Under U.S. immigration law, an aggravated felony is a violent crime for
which at least 1 year of incarceration was imposed.
Aggravated Assault in New York
New York Penal Law § 120.05(2), a person is guilty of assault in the second degree when, with intent
to cause physical injury to another person, he causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
Morris v. Holder, 676 F.3d 309 (2012), the U.S. Court of Appeals for the Second Circuit
held that N.Y.P.L. § 120.05(02) is an aggravated felony, crime of violence.
An immigrant pleading guilty to N.Y.P.L. § 120.05(02) will be almost
automatically deported from the United States and subject to mandatory
detention under INA § 236(c).
However, not all the subsections of N.Y.P.L. § 120.05(02) are considered
an aggravated felony under U.S. immigration law.
For instance, the U.S. Court of Appeals for the
Fourth Circuit held in 2006 that the language of N.Y.P.L. 120.05(4) “does not contain
an element that there be the intentional employment of physical force
against a person or thing, and thus is beyond the scope of 18 U.S.C. 16(a)”.
Garcia v. Gonzales, 455 F.3d 465, 468 (4th Cir., 2006).
Moreover, the U.S. Court of Appeals for the Second Circuit held in 2003
that “a conviction under N.Y.P.L. § 120.05(6) is not a `crime
of violence’ under 18 U.S.C. 16(a), because a conviction under N.Y.P.L.
§ 120.05(6), while requiring proof of physical injury, does not require,
as an element of the offense, that the defendant
use physical force to inflict that injury”.
Chrzanoski v. Ashcroft, 327 F.3d 188, 195 (2nd Cir., 2003).
Aggravated assault in New Jersey
N.J. Stat. Ann. § 2C:12–1(b), a person is guilty of third-degree aggravated assault if he or she:
- Attempts to cause or purposely or knowingly causes bodily injury to another
with a deadly weapon; or
- Attempts to cause significant bodily injury to another or causes significant
bodily injury purposely or knowingly or, under circumstances manifesting
extreme indifference to the value of human life recklessly causes such
significant bodily injury; or
- Knowingly, under circumstances manifesting extreme indifference to the
value of human life, points or displays a firearm, as defined in subsection
f. of N.J.S. 2C:39–1, at or in the direction of a law enforcement officer.
Aggravated assault in New Jersey is an aggravated felony, crime of violence.
However, negligent assault is not an aggravated felony, and not even a
crime involving moral turpitude.Salomon-Bajxac v. Attorney Gen. of U.S., 558 F. App’x 160, 162 (3d Cir. 2014)
If you have been charged with aggravated assault but you are represented
by a good
criminal immigration lawyer, you may be able to plead guilty to an assault charge that does not affect
your immigration status in the United States.