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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 45
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 convert this into a CMT. Hernandez-Cruz v. Holder, 651 F.3d 1110-1111 (police reports showing that defendant actually took merchandise cannot deprive defendant of the benefit of his plea bargain). Aggravated Felony, Bottom-Line: With a sentence imposed of a year or more, this could be held an AF as either burglary, a crime of violence, or attempted theft. The very best course is to obtain a sentence imposed of 364 days or less. However, even with a sentence of a year or more imposed, counsel can guard against AF status by working with the record of conviction. Explanation: AF as Burglary. Burglary is an aggravated felony with a one year sentence or more imposed. 8 USC §1101(a)(43)(G). The generic definition of burglary applicable to this aggravated felony ground is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 494 U.S. 575 (1990) (emphasis added). However, the Arizona burglary statutes are broader than the generic definition of burglary for at least four reasons: 1) Unlawful entry. Although Arizona burglary appears to require that the defendant “enter or remain unlawfully,” the definition of this phrase includes a lawful entry of a business with an intent to steal merchandise. ARS § 13-1501(2). Therefore, immigration counsel can argue that a conviction under any of the three burglary statutes cannot be held an aggravated felony as “burglary” unless the record of conviction shows an unlawful entry. United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) 2) “Structure.” The Arizona definition of “structure” includes vending machines and vehicles, which do not fit the generic burglary definition. See ARS § 13-1501(12); U.S. v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc). Also, the Arizona definition of “residential structure” includes both movable and unmovable structures, the latter of which does not fit the generic definition of “burglary.” See United States v. Terrell, 593 F.3d 1084, 1092-93 (9th Cir. 2010) cert. denied, 131 S. Ct. 2094, 179 L. Ed. 2d 895 (U.S. 2011). 3) “In or on.” While the generic definition of “burglary” requires an entry “into” a structure, Arizona burglary includes entries both “in and on” a structure. Thus, a person could be convicted of burglary for walking on the roof of a structure or for sitting on the seat of a motorcycle that was subsequently stolen. State v. Ortiz, No. 2 CA-CR 2008-0372, 2009 WL 1863883, at *3 (Ariz. Ct. App. Jun. 29, 2009) (affirming § 13-1506(A)(1) conviction for defendant who “remained unlawfully on a motorcycle with the intent to commit theft of that motorcycle”). 4) “Yard.” Since generic burglary requires entry into a structure, an entry into a fenced residential or commercial yard is not an aggravated felony as burglary. U.S. v Wenner, 351 F.3d 969 (9th Cir. 2003) (Wash. burglary). Note that entry into a residential yard may be charged as an aggravated felony crime of violence. Based on these distinctions, counsel can structure pleas in the following ways: A1. Counsel can: 1) plead to lawful entry of a business or leave the record vague as to whether the entry was unlawful; 2) plead to entry of a vehicle or an unknown nonresidential structure; 3) plead to Arizona Criminal Chart with Explanatory Endnote – August 2012 46
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