Quick Reference Chart for Determining Immigration Consequences ...

APPENDIX A: QUICK REFERENCE CHART FOR DETERMINING IMMIGRATION CONSEQUENCES OF COMMON NEW YORK OFFENSES
Loitering
Violation
Offense
Loitering, 1st
degree
Class B
misdemeanor
Loitering for the
purpose of
engaging in a
prostitution offense
Violation
Class B
misdemeanor
Class A
misdemeanor
NYPL
Section
Aggravated
Felony (AF)?
Crime Involving
Moral Turpitude
(CIMT)?
240.35 No. Convictions
under
subsections (2)
and (3) might be
CIMT.
Other Grounds?:
Controlled Substance (CSO)
Crime Against Child (CAC)
Dom. Violence (CODV) etc.
Firearm Offense (FO)
Prostitution
Commercialized Vice
240.36 No. Might be CIMT. Might be CSO if record of
conviction establishes a
controlled substance as
defined in 21 USC 802.
240.37 No. Maybe. Might trigger “prostitution”
inadmissibility.
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.
240.26) and, if that also is not possible, Aggravated
Harassment, 2 nd (see above, PL 240.30).
Tip for defense lawyers:
1. To avoid CIMT risk, avoid subsections (2) and (3).
Tip for defense lawyers:
1. To avoid CSO or CIMT risks, consider obtaining an
adjournment in contemplation of dismissal (ACD) or
alternative offenses such as Disorderly Conduct,
Trespass or Loitering (see above, PL 240.20, 140.05 &
240.35).
2. If pleading to this offense cannot be avoided, if
possible, keep out of record of conviction identification of
the controlled substance involved.
Tip for defense lawyers:
1. To avoid risk of “prostitution” inadmissibility (and, if
client has prior CIMT, to avoid CIMT deportability or
inadmissibility), if possible consider obtaining an
adjournment in contemplation of dismissal (ACD) or an
alternative offense such as Disorderly Conduct, Trespass
or Loitering (see above, PL 240.20, 140.05 & 240.35).
Tip for immigration lawyer:
1. Argue that just one or a few loitering convictions
cannot trigger “prostitution” inadmissibility. 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).
NYSDA IMMIGRANT DEFENSE PROJECT, December 2006 A-87