quick reference chart and annotations for determining immigration ...

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 Sexual Assault of Spouse, ARS §1406.01 (Repealed)
This section was repealed, but we preserve the analysis for counsel to evaluate past convictions.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