quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
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Immigrant Legal Resource Center, Florence Immigrant <strong>and</strong> Refugee Rights Project,<br />
Maricopa County Public Defender August 2012<br />
These mainly are divided into trafficking offenses, <strong>and</strong> offering to commit a trafficking offense<br />
(solicitation). A conviction <strong>for</strong> an “offer” to transport <strong>for</strong> sale, sell, transfer, or import is analogous to a<br />
solicitation offense, which does not constitute an aggravated felony. See Rosas-Castaneda v. Holder, 655<br />
F.3d 875, 885 (9th Cir. 2011). In Rosas-Castaneda, the Ninth Circuit even found that a charging<br />
document <strong>and</strong> plea agreement that showed a conviction <strong>for</strong> Attempted Transport <strong>for</strong> Sale under ARS §<br />
13-3405(A)(4) was not categorically an aggravated felony since “[n]either document in the record of<br />
conviction produces any specific in<strong>for</strong>mation that definitively rules out the possibility that Rosas was<br />
convicted of a solicitation offense. Id. at 886. However, a transcript of a plea colloquy that did not<br />
specifically mention an “offer” to transport <strong>for</strong> sale, sell, transfer, or import would likely trigger removal<br />
<strong>for</strong> an aggravated felony. While a plea to the generic solicitation statute of § 13-1002 is much safer in<br />
avoiding an aggravated felony, defense counsel who cannot otherwise avoid a drug trafficking offense<br />
should plead to § 13-3405(A)(4) <strong>and</strong> specify “offer” in the factual basis.<br />
Even if defense counsel can avoid an aggravated felony by pleading to an “offer” to transport <strong>for</strong><br />
sale, sell, transfer, or import, this will still be found to be a deportable drug conviction. Mielewczyk v.<br />
Holder, 575 F.3d 992, 998 (9th Cir. 2009).<br />
a. Transport <strong>for</strong> sale, sell<br />
Crime Involving Moral Turpitude: Yes, as drug trafficking.<br />
Aggravated Felony: Yes. Straight transportation does not meet the general definition of<br />
trafficking. United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999); Saleres v. INS, 22 Fed. Appx.<br />
831 (9th Cir. 2001)(Table). But because this offense is transport <strong>for</strong> sale it will be found to involve an<br />
element of trafficking.<br />
Controlled Substance Conviction Causing Deportability <strong>and</strong> Inadmissibility. Yes, if the<br />
record shows a federally recognized controlled substance (although the BIA has held in an unpublished<br />
decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule).<br />
b. Import into this state<br />
Crime Involving Moral Turpitude: Yes, if the importation is necessarily <strong>for</strong> trafficking as<br />
opposed to personal use.<br />
Aggravated Felony: Yes, to the extent that the importation is <strong>for</strong> trafficking. Or, to the extent<br />
that this offense is analogous to 21 U.S.C. § 952(a), which criminalizes the importation of controlled<br />
substances or, if they are listed in schedules III, IV, or V, dangerous drugs. However, an argument could<br />
be made that importation into the state is akin to transportation, which does not meet the general<br />
definition of trafficking. United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999)<br />
Controlled Substance Conviction Causing Deportability <strong>and</strong> Inadmissibility. Yes, if the<br />
record shows a federally recognized controlled substance (although the BIA has held in an unpublished<br />
decision that this is unnecessary since the Arizona legislature intended to mimic the federal schedule).<br />
b. Transfer<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
97