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 Involving Moral Turpitude (CMT): Maybe not. Knowingly restraining another person,
without more, arguably does not by its nature involve evil intent that amounts to moral turpitude.
Unlawful imprisonment is distinguished from kidnapping by its lack of intent to do harm. See, e.g., State
v. Lucas, 146 Ariz. 597, 604 (1985); State v. Flores, 140 Ariz. 469,473 (1984). A false imprisonment
statute that does not require an intent to do harm should not be a CMT, although the Ninth Circuit has
held that “violence, menace, fraud, or deceit”—which is similar to the requirement of “physical force,
intimidation or deception” here—implies an intent to do harm. Saavedra-Figueroa v. Holder, 625 F.3d
621, 626 (9th Cir. 2010). However, since the statute can also be violated by something other than
“physical force, intimidation or deception” if the victim is a child or an incompetent adult, a vague record
of conviction that does not specify the means by which the “restraint” was achieved should not be a CMT.
See Saavedra-Figueroa v. Holder, 625 F.3d 621, 627 (9th Cir. 2010)
Even if the record shows use of force, mere use of force (as opposed to force with intent to
commit great bodily harm) does not necessarily involve moral turpitude. This section, for example, could
be violated by a storeowner who unreasonably decided that a person had stolen something, and who
detained the person as a shoplifter. If victim is a child could plead to §13-1302 Custodial Interference.
Aggravated Felony: Crime of Violence. Counsel can avoid an aggravated felony by obtaining a
sentence of 364 or less. Further, the offense is not necessarily a crime of violence, since it can be carried
out by deceit. Keep the record free of reference to violence. The Ninth Circuit has held that kidnapping
is not an aggravated felony crime of violence under 18 USC § 16(a) because it may be committed without
the use or threat of violence, and the same arguments would apply here. United States v. Marquez-Lobos,
683 F.3d 1061, 1066 (9th Cir. 2012) (citing State v. Bible, 175 Ariz. 549, 604, 858 P.2d 1152 (1993)). In
Marquez-Lobos, the Ninth Circuit also noted that when the victim is a minor who is less than 18 years old
or incompetent, a lack of consent may be established through non-acquiescence by the lawful custodian,
which does not involved the use or threat of violence. Id. (citing State v. Viramontes, 163 Ariz. 334, 336,
788 P.2d 67 (1990)). However, the government will argue that a felony offense is an aggravated felony
under 18 USC § 16(b) because it creates a situation carrying an inherent risk that force will be used.
Defense counsel should keep the record free of reference to force or intimidation in order to allow
immigration counsel to argue against this.
Other Ground: Domestic Violence and Child Abuse: A.R.S. § 13-1303 will be a “crime of
domestic violence” and cause deportability under the DV ground only where (a) the record shows that the
victim has the required domestic relationship, and (b) the offense is a “crime of violence” as defined in 18
USC § 16. DHS will charge false imprisonment as a deportable domestic violence offense if §13-3601 is
in the judgment. Counsel should attempt to avoid the § 13-3601 notation, as well as other evidence in the
record of conviction showing a domestic relationship. However, if the offense is a misdemeanor and the
record of conviction does not establish that force or threat of force was used (e.g., leaves open the
possibility that the restraint was by deceit or other means), immigration counsel will have a strong
argument that the conviction does not trigger deportation under that ground.
A noncitizen is deportable under the DV ground if convicted of a crime of child abuse, neglect
or abandonment. Where possible, keep the victim’s age out of the record, for two reasons. First, if the
record indicates that this is a child, the court may go to the record to see if the offense involved “abuse.”
While false imprisonment of a child does not necessarily constitute abuse – it can be accomplished simply
by transporting the child without the permission of the guardian – this still carries a risk. See Matter of
Soram, 25 I&N Dec. 378 (BIA 2010) (unreasonably placing a child in a situation that poses a threat of
injury to the child’s life or health is categorically a crime of child abuse even though no proof of actual
harm or injury to the child is required). Second, leaving open the possibility that the victim was a child
Arizona Criminal Chart with Explanatory Endnote – August 2012
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