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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 1. Knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry. 2. Knowingly entering or remaining unlawfully on the right-of-way for tracks, or the storage or switching yards or rolling stock of a railroad company. Criminal trespass in the third degree is a class 3 misdemeanor. Crime Involving Moral Turpitude (CMT): This should not be a CMT but it may depend on the circumstances of the offense. Simple trespass is not a CIMT because there is no intent to commit CMT in commission of trespassing. Matter of Esfandiary, 16 I&N Dec. 659, 661 (BIA 1979) (conviction for malicious trespass required finding of an intent to commit petty larceny). However if the record of conviction or even police reports or other documents indicate that the person intended to commit larceny or another offense that is a CIMT, ICE may assert that it can use this information to find that the offense is a CIMT. While immigration counsel will rightly argue that intent to commit a further crime is neither an element of trespass, nor a fact that would be necessary to prove an element of trespass in a particular case, the immigration judge might wrongly hold for the government. Aggravated Felony: No, punishable only as misdemeanor. Criminal Trespass in the Second Degree, ARS § 13-1503 A person commits criminal trespass in the second degree by knowingly entering or remaining unlawfully in or on any nonresidential structure or in any fenced commercial yard. Criminal trespass in the second degree is a class 2 misdemeanor. Crime Involving Moral Turpitude (CMT): Maybe. See supra Criminal Trespass in the Third Degree. Aggravated Felony: No, only punishable as misdemeanor. 30. Criminal Trespass in the First Degree, ARS § 13-1504 A. A person commits criminal trespass in the first degree by knowingly: 1. Entering or remaining unlawfully in or on a residential structure. 2. Entering or remaining unlawfully in a fenced residential yard. 3. Entering any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant's right of privacy. 4. Entering unlawfully on real property that is subject to a valid mineral claim or lease with the intent to hold, work, take or explore for minerals on the claim or lease. 5. Entering or remaining unlawfully on the property of another and burning, defacing, mutilating or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property. 6. Entering or remaining unlawfully in or on a critical public service facility. B. Subsection A, paragraph 1, 5 or 6 is a class 6 felony. Subsection A, paragraph 2, 3 or 4 is a class 1 misdemeanor. Aggravated Felony: Maybe; try to obtain a sentence of 364 or less. DHS might charge A1, A5 or A6 as an aggravated felony crime of violence if the sentence is 365 days or more. Felony burglary of a dwelling has been upheld as a crime of violence under 18 USC §16(b) because of the danger that the Arizona Criminal Chart with Explanatory Endnote – August 2012 43
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 owners would surprise the burglar and violence would ensue. United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990). The Fifth Circuit applied this same theory to criminal trespass and found it to be a crime of violence. See U.S. v. Delgado-Enriquez, 188 F.3d 592, 595 (5th Cir. 1999). Leave record vague between A1/A5 and A6, since A6 may present a weaker case. Crime Involving Moral Turpitude (CMT): Divisible. The BIA has held that entry of an occupied dwelling with intent to commit any offense is a CMT. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009). However, immigration counsel can argue that A1 is not a CMT if the record fails to show that the dwelling was occupied or that there was an intent to commit an offense therein. Mere unlawful entry under A2, and probably A3, is not a CMT. A4 and A5 are probably CMTs. Leave record open to possibility of A2. Also, if the record of conviction or even police reports or other documents indicate that the person intended to commit larceny or another offense that is a CIMT, ICE may assert that it can use this information to find that the offense is a CIMT. While immigration counsel will rightly argue that intent to commit a further crime is neither an element of trespass, nor a fact that would be necessary to prove an element of trespass in a particular case, the immigration judge might wrongly hold for the government. 31. Possession of Burglary Tools, ARS § 13-1505 A. A person commits possession of burglary tools by: 1. Possessing any explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary as defined in sections 13-1506, 13-1507 and 13-1508 and intending to use or permit the use of such an item in the commission of a burglary. 2. Buying, selling, transferring, possessing or using a motor vehicle manipulation key or master key…. C. Possession of burglary tools is a class 6 felony. Crime Involving Moral Turpitude (CMT): This is a divisible statute. Counsel should keep the record of conviction clear of evidence of defendant’s intent to use the tools to commit a particular kind of burglary: one where the offense to be committed upon entry involves moral turpitude, such as theft. In other words, counsel either should not permit the record of conviction to describe the intended burglary, or should phrase the intent in a vague manner such as “theft or any felony” or “a felony.” However, as a practical matter many immigration judges are categorically finding this to be a CMT. A1. The issue is the intent within the burglary the person intends to commit. Burglary under 13- 1506, 13-1507, and 13-1508 may not be a CMT if the record of conviction establishes that the client is guilty of “theft or any felony” or “a felony.” Matter of S-, 6 I&N Dec. 769 (BIA 1955) (possession of burglary tools with intent to commit any offense is not a CMT unless accompanied by an intent to use the tools to commit a specific crime which is itself a CMT). It is a CMT if the record of conviction or other evidence establishes that the intent is to commit theft or another CMT. (To determine whether an offense may be found turpitudinous in immigration court, see Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).) This may also be found a CMT if the burglary was of an occupied dwelling, regardless of whether the underlying intent involved theft. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009) A2. This should not be a CMT since there is no element in this section requiring an intent to commit a CMT. See Matter of S-, id. However, in practice, some immigration judges may find it to be a CMT. Arizona Criminal Chart with Explanatory Endnote – August 2012 44
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