quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
quick reference chart and annotations for determining immigration ...
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Immigrant Legal Resource Center, Florence Immigrant <strong>and</strong> Refugee Rights Project,<br />
Maricopa County Public Defender August 2012<br />
Summary: If the victim is a minor, this can be a dangerous offense. Plead to disturbing the<br />
peace, or if needed to indecent exposure. Where possible leave the record vague as to the age of the<br />
victim if the victim was under 18. Immigration counsel will have strong arguments against this having<br />
consequences even where the victim was a minor, but they may not prevail <strong>and</strong> the person will be<br />
detained during the fight.<br />
Crime Involving Moral Turpitude (CMT): Maybe. This offense committed in front of an<br />
adult ought not to be held a CMT, because recklessness about the possibility of offending a person is not<br />
a CMT. While the government might charge this as a CMT where the victim was a minor, <strong>immigration</strong><br />
counsel at least have strong arguments against it. The only intent requirement is that the defendant was<br />
reckless as to whether a minor is present in the sense of being within viewing range, not whether it would<br />
alarm or offend the minor. Defense counsel should keep the language of the plea vague <strong>and</strong> avoid any<br />
<strong>reference</strong>s to the victim’s awareness of the offense or harm to the victim.<br />
Aggravated felony: Sexual Abuse of a Minor. Divisible. In Rebilas v. Mukasey, 527 F.3d<br />
783 (9th Cir. 2008) Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. 2007), the Ninth Circuit found that a<br />
conviction <strong>for</strong> § 13-1403(B) was not categorically sexual abuse of a minor since the minor need not be<br />
aware of the conduct. The court noted that “[w]hen the minor is unaware of the offender's conduct, the<br />
minor has not been ‘abused’ as that term is commonly or generically defined, because the minor has not<br />
been physically or psychologically harmed.” Id. at 786. However, the <strong>immigration</strong> court may examine<br />
the record of conviction to determine whether the minor was aware of the conduct <strong>and</strong> there<strong>for</strong>e<br />
“abused.” Plead to the generic statutory language of the offense with no mention of the minor’s<br />
awareness of the conduct. If the record refers to the minor’s awareness, it may be better to plead to<br />
Indecent Exposure. Try to keep the age of the victim out of the factual basis <strong>and</strong> avoid a plea to (B)<br />
Other Grounds: DV/Child Abuse: The Board of Immigration Appeals has defined “child<br />
abuse” as an offense involving an “intentional, knowing, reckless, or criminally negligent act or omission<br />
that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or<br />
mental well-being, including sexual abuse or exploitation.” Matter of Velazquez-Herrera, 24 I&N Dec.<br />
503 (BIA 2008). If the statute does not have as an element that the victim is under 18, it still may be a<br />
deportable crime of child abuse if the reviewable record of conviction establishes this fact. To prevent<br />
(A) from being a deportable crime of child abuse, do not let the record establish that the victim was under<br />
age 18.<br />
For (B) or <strong>for</strong> (A) when the record establishes minor age, under Rebilas, supra, <strong>immigration</strong><br />
counsel can argue that “child abuse” was not committed if the minor was unaware of the offender’s<br />
conduct. However, “child abuse” can also encompass unreasonably placing a child in a situation that<br />
poses a threat of injury to the child’s life or health even though no proof of actual harm or injury to the<br />
child is required. See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). A plea to Indecent Exposure may<br />
be safer, but if this is not possible, try to avoid a plea to (B) <strong>and</strong> keep the victim’s age <strong>and</strong> the minor’s<br />
awareness of the conduct out of the record of conviction. See Note: Domestic Violence.<br />
23. Sexual Abuse, ARS § 13-1404<br />
“A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any<br />
person fifteen or more years of age without consent of that person or with any person who is under fifteen<br />
years of age if the sexual contact involves only the female breast.” “Without consent” may involve <strong>for</strong>ce<br />
or threat of <strong>for</strong>ce, the victim’s incapacity by drugs, etc. or inability to underst<strong>and</strong> the nature of the act, or<br />
deceit. See discussion of ARS §13-1406, infra. The mere fact of minority does not establish lack of<br />
consent. State v. Getz, 189 Ariz. 561, 564 (Ariz., 1997). "Sexual contact" means “any direct or indirect<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
35