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 />
owners would surprise the burglar <strong>and</strong> violence would ensue. United States v. Becker, 919 F.2d 568, 573<br />
(9th Cir. 1990). The Fifth Circuit applied this same theory to criminal trespass <strong>and</strong> found it to be a crime<br />
of violence. See U.S. v. Delgado-Enriquez, 188 F.3d 592, 595 (5th Cir. 1999). Leave record vague<br />
between A1/A5 <strong>and</strong> A6, since A6 may present a weaker case.<br />
Crime Involving Moral Turpitude (CMT): Divisible. The BIA has held that entry of an<br />
occupied dwelling with intent to commit any offense is a CMT. Matter of Louissaint, 24 I&N Dec. 754<br />
(BIA 2009). However, <strong>immigration</strong> counsel can argue that A1 is not a CMT if the record fails to show<br />
that the dwelling was occupied or that there was an intent to commit an offense therein. Mere unlawful<br />
entry under A2, <strong>and</strong> probably A3, is not a CMT. A4 <strong>and</strong> A5 are probably CMTs. Leave record open to<br />
possibility of A2.<br />
Also, if the record of conviction or even police reports or other documents indicate that the<br />
person intended to commit larceny or another offense that is a CIMT, ICE may assert that it can use this<br />
in<strong>for</strong>mation to find that the offense is a CIMT. While <strong>immigration</strong> counsel will rightly argue that intent<br />
to commit a further crime is neither an element of trespass, nor a fact that would be necessary to prove an<br />
element of trespass in a particular case, the <strong>immigration</strong> judge might wrongly hold <strong>for</strong> the government.<br />
31. Possession of Burglary Tools, ARS § 13-1505<br />
A. A person commits possession of burglary tools by:<br />
1. Possessing any explosive, tool, instrument or other article adapted or commonly used <strong>for</strong> committing<br />
any <strong>for</strong>m of burglary as defined in sections 13-1506, 13-1507 <strong>and</strong> 13-1508 <strong>and</strong> intending to use or permit<br />
the use of such an item in the commission of a burglary.<br />
2. Buying, selling, transferring, possessing or using a motor vehicle manipulation key or master key….<br />
C. Possession of burglary tools is a class 6 felony.<br />
Crime Involving Moral Turpitude (CMT): This is a divisible statute. Counsel should keep the<br />
record of conviction clear of evidence of defendant’s intent to use the tools to commit a particular kind of<br />
burglary: one where the offense to be committed upon entry involves moral turpitude, such as theft. In<br />
other words, counsel either should not permit the record of conviction to describe the intended burglary,<br />
or should phrase the intent in a vague manner such as “theft or any felony” or “a felony.” However, as a<br />
practical matter many <strong>immigration</strong> judges are categorically finding this to be a CMT.<br />
A1. The issue is the intent within the burglary the person intends to commit. Burglary under 13-<br />
1506, 13-1507, <strong>and</strong> 13-1508 may not be a CMT if the record of conviction establishes that the client is<br />
guilty of “theft or any felony” or “a felony.” Matter of S-, 6 I&N Dec. 769 (BIA 1955) (possession of<br />
burglary tools with intent to commit any offense is not a CMT unless accompanied by an intent to use the<br />
tools to commit a specific crime which is itself a CMT). It is a CMT if the record of conviction or other<br />
evidence establishes that the intent is to commit theft or another CMT. (To determine whether an offense<br />
may be found turpitudinous in <strong>immigration</strong> court, see Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G.<br />
2008).) This may also be found a CMT if the burglary was of an occupied dwelling, regardless of<br />
whether the underlying intent involved theft. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009)<br />
A2. This should not be a CMT since there is no element in this section requiring an intent to<br />
commit a CMT. See Matter of S-, id. However, in practice, some <strong>immigration</strong> judges may find it to be a<br />
CMT.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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