quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
Immigrant Legal Resource Center, Florence Immigrant <strong>and</strong> Refugee Rights Project,<br />
Maricopa County Public Defender August 2012<br />
crime of violence” above <strong>for</strong> suggestions on how to attempt to avoid a record that proves a crime of<br />
violence.<br />
20. Access Interference, ARS § 13-1305<br />
A person commits access interference if, knowing or having reason to know that the person has no legal<br />
right to do so, the person knowingly engages in a pattern of behavior that prevents, obstructs or frustrates<br />
the access rights of a person who is entitled to access to a child pursuant to a court order. If the child is<br />
removed from this state, access interference is a class 5 felony. Otherwise access interference is a class 2<br />
misdemeanor.<br />
Crime Involving Moral Turpitude (CMT): Probably will be held a CMT, although some case<br />
law suggests that it is not. Matter of P, 6 I&N Dec. 400 (BIA 1954) (criminal contempt <strong>for</strong> refusing to<br />
obey an injunction is not a CMT). Unlike § 13-1302 Custodial Interference, this statute requires<br />
“knowingly” obstructing access rights, which is more likely to be held a CMT.<br />
Aggravated Felony: No, although as always counsel should attempt to avoid a sentence of a<br />
year or more <strong>for</strong> any single count.<br />
Other Grounds: Domestic Violence. Possibly. Under 8 U.S.C. § 1227(a)(2)(E), a crime of<br />
child abuse, child neglect, or child ab<strong>and</strong>onment is deportable. The Board of Immigration Appeals has<br />
broadly defined “child abuse” as an offense involving an “intentional, knowing, reckless, or criminally<br />
negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such<br />
a person’s physical or mental well-being, including sexual abuse or exploitation.” Matter of Velasquez-<br />
Herrera, 24 I&N Dec. 503 (BIA 2008). It can also encompass unreasonably placing a child in a situation<br />
that poses a threat of injury to the child’s life or health even though no proof of actual harm or injury to<br />
the child is required. See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). A plea to Custodial Interference<br />
or False Imprisonment is safer.<br />
21. Indecent Exposure, ARS § 13-1402.<br />
A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the<br />
areola or nipple of her breast or breasts <strong>and</strong> another person is present <strong>and</strong> the defendant is reckless about<br />
whether such other person as a reasonable person would be offended or alarmed by the act. Indecent<br />
exposure is a class 1 misdemeanor. Indecent exposure to a person under the age of fifteen years is a class<br />
6 felony.<br />
Summary: This is a safer alternative to sex offenses, except that if the victim was a child the<br />
offense might be charged as deportable child abuse or aggravated felony sexual abuse of a minor if the<br />
record demonstrates that the child was harmed. To avoid that, plead to disorderly conduct with no<br />
indication of sexual conduct <strong>and</strong>/or age in the record. If a disorderly conduct plea is not possible, plead to<br />
the generic language of indecent exposure <strong>and</strong> try to leave specific sexual conduct <strong>and</strong>/or age out of the<br />
record.<br />
Crime Involving Moral Turpitude (CMT): Indecent exposure without a sexual intent is not a<br />
CMT. See Nunez v. Holder, 594 F.3d 1124, 1133-34 (9th Cir. 2010) (“it is the sexual intent with which<br />
the exposure occurs” that trans<strong>for</strong>ms it into a CMT); Matter of Mueller, 11 I&N Dec. 268 (BIA 1965)<br />
(conviction of indecently exposing a sex organ under Wisconsin statute is not a CMT because of lack of<br />
requirement of sexual intent). Arizona indecent exposure requires mere recklessness regarding the<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
33