quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
possibility of causing offense and could be committed by topless or nude sunbathing, or an intoxicated
man who needed to urinate in public.
Even an offense that includes a plea to sexual motivation under ARS § 13-118 (which states that
the defendant committed the crime “for the purpose of the defendant’s sexual gratification”) is not
categorically a CMT. Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010). The Ninth Circuit has held that
moral turpitude only inheres if the offense involved an intent to do harm or resulted in actual harm to the
victim. Defense counsel should keep the language of the plea vague and avoid any references to specific
sexual conduct or harm to the victim.
Aggravated felony: Sexual Abuse of a Minor. No, because there is no sexual intent. Compare
Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) (Texas indecent exposure is SAM because
of intent to arouse). However, if the conviction includes a plea to ARS § 13-118 for sexual motivation
(which states that the defendant committed the crime “for the purpose of the defendant’s sexual
gratification”) there is a stronger possibility that the offense would be found an aggravated felony, if the
offense is punished as a class 6 felony based on the victim being under 15 years of age. If instead the
victim is a minor but 15 years or older, counsel should attempt to keep age from the record, but
immigration counsel have a very strong argument that the offense is not sexual abuse of a minor.
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc); Nijhawan v. Holder, 129 S. Ct.
2294 (2009). Since sexual abuse of a minor requires both “sexual conduct” and “physical or
psychological harm” to the victim, United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009),
defense counsel should avoid any references to specific sexual conduct or harm to the victim.
Other: Child Abuse. In the past DHS has charged indecent exposure to a child/minor as a crime
of “child abuse,” which is not an aggravated felony but a ground of removal. In Rebilas v. Keisler, 506
F.3d 1161 (9th Cir. 2007), the Ninth Circuit suggested in the context of a charge of sexual abuse of a
minor that “abuse” would not necessarily occur in a context where the minor was not aware of the
offensive conduct. However, “child abuse” can also encompass unreasonably placing a child in a
situation that poses a threat of injury to the child’s life or health even though no proof of actual harm or
injury to the child is required. See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). Immigration attorneys
can also argue that there are minor ways to violate the statute (nude sunbathing, public urination) that do
not constitute child abuse, and that it may not constitute child abuse if the conviction was for the general
offense, rather than the section requiring that the victim was under the age of 15. See Note: Child Abuse.
Still, where possible bargain to keep age and, certainly, egregious behavior out of the record of
conviction, or better yet plead to disorderly conduct.
22. Public Sexual Indecency, A.R.S. §13-1403
Public Sexual Indecency, Public Sexual Indecency To A Minor, ARS § 13-1403
A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the
following acts, if another person is present, and the defendant is reckless about whether such other person,
as a reasonable person, would be offended or alarmed by the act: 1. An act of sexual contact. 2. An act of
oral sexual contact. 3. An act of sexual intercourse. 4. An act of bestiality. (Class 1 misdemeanor)
B. A person commits public sexual indecency to a minor if he intentionally or knowingly engages in any
of the acts listed in subsection A and such person is reckless whether a minor under the age of fifteen
years is present. (Class 5 felony)
Arizona Criminal Chart with Explanatory Endnote – August 2012
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