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 />
to the victim’s age; this will help in terms of deportability but client may not be able to establish<br />
eligibility <strong>for</strong> relief since he carries the burden.<br />
Victim is 15-18 <strong>and</strong> defendant is a parent/guardian: Assume that this will always be considered<br />
sexual abuse of a minor. Better to keep the record vague between this <strong>and</strong> a victim under 15 to leave at<br />
least some argument that it’s not sexual abuse of a minor.<br />
Other Grounds: Child Abuse. Possibly. See Note: Domestic Violence. The BIA has held that<br />
“child abuse” includes an intentional or negligent act or omission that “constitutes maltreatment of a child<br />
or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. At a<br />
minimum, this definition encompasses convictions <strong>for</strong> offenses involving the infliction on a child of<br />
physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse,<br />
including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a<br />
child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that<br />
involves the use or exploitation of a child as an object of sexual gratification or as a tool in the<br />
commission of serious crimes, such as drug trafficking.” Moreover, as in the “sexual abuse of a minor”<br />
context, the term “crime of child abuse” refers to an offense committed against an individual who is under<br />
18 years of age. Child abuse need not be committed by the child’s parent or by someone acting in loco<br />
parentis.<br />
Immigration counsel can argue that consensual sexual intercourse or oral sexual contact with an<br />
older adolescent does not necessarily cause harm or injury, <strong>and</strong> is not use or exploitation. Defense<br />
counsel should avoid any <strong>reference</strong>s to nonconsensual or violent conduct <strong>and</strong> should attempt to exclude<br />
the age of a young minor from the record of conviction. Sexual conduct with a child 15 or under will<br />
likely be found an offense involving “child abuse.” Jimenez-Juarez v. Holder, 635 F.3d 1169, 1171 (9th<br />
Cir. 2011) (the act of touching the sexual or other intimate parts of the victim when the victim is either 14<br />
or 15 years old is categorically a crime of child abuse).<br />
25. Sexual Assault (including rape), A.R.S. §13-1406<br />
“A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral<br />
sexual contact with any person without consent of such person.” "Without consent" includes any of the<br />
following: (a) coercion by the immediate use or threatened use of <strong>for</strong>ce against a person or property; (b)<br />
victim’s incapacity or lack of comprehension caused by mental disorder, alcohol, sleep etc., where the<br />
defendant knew or should have known this; (c) victim was intentionally deceived as to the nature of the<br />
act; (d) victim was intentionally deceived to believe that the perpetrator was the victim's spouse. Class 5<br />
felony, but additional penalties apply if the victim was under 15 or “date-rape” drugs were applied.<br />
Crime Involving Moral Turpitude (CMT): Yes.<br />
Aggravated Felony: Yes, unless the following three conditions are met: the record does not<br />
establish that the victim was under 18 years of age; the record does not establish that the offense did not<br />
involve penetration; <strong>and</strong> a sentence of less than a year was imposed. Also the record must not establish<br />
that the offense involved the date-rape drug flunitrazepam.<br />
The reasoning is as follows. If the record establishes that the victim was under the age of 18, it<br />
will likely be an aggravated felony regardless of sentence as “sexual abuse of a minor” under 8 USC<br />
§1101(a)(43)(A). Regardless of the age of the victim, this felony is a “crime of violence,” which is an<br />
aggravated felony if a sentence of a year or more is imposed. 8 USC §1101(a)(43)(F). Regardless of<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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