This chapter offers a brief explanation of proposed safer offenses in addition to those already mentioned in Chapter 11. Some of these analyses have been affirmed in published opinions, while others are speculations of the authors as to how courts are likely to rule. A plea to the offenses below will give immigrant defendants a greater chance to preserve or obtain lawful status in the United States. However, almost no criminal conviction is entirely safe from immigration consequences.

Caution: It is always important to remember that any conviction will be considered a negative discretionary factor that may warrant denial of any application for immigration benefits, including citizenship, permanent residence (i.e., greencard), or a work permit. Some convictions, while not triggering removal/deportation, can create problems for lawful readmission to the U.S. after departure. It is strongly advised for defendants with any criminal convictions to consult with competent immigration counsel prior to applying for any immigration benefits or leaving the United States. Some of the offenses discussed below are safer alternatives only because they are divisible statutes. A divisible statute is one that includes offenses that carry adverse immigration consequences as well as those that do not. Faced with a divisible statute, immigration authorities will look only to the record of conviction (the charging papers, plea colloquy or judgment, and sentence) to determine which offense was actually the subject of the conviction. If the record of conviction is vague enough so that it is possible that the noncitizen was convicted under a part of the statute without immigration consequences, the immigration consequences do not apply and the noncitizen wins. For the defendant to gain an advantage from a divisible statute, the defense counsel must carefully control what information appears in the “record of conviction.” For further discussion see Chapter Four: Carefully Crafting a Noncitizen’s Plea.