroad in Tips for PL Criminally negligent homicide No. Probably NOT. Class E IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 21 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

22 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) criminally negligent homicide No. Probably NOT. Class C Vehicular manslaughte r, 2nd degree Probably NOT. Probably NOT. Class D Vehicular manslaughte r, 1st degree Class C Probably NOT. Subsection (2) is probably CIMT and other subsections might be CIMTs. Tip for defense lawyers: 1. To decrease CIMT risk, consider alternative offenses of Criminally Negligent Homicide or Vehicular Manslaughter, 2nd (see above, PL & ). A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

23 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) vehicular homicide Class B If term of imprisonment year or more, might be a crime of violence AF in some jurisdictions outside 2d Cir. Probably. Tip for defense lawyers: 1. To decrease AF and CIMT risk, consider alternative offenses of Criminally Negligent Homicide or Vehicular Manslaughter, 2nd degree (see above, PL & ). Tip for immigration lawyers: 1. Argue not crime of violence AF. See Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (holding that NY reckless manslaughter is not COV); see also U.S. v. Castleman, 134 S.Ct (U.S. 2014) (listing cases finding recklessness is not sufficient for crime of violence). IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 23 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

24 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Manslaughte r, 2nd degree Class C Subsection (1) is NOT AF in 2d Circuit, but if term of imprisonment year or more, might be crime of violence AF in some jurisdictions outside 2d Circuit. If term of imprisonment of one year or more is imposed, subsections (2) and (3) might be crime of violence AF. Subsection (1) is CIMT; subsections (2) and (3) might be CIMT. If the victim was a current or former spouse or similarly situated individual, might be CODV in some jurisdictions outside 2d Circuit. If the record of conviction establishes that victim was a child, might be CAC. 1. To avoid AF and CIMT, consider alternative offense of criminally negligent homicide (PL ) if possible. 2. If Tip 1 is not possible and incident involved a car, to avoid AF risk consider alternative offenses such as Vehicular Manslaughter, 2nd or 1st degree (see above, PL & ) or Leaving the Scene of an Incident Without Reporting (see below, VTL 600(2)). 3. To preserve an argument against CIMT, plead to an attempt (PL ) to commit See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, first degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). 4. To minimize CODV or CAC risks, keep age/relationship of complainant to defendant out of record of conviction (but note that this may not defeat removability A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

25 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) Manslaughte r, 1st degree Class B If term of imprisonment year or more, subsections (1) and (2) are crime of violence AF in 2d Circuit and probably crime of violence AF elsewhere, and subsections (3) and (4) might be crime of violence AF. Subsections (1), (2) and (4) are CIMT; subsection (3) might be CIMT. If the victim was a current or former spouse or similarly situated individual, might be CODV. If the record of conviction establishes that the victim was a child, conviction might be CAC. 1. To avoid AF and CIMT, consider alternative offense of criminally negligent homicide (see above, PL ) if possible. 2. If Tip 1 is not possible and incident involved a car, to avoid AF consider alternative offenses such as Vehicular Manslaughter, 2nd or 1st degree (see above, PL & ) or Leaving the Scene of an Incident Without Reporting (see below, VTL 600(2)). 3. If Tips 1 and 2 are not possible, to decrease AF risk consider alternative offense of Manslaughter, 2nd (see above, PL ). 4. To preserve an argument against CIMT, plead to an attempt (PL ) to commit (4) if possible. See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). 5. To minimize CODV or CAC risks, IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 25 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

26 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) manslaughte r, 2nd degree Class C If term of imprisonment year or more, might be crime of violence AF. Yes. 1. To reduce the risk of AF, consider lesser offense of aggravated criminally negligent homicide (PL ) if possible. 2. To preserve an argument against CIMT, plead to an attempt (PL ) to commit if possible. See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). New York courts permit such hypothetical offense pleas. See Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (collecting cases). Tip for immigration lawyers: 1. Argue not crime of violence AF. See Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (NY reckless manslaughter is not COV); see also U.S. v. Castleman, 134 S.Ct (U.S. 2014) (listing cases finding recklessness is not sufficient for crime of violence). A-! IMMIGRANT DEFENSE PROJECT, Updated January *These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

27 APPENDIX A: Quick Reference Chart for Determining Immigration Consequences of Common New York s Against Child (CAC) Firearm (FO) manslaughte r, 1st degree Class B If term of imprisonment year or more, is crime of violence AF and probably crime of violence AF elsewhere. Yes. Tip for defense lawyers: 1. To reduce the risk of AF, consider lesser offenses of aggravated criminally negligent homicide (PL ) or, failing that, aggravated manslaughter, 2nd degree (PL ). Murder, 2nd degree Class A-I Yes. Yes. If the victim was a current or former spouse or similarly situated individual, might be CODV. Subsection (5) is CAC and other subsections might be if record of conviction establishes minority of victim. 1. To avoid AF, consider alternative offense of Criminally Negligent Homicide (see above, PL ) if possible, or failing that, Manslaughter, 2nd (see above, PL ) if possible. 2. To preserve an argument against CIMT, plead to an attempt (PL ) to commit (2) or (4). See Gill v. INS, 420 F.3d 82 (2d Cir. 2005) (because a person cannot intend to commit a reckless act, an attempted reckless assault could not constitute CIMT even though the completed crime itself is CIMT); Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (same with attempted reckless endangerment, 1st degree). IMMIGRANT DEFENSE PROJECT, Updated March 2015 A-! 27 * These are by no means an exhaustive list of strategies and tips criminal defense and immigration lawyers may pursue. For additional criminal defense strategies, see Chapter 5. For additional immigration lawyer strategies, see Appendix K.

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