quick reference chart and annotations for determining immigration ...

More documents

Recommendations

Info

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 A single conviction of possession of flunitrazepam is an aggravated felony, because a first such conviction is punished as a felony under federal law. Whenever possible, criminal defense counsel should plead to “use” or leave the record vague between possession and use. Criminal defense counsel should reduce a possession conviction to a misdemeanor wherever possible. This is because a felony may be treated as an aggravated felony in immigration proceedings outside the Ninth Circuit, and in federal criminal prosecutions for illegal reentry. “Use,” and a first misdemeanor possession, will not be so treated. See Note: Controlled Substances, Part V. Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes. The person will be inadmissible and will not be allowed to seek legal status in the United States. If the client is a lawful permanent resident, the conviction will render him deportable but eligible for a waiver of removal (immigration pardon) if the offense is not an aggravated felony and if he has had his lawful permanent residence for at least five years and has been living in the United States for at least seven years after any legal admission. b. Use Crime Involving Moral Turpitude: No, see possession. Aggravated felony. No. Because it does not involve trafficking and there is no analogous federal offense, even felony use, or use with a prior drug conviction, is not an aggravated felony. Deportable and Inadmissible Drug Conviction. Yes. Eliminating the conviction. A conviction for use of a narcotic or dangerous drug may NOT be eliminated by state “rehabilitative relief” even if it occurred prior to July 14, 2011. See Nunez-Reyes v. Holder, 646 F.3d 684, 695 (9th Cir. 2011) (en banc) (overruling Rice v. Holder, 597 F.3d 952 (9th Cir. 2010)). A2. Possession for sale. Crime Involving Moral Turpitude: Yes. Matter of Khourn, supra. Aggravated Felony: Yes. Possession for sale involves trafficking. Controlled substance conviction causing deportability and inadmissibility. Yes, if the record shows a federally recognized controlled substance (although the BIA has held in an unpublished decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule). . A3. Possess equipment or chemicals, or both, for the purpose of manufacture See “Manufacture.” A4. Manufacture Arizona Criminal Chart with Explanatory Endnote – August 2012 95
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Crime Involving Moral Turpitude: Probably. This offense might be seen as akin to drug trafficking, which is a CMT. Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997). NOTE: Based on the statute’s annotations, it is unclear whether these subsections can include manufacture for personal use. This might create an argument that the offense does not involve trafficking absent evidence on the record showing that it was not for personal use. Aggravated Felony: Yes. A3 is likely to be held an aggravated felony as analogous to 21 U.S.C. § 841(c), unauthorized possession of listed chemicals with intent to manufacture a controlled substance, if the AZ conviction involves a federally listed controlled substance. Subsection (4) likely to be held an aggravated felony as analogous to 21 USC § 841(a)(1), manufacture a controlled substance, if the AZ conviction involves a federally listed controlled substance (although the BIA has held in an unpublished decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule). Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes, if the record shows a federally recognized controlled substance (although the BIA has held in an unpublished decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule). . A5. Administer the drug to another person. Crime Involving Moral Turpitude: Probably not. There is no authority establishing that administering a dangerous drug necessarily involves an evil intent. Aggravated Felony: No, because no trafficking element and no federal analogue. Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes, if the record shows a federally recognized controlled substance (although the BIA has held in an unpublished decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule). A6. Obtain or procure the administration of the drug by fraud, deceit, misrepresentation or subterfuge. Crime Involving Moral Turpitude: Yes, in the case of fraud. Fraud is by definition a CMT, including where fraud is involved in a drug offense. Matter of A, 5 I. & N. Dec. 52 (BIA 1953) (holding that defrauding the U.S. government by falsely issuing dangerous prescription involves both forgery and fraud and is therefore, a CMT). Aggravated Felony: Yes, as analogous to 21 USC § 843(a)(3) (acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge). Try to plead to straight possession or straight fraud. Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes, if the record shows a federally recognized controlled substance (although the BIA has held in an unpublished decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule). A7. Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer the drug. Arizona Criminal Chart with Explanatory Endnote – August 2012 96
Page 1 and 2:
QUICK REFERENCE CHART AND ANNOTATIO
Page 3 and 4:
that defenders can immediately iden
Page 5 and 6:
DIVISIBLE STATUTES, RECORD OF CONVI
Page 7 and 8:
Immigrant Legal Resource Center, Fl
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50: Immigrant Legal Resource Center, Fl
Page 99: Immigrant Legal Resource Center, Fl
show all

quick reference chart and annotations for determining immigration ...

Create successful ePaper yourself

Delete template?

Save as template?