quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
crime of violence or a crime of domestic violence, counsel would be better off pleading to a straight
assault than an attempt in order to leave open the possibility of a reckless mens rea.
To avoid proof of the requisite domestic relationship, counsel should attempt to avoid the
statutory reference to §13-3601, as well as any other information in the record that establishes the
relationship. See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (holding that immigration authorities
cannot use evidence from outside the record of conviction to establish that a domestic relationship existed
for the purpose of proving deportability for conviction of a crime of domestic violence) and Note: Record
of Conviction. Note, however, that because of the risk that the Ninth Circuit might decide to revisit
Tokatly in light of subsequent Supreme Court cases, where possible criminal defense counsel should put
all efforts into avoiding a crime of violence. Immigration counsel will continue to cite Tokatly and other
beneficial governing precedent, unless and until it is modified. See discussion in Note: Domestic
Violence.
If there is no reference to § 13-3601 but the record of conviction mentions a domestic
relationship, this may be removable as a crime of domestic violence. United States v. Aguila-Montes de
Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc). Immigration counsel would have arguments against
this if the domestic relatioship was not “actually required” in order to convict the defendant of the
offense. Id. at 937.
Other Grounds: Child Abuse, Abandonment, or Neglect: 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, even in the absence of a reference to § 13-3601. 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). However,
defense counsel should always attempt to leave the age of a minor victim out of the record of conviction.
12. Aggravated Assault, ARS § 13-1204
A. A person commits aggravated assault if the person commits assault as defined in section 13-1203
under any of the following circumstances:
1. If the person causes serious physical injury to another.
2. If the person uses a deadly weapon or dangerous instrument.
3. If the person commits the assault by any means of force that causes temporary but substantial
disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any
body part.
4. If the person commits the assault while the victim is bound or otherwise physically restrained or while
the victim's capacity to resist is substantially impaired.
5. If the person commits the assault after entering the private home of another with the intent to commit
the assault.
6. If the person is eighteen years of age or older and commits the assault on a child who is fifteen years of
age or under.
7. If the person commits assault as prescribed by section 13-1203, subsection A, paragraph 1 or 3 and the
person is in violation of an order of protection…
8. If the person commits the assault knowing or having reason to know the victim is [a peace officer,
firefighter, EMT, teacher, school nurse, health care practitioner, or prosecutor…]
9. If the person knowingly takes or attempts to exercise control over [a peace officer’s weapon]…
10. If the person [is imprisoned and attacks an employee of the jail or prison….]
Arizona Criminal Chart with Explanatory Endnote – August 2012
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