Tips/Strategies

Tips for defense lawyers:

  1. To avoid Aggravated Felony, avoid sentence of one year or more (get 364 days or less) if possible.
  2. To decrease Crime Involving Moral Turpitude risk, consider alternative offense of an attempt (PL 110.00) to commit subsection (4) of PL120.05. 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 Crime Involving Moral Turpitude even though the completed crime itself is Crime Involving Moral Turpitude); 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 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).

Tips for immigration lawyers:

  1. Argue not “crime of violence” Aggravated Felony or Crime of Domestic Violence under various subsections. See Leocal v. Ashcroft, 543 U.S. 1 (2004) (crime of violence Aggravated Felony requires at least reckless mens rea); Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006) (120.05(4), requiring reckless conduct, is not COV); 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)); Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) (NY reckless manslaughter is not COV); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008) (recklessness is not sufficient to be crime of violence Aggravated Felony) (collecting cases)

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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