quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Crime Involving Moral Turpitude: Probably. Transfer means “furnish, deliver, or give away”
and therefore might be viewed as a drug trafficking offense. If the record leaves open the possibility that
no money was involved, immigration counsel can argue against this.
Aggravated Felony: Yes. Federal drug laws punish “giving away” a federally listed controlled
substance without remuneration as a felony (except giving away a small amount of marijuana, which is a
misdemeanor). This makes an analogous state offense an aggravated felony for immigration purposes.
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record shows a federally recognized controlled substance (although the BIA has held in an unpublished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).
d. Offer to transport for sale, sell, transfer, or import into the state
Crime Involving Moral Turpitude: Yes
Aggravated Felony: No. 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.
Controlled Substance Grounds. A conviction under Arizona’s “generic” solicitation statute, §
13-1002, is not a deportable controlled substance conviction or an aggravated felony. Coronado-Durazo
v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997); see also Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999).
However, the Ninth Circuit has found that a conviction under a “specific” solicitation statute, such as that
contained in ARS §§ 13-3405(A)(4), 13-3407(A)(7), or 13-3408(A)(7) would render a noncitizen
removable for an offense relating to a controlled substance. Mielewczyk v. Holder, 575 F.3d 992, 998
(9th Cir. 2009). Therefore, counsel should attempt to plead their client to the generic solicitation statute
under ARS § 13-1002.
Also, this conviction will cause inadmissibility by giving the government “reason to believe” the
person is or assists a trafficker.
79. Possession, manufacture, delivery, advertisement of drug paraphernalia, ARS §13-3415
A. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant,
propagate… conceal, inject, ingest, inhale or otherwise introduce into the human body a drug in
violation of this chapter. Class 6 felony.
Crime Involving Moral Turpitude (CMT): Divisible. Possession to use in order to ingest or
inhale should not be held a CMT. Possession of drug paraphernalia to plant, manufacture, etc. etc. might
be considered akin to a drug trafficking offense, which is a CMT. Plead to “introduce into the body” or
the language of the statute to avoid any inference of drug trafficking.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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