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