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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 11
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 attempt or conspiracy, a plea to attempt might prevent deportability under the ground relating to a conviction for stalking, or a crime of child abuse, neglect or abandonment. See 8 USC § 1227(a)(2)(E) and Note: Domestic Violence. Attempt is included in the definition of a conviction of a crime of domestic violence, another basis for deportation under this section, because attempt is included in the definition of ‘crime of violence’ at 18 USC § 16. However, a plea to attempt (or conspiracy or facilitation) still may help prevent the offense from becoming a crime of violence if the plea makes the offense a misdemeanor. Under 18 USC § 16(a), a misdemeanor is a crime of violence only if the offense has as an element the intent to threaten or commit to use violent force, while a felony that carries an inherent risk that force will be used is a crime of violence. By reducing an offense to a misdemeanor, attempt thus can disqualify some offenses from being crimes of violence, and therefore crimes of domestic violence. Note that a plea to “attempt” will always involve an intentional mens rea and thus preclude the benefits of a plea to a statute that is divisible because it includes a lower mens rea. United States v. Gomez-Hernandez, 680 F.3d 1171, 1176 (9th Cir. 2012) (“it is well-settled that attempted aggravated assault under Arizona law covers only intentional conduct”) (citing State v. Kiles, 175 Ariz. 358, 857 P.2d 1212, 1224 (1993) (“[A]ttempt is a specific intent crime and by definition involves intentional conduct.”). For instance, in order to avoid a crime of violence or a crime of domestic violence under ARS § 13- 1203(A)(1) or § 13-1204, counsel would be better off pleading to a straight assault than an attempt in order to leave open the possibility of a reckless mens rea. 2. Solicitation, A.R.S. § 13-1002 A person “commands, encourages, requests or solicits” another to commit criminal behavior. Summary: This offense is a valuable alternate plea to avoid conviction of an aggravated felony (except as a “crime of violence” aggravated felony) or under the substance abuse, firearms or domestic violence grounds. Solicitation to commit a drug sale is not a drug trafficking aggravated felony or a deportable controlled substance conviction. See also the comment at the end of this section regarding when solicitation appears in a substantive statute, such as “offering to sell marijuana.” While solicitation of a drug sale is a CMT (see below), there usually are more immigration remedies for conviction of a CMT than for a drug offense. See discussion below and Note: Safer Pleas (A), (B). The down-side of solicitation is that there are moves to legislatively eliminate the defense by adding “solicitation” to, e.g., the definition of aggravated felony. For this reason, while solicitation is useful, other strategies may be more secure. Crime Involving Moral Turpitude (CMT): Criminal defense counsel should assume that solicitation to commit a CMT will itself be held a CMT. Immigration counsel at least can argue that this is not so, because under Arizona law solicitation is a preparatory offense and thus a separate and distinct offense from the underlying crime because it requires a different mental state and different acts. Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997). Unlike attempt, solicitation does not require acting with the same “kind of culpability.” However, this is a difficult argument and criminal defenders should not rely on it. In Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007), the Ninth Circuit held that Solicitation to Possess for Sale at least four pounds of marijuana under A.R.S. § 13-1002 and § 13- 3405(A)(2) and (B)(6) is a crime involving moral turpitude. The court declined to address the issue of Arizona Criminal Chart with Explanatory Endnote – August 2012 12
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