Quick Reference Chart for Determining Immigration Consequences ...
Quick Reference Chart for Determining Immigration Consequences ...
Quick Reference Chart for Determining Immigration Consequences ...
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APPENDIX A: QUICK REFERENCE CHART FOR DETERMINING IMMIGRATION CONSEQUENCES OF COMMON NEW YORK OFFENSES<br />
Offense<br />
Patronizing a<br />
prostitute, 4th<br />
degree<br />
Class B<br />
misdemeanor<br />
NYPL<br />
Section<br />
Aggravated<br />
Felony (AF)?<br />
230.03 Probably NOT,<br />
but if record of<br />
conviction<br />
establishes that<br />
prostitute was a<br />
minor might be<br />
“sexual abuse<br />
of a minor” AF.<br />
Crime Involving<br />
Moral Turpitude<br />
(CIMT)?<br />
Probably.<br />
Other Grounds?:<br />
Controlled Substance (CSO)<br />
Crime Against Child (CAC)<br />
Dom. Violence (CODV) etc.<br />
Firearm Offense (FO)<br />
Prostitution<br />
Commercialized Vice<br />
If prostitute is minor, might be<br />
CAC.<br />
Comments, Strategies & Tips<br />
These are by no means an exhaustive list of strategies and tips<br />
advocates may pursue. For additional defense lawyer strategies,<br />
see Chapter 5. For additional immigration lawyer strategies, see<br />
Appendix K.<br />
1. The BIA has held that to “engage in” prostitution,<br />
one must have engaged in a regular pattern of behavior<br />
or conduct. See Matter of T, 6 I&N Dec.474 (BIA 1955)<br />
(holding that the noncitizen who was twice convicted <strong>for</strong><br />
committing acts of prostitution was not excludable);<br />
Matter of R, 2 I&N Dec. 50 (BIA 1944) (single act <strong>for</strong> gain<br />
under circumstances showing prostitution).<br />
Tip <strong>for</strong> defense lawyers:<br />
1. To avoid CIMT deportability or inadmissibility risk if<br />
client has prior or future CIMT, consider obtaining an<br />
adjournment in contemplation of dismissal (ACD) or an<br />
alternative offense such as Disorderly Conduct (see<br />
below, PL 240.20) or Trespass (See above, PL 140.05) if<br />
possible;<br />
2. .If Tip 1 above is not possible and prostitute might<br />
be minor, to decrease “sex abuse of minor” AF risk<br />
consider alternative offense such as Criminal Nuisance<br />
(see below, PL 240.45) and keep out of record of<br />
conviction reference to the age of victim.<br />
3. If pleading to this offense cannot be avoided and<br />
prostitute might be minor, to decrease risk of “sex abuse<br />
of minor” AF and CAC, try to keep out of record of<br />
conviction reference to the age of the prostitute.<br />
Tip <strong>for</strong> immigration lawyers:<br />
1. Argue that conviction is categorically NOT “sex<br />
abuse of minor” AF, even if the victim in fact was minor,<br />
because the minority of the victim is not an element of<br />
the crime. IJ may not look to the underlying record of<br />
conviction to hold to the contrary. See, e.g., Singh v.<br />
Ashcroft, 383 F.3d 144 (3 rd Cir. 2004).<br />
A-82 NYSDA IMMIGRANT DEFENSE PROJECT, December 2006