Tips/Strategies

Tip for defense lawyers:

  1. To avoid Aggravated Felony risk, avoid sentence of one year (get 364 days or less).
  2. To reduce risk of Crime Involving Moral Turpitude, seek alternate plea to attempted reckless assault. 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. See Note on Crime Involving Moral Turpitude Offenses, supra.
  3. To avoid Firearm Offense, have client plead to subsection (2).
  4. To reduce Crime of Domestic Violence or Crime Against Child risks, keep age/relationship of complainant out of record of conviction (but note that this may not defeat removability with respect to Crime of Domestic Violence).

Tip for immigration lawyers:

  1. Argue not “crime of violence” Aggravated Felony or Crime of Domestic Violence under any subsection. See Leocal v. Ashcroft, 543 U.S. 1 (2004) (crime of violence Aggravated Felony requires at least reckless mens rea); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) (even intentional infliction of injury does not equal the intentional use of force required for crime of violence Aggravated Felony definition under 18 USC 16(a)); U.S. v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006) (same); Tran v. Gonzales, 414 F.3d 464 (3rd Cir. 2005) (recklessness is not sufficient to be crime of violence Aggravated Felony).
  2. Preserve argument that subsection (1) is not Crime Involving Moral Turpitude because Matter of Solon, 24 I&N Dec. 239 (BIA 2007) was wrongly decided. See, e.g., Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003) (simple battery under Cal. Penal Law 242 held not a Crime Involving Moral Turpitude).
  3. Subsections (2) and (3) are not Crime Involving Moral Turpitude. See Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996); Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992).

Disclaimer

This calculator is not designed to provide legal advice over the Internet. Legal advice is dependent upon the specific circumstances of each situation. The information provided here is targeted toward collateral consequences in New York. The law varies from state to state, so that some information provided herein may not be correct outside New York State. In addition, immigration consequences which involve federal law may vary from one federal jurisdiction to another. While every effort is made to keep the content on this site current, the information contained herein is not guaranteed to be up-to-date. Therefore, the information provided herein cannot replace the advice of competent legal counsel licensed in your state.

Also, in the interest of making sure that defendants are aware of all possible risks, the Calculator may warn of probable or possible potential negative consequences even where there may be good arguments that conviction of a particular offense should not trigger these consequences. A skilled advocate may be able to overcome some of the potential consequences. Therefore, the information provided through the Calculator should not be taken as an absolute limitation on what such advocacy might achieve.

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