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 />
(9th Cir. 2012) (“it is well-settled that attempted aggravated assault under Arizona law covers only<br />
intentional conduct”) (citing State v. Kiles, 175 Ariz. 358, 857 P.2d 1212, 1224 (1993) (“[A]ttempt is a<br />
specific intent crime <strong>and</strong> by definition involves intentional conduct.”). There<strong>for</strong>e, in order to avoid a<br />
crime of violence or a crime of domestic violence, counsel would be better off pleading to a straight<br />
assault than an attempt in order to leave open the possibility of a reckless mens rea.<br />
Regarding the year’s sentence, simple assault under Arizona law is only punishable as a<br />
misdemeanor with a maximum sentence of six months. However, if a conviction <strong>for</strong> assault under § 13-<br />
1203 serves as the basis <strong>for</strong> an aggravated assault under § 13-1204, a sentence of one year or more could<br />
result in an aggravated felony.<br />
Other Grounds: Domestic Violence. To be a deportable domestic violence offense the<br />
conviction must be of (a) a crime of violence (b) committed against someone with whom the defendant<br />
had a domestic relationship, as established by the record of conviction. If one of these factors cannot be<br />
proved, the offense does not cause deportation under this ground. There is no requirement of a year’s<br />
sentence. See Note: Domestic Violence. In Fern<strong>and</strong>ez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006)<br />
(en banc), the Ninth Circuit found that a conviction <strong>for</strong> a class 2 misdemeanor assault under § 13-1203<br />
did not categorically constitute a crime of violence under 18 U.S.C. § 16(a) since it involves recklessness<br />
under A1. There<strong>for</strong>e, a domestic violence conviction <strong>for</strong> simple assault under A1 is not categorically<br />
removable as a “crime of domestic violence” unless the government can prove that the offense was<br />
committed intentionally, rather than recklessly. However, the government has successfully argued that,<br />
since assault committed intentionally or knowingly is punishable as a class 1 misdemeanor under § 13-<br />
1203(B), any conviction <strong>for</strong> A1 as a class 1 misdemeanor will automatically be considered a “crime of<br />
violence.”<br />
A conviction under A2 coupled with a <strong>reference</strong> to 13-3601 will be a crime of domestic violence.<br />
Camacho-Cruz v. Holder, 621 F.3d 941, 943 (9th Cir. 2010) (“intentionally placing another person in<br />
reasonable apprehension of immediate bodily harm” is a crime of violence).<br />
In general, mere offensive touching under A3 is not a crime of violence. See Ortega-Mendez v.<br />
Gonzales, 450 F.3d 1010 (9th Cir. 2006) (finding Cali<strong>for</strong>nia Spousal Battery which includes offensive<br />
touching not crime of violence); Singh v. Ashcroft, 386 F. 3d 1228 (9th Cir. 2004) (Oregon harassment<br />
statute is not necessarily a crime of violence because it can be violated by mere offensive touching);<br />
Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010); ); Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir.<br />
2012) (Cali<strong>for</strong>nia “general intent” crime that employs offensive touching <strong>and</strong> a mens rea of recklessness<br />
is not categorically a “crime of violence” under section 16(b)). There<strong>for</strong>e, a plea to A3, even with a mens<br />
rea of “intentionally,” should not be held a categorical crime of violence.<br />
To avoid a crime of violence, counsel should plead to A1 as a class 2 or 3 misdemeanor, A3, or<br />
leave the record vague between subsections. Counsel should avoid pleading to A1 as a class one<br />
misdemeanor, or to A2. Where possible, counsel should also attempt to keep the record clear of<br />
in<strong>for</strong>mation that more than recklessness or mere offensive touching was involved.<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 />
(9th Cir. 2012) (“it is well-settled that attempted aggravated assault under Arizona law covers only<br />
intentional conduct”) (citing State v. Kiles, 175 Ariz. 358, 857 P.2d 1212, 1224 (1993) (“[A]ttempt is a<br />
specific intent crime <strong>and</strong> by definition involves intentional conduct.”). There<strong>for</strong>e, in order to avoid a<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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