quick reference chart and annotations for determining immigration ...

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
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