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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 under section 16(b)). Since the statute can only be violated using recklessness, it is categorically not an aggravated felony. See further discussion at ARS § 13-1203, assault. Other Grounds: Domestic Violence. This is not a crime of domestic violence because it is not a crime of violence. Other Grounds: Crime of Child Abuse, Neglect or Abandonment: If the record demonstrates that the person endangered was a minor, charges of removal may be brought on the basis of child abuse, neglect, or abandonment. See Matter of Soram, 25 I&N Dec. 378 (BIA 2010) (unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health is categorically a crime of child abuse even though no proof of actual harm or injury to the child is required). However, Matter of Soram may be in conflict with the Ninth Circuit’s decision in Pacheco-Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), which held that a statute that includes only the possibility of harm, with no actual physical or emotional injury, does not categorically fall within the definition of a “crime of child abuse.” See Jimenez-Juarez v. Holder, 635 F.3d 1169, n.2 (9th Cir. 2011) (upholding Pacheco-Fregozo post-Soram). Defense counsel should plead to language that avoids any reference to actual harm or injury to the victim in order to preserve this argument for immigration counsel. Defense counsel should attempt to cleanse the record of any mention that victim was a minor. If the age of the victim is in the record of conviction, immigration counsel should argue that the BIA’s decision permitting this in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), was an incorrect interpretation of Ninth Circuit law, and implicitly overruled in United States v. Aguila-Montes de Oca, 655 F.3d 915, 937 (9th Cir. 2011) (en banc). In an age-neutral statute, the fact that the victim was a minor is a “non-element fact” because it does not set out an element that is set out in the criminal statute. Neither is the minor age of the victim necesassary to prove any element of the offense that is set out in the criminal statute. Therefore an immigration judge may not consider this fact in characterizing the offense of conviction.. United States v. Aguila-Montes de Oca, 655 F.3d 915, 937 (9th Cir. 2011) (en banc). Other Grounds: Firearms: If the record demonstrates that the offense was committed with a firearm, a charge of removal may be brought on the basis of a firearms conviction. 8 USC § 1227(a)(2)(C). Unlike the age of the victim, see Other Grounds: Crime of Child Abuse, Neglect or Abandonment, immigration counsel would probably not be able to argue that the firearm was not “actually required” in order to convict the defendant of the offense. See United States v. Aguila-Montes de Oca, 655 F.3d 915, 936-37 (9th Cir. 2011) (en banc). Defense counsel should be careful to remove any reference to a firearm from the record of conviction. If it is not possible to remove any reference, defense counsel should refer generally to a “gun” or “bb gun,” which will permit immigration counsel to argue that the offense is not properly identified as a “firearm” under the federal immigration definition at 18 USC § 921(a)(3).. 10. Threatening or intimidating, ARS § 13-1202 A person commits threatening or intimidating if the person threatens or intimidates by word or conduct: 1. To cause physical injury to another person or serious damage to the property of another; or 2. To cause, or in reckless disregard to causing, serious public inconvenience including, but not limited to, evacuation of a building, place of assembly or transportation facility; or 3. To cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang, a criminal syndicate or a racketeering enterprise. Arizona Criminal Chart with Explanatory Endnote – August 2012 21
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 A1 or A2 is a class 1 misdemeanor, except that it is a class 6 felony if the offense is committed in retaliation for certain anti-crime activities. A3 is a class 4 felony. Crime Involving Moral Turpitude (CMT): Divisible. The Ninth Circuit has held that a conviction for Criminal Threats under California law is a CMT. Latter-Singh v. Holder, 668 F.3d 1156, 1158 (9th Cir. 2012). However, in finding it to be categorically a CMT, the Ninth Circuit relied on three aspects of the California statute that are not necessarily present in the Arizona statute. First, the Arizona statute does not require a threat of “death or great bodily injury,” since the plain language of the statute includes threats of physical injury, damage to property, or serious public inconvenience. Second, the Arizona threats statute does not require an intent that the victim believe the threat will be carried out since the legislature specifically amended the language in 1994 to delete a requirement that there be an “intent to terrify.” 1994 Ariz. Sess. Laws, ch. 200, § 11. Third, the Arizona threats statute does not require intent and may be violated by a mens rea of mere negligence. In re Kyle M., 200 Ariz. 447, 449 (Ariz. Ct. App. 2001); In re Ryan A., 39 P.3d 543 (AZ 2002). Therefore, while the statute is not categorically a CMT, defense counsel should attempt to keep these elements out of the record of conviction or any other documents whenever possible. Because A3 requires the person to threaten in order to support gang or racketeering activity, it is likely that the DHS will charge it as a CMT. Criminal defense counsel should attempt to avoid this plea, or if that is not possible to keep the record of conviction clear of damaging information. Aggravated Felony as a Crime of Violence: Both A1 and A2 are misdemeanors that cannot sustain a sentence of a year, but will be held a class 6 felony if done in retaliation for certain activities. There counsel should obtain a sentence of 364 days or less, or keep the record vague between A1 and A2. A1 may be charged as a crime of violence, but immigration counsel will have strong arguments that it lacks the requisite intent since it is a strict liability offense. In re Kyle M., 200 Ariz. 447, 449 (Ariz. Ct. App. 2001). A2 is not a crime of violence since it does not necessarily involve a threat to use force on people or property (e.g., it could involve threatening to pull a fire alarm). A3 can be a felony and will likely be charged as a crime of violence. See Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003) (Calif. P.C. § 422, which punishes "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,” held a crime of violence). Other Grounds: Domestic Violence/Child Abuse, Abandonment or Neglect. A1 will be charged as a deportable crime of domestic violence if the conviction specifically cites § 13-3601 in the judgment, or if the record of conviction otherwise establishes that the victim had the requisite domestic relationship. 8 USC §1227(a)(2)(E)(i). Immigration counsel can argue that the statute does not have the requisite mens rea to be a “crime of violence” and thus cannot be a “crime of domestic violence” but immigration judges may not agree. See Aggravated Felony, above. No sentence is required and a misdemeanor will suffice. Consider a plea to assault, § 13-1203(A)(3). See Note: Domestic Violence. If the victim is a minor and the age of the victim appears in the record of conviction, a conviction would be removable under the ground of child abuse, neglect, or abandonment. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). Immigration counsel would have strong 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). Arizona Criminal Chart with Explanatory Endnote – August 2012 22
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