Quick Reference Chart for Determining Immigration Consequences ...

APPENDIX A: QUICK REFERENCE CHART FOR DETERMINING IMMIGRATION CONSEQUENCES OF COMMON NEW YORK OFFENSES
Offense
NYPL
Section
Aggravated
Felony (AF)?
record of
conviction
(ROC)
establishes a
controlled
substance as
defined in 21
USC 802. If
this is a first
drug offense,
any other
subsection is
NOT a “drug
trafficking” AF,
unless ROC
shows
possession of
more than 5
grams of crack
or any amount
of
flunitrazepam,
in which case
probably is
“drug
trafficking” AF.
If this is a
subsequent
drug offense,
ROC
establishes a
controlled
substance as
defined in 21
USC 802 and
the government
establishes a
prior drug
conviction, any
Crime Involving
Moral Turpitude
(CIMT)?
probably are
NOT CIMT.
Other Grounds?:
Controlled Substance (CSO)
Crime Against Child (CAC)
Dom. Violence (CODV) etc.
Firearm Offense (FO)
Prostitution
Commercialized Vice
Comments, Strategies & Tips
These are by no means an exhaustive list of strategies and tips
advocates may pursue. For additional defense lawyer strategies,
see Chapter 5. For additional immigration lawyer strategies, see
Appendix K.
alternative offenses such as Hindering Prosecution (see
above, PL 205.55-205.65); or possibly to decrease risk of
CSO consider alternative offenses such as Criminally
Possessing a Hypodermic Instrument (see below, PL
220.45), Criminal Solicitation (see above, PL 100.00-
100.13) or Criminal Facilitation (see above, PL 115.00-
115.08).
4. If pleading to this offense cannot be avoided, if
possible avoid subsection (1) and keep out of record of
conviction identification of the controlled substance
involved.
Tip for immigration lawyers:
1. Argue NOT “drug trafficking” AF based on
arguments that remain available after the Supreme
Court’s decision in Lopez v. Gonzales (see App. G, §
1.b).
2. Argue NOT CSO if government failed to prove that
the controlled substance involved is one defined in 21
USC 802.
A-54 NYSDA IMMIGRANT DEFENSE PROJECT, December 2006