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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 Sexual Assault of Spouse, ARS §1406.01 (Repealed) This section was repealed, but we preserve the analysis for counsel to evaluate past convictions.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 41
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 28. Voyeurism, ARS § 13-1424 A. It is unlawful to knowingly invade the privacy of another person without the knowledge of the other person for the purpose of sexual stimulation. B. It is unlawful for a person to disclose, display, distribute or publish a photograph, videotape, film or digital recording that is made in violation of subsection A of this section without the consent or knowledge of the person depicted. C. For the purposes of this section, a person's privacy is invaded if both of the following apply: 1. The person has a reasonable expectation that the person will not be photographed, videotaped, filmed, digitally recorded or otherwise viewed or recorded. 2. The person is photographed, videotaped, filmed, digitally recorded or otherwise viewed, with or without a device, either: (a) While the person is in a state of undress or partial dress. (b) While the person is engaged in sexual intercourse or sexual contact. (c) While the person is urinating or defecating. (d) In a manner that directly or indirectly captures or allows the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public. Crime Involving Moral Turpitude (CMT): Maybe. Many offenses with the element of lewdness or sexual gratification are held to be a crime involving moral turpitude. Matter of Alfonso- Bermudez, 12 I&N Dec. 225 (BIA 1967). Since Voyeurism requires that the offense be committed “for the purpose of sexual stimulation,” criminal defense counsel should assume that it will be found to involve moral turpitude. Aggravated Felony: If the record of conviction establishes that the victim was a minor, the government may charge the offense as an aggravated felony for sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A). Immigration counsel would have strong arguments against this because the age of the victim is not “actually required” in order to convict the defendant of any element of this age-neutral offense. United States v. Aguila-Montes de Oca, 655 F.3d 915, 937 (9th Cir. 2011) (en banc). However, because ICE is bringing this issue up on appeal to the Ninth Circuit, defense counsel should always attempt to sanitize the record of conviction of information that the victim was under 18 years of age. Even assuming the government proved minor age of the victim, immigration counsel will argue that since the victim is not required to be aware of the conduct, the offense is not per se harmful to a minor victim. Domestic Violence/Child abuse: Though unlikely, this offense could potentially be charged as stalking under the domestic violence ground of removal. It could also be charged as a deportable crime of child abuse, if the record shows that the victim is a minor. Immigration counsel would have strong arguments against a child abuse charge if the age of the victim was not “actually required” in order to convict the defendant of this age-neutral offense. United States v. Aguila-Montes de Oca, 655 F.3d 915, 937 (9th Cir. 2011) (en banc). However, defense counsel should always attempt to leave the age of a minor victim out of the record of conviction. Even assuming the government proved minor age of the victim, immigration counsel will argue that since the victim is not required to be aware of the conduct, the offense is not per se harmful to a minor victim. 29. Criminal Trespass, ARS §§ 13-1502-3 Criminal Trespass in the Third Degree, ARS § 13-1502 A person commits criminal trespass in the third degree by: Arizona Criminal Chart with Explanatory Endnote – August 2012 42
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