quick reference chart and annotations for determining immigration ...

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record shows a federally recognized controlled substance (although the BIA has held in an unpublished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