quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Aggravated Felony: This is not an aggravated felony as a crime of violence even with a
sentence imposed of a year or more. But as always, where possible counsel should obtain a sentence of
less than 365 days, in case there are future legislative changes. One recent proposal in Congress was for
manslaughter to be legislatively classed as a crime of violence, and thus an aggravated felony, if a year’s
sentence was imposed.
An offense that involves only negligence or even negligence amounting to reckless causation of
injury will not be held a crime of violence within 18 USC § 16, and thus will not be an aggravated felony
under 8 USC §1101(a)(43)(F) even if a sentence of a year or more is imposed. 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); Lara-Cazares v Gonzalez, 408 F.3d 1217 (9th Cir. 2004) (killing a
person by DUI with gross negligence, amounting to recklessness, is not a crime of violence because it
does not create a risk that force will be used, under Leocal); 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). See further discussion at ARS § 13-1203,
assault.
The BIA has held that a death that is caused by “extreme recklessness or a malignant heart”—
such as vehicular homicide while under the influence—may meet the aggravated felony definition of
murder. Matter of M-W, 25 I&N Dec. 748 (BIA 2012). But because this statute requires a mens rea of
negligence, rather than extreme recklessness, it should not be an aggravated felony for murder under 8
USC § 1101(A)(43)(A).
Other Grounds: As long as this is not a crime of violence, even if the record establishes that the
defendant and victim had a domestic relationship this should not be a “crime of domestic violence” and
should not cause deportability under the domestic violence ground. See Note: Domestic Violence.
However, if the record of conviction shows that the victim was a minor, it likely will be charged as
deportable as a crime of child abuse, neglect, or abandonment. Matter of Velazquez-Herrera, 24 I&N
Dec. 503 (BIA 2008). Immigration counsel would have arguments against this if the age of the victim was
not “actually required” in order to convict the defendant of the offense. United States v. Aguila-Montes
de Oca, 655 F.3d 915, 937 (9th Cir. 2011) (en banc).
. Manslaughter, A.R.S. § 13-1103
A person commits manslaughter by:
1. Recklessly causing the death of another person; or
2. Committing second degree murder as defined in section 13-1104, subsection A upon a sudden quarrel
or heat of passion resulting from adequate provocation by the victim; or
3. Intentionally aiding another to commit suicide; or
4. Committing second degree murder as defined in section 13-1104, subsection A, paragraph 3, while
being coerced to do so by the use or threatened immediate use of unlawful deadly physical force upon
such person or a third person which a reasonable person in his situation would have been unable to resist;
or
5. Knowingly or recklessly causing the death of an unborn child by any physical injury to the mother.
Summary: While a plea to Negligent Homicide A.R.S. § 13-1102 is safer, this statute contains
several subsections that may not be categorically removable. Defense counsel should avoid subsection
(2) and generally plead to the straight statutory language of the offense.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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