IMMIGRATION CONSEQUENCES OF SELECTED North Carolina OFFENSES: A QUICK REFERENCE CHART

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1 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: OFENSE AGGRAVATED FELONY (AF) Crimes Involving Motor Vehicles NCGS Driving While Suspended , DWI, Commercial DWI RELATING TO CONTROLLED SUBST. (CS) CRIME INVOLVING MORAL TURPITUDE (CIMT) DOMESTIC VIOLENCE; FIREARMS; OTHER ALTERNATE PLEAS AND PRACTICE TIPS Habitual DWI Larceny [Auto] Reckless Driving if considered a crime of violence and sentence one year or more [1+] if combined with DWLR if sentence 1+ If deferred is possible, try to have DA agree to keep paperwork in their file and not have Judge sign it if an admission is required [applies to all other crimes where deferred possible] Unauthorized use of a motor propelled conveyance, unless sentence of 1+ 1

2 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: Crimes Against Property Robbery: Robbery with a dangerous weapon Common-law robbery Extortion Blackmail 14-51, Burglary of a Dwelling: first and second degree burglary Breaking or entering Breaking or entering vehicle Break into or forcibly open coin or currencyoperated machine if sentence 1+ sentence 1+ if sentence 1+ if sentence 1+ if sentence 1+ If it is attempted theft [what is the intent to commit?] or a crime a violence [manner of break in?] and sentence 1+ if 1+ if intent is to enter and commit a larceny or other CIMT if intent to commit larceny or other CIMT If Firearm in the record Try to get sentence of less than 12 months on each charge or plead to multiple counts to get the sentence the State wants. If possible, keep record clean of mention of firearm. In plea transcript, specifically state the intent is to commit any other felony. Also, try to get sentence of less than one year or plead to multiple counts. In plea transcript, put intent to commit any other felony. Try to avoid evidence in record about manner of break in [e.g. smashed window to enter] 2

3 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: Larceny Obtaining property by false pretenses if sentence 1+, if fraud and loss in excess of 10,000 or if theft and sentence of 1+ Try to plead to multiple counts so either sentence for each is less than 1 year or the loss for each count is less than 10, Financial Transaction Card Theft if Larceny by employee if Embezzleme nt , 160 Injury to real or personal property if Disorderly conduct OFFENSE AGGRAVATED FELONY (AF) Crimes Against the Person RELATING TO CONTROLLED SUBST. (CS) YESCRIME INVOLVING MORAL TURPITUDE (CIMT) DOMESTIC VIOLENCE; FIREARMS; OTHER ALTERNATE PLEAS AND PRACTICE TIPS first and second degree murder If firearm in record Voluntary Involuntary manslaughter, if intentional. if reckless [see Bejerano v. Gonzalez, F.3d (4 th Cir July 5, 2005) and Leocal], culpable for intentional and recklessness, but no for culpable negligence or negligence Try to keep intentionality or use of firearm out of the record. 3

4 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: negligence, or negligence Felony death by vehicle if 1+ and intentional [see above] Misdemeanor death by vehicle , 27.3 first and second degree rape , 27.5 first and second degree sexual offense if 1+ or sexual abuse of minor If Domestic firearm in record, then it is DV or a firearm offense A statutory rape Indecent Liberties assault All intentional felony assaults if 1+ for simple assault. for all other misdemeanor assaults if firearm in the record. Keep out evidence of firearm from record if possible patient abuse and neglect, abuse, neglect and exploitation of disabled and elder adults , child abuse if 1+ and at least reckless [but see Bejerano v. Gonzalez, F.3d (4 th Cir July 5, 2005) which holds intentionality is required and Leocal which states at least recklessness required to be a crime of violence] if intentional. Unlikely if reckless. if relationship in record. Try to keep record clean as to intentionality , 43.3 Kidnapping, Felonious if sentence 1+ if firearm or relationship in 4

5 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: Restraint record A Sexual Battery 14-33(c)(2) Domestic Violence: assault on a female by male at least 18 if sexual abuse of minor if relationship in the record if relationship in the record Try to keep record clean of age of victim/ relationship Keep record clean of firearm Domestic criminal trespass if sentence 1+ because relationship is element of crime Habitual misdemeanor assault if sentence 1+ if firearm in the record communicating threats Harassing phone calls if firearm in the record. Try to keep record clean of firearm or relationship Stalking if sentence cyberstalking 50B-4.1 Violation of valid protective order. Civil or criminal finding is sufficient. Crimes Involving Weapons Felon in Possession carrying concealed weapon [see Matter of Vazquez-Muniz 23 I&N Dec 207 (BIA 2002) If firearm in record. Try to have record leave out type of weapon if it is a firearm possession of, but feds consider juvenile 5

6 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: handgun by minor under weapons on campus or other educational grounds if firearm in the record Going armed to the terror of the people OFFENSE AGGRAVATED FELONY (AF) Crimes Against Law Enforcement RELATING TO CONTROLLED SUBST. (CS) CRIME INVOLVING MORAL TURPITUDE (CIMT) DOMESTIC VIOLENCE; FIREARMS; OTHER ALTERNATE PLEAS AND PRACTICE TIPS resisting officers speeding to elude arrest false report to law enforcement agency if considered obstruction of justice and sentence 1+ Crimes Involving Controlled Substances Possession of a Controlled Substance on Federal Schedule, unless it is just possession and NC statute deems it a misdemeanor. However, second misdemeanor possession could be Aggravated Felony It relates to controlled substance. Admitted commission is all that is necessary. One may apply for a waiver with one prior conviction of 30g or less of marijuana. Try to plead to anything other than a drug charge. In a deferred or STEP situation, try to have DA keep paperwork in their file without having Judge sign it. 6

7 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: 90-95(b) sale, delivery or possession with intent to sell or deliver 90-95(d)(4) possession of marijuana Possession of drug paraphernalia, unless it is second possession offense It relates to controlled substance. Admitted commission is all that is necessary. It relates to controlled substance. Admitted commission is all that is necessary. If your client pleads to possession of marijuana [1 st offense], make sure record is clear it is 30g or less so he/she can be eligible for waiver. Try to plead to Class 1 Marijuana instead of drug paraphernalia. Crimes Involving Fraud Forgery: forgery of notes, checks and other securities Uttering forged paper or instruments containing a forged endorsement if sentence 1+ or if sentence 1+ or Try to plead to multiple counts with each sentence under 12 months or loss of $10,000 or less on each charge Forgery and uttering of forged paper, unless it is considered fraud or worthless checks Obtaining property by false pretenses if sentence 1+ or if sentence 1+ or If your county has a worthless check program, have your client enroll unless it requires a guilty plea Forgery of financial transaction card if sentence 1+ or financial transaction card fraud if sentence 1+ or 7

8 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: Identity Theft: Financial Identity Fraud 108A-39 Work First Fraud 108A-53 Food Stamp Fraud 108A-53.1 Illegal possession or use of food stamps 108A-64 Medical assistance fraud if sentence 1+ or if sentence 1+ or 8

9 IMMIGRATION CONSEQUENCES OF SELECTED rth Carolina OFFENSES: OFFENSE Miscellaneous AGGRAVATED FELONY (AF) RELATING TO CONTROLLED SUBST. (CS) CRIME INVOLVING MORAL TURPITUDE (CIMT) DOMESTIC VIOLENCE; FIREARMS; OTHER ALTERNATE PLEAS AND PRACTICE TIPS Loitering for Prostitution Inchoate Crimes: Accessory before the fact Aiding and abetting if underlying charge is an aggravated felony [if sentence must be year or more, that must be satisfied; if loss must be in excess of $10,000, that must be satisfied] if underlying charge relates to controlled substance if underlying charge CIMT if underlying charge relates to violence or firearm Attempt Solicitation Conspiracy 14.7 Accessory after the Fact if sentence 1+ 9