quick reference chart and annotations for determining immigration ...

More documents

Recommendations

Info

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 class 2 felony if the child is under 15, or if the child is at least 15 years old but the perpetrator is in a parental or guardianship relationship. Probation or parole is not allowed. Otherwise it is a class 6 felony. Summary: The statute describes three offenses, none of which require threat, duress or deceit. In order of the potential severity of immigration consequences, the offenses are sexual intercourse or oral sex with (1) a victim who is 15 – 18 years of age; (2) a victim under the age of 15; or (3) a victim who is 15 – 18 years of age where the perpetrator is a parent or guardian. Each offense must be considered separately. In some circumstances the first offense might have no immigration consequences; the second offense will have some immigration consequences but might escape an aggravated felony; and the third offense will have all possible immigration consequences. If the record establishes that the offense is a class 2 felony because the perpetrator is in a parental or guardianship relationship, it is likely that the offense will be held sexual abuse of a minor Crime Involving Moral Turpitude (CMT): Sexual conduct between a parent or guardian and a child always will be considered a CIMT. Consensual sexual conduct with a person under the age of 15 or 18 may or may not be a CIMT. In Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007) the court found that Calif. Penal Code § 261.5(d), which prohibits consensual intercourse between a person under the age of 16 and a person at least 21 years of age, is not categorically a crime involving moral turpitude. However, in Matter of Silva-Trevino, 24 I&N Dec. 687, 705 (A.G. 2008), the Attorney General found that any offense in which an adult engages in intentional sexual contact with a person who the defendant knew or should have known was a minor will constitute a crime involving moral turpitude. Under Silva- Trevino, the immigration judge may hold a hearing and question the defendant (now respondent) as to whether he knew or should have known that the victim was under-age. If in fact the defendant was not aware, it would be best to put evidence of this in the criminal record, in hopes of creating a record that the immigration judge would feel constrained to accept. If this is not possible, counsel should make a vague record as to the defendant’s knowledge of the victim’s age. Counsel also should keep the record vague and avoid an adverse record of conviction (e.g., a younger victim, greater age difference, or other adverse factor). Aggravated Felony: Sexual Abuse of a Minor. Victim 15-18 years of age: The Ninth Circuit held in Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. 2010) that a conviction for sexual conduct with a minor under 13-1405 is not categorically an aggravated felony since it does not match the generic definition of “sexual abuse of a minor” found at 18 U.S.C. § 2243 and it includes conduct that would not qualify as “physical or psychological abuse,” particularly against an older adolescent. The generic definition of “sexual abuse of a minor” is set out in 18 U.S.C. § 2243, which requires that the victim be between the ages of 12 and 16 and at least four years younger than the defendant. Since the Arizona statute is lacking these elements, a conviction under § 13- 1405 should not categorically constitute an aggravated felony as “sexual abuse of a minor.” However, if the record of conviction shows that the victim is 15 and the defendant is 4 years older, ICE may claim that United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) partially overturned Rivera-Cuartas such that it is an aggravated felony. Defense counsel should try to cleanse the record of any mention of the age of the victim or defendant at the time of the offense. Victim under 15: If the record indicates that the victim is 14, immigration counsel may have arguments that it is not sexual abuse of a minor. But if the record indicates the victim is 13 or younger, it will be sexual abuse of a minor. If counsel must plead to this subsection, try to keep the record vague as Arizona Criminal Chart with Explanatory Endnote – August 2012 39
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 to the victim’s age; this will help in terms of deportability but client may not be able to establish eligibility for relief since he carries the burden. Victim is 15-18 and defendant is a parent/guardian: Assume that this will always be considered sexual abuse of a minor. Better to keep the record vague between this and a victim under 15 to leave at least some argument that it’s not sexual abuse of a minor. Other Grounds: Child Abuse. Possibly. See Note: Domestic Violence. The BIA has held that “child abuse” includes an intentional or negligent act or omission that “constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking.” Moreover, as in the “sexual abuse of a minor” context, the term “crime of child abuse” refers to an offense committed against an individual who is under 18 years of age. Child abuse need not be committed by the child’s parent or by someone acting in loco parentis. Immigration counsel can argue that consensual sexual intercourse or oral sexual contact with an older adolescent does not necessarily cause harm or injury, and is not use or exploitation. Defense counsel should avoid any references to nonconsensual or violent conduct and should attempt to exclude the age of a young minor from the record of conviction. Sexual conduct with a child 15 or under will likely be found an offense involving “child abuse.” Jimenez-Juarez v. Holder, 635 F.3d 1169, 1171 (9th Cir. 2011) (the act of touching the sexual or other intimate parts of the victim when the victim is either 14 or 15 years old is categorically a crime of child abuse). 25. Sexual Assault (including rape), A.R.S. §13-1406 “A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.” "Without consent" includes any of the following: (a) coercion by the immediate use or threatened use of force against a person or property; (b) victim’s incapacity or lack of comprehension caused by mental disorder, alcohol, sleep etc., where the defendant knew or should have known this; (c) victim was intentionally deceived as to the nature of the act; (d) victim was intentionally deceived to believe that the perpetrator was the victim's spouse. Class 5 felony, but additional penalties apply if the victim was under 15 or “date-rape” drugs were applied. Crime Involving Moral Turpitude (CMT): Yes. Aggravated Felony: Yes, unless the following three conditions are met: the record does not establish that the victim was under 18 years of age; the record does not establish that the offense did not involve penetration; and a sentence of less than a year was imposed. Also the record must not establish that the offense involved the date-rape drug flunitrazepam. The reasoning is as follows. If the record establishes that the victim was under the age of 18, it will likely be an aggravated felony regardless of sentence as “sexual abuse of a minor” under 8 USC §1101(a)(43)(A). Regardless of the age of the victim, this felony is a “crime of violence,” which is an aggravated felony if a sentence of a year or more is imposed. 8 USC §1101(a)(43)(F). Regardless of Arizona Criminal Chart with Explanatory Endnote – August 2012 40
Page 1 and 2: QUICK REFERENCE CHART AND ANNOTATIO
Page 3 and 4: that defenders can immediately iden
Page 5 and 6: DIVISIBLE STATUTES, RECORD OF CONVI
Page 7 and 8: Immigrant Legal Resource Center, Fl
Page 43: Immigrant Legal Resource Center, Fl
Page 95 and 96:
Immigrant Legal Resource Center, Fl
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
show all

quick reference chart and annotations for determining immigration ...

Create successful ePaper yourself

Delete template?

Save as template?