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 />
Aggravated Felony: This is not an aggravated felony as a crime of violence even with a<br />
sentence imposed of a year or more. But as always, where possible counsel should obtain a sentence of<br />
less than 365 days, in case there are future legislative changes. One recent proposal in Congress was <strong>for</strong><br />
manslaughter to be legislatively classed as a crime of violence, <strong>and</strong> thus an aggravated felony, if a year’s<br />
sentence was imposed.<br />
An offense that involves only negligence or even negligence amounting to reckless causation of<br />
injury will not be held a crime of violence within 18 USC § 16, <strong>and</strong> thus will not be an aggravated felony<br />
under 8 USC §1101(a)(43)(F) even if a sentence of a year or more is imposed. Leocal v Ashcroft, 125<br />
S.Ct. 377 (2004) (negligent DUI is not a crime of violence because does not create risk that <strong>for</strong>ce will be<br />
used, just that injury will occur); Lara-Cazares v Gonzalez, 408 F.3d 1217 (9th Cir. 2004) (killing a<br />
person by DUI with gross negligence, amounting to recklessness, is not a crime of violence because it<br />
does not create a risk that <strong>for</strong>ce will be used, under Leocal); Fern<strong>and</strong>ez-Ruiz v. Gonzales, 466 F.3d 1121<br />
(9th Cir. 2006) (en banc) (recklessly causing physical injury to another does not meet the federal<br />
definition of a “crime of violence” under 18 U.S.C. § 16). See further discussion at ARS § 13-1203,<br />
assault.<br />
The BIA has held that a death that is caused by “extreme recklessness or a malignant heart”—<br />
such as vehicular homicide while under the influence—may meet the aggravated felony definition of<br />
murder. Matter of M-W, 25 I&N Dec. 748 (BIA 2012). But because this statute requires a mens rea of<br />
negligence, rather than extreme recklessness, it should not be an aggravated felony <strong>for</strong> murder under 8<br />
USC § 1101(A)(43)(A).<br />
Other Grounds: As long as this is not a crime of violence, even if the record establishes that the<br />
defendant <strong>and</strong> victim had a domestic relationship this should not be a “crime of domestic violence” <strong>and</strong><br />
should not cause deportability under the domestic violence ground. See Note: Domestic Violence.<br />
However, if the record of conviction shows that the victim was a minor, it likely will be charged as<br />
deportable as a crime of child abuse, neglect, or ab<strong>and</strong>onment. Matter of Velazquez-Herrera, 24 I&N<br />
Dec. 503 (BIA 2008). Immigration counsel would have arguments against this if the age of the victim was<br />
not “actually required” in order to convict the defendant of the offense. United States v. Aguila-Montes<br />
de Oca, 655 F.3d 915, 937 (9th Cir. 2011) (en banc).<br />
. Manslaughter, A.R.S. § 13-1103<br />
A person commits manslaughter by:<br />
1. Recklessly causing the death of another person; or<br />
2. Committing second degree murder as defined in section 13-1104, subsection A upon a sudden quarrel<br />
or heat of passion resulting from adequate provocation by the victim; or<br />
3. Intentionally aiding another to commit suicide; or<br />
4. Committing second degree murder as defined in section 13-1104, subsection A, paragraph 3, while<br />
being coerced to do so by the use or threatened immediate use of unlawful deadly physical <strong>for</strong>ce upon<br />
such person or a third person which a reasonable person in his situation would have been unable to resist;<br />
or<br />
5. Knowingly or recklessly causing the death of an unborn child by any physical injury to the mother.<br />
Summary: While a plea to Negligent Homicide A.R.S. § 13-1102 is safer, this statute contains<br />
several subsections that may not be categorically removable. Defense counsel should avoid subsection<br />
(2) <strong>and</strong> generally plead to the straight statutory language of the offense.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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