Immigration Consequences For Criminal Matters
What are the immigration consequences of criminality, generally.
- Basics
- Relief Available With An Aggravated Felony Conviction
- 42A -- LPR CANCELLATION OF REMOVAL
- SPECIFIC NEW YORK OFFENSES
- Theft
- NY VTL §511(3)(a)(i) Aggravated Unlicensed Operation of Motor Vehicle
- Second Degree Attempted Assault is a Crime of Violence
- Robbery -- Second NYPL 160.10 & Third Degree NYPL 160.05
- LPR Returning to the US
- CIMT's
- Crimes
- Class A Misdemeanors in New York (retroactive reduction to 364 day max penalty)
Basics
Basics
I. How Immigration Law Evaluates California Sentences
A. When does the length of an imposed sentence matter for immigration purposes?
See also Chart 3 in Part VII, below, which summarizes how sentences cause immigration penalties.
Aggravated felonies. The most common sentencing issue involves “aggravated felonies” (AFs), as defined under immigration law. Generally, AFs have the worst immigration consequences. Certain offenses only become an AF if a sentence of one year or more is imposed.1 The criminal defense strategy is to get a sentence of no more than 364 days on any single count, or to plead to a different offense that does not become an AF with a year’s sentence.
CIMTs: The petty offense exception, and avoiding the bar to non-LPR cancellation. In two contexts, a noncitizen convicted of a single crime involving moral turpitude (CIMT) needs to have a sentence imposed of no more than six months. This is required in order to qualify for the petty offense exception to the CIMT inadmissibility ground, and to avoid a bar to eligibility for cancellation of removal for non-permanent residents. (In each of these cases there are additional requirements, including limits on the potential sentence for the offense. See Part IV, below.)
Five-year total sentences for two or more convictions. A person is inadmissible if in their lifetime they were convicted of two or more offenses of any type, with an aggregate sentence imposed of five or more years.
B. What is the immigration definition of an imposed sentence?
Federal immigration law has its own statutory definition of sentence: “Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”3 Under this definition:
✔️ The sentence is the period of incarceration that a judge ordered -- not the potential sentence, or the time actually served. Early release from custody based on good behavior or jail overcrowding does not reduce the sentence for immigration purposes.
✔️ For a felony “split sentence” pursuant to PC § 1170(h)(5), where the sentence is split into custodial and supervisory components, the aggregate is considered the sentence for immigration purposes.
Example: The judge imposes five years but “splits” it into six months in custody, followed by four years, six months on “mandatory supervision”. For immigration purposes, the sentence is five years.
✔️ Suspending the execution of a sentence offers no immigration advantage. Immigration law includes the entire sentence ordered, even if all or part has been suspended.4 But when imposition of sentence is suspended, the only sentence for immigration purposes is the period of jail time ordered by a judge as a condition of probation (if any).
Example: The judge imposes a sentence of two years but suspends execution of all but 13 months. For immigration purposes, the sentence is two years.
Example: The judge imposes a sentence of two years but suspends execution. She orders 180 days’ custody as a condition of probation. For immigration purposes, the sentence is two years. Example: The judge suspends imposition of sentence and orders three years’ probation, with eight months of custody ordered as a condition of probation. For immigration purposes, the sentence is eight months.
Example: The judge suspends imposition of sentence and orders three years’ probation, with no custody time required. For immigration purposes, no sentence is imposed.
✔️ For most immigration provisions, including the definition of an aggravated felony, the measure is the sentence that was imposed on an individual offense. Multiple consecutive or concurrent sentences on different offenses are not added together.
Example: Sections 273.5 and 496 both become an aggravated felony if a year is imposed. If the defendant is sentenced to seven months on each of these offenses, to run consecutively, there is no aggravated felony conviction: while the total sentences equal 14 months, a sentence of a year or more is not imposed on a single count. In contrast, a sentence of a year on both, to run concurrently, would create two aggravated felony convictions.
Aggravated Felony
The following is a list of the aggravated felony offenses listed in INA § 101(a)(43), arranged in alphabetical order. The capital letter following the offense refers to the subsection of § 101(a)(43) where the offense appears. See Practice Advisory on Aggravated Felonies.
Aggravated Felonies under INA §101(a)(43) (displayed alphabetically; statute subsection noted after category)
• alien smuggling- smuggling, harboring, or transporting of aliens except for a first offense in which the person smuggled was the parent, spouse or child. (N)
• attempt to commit an aggravated felony (U)
• bribery of a witness- if the term of imprisonment is at least one year. (S)
• burglary- if the term of imprisonment is at least one year. (G)
• child pornography- (I)
• commercial bribery- if the term of imprisonment is at least one year. (R)
• conspiracy to commit an aggravated felony (U)
• counterfeiting- if the term of imprisonment is at least one year. (R)
• crime of violence as defined under 18 USC 16 resulting in a term of at least one year imprisonment, if it was not a “purely political offense.” (F)
• destructive devices- trafficking in destructive devices such as bombs or grenades. (C)
• drug offenses- any offense generally considered to be “drug trafficking,” plus cited federal drug offenses and analogous felony state offenses. (B)
• failure to appear- to serve a sentence if the underlying offense is punishable by a term of 5 years, or to face charges if the underlying sentence is punishable by 2 years. (Q and T)
• false documents- using or creating false documents, if the term of imprisonment is at least twelve months, except for the first offense which was committed for the purpose of aiding the person’s spouse, child or parent. (P)
• firearms- trafficking in firearms, plus several federal crimes relating to firearms and state analogues. (C)
• forgery- if the term of imprisonment is at least one year. (R)
• fraud or deceit offense if the loss to the victim exceeds $10,000. (M)
• illegal re-entry after deportation or removal for conviction of an aggravated felony (O)
• money laundering- money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if the amount exceeds $10,000. (D)
• murder- (A)
• national defense- offenses relating to the national defense, such as gathering or transmitting national defense information or disclosure of classified information. (L)(i)
• obstruction of justice if the term of imprisonment is at least one year. (S)
• perjury or subornation of perjury- if the term of imprisonment is at least one year. (S)
• prostitution- offenses such as running a prostitution business. (K)
• ransom demand- offense relating to the demand for or receipt of ransom. (H)
• rape- (A)
• receipt of stolen property if the term of imprisonment is at least one year (G)
• revealing identity of undercover agent- (L)(ii)
• RICO offenses- if the offense is punishable with a one-year sentence. (J)
• sabotage- (L)(i)
• sexual abuse of a minor- (A)
• slavery- offenses relating to peonage, slavery and involuntary servitude. (K)(iii)
• tax evasion if the loss to the government exceeds $10,000 (M)
• theft- if the term of imprisonment is at least one year. (G)
• trafficking in vehicles with altered identification numbers if the term of imprisonment is at least one year. (R)
• treason- federal offenses relating to national defense, treason (L)
PRACTICE TIP: An LPR is not “rendered inadmissible” under the controlled substance and CIMT grounds unless they were convicted of, or made a qualifying admission that they committed, the offense. The government’s suspicion, allegation, or evidence that the person committed the offense is not enough to render them inadmissible and stop their clock, without a conviction or admission of conduct.
• If a conviction is vacated based on legal error so that it is eliminated for immigration purposes, then commission of the offense did not stop the clock because the person never was legitimately “rendered inadmissible.” (Of course, where it is possible a more direct option is to vacate the deportable conviction/s that are the bases for removal, and terminate the proceedings.)
• If there was no conviction and an LPR refuses to admit the conduct to DHS, they are not rendered inadmissible and the clock does not stop.
Relief Available With An Aggravated Felony Conviction
What relief is available to a person in removal proceedings who has been convicted of an aggravated felony.
INA 212(h) Waiver -- No AF Bar for Refugees
Aggravated Felony Bar
Normally an Aggravated Felony will disqualify someone from eligibility for an INA 212(h) waiver.
AF is NOT a bar to INA 212(h) for a Refugee Who Adjusted to an LPR. See Matter of N-V-G-, 28 I&N Dec. 380 (BIA 2021).
➡️ The Fifth, Ninth and Eleventh Circuit Courts of Appeal have held that the LPR bar to § 212(h) based on an aggravated felony conviction will only apply to a noncitizen who was admitted to the United States as a lawful permanent resident at the border or its equivalent (e.g., an airport). Merely adjusting status to permanent residency does not trigger the bar. Martinez v. Mukasey, 519 F.3d 532, 544-45 (5th Cir. 2008); Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010); Lanier v. United States AG, 631 F.3d 1361, 1366-67 (11th Cir. 2011). The same rule should apply to the LPR bar based on lack of seven years lawful continuous residence.
Eligibility
You Can Apply for a § 212(h) waiver of inadmissibility if ….
A. You are applying to become a lawful permanent resident (LPR) under certain categories (e.g., family visa, VAWA self-petitioner, employment), or you are already an LPR.
B. Your crime is described in inadmissibility grounds at INA § 212(a)(2) based on:
• One or more crimes involving moral turpitude (CIMTs),
• Engaging in prostitution,
• Two or more convictions with a total sentence imposed of five or more years, and/or
• A single incident involving possession of 30 grams or less of marijuana or a few related marijuana offenses1--but no other drug offense.
C. You come within one of these four categories, set out in INA § 212(h)(1).
Note that only the first category requires the difficult “extreme hardship” showing.
1. You have a USC or LPR parent, spouse, son, or daughter whom you can establish would suffer extreme hardship if you were removed;
2. The inadmissible incident/s occurred at least 15 years ago, and you can show that you are rehabilitated and your admission is not contrary to national interests;
3. You are inadmissible only under the prostitution ground, and you can show that you are rehabilitated and your admission is not contrary to national interests; or
4. You are a VAWA self-petitioner, and you can show that the waiver should be granted as a matter of discretion.
D. Procedurally, you come within one of the following categories:
1. Applicant for immigrant visa (LPR status) through consular processing;
2. Immigrant visa holder, who seeks admission at a port of entry following consular processing;
3. LPR applying for admission into the United States who is deemed to be seeking a new admission upon their return, pursuant to INA § 101(a)(13)(C). No application for adjustment of status is required here;
4. Applicant for adjustment of status affirmatively;
5. Applicant (including an LPR) for adjustment of status as a defense to deportability, in INA § 237 removal proceedings.
6. Question: Can an LPR apply for a § 212(h) waiver as a defense to deportability, in INA § 237 removal proceedings, if they are not also able to file an adjustment application?
a. The Board of Immigration Appeals (BIA) said no. It found that § 212(h) is only available at the border, or with an application for adjustment or consular processing. See Matter of Rivas, 26 I&N Dec. 130 (BIA 2013).
b. Argument: Advocates can explore arguments that an LPR in § 237 removal proceedings can file for § 212(h) as a defense, without an adjustment application, if the inadmissible conduct or conviction/s at issue occurred before Matter of Rivas was published on June 20, 2013 (or arguably, even after), and if the person had traveled outside the United States after the conduct or conviction/s (or arguably, even if not).
E. You must not be an LPR who
(a) is subject to the § 212(h) LPR bars, and
(b) actually comes within an LPR bar. See § 212(h)(2). These bars only affect selected LPRs and conditional permanent residents.7 They do not apply to immigrants in other types of status or to undocumented people.
1. As an LPR, you are subject to the bars only if you:
• previously (in an event before the current application)
• were actually “admitted” into the United States
• as an LPR (not as a tourist, etc.)
• at the border (at a port of entry; not an adjustment of status)
Protections Under the Convention Against Torture
WITHHOLDING OF REMOVAL
A person might not be barred from applying for withholding of removal under INA § 243(b)(3), 8 USC § 1231(b)(3).
An aggravated felony conviction will only act as a bar to withholding if:
(a) it is classed as a “particularly serious crime” (which includes nearly any drug trafficking offense, among other crimes)
or
(b) one or more convictions of an aggravated felony resulted in a total sentence of at least five years. 8 CFR 208.16(d)(3).
42A -- LPR CANCELLATION OF REMOVAL
Form 42A
Cancellation of Removal
for Certain Legal Permanent Residents
Basic Eligibility
You can apply for LPR Cancellation of Removal under INA § 240(A)(a) if…
A. You obtained LPR status lawfully and do not fall within certain categories.
You must not have become an LPR through fraud or mistake. You must not come within certain categories, including persecutors and terrorists.
B. You have not been convicted of an aggravated felony.
The immigration statute designates certain types of crimes as “aggravated felonies.” If the person was convicted of an aggravated felony at any time, it is a bar to LPR cancellation of removal.5 If the aggravated felony does not involve drugs, check to see if the person might be eligible for relief under INA § 212(h).6 If the aggravated felony conviction occurred in the 1990’s or earlier, check for eligibility for a waiver under INA § 212(c), discussed below. For other options, see the ILRC Relief Toolkit at www.ilrc.org/chart.
C. You have been an LPR for at least five years. The applicant must have “been an alien lawfully admitted for permanent residence for not less than 5 years.”
INA § 240A(a)(1). The five years of LPR status includes time spent as a conditional permanent resident. Children cannot use their parent’s time, for either the five-year LPR or seven-year continuous residence requirement.
The accrual of five years of LPR status is not subject to the “stop-time” rule set out at INA § 240A(d)(1), discussed below. The five years as an LPR continue to accrue through the removal proceedings until there is an administrative denial (meaning throughout the BIA appeal, if there is one).
D. You have accrued seven years of continuous residence in the United States since admission in any status.
The applicant must have “resided in the United States continuously for 7 years after having been admitted in any status.” INA § 240A(a)(2). As discussed below, a complex “stop-time” provision governs when the seven years cease to accrue based on commission of certain offenses, under INA § 240A(d)(1)(B).
Five Years As LPR
Five-Year as LPR Example: Maritza was admitted on a border crossing card in 2009, fell out of status, and then adjusted to lawful permanent resident status in 2014. She was convicted of an alleged deportable offense and served with a Notice to Appear in 2017. She was not eligible for LPR cancellation because she lacked the five years as an LPR (although she did have the seven years since admission in any status, discussed below). In removal proceedings, she contested deportability, lost, and appealed her case to the BIA. In 2019, while the appeal was still pending, she reached the five years of LPR status. The BIA agreed to her request to remand the case to the immigration judge to enable her to apply for LPR cancellation.
7 Years of Physical Presence
1. What starts the accrual of the seven years?
The seven-year “clock” starts with any admission, e.g., as an LPR, visitor, border crossing card-holder, student, etc., including if the person fell out of status for some period before they adjusted. If the person never was admitted, adjustment of status to LPR will count as the admission that starts the seven years. The Fifth and Ninth Circuits held that admission includes a person who was “waved through” at a port of entry, but the BIA will apply this rule only in cases arising within the Fifth and Ninth Circuit.11 Advocates can assert that in some cases a grant of status within the United States constitutes an admission for purposes of the seven years. A grant of a T, U, or V visa should be so held.12
Advocates can consider arguments that an admission for this purpose includes a grant of Temporary Protected Status (TPS) (in the Fifth, Eighth, and Ninth Circuits) or of Special Immigrant Juvenile Status (in the Ninth Circuit). As always with untried arguments, at the same time they should explore other defense strategies, including post-conviction relief to vacate the removable conviction/s.
A grant of Family Unity, or merely applying for asylum or adjustment, or being granted asylum, is not an admission.15 2. What ends the accrual of seven years: Served with a Qualifying Notice to Appear (NTA) Under the “stop-time” provision in INA § 240A(d)(1), the seven years since admission cease to accrue: “
(A) …. when the alien (sic) is served a notice to appear under section 239(a), or
(B) when the alien (sic) has committed an offense referred to in section 212(a)(2) that renders the alien (sic) inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.” The Supreme Court ruled that for service of the notice to appear (NTA) to stop the accrual of time under § 240A(d)(1)(A), the NTA must contain the place, date, and time of the proceedings. See Pereira v. Sessions, 138 S.Ct. 2105 (2018). While Pereira and other cases concern non-LPR cancellation under INA § 240A(b)(1), the definition at INA § 240A(d)(1)(A) applies to both LPR and non-LPR cancellation. In many LPR cancellation cases the Pereira issue is not important, because the person committed an offense that stopped the clock before the NTA was served.
The issue can be determinative in LPR cancellation if (a) the seven-year clock was not already stopped before issuance of the NTA, and (b) the NTA that purports to stop the clock did not contain the place, date and time of the proceedings. If that is the case, advocates must dive into the multiple BIA and federal court cases that have varying interpretations of Pereira.
DOUBLE CHECK ON THE OUTCOME OF THIS CASE:
The Supreme Court will decide a key issue, in Niz-Chavez v. Barr, 789 Fed. Appx. 523 (6th Cir. 2019), cert. granted, (June 8, 2020). If the government prevails, SCOTUS likely would uphold the BIA’s position that the stop-time rule is triggered when the subsequent service of a Notice of Hearing perfects a deficient NTA. If Niz-Chavez prevails, the stop-time rule would never be triggered by government service of additional documents where the NTA itself failed to list the time and place of proceedings, because an NTA must be a single document and cannot be “perfected” by the subsequent service of other document(s).
3. What ends the accrual of seven years?
Rendered inadmissible under INA § 212 (a)(2), under Barton v. Barr The seven-year period also ends when the applicant “has committed an offense referred to in section 212(a)(2) that renders the alien (sic) inadmissible to the United States under section 212(a)(2) or removable [deportable] from the United States under section 237(a)(2) or 237(a)(4).” See INA § 240A(d)(1)(B). The Supreme Court addressed § 240A(d)(1)(B) in Barton v. Barr, --U.S.--, 140 S.Ct. 1442 (2020). The Ninth Circuit had interpreted the provision to mean that to stop the accrual of seven years, an offense always must be referred to in INA § 212(a)(2), but whether it must “render” the person inadmissible versus deportable is determined by the posture of the case.
If the LPR has been admitted (and thus is being charged with being deportable under INA § 237(a)), the LPR is not subject to the grounds of inadmissibility and therefore legally cannot be “rendered” inadmissible. In those removal proceedings, an offense stops the seven-year clock only if it is referred to in § 212(a)(2) and renders the person deportable under § 237(a)(2) or (4). Nguyen v. Sessions, 901 F.3d 1093 (9th Cir. 2018). Mr. Nguyen had admitted that he committed a drug offense (but was not convicted of it) before reaching his seven years. A qualifying admission of a drug offense is referred to in INA § 212(a)(2), but it does not make one deportable; that requires a conviction. The Ninth Circuit found that Mr. Nguyen’s admission did not meet the requirements of § 240A(d)(1)(B) and did not stop the time accruing toward his seven years. In Barton, the Supreme Court rejected the Ninth Circuit’s analysis, and interpreted § 240A(d)(1)(B) to mean that the seven years cease to accrue when the person has committed an offense referred to in § 212(a)(2) that renders them inadmissible under § 212(a)(2). In an opinion by Justice Kavanaugh, the Court held that a noncitizen could be “rendered” inadmissible under § 240A(d) even if they were not subject to the inadmissibility grounds. Writing for the dissent, Justice Sotomayor criticized the majority’s interpretation for failing to give effect to the “two-track” system of inadmissibility and deportability in immigration law, and for rendering sections of the statute superfluous. Barton is discussed more below, but the bottom line is that:
• If any LPR cancellation applicant is described in the criminal inadmissibility grounds at INA § 212(a)(2), the clock stops as of the date that the person committed the relevant offense.
• If the LPR is not described in § 212(a)(2), then the offense does not stop the clock, even if it made them deportable. For a more comprehensive discussion of the effect of Barton v. Barr on the seven years, see IDP, ILRC, NIPNLG, Practice Advisory: Avoiding the Stop-Time Rule After Barton v. Barr (July 2020).
Advocates should keep abreast of advisories about Barton and possible new defenses, and always should investigate post-conviction relief to erase a harmful conviction. Here are the key points to remember.
a. The clock stops as of the date the offense was committed, but the person also must be “rendered” inadmissible via a conviction, admission, or other requirement under § 212(a)(2) In Mr. Barton’s case, the Court held that the clock stopped because he was rendered inadmissible under the crimes involving moral turpitude (CIMT) ground, which requires that the person either was convicted of, or admitted committing, a CIMT that does not fall within certain exceptions. Mr. Barton’s clock stopped as of the date he committed the offense (this is a long-established rule).
The Court explained: “First, cancellation of removal is precluded if a noncitizen committed a § 1182(a)(2) offense during the initial seven years of residence, even if (as in Barton's case) the conviction occurred after the seven years elapsed…. “Second, the text of the law requires that the noncitizen be rendered “inadmissible” as a result of the offense. For crimes involving moral turpitude, which is the relevant category of § 1182(a)(2) offenses here, § 1182(a)(2) provides that a noncitizen is rendered “inadmissible” when he is convicted of or admits the offense. § 1182(a)(2)(A)(i). As the Eleventh Circuit explained, “while only commission is required at step one, conviction (or admission) is required at step two.” Barton v. Barr, 140 S.Ct. at 1450 (emphasis in original, internal citations deleted).
PRACTICE TIP: An LPR is not “rendered inadmissible” under the controlled substance and CIMT grounds unless they were convicted of, or made a qualifying admission that they committed, the offense. The government’s suspicion, allegation, or evidence that the person committed the offense is not enough to render them inadmissible and stop their clock, without a conviction or admission of conduct.
• If a conviction is vacated based on legal error so that it is eliminated for immigration purposes, then commission of the offense did not stop the clock because the person never was legitimately “rendered inadmissible.” (Of course, where it is possible a more direct option is to vacate the deportable conviction/s that are the bases for removal, and terminate the proceedings.)
• If there was no conviction and an LPR refuses to admit the conduct to DHS, they are not rendered inadmissible and the clock does not stop. See discussion of admitting conduct on the stand at subpart f, below.
SPECIFIC NEW YORK OFFENSES
Theft
Theft & Intent to Permanently Deprive
A theft offense must include a permanent intent to deprive a victim of property which cannot be assumed.
The Board of Immigration Appeals has overruled its decision in Matter of Jurado, which assumed that retail theft in Pennsylvania inherently includes an intent to permanently deprive, finding it inconsistent with the categorical approach outlined by the Supreme Court in Mathis v. United States. The Board then concluded that Pennsylvania retail theft convictions criminalize less than permanent takings, and thus, under pre-Diaz LIzarraga precedent, they do not constitute crimes involving moral turpitude.
Matter of Bharatkumar Girishkumar THAKKER, 28 I&N Dec. 843 (BIA 2024)
(1) The assumption in Matter of Jurado that a retail theft offense involves an intent to permanently deprive a victim of their property is inconsistent with the categorical approach as currently articulated by the Supreme Court. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006), aff'd sub. nom. Jurado‑Delgado v. Att'y Gen. of U.S., 498 F. App'x 107 (3d Cir. 2009), overruled in part.
The full text of Matter of Thakker can be found here:
https://www.justice.gov/d9/2024-09/4080.pdf
NY VTL §511(3)(a)(i) Aggravated Unlicensed Operation of Motor Vehicle
Aggravated Unlicensed Operation of Motor Vehicle in Violation of New York Vehicle and Traffic Law Section 511(3)(a)(i)
Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021)
The offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits a person from driving under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended, is categorically a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.
Second Degree Attempted Assault is a Crime of Violence
Attempted Assault 2nd Degree
In Violation of NYPL 120.05
The Second Circuit concluded that a conviction for attempted assault in the second degree is a crime of violence and therefore an aggravated felony. See United States v. Cooper, 23-6911 (2d Cir. March 14, 2025).
The Second Circuit has determined that a New York conviction for second degree attempted assault under NYPL 120.05(7) is a crime of violence because it requires physical force causing injury to another person. Given the similarity between the definition of a crime of violence for immigration and criminal sentencing purposes, this case will likely be treated as precedential for immigration purposes as well.
Full text of United States v. Cooper, 23-6911, (2d Cir. March 14, 2025) can be found here:
**Must update with citation once available.
Court's Reasoning Regarding Crime of Violence
Both this Court and the Supreme Court have made clear that the “physical force” required for an offense to be a crime of violence under the Guidelines is “force capable of causing physical pain or injury to another person.” United States v. Scott, 990 F.3d 94, 111 (2d Cir. 2021) (en banc); see Stokeling v. United States, 586 U.S. 73, 84 (2019) (“[T]he Court has repeated its holding that ‘physical force’ means ‘force capable of causing physical pain or injury.’” (citations omitted)).2 This is not a high standard to meet. Indeed, as the Supreme Court noted, “force as small as hitting, slapping, shoving, grabbing, pinching, biting, and hairpulling” all qualify as physical force because “none of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” Stokeling, 586 U.S. at 85.
The New York Court of Appeals has made clear that N.Y.P.L. § 120.05(7) requires at least as much force as U.S.S.G. § 2K2.1(a). See, e.g., People v. Chiddick, 8 N.Y.3d 445, 448 (2007) (holding that “petty slaps, shoves, kicks[,] and the like” do not inflict “physical injury” as defined by the New York assault statutes (internal quotation marks omitted)); see also People v. Godfrey, 157 N.Y.S.3d 18, 19 (1st Dep’t 2021) (noting that “petty slaps, shoves, kicks and the like” do not amount to “physical injury”). Indeed, New York Penal Law section 10.00(9) defines “physical injury” as “impairment of physical condition or substantial pain.” We therefore see no world in which a person could be convicted of seconddegree attempted assault under section 120.05(7) without clearing the low hurdle for a crime of violence articulated by the Supreme Court in Stokeling. See 586 U.S.at 85.
For all these reasons, we hold that a violation of N.Y.P.L. § 120.05(7) is categorically a crime of violence as defined by section 2K2.1(a) of the Sentencing Guidelines.
Robbery -- Second NYPL 160.10 & Third Degree NYPL 160.05
Petit Larceny is Categorically a CIMT
Petit larceny in violation of section 155.25 of the New York Penal Law is categorically a Crime Involving Moral Turpitude. See Matter of Clement OBEYA, 26 I&N Dec. 856 (BIA 2016).
Third Degree Robbery is NOT a Crime of Violence
Third Degree Robbery, unlike the other degrees, does not require by law a minimum time in prison is because unlike the two “sister” offenses, PL 160.05 is not a statutorily defined “violent offense” pursuant to New York Penal Law 70.02.
Statutes
§ 160.10 Robbery in the second degree.
A person is guilty of robbery in the second degree when he forcibly steals property and when:
1. He is aided by another person actually present; or
2. In the course of the commission of the crime or of immediate flight
therefrom, he or another participant in the crime:
(a) Causes physical injury to any person who is not a participant in
the crime; or
(b) Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; or
3. The property consists of a motor vehicle, as defined in section one
hundred twenty-five of the vehicle and traffic law.
Robbery in the second degree is a class C felony.
§ 160.05 Robbery in the third degree.
A person is guilty of robbery in the third degree when he forcibly steals property.
Robbery in the third degree is a class D felony.
LPR Returning to the US
Lau v. Bondi, No. 21-6623 (2d Cir March 3, 2025)
An LPR that is returning to the US after traveling abroad cannot be treated as seeking admission and paroled into the US based on a pending charge of a CIMT.
The Second Circuit issued this decision on March 3, 2025, and I do not yet have an official citation for it. The relevant portion of the decision explains:
Here, we are presented with the question of whether DHS may parole an LPR at the border who has been charged with – but not yet convicted of – a CIMT. In analyzing this question, we heed Centurion’s holding that an LPR becomes an alien applying for admission for purposes of section 1101(a)(13)(C) upon the commission, rather than the conviction, of a crime. But we are also cognizant of the reality that, without a conviction, DHS will be hard pressed to prove by clear and convincing evidence that the LPR actually committed the crime in question at the time of reentry. If DHS fails to sustain its burden of proving otherwise, the default presumption governs that an LPR is not an applicant for admission
Critically, the INA does not provide that an LPR may be treated as seeking admission when he has been ‘charged with a crime’ or is ‘believed to have committed a crime;’ it permits such treatment only when an LPR ‘has committed’ a crime. And because DHS bears the burden of proving by clear and convincing evidence that a returning [LPR] is to be regarded as seeking an admission, we do not see how charging documents alone – without more – could carry DHS’s burden of demonstrating that a crime had been committed at the time of an LPR’s reentry.
CIMT's
CIMT's and their consequences.
When do two CIMT's arise from the same scheme?
Arise From a Single Scheme
Matter of Carlos Manuel BAEZA-GALINDO, 29 I&N Dec. 1 (BIA 2025)
The Board of Immigration Appeals (BIA) has narrowed the instances in which two crimes involving moral turpitude will be considered part of the same scheme. The BIA has said that crimes that immediately follow one another are not necessarily part of the same scheme - in this case, the non-citizen was convicted of assault with a deadly weapon and failure to render aid when he hit pedestrians with his car and kept driving. Rather, crimes will only be arising out of a single scheme if: 1) one crime is a lesser offense of the other; 2) he defendant performs a single act that concurrently harms multiple victims in essentially the same way (i.e., robbing multiple people at once); or 3) are acts that occur within a comparatively short time of each other, involve the same parties, and the first act or acts are committed for the purpose of making possible the specific criminal objective accomplished by the last of the criminal acts (i.e., assaulting a guard to commit a larceny). See Matter of Carlos Manuel BAEZA-GALINDO, 29 I&N Dec. 1 (BIA 2025).
The full text of Matter of Baeza-Galindo can be found here: https://www.justice.gov/d9/2025-02/4085.pdf
Crimes
Money Laundering
Money Laundering & the Circumstance-Specific Approach
Money Laundering & the Circumstance-Specific Approach
The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific approach applies to the requirement that the “amount of the funds exceeded $10,000.” See Matter of Cleto Marte DOMINGUEZ REYES, 28 I&N Dec. 878 (BIA 2024).
The full text of Matter of Dominguez Reyes can be found here:
https://www.justice.gov/d9/2024-12/4083.pdf
Money Laundering is an aggravated felony when the statute has a requirement that the amount be in excess of $10,000.
Unlicensed Operation of a Motor Vehicle
VTL 511(3)(a) Unlicensed Operation
Unlicensed operation of a motor vehicle in the first degree in violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits a person from driving under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended, is categorically a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed. See Matter of Margaret VUCETIC, 28 I&N Dec. 276 (BIA 2021)
N.Y. Veh. & Traf. Law § 511(3)(a)(i) (McKinney 2014). This provision requires a defendant to operate a motor vehicle on a public highway while under the influence of alcohol or a drug knowing or having reason to know his or her license or privilege of operating such a motor vehicle or privilege of obtaining a license to operate such a vehicle is suspended, revoked, or otherwise withdrawn. CJI2d[NY] Veh. & Traf. Law § 511(3)(a)(i) (2020).
Matter of Margaret VUCETIC (BIA 2021)
There is a mens rea element because it requires that he know that his license is revoked or suspended already.
FULL DECISION: https://www.justice.gov/eoir/file/1381766/dl?inline=
CHART
RELIEF1 AGGRAVATED FELONY DEPORTABLE/ INADMISSIBLE CRIME STOP TIME, GMC and OTHER TIME REQUIREMENTS NATURALIZATION
(Affirmative or with Request to Terminate Removal Proceedings) INA § 310, et seq., 8 USC § 1421, et seq.
AF is a permanent bar to GMC, and thus to naturalization, unless conviction is before 11/29/903 Not a bar per se, but removable applicants may be referred to removal proceedings Requires certain period (e.g., preceding three or five years) of good moral character.
GMC bars include several crimesgrounds of inadmissibility plus some bars unique to GMC.4 LPR CANCELLATION For Long-Time Lawful Permanent Residents5 INA § 240A(a), 8 USC § 1129b(a)
AUTOMATIC BAR
(For AF convictions from before April 24, 1996, or arguably April 1, 1997, see § 212(c) Relief,)
NOT A BAR 7 YEARS RESIDENCE since admission in any status; periods of unlawful status since admission count toward this. 6
The 7-year clock stops at whichever comes first: being served with a qualifying NTA7 or committing an offense referred to in 212(a)(2).8 Ninth Circuit held that some convictions before 4/1/97 do not stop clock.9
Class A Misdemeanors in New York (retroactive reduction to 364 day max penalty)
Peguero Vasquez v. Garland, No. 21-6380 (2d Cir. 2023)
The Second Circuit said it can't apply retroactively even though the law says it applies retroactively.
I. Background
Under 8 U.S.C. § 1227(a)(2)(A)(i) — which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis added).
“Peguero Vasquez . . . was admitted to the United States as a permanent resident in 2012.” See Opinion (“Op”) at 5. In 2017, he pleaded guilty to the New York offense of criminal possession of a forged instrument in the third degree, a Class A misdemeanor, because of “his use of a fraudulent license plate.” Op at 3-5; see N.Y. Penal Law § 170.20.
But “[i]n 2019, the New York legislature reduced the maximum possible sentence for Class A misdemeanors … (including the forged instrument offense to which Peguero Vasquez pleaded guilty) from one year to 364 days.” Op at 4 (emphasis added). And New York made the law retroactive. Op at 4, 6-7. “The provision, Penal Law Section 70.15(1-a),” expressly provides that any misdemeanor sentence of one year or 365 days that was imposed before the statute’s effective date “‘shall, by operation of law, be changed to, mean and be interpreted and applied as a sentence of three hundred sixty-four days.’” Op at 4 (quoting N.Y. Penal Law § 70.15(c)) (emphasis added).
New York’s “objective … was to eliminate what its sponsor considered ‘arbitrary,’ ‘[u]nnecessary deportations’ and ‘unduly harsh immigration consequences’ for aliens who have committed misdemeanors.” Op at 25-26 (quoting N.Y. State Assembly Memorandum in Support of Legislation, Bill No. A05964 (2019)); see Op at 7 (“The ‘legislature’s intent in enacting Penal Law § 70.15(1-a) was to help undocumented persons avoid deportation as a result of one-year or 365 day sentences on misdemeanor convictions.’”) (quoting People v. Janvier, 130 N.Y.S.3d 486, 491 (2d Dep’t 2020)).
In 2020, removal proceedings were initiated against Peguero Vasquez. Op at 6. “[T]he issue of removability depend[ed] on the forgery conviction only.” Id. (footnote omitted). And Petitioner argued to the Immigration Judge (“IJ”) that “his conviction for criminal possession of a forged instrument no longer made him removable” — after New York enacted Penal Law § 70.15 — because it wasn’t an offense carrying a possible sentence of one year or more. Op at 7-8.
The IJ ruled against Petitioner, denying “retroactive effect to [N.Y.] Section 70.15 … and therefore sustained the charge of removability under Section 237.” Op at 8. The Board of Immigration Appeals (“BIA”) affirmed. Op at 8, 10.
Peguero Vasquez petitioned the Second Circuit to review the BIA’s decision, arguing: (1) that the IJ and BIA erred by finding him removable, in light of N.Y. Penal Law 70.15(1-a); and (2) that the term “crime involving moral turpitude” is unconstitutionally vague. Op at 8.
The Panel Majority ruled against Petitioner on both grounds.
II. The Panel Majority holds that, under INA § 237(a)(2)(A)(i), the maximum sentence for a prior conviction is determined by “the state law applicable at the time of the criminal proceedings, not at the time of the removal proceedings.” Op at 4 (emphasis in original).
Standard of Review:
Whether a conviction subjects a person to removal under the INA is a legal question reviewed de novo. Op at 9. However, “because the administration of that statute is entrusted to the BIA,” the Circuit accords Chevron-deference to a BIA decisions asking: (i) “‘whether Congress has directly spoken to the precise question at issue;’” and (ii) “[i]f the statute ‘is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.’” See Op at 9 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 843 (1984)).
N.Y.’s “retroactive” reduction in misdemeanor sentences isn’t given effect for federal immigration laws:
In its ruling against Petitioner, the BIA found that Penal Law § 70.15(1-a) shouldn’t “be given effect for purposes of federal immigration laws[,]” relying principally on its decision in Matter of Velasquez-Rios, 27 I. & N. Dec. 470, 472 (2018), “which denied effect to a similarly retroactive California law that reduced the maximum possible sentence for a class of misdemeanors to 364 days.” Op at 10.
In Velasquez-Rios, the BIA construed INA § 237 as requiring “a backward-looking inquiry into the maximum possible sentence” that a person “could have received for his … offense at the time of his conviction.” Op at 11. “For this conclusion,” it relied on McNeill v. United States, 563 U.S. 816 (2011), which interpreted a provision of the Armed Career Criminal Act (“ACCA”), under which a prior state drug conviction qualified as a “serious drug offense,” to enhance a person’s sentence, if “a maximum term of imprisonment of ten years or more is prescribed by law” for the offense. McNeill, 563 U.S. at 817; see 18 U.S.C. § 924(e)(2)(A)(ii). McNeill had sustained six North Carolina drug-trafficking convictions, and “[w]hen [he] committed those crimes between 1991 and [September] 1994, each carried a 10–year maximum sentence[.]” Id. at 818. “But as of October 1, 1994, North Carolina reduced the maximum sentence for selling cocaine to 38 months and the maximum sentence for possessing cocaine with intent to sell to 30 months.” Id. At his later federal sentencing (in 2009), McNeill argued that none of his drug offenses qualified as “serious drug offenses” because “the ‘maximum term of imprisonment’ for those offenses is 30 or 38 months.” Id. at 818, 821. The McNeill Court ruled against him, holding that the maximum sentence for a prior drug offense is determined by the law that applied at the time of the conviction, not the law applicable later at the time of the federal sentencing. McNeill, 563 U.S. at 820-21.
But — as the dissent points out — the sentence-reduction statute in McNeill wasn’t retroactive. See Dissenting Op at 7-8. The North Carolina statute provided: “This act becomes effective October 1, 1994, and applies only to offenses occurring on or after that date.” McNeill, id. at 824 (quoting the state statute) (emphasis added). Thus, the McNeill Court stated: “[T]his case does not concern a situation in which a State subsequently lowers the maximum penalty applicable to an offense and makes that reduction available to defendants previously convicted and sentenced for that offense. We do not address whether or under what circumstances a federal court could consider the effect of that state action.” McNeill, id. at 825 n.1 (citations omitted).
Nevertheless, the BIA, in Velasquez-Rios, stated that the logic “‘embodied in McNeill’” applies to Section 237 of the INA. Op at 12. And the Circuit Majority, in this case, concurred. Op at 11-14.
Section 237 of INA isn’t ambiguous. The Majority also concluded that Section 237 wasn’t ambiguous. Op at 14-22. So, “the rule of lenity has no application in this case because … Section 237 unambiguously refers to the law at the time of the alien’s conviction.” Op at 26 n.10.
Any federalism issue? The Panel Majority also rejected Petitioner’s argument that the BIA’s interpretation of Section 237 violated principles of federalism “by encroaching on New York’s police powers by preventing the state from controlling the immigration consequences of prior state law convictions.” Op at 23. Whether a person “‘has been ‘convicted’ within the language of [federal] statutes is necessarily … a question of federal, not state law, despite the fact that the predicate offense and its punishment are defined by the laws of the State.’” Op at 24 (quoting United States v. Campbell, 167 F.3d 94, 97 (2d Cir. 1999)). The Majority stated that, “nothing about the INA conflicts with a retroactive modification to state sentences for purposes of state law. New York may release every misdemeanant one day early if it chooses.” Op at 24-25.
The Majority noted disapprovingly that “it appears that the purpose of th[e] state law amendment is to circumvent federal law.” Op at 25 (citation and internal quotation marks omitted). It stated: “whatever ‘understandable frustrations’ a state may have with immigration policy, it ‘may not pursue policies that undermine federal law.’” Op at 26 (citation omitted). But it recognized that the change in New York law would likely impact immigration policy going forward, saying: “[I]t seems that aliens convicted of Class A misdemeanors [in New York] going forward will avoid federal removal proceedings.” Op at 25 (footnote omitted).
III. The Panel Majority holds that the term “crime involving moral turpitude” (“CIMT”) isn’t unconstitutionally vague, as applied to this Petitioner.
“Absent First Amendment concerns, [the Circuit] assess[es] vagueness challenges to a statute as applied, rather than facially.” Op at 27 (citation omitted). The Supreme Court “rejected [Petitioner’s] vagueness challenge seventy years ago in Jordan v. De George, [341 U.S. 223, 232 (1951)], holding that ‘[w]hatever else the phrase ‘crime involving moral turpitude’ may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.’”Id. And Petitioner “does not deny that the state law conviction on which the agency premised his removal includes ‘fraud [as] an ingredient.’” Id.
IV. The Dissent
Judge Robinson dissented from the Majority’s conclusion that Petitioner’s 2017 New York misdemeanor conviction was “a crime for which a sentence of one year or longer may be imposed,” as required by INA § 237.
The Dissent criticized the Majority opinion for failing to appreciate how retroactive statutes function. Under Section 237(a)(2)(A)(i) of the INA, “whether the [prior] crime was subject to a sentence of one year or longer is determined with reference to state law at the time of the conviction.” Dissenting Op at 3. And New York Penal Law § 70.15 (1-a) “retroactively overrides any prior statutory maximum for the [Petitioner’s] 2017 conviction and renders it a legal nullity.” Id. It “establishes the maximum sentence for Peguero Vasquez’s 2017 conviction was 364 days.” Id. Thus, “[g]iven the express terms of NYPL § 70.15 (1-a),” the Majority’s “assertion that under the law in effect in 2017 Peguero Vasquez was subject to a penalty of one year’s imprisonment for violating NYPL § 170.20 is legally incorrect. That’s how retroactive, or ‘nunc pro tunc’ statutes and orders work. They establish the applicable law at a past time, legally erasing any prior understanding of the law in effect at that time.” See Dissenting Op at 3-4 (emphasis in original).
The Dissent noted that the decisions on which the Majority relied, McNeill and Doe v. Sessions, 863 F.3d 203 (2d Cir. 2018), did not concern statutes with retroactive reach. Dissenting Op at 5-8. And the BIA’s decision (in Velasquez-Rios) wasn’t entitled to deference because it was based on a flawed understanding of McNeill and other cases. Id. at 8-16.
The Dissent also pushed back on the “majority’s suggestion that we should ignore NYPL § 70.15 (1-a) because the New York legislature is attempting to undermine federal immigration law[.]” Dissenting Op at 16. If Congress didn’t want state laws to affect federal immigration policy, it “ could have created an independent federal framework for determining what criminal convictions render a noncitizen removable, rendering state laws irrelevant to the analysis.” Id. (emphasis in original). “But it didn’t.” Id. Instead, Congress chose to rely on state sentencing law to establish a critical element of removability under Section 237(a)(2)(A)(i), and “it did not create any exception based on the motives imputed to a state legislature.” Id.