quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
3. If the person is one of two persons who have joint legal custody of a child takes, entices or withholds
from physical custody the child from the other custodian.
4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes
the return of a child to the lawful custodian.
Crime Involving Moral Turpitude (CMT): Probably not, particularly for subsections A1, A2,
and A3 since there is not necessarily an intentional or even reckless or negligent requirement. Even A4
may not be a CMT since the statute does not require cruelty, depravity, or emotional harm. State v. Bean,
174 Ariz. 544, 851 P.2d 843 (Ct. App. 1992).
Aggravated Felony: It appears not to be, although as always counsel should try to avoid a
sentence of a year or more for any single count.
Other Grounds: Domestic Violence. Under 8 U.S.C. § 1227(a)(2)(E), a crime of child abuse,
child neglect, or child abandonment is a deportable offense. The Board of Immigration Appeals has
broadly defined “child abuse” as an offense involving an “intentional, knowing, reckless, or criminally
negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such
a person’s physical or mental well-being, including sexual abuse or exploitation.” Matter of Velasquez-
Herrera, 24 I&N Dec. 503 (BIA 2008). The government may argue that a conviction for § 13-1302 will
“impair the physical or mental well-being” of a child but immigration attorneys have arguments that it
does not. A plea to unlawful imprisonment with no reference to § 13-3601 or the age of the victim may
be safer.
Other Grounds: Inadmissible for Taking a Child Outside the U.S. in violation of a custody
Decree. Note that a noncitizen who removes a citizen child outside the U.S. in violation of a court
decree, or assists in this, will be inadmissible until the child is returned to the rightful party.
18. Unlawful Imprisonment, ARS § 13-1303
A person commits unlawful imprisonment by knowingly restraining another person. “Restraint” is
defined to mean restricting another person’s movements by “physical force, intimidation or deception” or
“any means including acquiescence of the victim if the victim is a child less than eighteen years old or an
incompetent person and the victim's lawful custodian has not acquiesced in the movement or
confinement.” A.R.S. §13-1301. Unlawful imprisonment is a class 6 felony unless the victim is released
voluntarily by the defendant without physical injury in a safe place prior to arrest in which case it is a
class 1 misdemeanor.
Summary: This is a divisible statute that may be a safer alternate plea, depending on sentence
and record factors. To avoid an aggravated felony, counsel should obtain a sentence of less than 365 days
for any single count, or at least keep the record clear of evidence that the restraint was effected by force.
To avoid deportability under the domestic violence or child abuse ground, counsel should avoid evidence
in the record that force was used or threatened against anyone with a domestic relationship, or abuse
against a child was involved. In that case, while a §13-3601 notation will likely cause immigration
authorities to charge the offense under the domestic violence or child abuse ground, immigration counsel
at least will have a strong argument against it being so held. Then it is crucial to try to bargain for a class
1 misdemeanor, which will prevent the offense from being classed as a crime of violence. If the victim
was a child and the record of conviction is silent as to the details, there are strong arguments that it is not
a deportable child abuse offense.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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