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 />
Aggravated Felony: No. This does not equal burglary or a crime of violence. However, as with<br />
all offenses, <strong>for</strong> further protection counsel should attempt to obtain a sentence of 364 days or less, which<br />
ought to be possible <strong>for</strong> this class 6 felony.<br />
32. Burglary Offenses<br />
Burglary in the Third Degree, ARS §13-1506<br />
A. A person commits burglary in the third degree by:<br />
1. Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or<br />
residential yard with the intent to commit any theft or any felony therein.<br />
2. Making entry into any part of a motor vehicle by means of a manipulation key or master key, with the<br />
intent to commit any theft or felony in the motor vehicle.<br />
B. Burglary in the third degree is a class 4 felony.<br />
Summary: Obtaining a sentence imposed of 364 days or less will avoid aggravated felony<br />
classification. If a sentence of a year or more is imposed, however, counsel still can guard against AF<br />
classification. In sum, if a sentence of a year or more will be imposed, to avoid both a CMT <strong>and</strong><br />
aggravated felony conviction the client should plead to A1 with record of conviction stating<br />
“nonresidential structure or in a fenced commercial or residential yard” or any wording that includes “a<br />
fenced commercial yard,” <strong>and</strong> “theft or any felony” or “a felony;” or plead to A2 with a record of<br />
conviction stating “theft or any felony” or “a felony.” If possible, it is better to leave the record vague<br />
between conviction under A1 or A2. Burglary is potentially a CMT, but careful creation of the record of<br />
conviction may avoid this as well.<br />
Crime Involving Moral Turpitude: This is a divisible statute. The key is to avoid a record or<br />
any evidence demonstrating that the client pleaded to an offense with an intent to commit a CMT after<br />
entry.<br />
A1, A2. Unlawful entry or remaining unlawfully are not themselves CMTs. Cuevas-Gaspar v.<br />
Gonzales, 430 F.3d 1013 (9th Cir. 2005); Matter of G, 1 I. & N. Dec. 403 (BIA 1943); Matter of M, 9 I.<br />
& N. Dec. 132 (BIA 1960). Burglary becomes a CMT only if the intended offense involves moral<br />
turpitude. Entry with intent to commit larceny is a CMT, while entry with intent to commit an<br />
undesignated offense (“a felony”) or an offense that does not involve moral turpitude is not. Matter of M,<br />
2 I&N Dec. 721 (BIA 1946). Defense counsel should create a record of conviction where the client is<br />
guilty only of “theft or any felony” or “a felony.” (To determine whether an offense may be found<br />
turpitudinous in <strong>immigration</strong> court, see Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).)<br />
Because Arizona theft statutes include subsections that do not require intent to permanently deprive the<br />
owner of benefits, <strong>and</strong> since traditionally an intent to permanently deprive is required <strong>for</strong> moral turpitude,<br />
even a plea to intent to commit an undesignated theft may avoid CMT. The disadvantage of “any theft” is<br />
that <strong>immigration</strong> judges are trained to think that any theft is a CMT, while they recognize that “any<br />
felony” may not be.<br />
The Ninth Circuit has also held that attempted commercial burglary in which the defendant<br />
entered a store with the intent to shoplift is not a CMT. Hern<strong>and</strong>ez-Cruz v. Holder, 651 F.3d 1094, 1109<br />
(9th Cir. 2011). Counsel can avoid a CMT by creating a factual basis that the defendant merely entered<br />
the store lawfully with intent to commit a theft. This is a good alternative to theft or shoplifting since<br />
even police reports or other documents showing that defendant actually committed theft should not<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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