1. Sanitizing the Record of Conviction

The record of conviction (ROC) for immigration purposes includes the plea agreement, the judgment & sentence (including sentencing transcript), and the charging document related to the offense(s) to which defendant plead guilty. When dealing with the firearms ground of deportation and the firearms aggravated felony grounds, the government must establish that the
elements of the offense at issue involved a firearm or destructive device. In so doing, the government is limited to the documents contained in the record of conviction.

Thus, if the ROC does not clearly establish that the weapon at issue was a firearm (or destructive device or explosive), the government will not be able to meet its burden of proof. Whenever possible in firearms cases where the statute only references weapons, defense counsel should avoid any specific reference to a firearm (or destructive device or explosive device) in the record of conviction. This can sometimes be difficult to do as the prosecutor and judge may insist upon identifying the weapon at issue in order to establish a factual basis for the plea. If possible, defendant should push for doing this anyway, at least as to the records at issue. A lesser, but worthwhile alternative to this could be to “sanitize” the records of any reference to a firearms (or destructive/explosive) device) but agree to identify the specific weapon on the record at the plea and sentencing hearing. While technically these transcripts are part of the record of conviction, it is rare that the government actually obtains and transcribes them for immigration proceedings.

2. Malicious Mischief as an Alternative²⁰⁴

In any firearms case (or destructive/explosive devices case) defense
counsel would do well to negotiate to the alternate offense of malicious
mischief. Malicious mischief is not a removable offense. Provided that there is not
a sentence of one year or more imposed, it does not trigger any of the grounds of deportation, grounds of inadmissibility, or the provisions of the aggravated felony definition.²⁰⁵

3. Negligent Assault²⁰⁶

In addition to malicious mischief, convictions under the (f) negligence
provision of the assault statute will avoid removal.207 Thus, whenever
possible, Assault 3 with negligence, like malicious mischief, is a safe and preferable option to a conviction involving firearms208. If the negotiated plea is to attempted assault pursuant to this statue, it is important that the sentence imposed (regardless of time suspended) is less than 365 days. For more in sentencing, see Chapter Three: Sentencing Strategies.

^{204 RCW 9A.48.070-100.
205 The Ninth Circuit has ruled that this statute is not a crime of moral turpitude. See Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995). It also should not trigger deportation pursuant to the domestic violence ground of deportation since that provision is limited to crimes against a person and malicious mischief is a crime against property. See 8 USC § 1227(a)(2)(E)(i); INA § 237(a)(2)(E)(i). While malicious mischief may or may not constitute a crime of violence under 18 USC § 16, as long as there is a sentence of less than one year imposed (regardless of time suspended) the conviction will not be an aggravated felony under 8 U.S.C § 1101(a)(43)(F)’s crime of violence provision.RCW 9A. 36.031(f).}