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 />
sentence or age of victim, rape, including rape by intoxication, is an aggravated felony within 8 USC §<br />
1101(a)(43)(A). Castro-Baez v. INS, 217 F.3d 1057 (9th Cir. 2000). Oral sexual contact likely will not<br />
be considered rape, however. Possession of flunitrazepam (a date-rape drug) is an aggravated felony as a<br />
drug trafficking offense. 8 USC §1101(a)(43)(B).<br />
Otherwise Removable: If the record of conviction reveals that the victim had a domestic<br />
relationship with the perpetrator as set <strong>for</strong>th in 8 USC § 1227(a)(2)(E), or the victim was a child, then the<br />
conviction will be a deportable offense under the domestic violence <strong>and</strong> child abuse grounds. See Note:<br />
Domestic Violence.<br />
26. Sexual Assault of Spouse, ARS §1406.01 (Repealed)<br />
This section was repealed, but we preserve the analysis <strong>for</strong> counsel to evaluate past convictions. The<br />
offense involved intentionally or knowingly engaging in sexual intercourse or oral sexual contact with a<br />
spouse by <strong>for</strong>ce or threat of <strong>for</strong>ce. A first offense was a class 6 felony, <strong>and</strong> the judge had discretion to<br />
make it a class 1 misdemeanor with m<strong>and</strong>atory counseling. A subsequent offense was a class 2 felony<br />
with no suspension of sentence, probation, pardon or release except under § 31-233, subsection A or B<br />
until the sentence imposed by the court has been served or commuted.<br />
Crime Involving Moral Turpitude (CMT): Yes.<br />
Aggravated Felony: To have avoided an aggravated felony, counsel must have created a record<br />
of conviction that leaves open the possibility that the offense did not involve penetration, <strong>and</strong> obtained a<br />
sentence imposed of 364 days or less. See discussion of sexual assault, supra.<br />
Other Grounds: Domestic Violence. Conviction will cause deportability as a “crime of<br />
domestic violence.” 8 USC § 1227(a)(2)(E). See Note: Safer Pleas <strong>for</strong> alternatives.<br />
27. Molestation of a Child, ARS §13-1410<br />
A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to<br />
engage in sexual contact, except sexual contact with the female breast, with a child under fifteen years of<br />
age. Molestation is a class 2 felony.<br />
Crime Involving Moral Turpitude (CMT): Yes.<br />
Aggravated Felony: Molestation of a child under the age of 14 is an aggravated felony as sexual<br />
abuse of a minor under 8 USC § 1101(a)(43)(A), regardless of sentence imposed. See e.g., United States<br />
v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) (conviction of Cali<strong>for</strong>nia Pen. Code § 288(a) <strong>for</strong> lewd<br />
conduct with a child under the age of 14 is an aggravated felony <strong>for</strong> sentencing enhancement purposes).<br />
Immigration counsel at least could argue that this would not be the case <strong>for</strong> a victim between 14 <strong>and</strong> 15<br />
years of age, although there is no guarantee of this <strong>and</strong> this is not a safe plea. See discussion at ARS 13-<br />
1404, supra.<br />
Other Grounds: Child Abuse. Conviction will cause deportability as an act of child abuse<br />
under the domestic violence ground at 8 USC §1227(a)(2)(E)(i).<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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