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)?
Crime Involving
Moral Turpitude
(CIMT)?
Other Grounds?:
Controlled Substance (CSO)
Crime Against Child (CAC)
Dom. Violence (CODV) etc.
Firearm Offense (FO)
Prostitution
Commercialized Vice
FO if record of conviction
establishes firearm or
destructive device (as defined
in 18 USC 921(a)).
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.
Criminal Sale of a
Firearm, 3 rd
degree
Class D felony
265.11 Probably
“firearm
trafficking” AF,
especially if
record of
conviction
established
sale or intent to
sell for
remuneration
(as opposed to
giving or
disposing
without
remuneration).
If term of
imprisonment
imposed is one
year or more,
might also be
“crime of
violence” AF. If
record of
conviction
establishes an
offense akin to
one described
in 18 U.S.C.
922(g) (1), (2),
(3), (4), or (5),
(j), (n), (o), (p),
or (r), 18 U.S.C.
924 (b) or (h),
or 26 U.S.C.
5861, might
also be “firearm
offense” AF.
Maybe.
Tip for defense lawyers:
1. To avoid “firearm trafficking” AF or FO risk, avoid
this offense altogether and consider alternative offenses
that do not require as an element the use or possession
of a firearm.
2. If Tip 1 is not possible, .to avoid “firearm trafficking”
AF risk, consider CPW, 4 th or 3 rd (see above, PL 265.01
& 265.02), and get sentence of 364 days or less.
3. If pleading to this offense cannot be avoided, to
preserve argument that it is not a “firearm trafficking” AF,
plead to subsection (1) and keep out of record of
conviction reference to sale for remuneration (it may be
better to establish giving or disposing without
remuneration).
4. To avoid FO, consider alternative offenses that do
not require as an element the use or possession of a
firearm.
Tip for immigration lawyers:
1. Argue NOT “firearm trafficking” AF if government
fails to prove that client was convicted of transfer of
firearm for remuneration. See Kuhali v. Reno, 266 F.3d
93 (2d Cir. 2001).
NYSDA IMMIGRANT DEFENSE PROJECT, December 2006 A-93