quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
creates a good defense to a charge of a crime of domestic violence, since it is clear that false restraint of a
child can be accomplished nonviolently.
Note that the DV ground contains no sentence requirement: obtaining a sentence imposed of less
than 365 days will not protect the person from deportability under the DV ground, as it would against
conviction of an aggravated felony. See Notes “Record of Conviction” and “Domestic Violence.”
19. Kidnapping, A.R.S. 13-1304
A person commits kidnapping by knowingly restraining another person with the intent to commit certain
designated crimes, including “aid in the commission of a felony.” It is punished as a class 2-4 felony
depending on various factors.
Summary. This is a dangerous conviction for immigration purposes because it is a moral
turpitude offense and is likely to be held a crime of violence (although with careful control of the record
of conviction, immigration counsel can be provided means to argue against this). A crime of violence is
an aggravated felony if a sentence of 365 days or more is imposed, and is a deportable domestic violence
offense if committed against a person with a domestic relationship. For an alternate plea, see Unlawful
Imprisonment or Assault.
.
Crime Involving Moral Turpitude (CMT): Kidnapping is a CMT. (If this plea is unavoidable,
immigration counsel at least will have some argument if the record of conviction leaves open the
possibility that the restraint was by deceit or involved a minor or incompetent adult and the intent was to
“otherwise aid in the commission of a felony,” and the felony either is unidentified or is not a CMT.)
Aggravated Felony: Crime of Violence. Obtain a sentence of 364 days or less to avoid an
aggravated felony conviction. The exception is if the crime involved ransom; see below. The Ninth
Circuit has held that this statute 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. 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.
Aggravated Felony: Ransom. An “offense described in section 875, 876, 877, or 1202 of Title
18 (relating to the demand for or receipt of ransom)” is an aggravated felony regardless of the sentence
imposed. 8 USC § 1101(a)(43)(H). Thus, communicating interstate, mailing, transporting, receiving or
possessing a ransom in connection with a kidnapping is an aggravated felony.
Other Grounds: Domestic Violence: This will be held a deportable crime of domestic if it is
combined with §13-3601, or if the record otherwise identifies a qualifying domestic relationship (though
immigration counsel would have arguments against the latter). Note that this ground does not require a
minimum sentence, and therefore may be satisfied under any sentencing disposition. See Notes “Record
of Conviction” and “Domestic Violence.” If the §13-3601 cannot be avoided, see “aggravated felony:
Arizona Criminal Chart with Explanatory Endnote – August 2012
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