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 (CMT): Divisible. A CMT generally requires an<br />
intentional or at least reckless mens rea. Matter of Fualaau, 21 I&N 475 (BIA 1996); Matter of<br />
Sweetster, 22 I&N Dec. 709 (BIA 1999). Where possible, counsel should plead to a mens rea of<br />
negligence <strong>and</strong> that defendant “permitted” the injury, if any, rather than “caused” it.<br />
Aggravated Felony: Possibly as a “crime of violence” if the defendant receives a sentence of<br />
365 days or more. 8 U.S.C. 1101(a)(43)(F). A crime of violence requires the intentional use of <strong>for</strong>ce, <strong>and</strong><br />
ICE may argue that causing a person to suffer physical injury with an intentional mens rea meets this<br />
definition. Counsel should attempt to secure a sentence of less than 365 days. If this is not possible, try<br />
to plead to a mens rea of recklessness or negligence or to “permitting” the injury to occur, rather than<br />
“causing” it.<br />
Other Grounds – Domestic Violence/Child Abuse: A noncitizen may be deportable <strong>for</strong><br />
conviction of a crime of domestic violence, child abuse, child neglect, or child ab<strong>and</strong>onment. 8 U.S.C. §<br />
1227(a)2)(E)(i). To qualify as a crime of domestic violence, the record of conviction must demonstrate<br />
that the offense is a “crime of violence” <strong>and</strong> was committed against a person who would be included in<br />
the DV statute located at § 13-3601. If the record reflects that the offense was committed recklessly or<br />
negligently, it will not be deportable as a crime of domestic violence. Fern<strong>and</strong>ez-Ruiz v. Gonzales, 466<br />
F.3d 1121 (9th Cir. 2006) (en banc) (recklessly causing physical injury to another does not meet the<br />
federal definition of a “crime of violence” under 18 U.S.C. § 16); Leocal v Ashcroft, 125 S.Ct. 377 (2004)<br />
(negligent DUI is not a crime of violence because does not create risk that <strong>for</strong>ce will be used, just that<br />
injury will occur).<br />
If the record establishes that the victim is a child, it is likely that a conviction under the statute<br />
will be found to fall within the broad definition of child abuse, neglect, or ab<strong>and</strong>onment established by the<br />
Board of Immigration Appeals. See Matter of Velasquez-Herrera, 24 I&N Dec. 503 (BIA 2008).<br />
However, the Ninth Circuit has found that a statute that includes only the possibility of harm, with no<br />
actual physical or emotional injury, does not categorically fall within the definition of a “crime of child<br />
abuse.” Pacheco-Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009); Jimenez-Juarez v. Holder, 635 F.3d<br />
1169, 1171 n.2 (9th Cir. 2011) (affirming the holding of Pacheco-Fregozo that an offense that creates<br />
only potential harm to a child falls outside the scope of the BIA's definition of a crime of child abuse).<br />
Following Pacheco-Fregozo, the BIA held that the crime of unreasonably placing a child in a situation<br />
that poses a threat of injury to the child’s life or health is categorically a crime of child abuse under 8<br />
USC § 1227(a)(2)(E)(i) even though no proof of actual harm or injury to the child is required. Matter of<br />
Soram, 25 I&N Dec. 378 (BIA 2010). There<strong>for</strong>e, case law of the Ninth Circuit <strong>and</strong> the BIA is currently at<br />
odds.<br />
Counsel should conservatively assume that a conviction under the statute will be categorically<br />
deportable as a crime of child abuse; however, <strong>immigration</strong> counsel can argue that it is broader than the<br />
generic definition since ARS § 13-3623 reaches conduct in which the child is endangered but not actually<br />
injured. Defense counsel should attempt to plead to endangerment language <strong>and</strong> avoid any mention of<br />
actual harm or injury to the victim whenever possible.<br />
81. Unlawful Copying or Sale, ARS § 13-3705<br />
A. A person commits unlawful copying or sale of sounds or images from recording devices by<br />
knowingly:<br />
1. Manufacturing an article without the consent of the owner.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
101