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 />
Crime Involving Moral Turpitude (CMT): Manslaughter involving recklessness has been held<br />
to be a CMT. Franklin v. INS, 72 F.3d 571 (8th Cir. 1995); Matter of Wojtkow, 18 I&N Dec. 111 (BIA<br />
1981). There<strong>for</strong>e, A1 is likely to be found a CMT, as is A5. Since A2 adopts the “heat of passion”<br />
element commonly used by voluntary manslaughter definitions, defense counsel should assume it will be<br />
considered a CMT. While attempted suicide has been held NOT to be a CMT, Matter of D, 4 I&N Dec.<br />
149 (BIA 1950), it is unclear whether aiding another to commit suicide, as in A3, would be similarly held.<br />
A4 arguably would not be a CMT since the act was not committed voluntarily <strong>and</strong> encompasses conduct<br />
that even a “reasonable person” could not have resisted.<br />
Aggravated Felony: Since an offense with a mens rea of recklessness is not a “crime of<br />
violence,” A1 <strong>and</strong> A5 should not categorically be held to be an aggravated felony. See Fern<strong>and</strong>ez-Ruiz v.<br />
Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) (assault committed recklessly does not meet the<br />
federal definition of a “crime of violence” under 18 U.S.C. § 16); Flores-Lopez v. Holder, 685 F.3d 857<br />
(9th Cir. 2012). A1 <strong>and</strong> A5 (with a reckless mens rea) should not be an aggravated felony as murder<br />
unless there is a showing of conduct that rises above ordinary recklessness. Matter of M-W, 25 I&N Dec.<br />
748 (BIA 2012) (death that is caused by “extreme recklessness or a malignant heart”—such as vehicular<br />
homicide while under the influence—may meet the aggravated felony definition of murder).<br />
Defense counsel should assume that A2 will be held an aggravated felony as either a “murder” or<br />
a “crime of violence” aggravated felony under 8 U.S.C. § 1101(a)(43)(A) or (F). See Second-degree<br />
Murder, Aggravated Felony. Although there are arguments against this, where possible counsel should<br />
conservatively assume that intentionally aiding another to commit suicide will meet the definition of an<br />
aggravated felony <strong>for</strong> “murder” or, if it involves <strong>for</strong>ce <strong>and</strong> carries a sentence of one year or more, will<br />
meet the aggravated felony definition as a “crime of violence.” Arguably, A4 is not an aggravated felony<br />
since it lacks the voluntary <strong>and</strong> intentional nature of murder or a crime of violence.<br />
Other Grounds: An offense cannot satisfy the domestic violence ground of removability<br />
without first being a “crime of violence”; there<strong>for</strong>e, only subsections A2 <strong>and</strong> possibly A3 or A4 could be<br />
considered removable as a crime of domestic violence if committed against a person who meets the<br />
definition in A.R.S. § 13-3601(A)(1). If the record of conviction demonstrates that the offense is<br />
committed against a child, it may be removable as an offense of child abuse, ab<strong>and</strong>onment, or neglect.<br />
Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). Unless the plea is to A5, <strong>immigration</strong><br />
counsel would have arguments against this if the age of the victim was not “actually required” in order to<br />
convict the defendant of the offense. United States v. Aguila-Montes de Oca, 655 F.3d 915, 940 (9th Cir.<br />
2011) (en banc).<br />
7. Second-degree Murder, A.R.S. 13-1104<br />
A person commits second degree murder if without premeditation:<br />
1. The person intentionally causes the death of another person, including an unborn child or, as a result of<br />
intentionally causing the death of another person, causes the death of an unborn child; or<br />
2. Knowing that the person's conduct will cause death or serious physical injury, the person causes the<br />
death of another person, including an unborn child or, as a result of knowingly causing the death of<br />
another person, causes the death of an unborn child; or<br />
3. Under circumstances manifesting extreme indifference to human life, the person recklessly engages in<br />
conduct that creates a grave risk of death <strong>and</strong> thereby causes the death of another person, including an<br />
unborn child or, as a result of recklessly causing the death of another person, causes the death of an<br />
unborn child.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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