quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
2. Distributing an article with the knowledge that the sounds thereon have been so transferred without the
consent of the owner.
3. Distributing or manufacturing an article on which sounds or images have been transferred which does
not bear the true name and address of the manufacturer in a prominent place on the outside cover, box,
jacket or label.
4. Distributing or manufacturing the outside packaging intended for use with articles which does not bear
the true name and address of the manufacturer in a prominent place on the outside cover, box, jacket or
label.
5. Transferring or causing to be transferred to an article any performance, whether live before an audience
or transmitted by wire or through the air by radio or television without the consent of the owner and with
the intent to obtain commercial advantage or personal financial gain.
6. Distributing an article with knowledge that the performance on the article, whether live before an
audience or transmitted by wire or through the air by radio or television, has been transferred without the
consent of the owner.
H. Unlawful copying or sale of sounds or images involving one hundred or more articles containing
sound recordings or one hundred or more articles containing audiovisual recordings is a class 3 felony.
Unlawful copying or sale of sounds or images involving ten or more but less than one hundred articles
containing sound recordings or ten or more but less than one hundred articles containing audiovisual
recordings is a class 6 felony. Unlawful copying or sale of sounds or images involving less than ten
articles containing sound recordings or less than ten articles containing audiovisual recordings is a class 1
misdemeanor.
Summary: This statute is increasingly being used to prosecute illegal downloads and the sale of
bootleg music and videos. Since there is little case law on point, immigration judges may find that it
constitutes a CMT, although counsel may have arguments to the contrary, particularly if the plea is to A1,
A2, or A6. A sentence of 365 days or more may trigger an aggravated felony for counterfeiting.
Crime Involving Moral Turpitude (CMT): Probably. The BIA has found that trafficking in
counterfeit goods is a CMT due to the inherently fraudulent nature of the offense and the theft of
another’s work. Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007). Immigration counsel can argue that
merely copying music or videos for one’s own use is not inherently turpitudinous, but this argument is
undercut by the fact that “distributing” and “manufacturing” under the statute are defined to include
commercial advantage or financial gain. Therefore, since all of the subsections appear to involve a
commercial element, it is likely that the statute will be categorically held a CMT.
Aggravated Felony: An offense relating to counterfeiting in which the sentence imposed is 365
days or more will be an aggravated felony. 8 U.S.C. § 1101(a)(43)(R); Yong Wong Park v. AG of the
United States, 472 F.3d 66 (9th Cir. 2006) (trafficking in counterfeit goods under 18 U.S.C. § 2320 is an
aggravated felony). The Ninth Circuit has defined “counterfeiting” as “knowingly us[ing] or possess[ing]
counterfeit bills with the intent to defraud.” Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir.
2000). Immigration counsel can argue that the statute is categorically not an aggravated felony since it is
missing the element of an intent to defraud, although ICE may argue that fraud is implicit within the
statute. Immigration counsel could also argue that only representations on paper (e.g. securities and bills)
fall within the generic definition of counterfeiting. However, the safest route is to secure a sentence of
one year or less; if this is not possible, attempt to plead to A1, A2, or A6, since A3, A4, and A5 may be
more likely to resemble an intent to counterfeit. If the loss to the victim is $10,000 or more, ICE may
also charge as an aggravated felony for fraud under 8 U.S.C. § 1101(a)(43)(M).
Arizona Criminal Chart with Explanatory Endnote – August 2012
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