Quick Reference Chart for Determining Immigration Consequences ...

APPENDIX A: QUICK REFERENCE CHART FOR DETERMINING IMMIGRATION CONSEQUENCES OF COMMON NEW YORK OFFENSES
Offense
Patronizing a
prostitute, 4th
degree
Class B
misdemeanor
NYPL
Section
Aggravated
Felony (AF)?
230.03 Probably NOT,
but if record of
conviction
establishes that
prostitute was a
minor might be
“sexual abuse
of a minor” AF.
Crime Involving
Moral Turpitude
(CIMT)?
Probably.
Other Grounds?:
Controlled Substance (CSO)
Crime Against Child (CAC)
Dom. Violence (CODV) etc.
Firearm Offense (FO)
Prostitution
Commercialized Vice
If prostitute is minor, might be
CAC.
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.
1. The BIA has held that to “engage in” prostitution,
one must have engaged in a regular pattern of behavior
or conduct. See Matter of T, 6 I&N Dec.474 (BIA 1955)
(holding that the noncitizen who was twice convicted for
committing acts of prostitution was not excludable);
Matter of R, 2 I&N Dec. 50 (BIA 1944) (single act for gain
under circumstances showing prostitution).
Tip for defense lawyers:
1. To avoid CIMT deportability or inadmissibility risk if
client has prior or future CIMT, consider obtaining an
adjournment in contemplation of dismissal (ACD) or an
alternative offense such as Disorderly Conduct (see
below, PL 240.20) or Trespass (See above, PL 140.05) if
possible;
2. .If Tip 1 above is not possible and prostitute might
be minor, to decrease “sex abuse of minor” AF risk
consider alternative offense such as Criminal Nuisance
(see below, PL 240.45) and keep out of record of
conviction reference to the age of victim.
3. If pleading to this offense cannot be avoided and
prostitute might be minor, to decrease risk of “sex abuse
of minor” AF and CAC, try to keep out of record of
conviction reference to the age of the prostitute.
Tip for immigration lawyers:
1. Argue that conviction is categorically NOT “sex
abuse of minor” AF, even if the victim in fact was minor,
because the minority of the victim is not an element of
the crime. IJ may not look to the underlying record of
conviction to hold to the contrary. See, e.g., Singh v.
Ashcroft, 383 F.3d 144 (3 rd Cir. 2004).
A-82 NYSDA IMMIGRANT DEFENSE PROJECT, December 2006