quick reference chart and annotations for determining immigration ...

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