quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Crime Involving Moral Turpitude (CMT): Manslaughter involving recklessness has been held
to be a CMT. Franklin v. INS, 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N Dec. 111 (BIA
1981). Therefore, A1 is likely to be found a CMT, as is A5. Since A2 adopts the “heat of passion”
element commonly used by voluntary manslaughter definitions, defense counsel should assume it will be
considered a CMT. While attempted suicide has been held NOT to be a CMT, Matter of D, 4 I&N Dec.
149 (BIA 1950), it is unclear whether aiding another to commit suicide, as in A3, would be similarly held.
A4 arguably would not be a CMT since the act was not committed voluntarily and encompasses conduct
that even a “reasonable person” could not have resisted.
Aggravated Felony: Since an offense with a mens rea of recklessness is not a “crime of
violence,” A1 and A5 should not categorically be held to be an aggravated felony. See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) (assault committed recklessly does not meet the
federal definition of a “crime of violence” under 18 U.S.C. § 16); Flores-Lopez v. Holder, 685 F.3d 857
(9th Cir. 2012). A1 and A5 (with a reckless mens rea) should not be an aggravated felony as murder
unless there is a showing of conduct that rises above ordinary recklessness. Matter of M-W, 25 I&N Dec.
748 (BIA 2012) (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).
Defense counsel should assume that A2 will be held an aggravated felony as either a “murder” or
a “crime of violence” aggravated felony under 8 U.S.C. § 1101(a)(43)(A) or (F). See Second-degree
Murder, Aggravated Felony. Although there are arguments against this, where possible counsel should
conservatively assume that intentionally aiding another to commit suicide will meet the definition of an
aggravated felony for “murder” or, if it involves force and carries a sentence of one year or more, will
meet the aggravated felony definition as a “crime of violence.” Arguably, A4 is not an aggravated felony
since it lacks the voluntary and intentional nature of murder or a crime of violence.
Other Grounds: An offense cannot satisfy the domestic violence ground of removability
without first being a “crime of violence”; therefore, only subsections A2 and possibly A3 or A4 could be
considered removable as a crime of domestic violence if committed against a person who meets the
definition in A.R.S. § 13-3601(A)(1). If the record of conviction demonstrates that the offense is
committed against a child, it may be removable as an offense of child abuse, abandonment, or neglect.
Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). Unless the plea is to A5, 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, 940 (9th Cir.
2011) (en banc).
7. Second-degree Murder, A.R.S. 13-1104
A person commits second degree murder if without premeditation:
1. The person intentionally causes the death of another person, including an unborn child or, as a result of
intentionally causing the death of another person, causes the death of an unborn child; or
2. Knowing that the person's conduct will cause death or serious physical injury, the person causes the
death of another person, including an unborn child or, as a result of knowingly causing the death of
another person, causes the death of an unborn child; or
3. Under circumstances manifesting extreme indifference to human life, the person recklessly engages in
conduct that creates a grave risk of death and thereby causes the death of another person, including an
unborn child or, as a result of recklessly causing the death of another person, causes the death of an
unborn child.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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