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 />
turpitude. Matter of Muceros, Index Decision (BIA 2000) (willfully shooting at inhabited dwelling<br />
house, whether occupied or not, or at occupied structure under Cal. Pen. Code § 246 is a CMT).<br />
Aggravated Felony: Crime of Violence. Divisible. An aggravated felony crime of violence<br />
requires as an element the use, attempted use, or threatened use of physical <strong>for</strong>ce against the person or<br />
property of another, or a “substantial risk” that such <strong>for</strong>ce will be used in a felonious offense. 18 U.S.C.<br />
§ 16. By careful pleading, counsel can provide <strong>immigration</strong> counsel with an argument that a particular<br />
disposition is not against the person or property of another <strong>and</strong> thus is not an aggravated felony. Counsel<br />
must not permit the record to preclude the possibility that (a) the property was unoccupied (i.e., there was<br />
not a current resident, as opposed to the current resident was not home at the time) <strong>and</strong> (b) the property<br />
was owned by the defendant. Counsel should plead to the generic language of the statute <strong>and</strong> avoid<br />
<strong>reference</strong>s to an inhabited residence or the property of another.<br />
Rationale: Regarding “against a person,” shooting at an “inhabited dwelling place” under<br />
Cali<strong>for</strong>nia law has been held a crime of violence since it “necessarily threatens the use of physical <strong>for</strong>ce<br />
against the resident.” U.S. v. Cortez-Arias, 403 F.3d 1111, 1116 (9th Cir. 2005). However, the Ninth<br />
Circuit in U.S. v. Martinez-Martinez, 468 F.3d 604 (9th Cir. 2006) distinguished the Arizona statute by<br />
finding that the definition of “residence” in ARS § 13-1211 is broader than that of a Cali<strong>for</strong>nia “inhabited<br />
dwelling house,” because it includes dwellings in which no one is currently living. There<strong>for</strong>e, the<br />
discharge of a firearm at either a residential or nonresidential structure appears to be divisible as a crime<br />
of violence against a person, since it can be committed against a structure where no one is currently<br />
living. The government will likely argue that the offense is a crime of violence under 18 U.S.C. § 16(b)<br />
as a felony that involves a “substantial risk” that <strong>for</strong>ce will be used – an issue that Martinez-Martinez did<br />
not address. However, <strong>immigration</strong> counsel may have arguments against this.<br />
Regarding the use of <strong>for</strong>ce against “property of another,” § 13-1211 includes offenses that are<br />
committed against one’s own property. Unless the record of conviction demonstrates that the offense was<br />
committed against the property of another, the offense is not a crime of violence against property. See<br />
Jordison v. Gonzales, 501 F.3d 1134 (9th Cir. 2007).<br />
Other Grounds: Firearms. Yes, deportable. Plead to an aggravated assault that doesn’t require<br />
use of firearm, or endangerment, or a weapons possession charge that does not identify the weapon as a<br />
firearm or destructive device. Better is a plea to simple possession of a weapon not identified as a<br />
firearm; see § 13-3102. See Note: Firearms.<br />
Other Grounds: Domestic Violence. Arguably the domestic violence deportation ground<br />
covers only acts against persons, not property. However, to ensure that the conviction does not cause<br />
deportability under this ground, counsel should not permit the record of conviction to establish that the<br />
property was occupied, or even controlled or owned, by a person with whom the defendant had a<br />
domestic relationship.<br />
17. Custodial Interference, ARS § 13-1302<br />
A. A person commits custodial interference if, knowing or having reason to know that the person has no<br />
legal right to do so, the person does one of the following:<br />
1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, <strong>and</strong> who is<br />
entrusted by authority of law to the custody of another person or institution.<br />
2. Be<strong>for</strong>e the entry of a court order <strong>determining</strong> custodial rights, takes, entices or withholds any child<br />
from the other parent denying that parent access to any child.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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