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: Counsel should assume that a conviction for first-degree murder will be
considered an aggravated felony as “murder” within 8 U.S.C. § 1101(a)(43)(A), regardless of the sentence
imposed.
Other grounds: If the record of conviction demonstrates a domestic relationship under A.R.S. §
13-3601 or contains the age of the victim, a conviction for first-degree murder would likely also be
removable under the grounds of domestic violence or 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, 940 (9th Cir. 2011) (en banc).
9. Endangerment, A.R.S. §13-1201
A person commits endangerment by recklessly endangering another person with a substantial risk of
imminent death or physical injury. Endangerment involving a substantial risk of imminent death is a
class 6 felony. In all other cases, it is a class 1 misdemeanor.
Summary: Under current law this is not an aggravated felony even with a 365-day sentence.
Still, as always counsel should attempt to get a sentence imposed of 364 days or less to prevent this from
possibly being held an aggravated felony. Counsel also should follow guidance regarding the record of
conviction, below.
Crime Involving Moral Turpitude (CMT): Possibly, particularly if serious injury is
threatened. No case law has yet defined whether endangerment is a crime involving moral turpitude, and
unpublished BIA case law has been mixed. ICE has been charging this as a CMT more frequently and it
is possible that some immigration judges will find it to be so in light of case law suggesting that a mens
rea of “recklessness” is sufficient to establish an offense as a CMT. See Matter of Silva-Trevino, 24 I&N
Dec. 687 (A.G. 2008).
Mere risk of injury or death—with no actual injury or other aggravating factor— gives
immigration counsel an argument that the conviction is not a CMT. See Matter of Fualaau, 21 I&N Dec.
475, 478 (BIA 1996). The BIA’s recent decision in Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011)
supports this since a statute encompassing “endangerment-like” behavior was only found a CIMT when
combined with the aggravating factor of fleeing a police officer. See also Uppal v. Holder, 576 F.3d
1014 (9th Cir. 2009) (an assault statute not involving a specific intent to injure or a special trust
relationship and not requiring that the assault cause death or even serious bodily injury cannot qualify as a
categorical CIMT). Defense counsel should be conservative and try to keep the record vague, i.e. use
boilerplate statutory language in the plea agreement, and avoid mentioning any aggravating factors such
as injury, the age of the victim, or the circumstances of the offense.
Even if it is a CMT, a single class 1 misdemeanor conviction would not cause deportability or
inadmissibility. Recklessly causing substantial risk of imminent death may be more likely a CMT.
Aggravated Felony: No. Under Ninth Circuit law, a mens rea of recklessness is insufficient to
meet the definition of a “crime of violence.” 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); Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (California
“general intent” crime that employs a mens rea of recklessness is not categorically a “crime of violence”
Arizona Criminal Chart with Explanatory Endnote – August 2012
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