quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
1. Attempt, A.R.S. § 13-1001.
Summary: Generally, a conviction for attempt carries the same immigration consequences as the
principal offense. Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011) (“An attempt involves the specific
intent to commit the substantive crime, and if commission of the substantive crime involves moral
turpitude, then so does the attempt, because moral turpitude inheres in the intent”); United States v.
Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008) (Arizona's definition of “attempt” is coextensive with the
federal definition); United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012) (same).
There are two instances where conviction of attempt potentially brings an immigration advantage,
however. See discussion of the effect of its lesser potential sentence (at CMT) and the domestic violence
ground of deportability (at Otherwise Removable). Note that a plea to attempt will undermine the
immigration benefit of a plea to assault by recklessness under §§ 13-1203 or 13-1204. While reckless
assault has been held not to be a crime of violence, immigration courts will not recognize “attempted
reckless” assault.
Crime Involving Moral Turpitude (CMT): Attempt to commit a CMT will be held to be a
CMT. However, the fact that an attempt conviction carries a smaller maximum sentence than the
principal offense may avoid immigration consequences based on a single CMT. The same is true for
conviction of solicitation and facilitation. A single CMT conviction may not have immigration
consequences if the potential sentence is sufficiently low and the person has no prior CMTs.
• A single CMT conviction causes deportability under the CMT ground only if the offense was
committed within five years after admission and carries a potential sentence of a year or more. 8
USC § 1227(a)(2)(A)(i). Thus a potential sentence of under a year prevents deportability for a
single CMT.
• A single CMT conviction will not cause inadmissibility if it carries a potential sentence of a year
or less, with an actual sentence imposed of six months or less. 8 USC § 1182(a)(2)(A)(ii). Thus
a potential sentence of a year or less can prevent inadmissibility for a single CMT.
See further discussion at “Note: Crimes Involving Moral Turpitude.” The authors conservatively
assume that immigration authorities will hold a class 6 felony to have a potential sentence of more than a
year due to Guidelines, so the goal is to get to a misdemeanor. A conviction for attempt will cause a class
6 felony to become a class 1 misdemeanor. A conviction for solicitation will cause a class 5 or 6 felony
to become a class 1 or 2 misdemeanor. A conviction for facilitation will cause a class 4 or 5 felony to
become a class 1 misdemeanor, and a class 6 felony to become a class 3 misdemeanor. (However, post-
Blakely immigration counsel can argue that where no aggravating factors are present, a class 6 felony
carries a presumptive sentence of one year, low enough to qualify for the petty offense exception – so that
is worth obtaining if it is the best available.)
Aggravated Felony: An attempt to commit an aggravated felony is an aggravated felony under 8
USC § 1101(a)(43)(U). United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008) (Arizona's
definition of “attempt” is coextensive with the federal definition).
Otherwise Removable: As discussed in the Summary above, a conviction for attempt generally
carries the same immigration consequences as the principal offense. However, some deportation grounds
do not include attempt to commit the offense at all; there, a plea to attempt provides immigration counsel
with an argument. Because part of the domestic violence deportation ground does not specifically include
Arizona Criminal Chart with Explanatory Endnote – August 2012
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