Criminal Defense of Immigrants

(D)  Other Non-Criminal Violations.  Dispositions resulting from other types of proceedings, such as military non-judicial punishment, may also fail to qualify as convictions of crimes for similar reasons.  See § 7.26, infra.

                In some states, it is possible to have a case transferred from adult criminal court to juvenile court or family court under some circumstances.  In this event, immigration counsel could argue that a “civil” finding did not constitute a criminal conviction.  See § 7.24, supra.

                In rare instances, an offense may not be considered a crime for other reasons.  For example, an attempt to commit a crime which has recklessness as a mental element was held not to be a crime at all, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”[89]  While this was a decision under the crime of moral turpitude deportation ground, its reasoning may apply as well to other conviction-based grounds of deportation: this offense is not a crime, so it cannot be a conviction of a crime any more than it can be a conviction of a crime of moral turpitude.

[89] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div. 1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).