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 />
Crime Involving Moral Turpitude: Probably. Transfer means “furnish, deliver, or give away”<br />
<strong>and</strong> there<strong>for</strong>e might be viewed as a drug trafficking offense. If the record leaves open the possibility that<br />
no money was involved, <strong>immigration</strong> counsel can argue against this.<br />
Aggravated Felony: Yes. Federal drug laws punish “giving away” a federally listed controlled<br />
substance without remuneration as a felony (except giving away a small amount of marijuana, which is a<br />
misdemeanor). This makes an analogous state offense an aggravated felony <strong>for</strong> <strong>immigration</strong> purposes.<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record shows a federally recognized controlled substance (although the BIA has held in an unpublished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 />
d. Offer to transport <strong>for</strong> sale, sell, transfer, or import into the state<br />
Crime Involving Moral Turpitude: Yes<br />
Aggravated Felony: No. A conviction <strong>for</strong> an “offer” to transport <strong>for</strong> sale, sell, transfer, or<br />
import is analogous to a solicitation offense, which does not constitute an aggravated felony. See Rosas-<br />
Castaneda v. Holder, 655 F.3d 875, 885 (9th Cir. 2011). In Rosas-Castaneda, the Ninth Circuit even<br />
found that a charging document <strong>and</strong> plea agreement that showed a conviction <strong>for</strong> Attempted Transport <strong>for</strong><br />
Sale under ARS § 13-3405(A)(4) was not categorically an aggravated felony since “[n]either document in<br />
the record of conviction produces any specific in<strong>for</strong>mation that definitively rules out the possibility that<br />
Rosas was convicted of a solicitation offense. Id. at 886. However, a transcript of a plea colloquy that<br />
did not specifically mention an “offer” to transport <strong>for</strong> sale, sell, transfer, or import would likely trigger<br />
removal <strong>for</strong> an aggravated felony. While a plea to the generic solicitation statute of § 13-1002 is much<br />
safer in avoiding an aggravated felony, defense counsel who cannot otherwise avoid a drug trafficking<br />
offense should plead to § 13-3405(A)(4) <strong>and</strong> specify “offer” in the factual basis.<br />
Controlled Substance Grounds. A conviction under Arizona’s “generic” solicitation statute, §<br />
13-1002, is not a deportable controlled substance conviction or an aggravated felony. Coronado-Durazo<br />
v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997); see also Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999).<br />
However, the Ninth Circuit has found that a conviction under a “specific” solicitation statute, such as that<br />
contained in ARS §§ 13-3405(A)(4), 13-3407(A)(7), or 13-3408(A)(7) would render a noncitizen<br />
removable <strong>for</strong> an offense relating to a controlled substance. Mielewczyk v. Holder, 575 F.3d 992, 998<br />
(9th Cir. 2009). There<strong>for</strong>e, counsel should attempt to plead their client to the generic solicitation statute<br />
under ARS § 13-1002.<br />
Also, this conviction will cause inadmissibility by giving the government “reason to believe” the<br />
person is or assists a trafficker.<br />
79. Possession, manufacture, delivery, advertisement of drug paraphernalia, ARS §13-3415<br />
A. It is unlawful <strong>for</strong> any person to use, or to possess with intent to use, drug paraphernalia to plant,<br />
propagate… conceal, inject, ingest, inhale or otherwise introduce into the human body a drug in<br />
violation of this chapter. Class 6 felony.<br />
Crime Involving Moral Turpitude (CMT): Divisible. Possession to use in order to ingest or<br />
inhale should not be held a CMT. Possession of drug paraphernalia to plant, manufacture, etc. etc. might<br />
be considered akin to a drug trafficking offense, which is a CMT. Plead to “introduce into the body” or<br />
the language of the statute to avoid any inference of drug trafficking.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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