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 (CMT): Divisible. A CMT generally requires an
intentional or at least reckless mens rea. Matter of Fualaau, 21 I&N 475 (BIA 1996); Matter of
Sweetster, 22 I&N Dec. 709 (BIA 1999). Where possible, counsel should plead to a mens rea of
negligence and that defendant “permitted” the injury, if any, rather than “caused” it.
Aggravated Felony: Possibly as a “crime of violence” if the defendant receives a sentence of
365 days or more. 8 U.S.C. 1101(a)(43)(F). A crime of violence requires the intentional use of force, and
ICE may argue that causing a person to suffer physical injury with an intentional mens rea meets this
definition. Counsel should attempt to secure a sentence of less than 365 days. If this is not possible, try
to plead to a mens rea of recklessness or negligence or to “permitting” the injury to occur, rather than
“causing” it.
Other Grounds – Domestic Violence/Child Abuse: A noncitizen may be deportable for
conviction of a crime of domestic violence, child abuse, child neglect, or child abandonment. 8 U.S.C. §
1227(a)2)(E)(i). To qualify as a crime of domestic violence, the record of conviction must demonstrate
that the offense is a “crime of violence” and was committed against a person who would be included in
the DV statute located at § 13-3601. If the record reflects that the offense was committed recklessly or
negligently, it will not be deportable as a crime of domestic violence. Fernandez-Ruiz v. Gonzales, 466
F.3d 1121 (9th Cir. 2006) (en banc) (recklessly causing physical injury to another does not meet the
federal definition of a “crime of violence” under 18 U.S.C. § 16); Leocal v Ashcroft, 125 S.Ct. 377 (2004)
(negligent DUI is not a crime of violence because does not create risk that force will be used, just that
injury will occur).
If the record establishes that the victim is a child, it is likely that a conviction under the statute
will be found to fall within the broad definition of child abuse, neglect, or abandonment established by the
Board of Immigration Appeals. See Matter of Velasquez-Herrera, 24 I&N Dec. 503 (BIA 2008).
However, the Ninth Circuit has found that a statute that includes only the possibility of harm, with no
actual physical or emotional injury, does not categorically fall within the definition of a “crime of child
abuse.” Pacheco-Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009); Jimenez-Juarez v. Holder, 635 F.3d
1169, 1171 n.2 (9th Cir. 2011) (affirming the holding of Pacheco-Fregozo that an offense that creates
only potential harm to a child falls outside the scope of the BIA's definition of a crime of child abuse).
Following Pacheco-Fregozo, the BIA held that the crime of unreasonably placing a child in a situation
that poses a threat of injury to the child’s life or health is categorically a crime of child abuse under 8
USC § 1227(a)(2)(E)(i) even though no proof of actual harm or injury to the child is required. Matter of
Soram, 25 I&N Dec. 378 (BIA 2010). Therefore, case law of the Ninth Circuit and the BIA is currently at
odds.
Counsel should conservatively assume that a conviction under the statute will be categorically
deportable as a crime of child abuse; however, immigration counsel can argue that it is broader than the
generic definition since ARS § 13-3623 reaches conduct in which the child is endangered but not actually
injured. Defense counsel should attempt to plead to endangerment language and avoid any mention of
actual harm or injury to the victim whenever possible.
81. Unlawful Copying or Sale, ARS § 13-3705
A. A person commits unlawful copying or sale of sounds or images from recording devices by
knowingly:
1. Manufacturing an article without the consent of the owner.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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