Criminal assault charges for non-citizens in New York
As the go-to criminal defense firm for the New York City consulates of
France, Australia, Saudi Arabia, Switzerland and Belgium,
the attorneys at Galluzzo & Arnone LLP routinely represent foreign citizens charged with criminal assault (including,
for example, Assault in the Third Degree [Penal Law 120.00], Assault in
the Second Degree [Penal Law 120.05], and Assault in the First Degree
[Penal Law 120.10]). These charges are especially problematic for non-citizens
as they can result in deportation or future inadmissibility into the United States.
(Though this is a bit of an oversimplification, deportation is the process
by which a person is forcibly removed from the United States and barred
from returning, whereas a person determined to be "inadmissible"
cannot enter or re-enter the United States after leaving).
A non-citizen convicted of a "crime involving moral turpitude"
within the first five years of admission is deportable.
See Immigration and Naturalization Act ("INA") Section 237(a)(2)(A).
The most common New York criminal assault charge, Assault in the Third
Degree, applies where a person intentionally causes physical injury to
another person (Penal Law Section 120.00), and is often brought in cases
involving domestic violence or drunken bar fights. Courts - including
the Board of Immigration Appeals and the Southern District of New York
- have routinely concluded that Assault in the Third Degree is in fact
a "crime involving moral turpitude."
In re Solon, I & N Dec. 239, 243 (2007);
Mustafaj v. Holder, 369 Fed. Appx. 163, 167 (2nd Cir. 2010) (citing
In re Solon,
supra). As such, a conviction for Assault in the Third Degree within the first
five years of admission would represent a "crime involving moral
turpitude" and would render the person deportable.
The felony assault charges in New York (Assault in the Second Degree [Penal
Law Section 120.05] and Assault in the First Degree [Penal Law Section
120.10]) can also render a convicted person deportable on multiple other
grounds, including but not limited to classification as "aggravated
felonies," "crimes of violence," and/or "domestic
violence crimes," potentially. Non-citizens charged with these felony
assault charges should also avoid traveling outside the United States
pending the disposition of these cases, as immigration officials might
conclude that the accusations alone are sufficient to permanently deny
those individuals re-entry into the United States.
Finally, a conviction for a misdemeanor "counts" for deportation
purposes regardless of whether there is a re-pleader situation. In fact,
courts have upheld deportation orders where the convictions at issue (by
guilty plea) were even later vacated in the interest of justice.
Saleh v. Gonzales, 496 F.3d 17, 25 (2nd Cir. 2007) ("...an alien remains convicted
of a removable offense for federal immigration purposes when the predicate
conviction is vacated simply to aid the alien in avoiding adverse immigration
consequences and not because of any procedural or substantive defect in
the original conviction..."). This issue frequently arises in cases
involving non-citizens trying to participate in judicial diversion programs.
People v. Brignolle, 41 Misc.3d 949 (Sup. Ct. N.Y. County, 2013) (Weinberg, J.). In short,
what matters for immigration purposes is the original allocution, so non-citizen
defendants charged with Assault in the Third Degree should be wary of
re-pleader plea bargain offers where the original allocution is to a misdemeanor.
Ideally, a non-citizen charged with a misdemeanor assault charge will get
the charges dismissed by a prosecutor or dismissed at trial. Otherwise,
plea bargains involving violations like Disorderly Conduct (Penal Law
Section 240.20), Harassment in the Second Degree (Penal Law Section 240.26),
or adjournments in contemplation of dismissal (ACDs) may be viable options,
often with restitution payments, community service, counseling, or a combination
of those things.
Non-citizens should be warned about the possible consequences of an open
ACD with respect to the renewal or obtaining of American visas.
If you are a foreign citizen facing criminal assault charges in New York
City, you should strongly consider contacting the
experienced criminal defense attorneys at Galluzzo & Arnone LLP. In addition to their
fluency in French, they are very familiar with the immigration consequences of assault charges
and are especially qualified to help you navigate the unique challenges
facing foreign citizens accused of assault. They have successfully represented
numerous foreign citizens charged with assault and are prepared to assist
you or your loved ones in safeguarding their futures in the United States.
 See Saleh v. Gonzales, supra, at fn 6. A conviction is defined as:
"[A] formal judgment of guilt of the alien entered by a court of,
if adjudication of guilt has been withheld, where - (i) a judge or jury
has found the alien guilty or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient facts to warrant a finding
of guilt, and (ii) the judge has ordered some form of punishment, penalty,
or restraint on the alien's liberty to be imposed." 8 U.S.C.