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 />
11. Assault, ARS § 13-1203<br />
A. A person commits assault by:<br />
1. Intentionally, knowingly or recklessly causing any physical injury to another person or<br />
2. Intentionally placing another person in reasonable apprehension of imminent physical injury or<br />
3. Knowingly touching another person with the intent to injure, insult or provoke such a person.<br />
B. Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1<br />
misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to<br />
subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A,<br />
paragraph 3 is a class 3 misdemeanor.<br />
Crime Involving Moral Turpitude: Possibly if A1 is coupled with §13-3601 <strong>and</strong> convicted as a<br />
class 1 misdemeanor. In general, simple assault is not a CMT. Matter of re Fualaau, 21 I&N Dec. 475<br />
(BIA 1996) (simple assault not CMT because statute only required bodily injury rather than serious<br />
bodily injury). However, in Fern<strong>and</strong>ez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th Cir. 2006), the Ninth<br />
Circuit found that a simple assault, if committed “willfully” against a person with whom the defendant<br />
has a domestic relationship <strong>and</strong> if resulting in “serious bodily injury,” would constitute a CMT. See also<br />
Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993). The Ninth Circuit has exp<strong>and</strong>ed this holding to find<br />
that intentional assault that wounds, maims, disfigures, or endangers the life of another is categorically a<br />
CMT. See Uppal v. Holder, 576 F.3d 1014 (9th Cir. 2009). Since A1 as a class 1 misdemeanor carries a<br />
mens rea of intent pursuant to § 13-1203(B), the government may argue that it is a CMT. However,<br />
<strong>immigration</strong> counsel can counter that A1 is overbroad since it requires “any physical injury” rather than<br />
“serious bodily injury.” If the noncitizen must accept a class 1 misdemeanor, counsel should keep<br />
evidence of any “serious bodily injury” out of the record of conviction.<br />
A conviction <strong>for</strong> A2 or A3 coupled with a <strong>reference</strong> to 13-3601 could also be a CMT if the record<br />
of conviction demonstrates that there was “serious bodily injury.” Though the statuory language of A2<br />
<strong>and</strong> A3 make it unlikely that this would be part of the factual basis, defense counsel should strike any<br />
mention of “serious bodily injury” from the record of conviction.<br />
The Ninth Circuit has held that “a relationship of trust” must be present in order <strong>for</strong> simple<br />
assault to rise to the level of a CMT. Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th Cir. 2009).<br />
Simple assault committed against persons other than a spouse (such as <strong>for</strong>mer cohabitants or people who<br />
are more akin to strangers or acquaintances) does not trigger a CMT. Id. at 1065-66. Since ARS § 13-<br />
3601 includes <strong>for</strong>mer cohabitants, relatives outside of the immediate family, <strong>and</strong> in-laws, mere conviction<br />
of DV assault may be insufficient to constitute a CMT. Counsel should specify the defendant’s<br />
relationship to the victim if it is outside of the immediate family <strong>and</strong> leave the relationship vague if it is a<br />
spouse or child (remember, however, that any conviction defined as domestic violence by a state statute<br />
will be removable under the DV ground of deportability)<br />
Aggravated Felony: Crime of Violence. To be an aggravated felony the conviction must be a<br />
crime of violence. Neither A3, nor recklessly causing physical injury under A1, is categorically a crime<br />
of violence. Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (Cali<strong>for</strong>nia “general intent” crime that<br />
employs a mens rea of recklessness is not categorically a “crime of violence” under section 16(b)).<br />
However, a conviction under A2 will be a crime of violence. Camacho-Cruz v. Holder, 621 F.3d 941, 943<br />
(9th Cir. 2010) (“intentionally placing another person in reasonable apprehension of immediate bodily<br />
harm” is a crime of violence). See discussion at Other Grounds: Domestic Violence, below.<br />
Note that a plea to attempted assault will always involve an intentional mens rea <strong>and</strong> thus<br />
preclude the benefits of a plea to recklessness. United States v. Gomez-Hern<strong>and</strong>ez, 680 F.3d 1171, 1176<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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