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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Domestic Violence: Where felony burglary is a crime of violence and there is a DV type victim, it is conceivable that it will be held a domestic violence offense triggering deportation. Counsel should keep the record of conviction from identifying the domestic relationship. Immigration counsel will argue that only crimes against persons, not property, qualify as deportable domestic violence offenses. Burglary in the First Degree, ARS §13-1508 A. A person commits burglary in the first degree if such person or an accomplice violates the provisions of either section 13-1506 or 13-1507 and knowingly possesses explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony. B. Burglary of a nonresidential structure or a fenced commercial or residential yard is a class 3 felony. It is a class 2 felony if committed in a residential structure. Crime Involving Moral Turpitude: With the correct record of conviction, this might escape classification as a CMT since all of the component offenses may be non-CMTs. Entry with intent to commit an undesignated offense (“a felony”) or an offense that does not involve moral turpitude is not a CMT. Matter of M, 2 I&N Dec. 721 (BIA 1946). However, a class 2 for residential structure will likely be found a CMT regardless of the underlying crime. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009) (burglary of an occupied dwelling is categorically a CMT). The additional element of a weapon might not transform the conviction into a CMT. See, e.g., Matter of Montenegro, 20 I&N Dec. 603 (1992) (“The moral condemnation comes from the act of burglary or rape, not the fact that the criminal had a gun in his pocket”). The fact that possession of a weapon is an element of the offense may lead some immigration judges to analogize it to residential burglary in that is more likely to invite a violent defensive response from the resident. Matter of Louissaint, 24 I&N Dec. 754, 758 (BIA 2009). Aggravated Felony: See § 13-1506. However, the only truly safe strategy is to avoid a sentence of a year or more. There is no case on point. Although simple possession of a weapon is not a crime of violence, Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), it is possible that a court would hold that the presence of a weapon will transform an offense that is not a crime of violence into a crime of violence. Firearms Deportation Ground: A noncitizen is deportable if he is convicted of possessing a firearm or destructive device in violation of the law. 8 USC § 1227(a)(2)(C). A destructive device includes explosives. To avoid this ground, counsel should keep the record of conviction vague as to the weapon of possession and plead defendant to the statutory language in the disjunctive “explosives, a deadly weapon or a dangerous instrument,” or “deadly weapon,” or “dangerous instrument.” Examples of non-firearm dangerous weapons are: knives, sticks, clubs, rods, etc. Domestic Violence: Where felony burglary is a crime of violence and there is a DV type victim, it is conceivable that it will be held a domestic violence offense triggering deportation. Counsel should avoid a reference to § 13-3601 and keep the record of conviction from identifying the domestic relationship. Immigration counsel will argue that only crimes against persons, not property, qualify as deportable domestic violence offenses. 33. Criminal Damage, ARS § 13-1602 A. A person commits criminal damage by recklessly: 1. Defacing or damaging property of another person; or 2. Tampering with property of another person so as substantially to impair its function or value; or 3. Tampering with the property of a utility. Arizona Criminal Chart with Explanatory Endnote – August 2012 49
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 4. Parking any vehicle in such a manner as to deprive livestock of access to the only reasonably available water. 5. Drawing or inscribing a message, slogan, sign or symbol that is made on any public or private building, structure or surface, except the ground, and that is made without permission of the owner. B. Criminal damage is punished as follows: 1. Criminal damage is a class 4 felony if the person recklessly damages property of another in an amount of ten thousand dollars or more, or if the person recklessly causes impairment of the functioning of any utility. 2. Criminal damage is a class 5 felony if the person recklessly damages property of another in an amount of two thousand dollars or more but less than ten thousand dollars. 3. Criminal damage is a class 6 felony if the person recklessly damages property of another in an amount of more than two hundred fifty dollars but less than two thousand dollars. 4. In all other cases criminal damage is a class 2 misdemeanor. Aggravated Felony: Probably not, although to be safe counsel should attempt to obtain a sentence of less than a year and/or keep the record clear of evidence that actual force was used. Under Supreme Court and Ninth Circuit precedent, a reckless causation of serious injury is not an aggravated felony. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) (Arizona assault is not categorically a “crime of violence” since it encompasses a mens rea of recklessness); Leocal v Ashcroft, 125 S.Ct. 377 (2004) (negligent DUI is not a crime of violence because does not create risk that force will be used, just that injury will occur); Lara-Cazares v Gonzalez, 408 F.3d 1217 (9th Cir. 2004) (killing a person by DUI with gross negligence, amounting to recklessness, is not a DUI because it does not create a risk that force will be used, under Leocal). In addition, the statute includes elements that do not require force, e.g., parking, drawing. Crime Involving Moral Turpitude (CMT): Possibly if the damage is extensive enough. See Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995) (second degree malicious mischief, Wash. Rev. Code § 9A.48.080(1)(a), is a relatively minor offense that can be violated by causing $250 damage, and not a crime necessarily involving moral turpitude). Even damage far greater than $250 might escape CMT classification, however, since it can be the work of “pranksters with poor judgment. Consequently, unlike the crimes of spousal abuse, child abuse, first-degree incest, and carnal knowledge of a fifteen year old, malicious mischief does not necessarily involve an "act of baseness or depravity contrary to accepted moral standards." Id. at 240. Other Grounds: DV. Probably not. Immigration counsel have a strong argument that force must be against person, not property, to constitute a crime of domestic violence. 8 USC 1227(a)(2)(E)(i). Where possible, however, counsel should keep record of conviction clear of use of force, and/or of a domestic relationship with the owner of the property. Also, reckless mens rea should be held insufficient to meet the definition of a “crime of domestic violence.” See supra, section discussing aggravated felony. Conviction where victim was a child and referenced as a §13-3601 domestic violence conviction may render one removable as a crime of child abuse. Attempt to sanitize record of child’s age or plead to criminal damage against wife/partner only and not child. 34. Criminal littering or polluting, ARS § 13-1603 A. A person commits criminal littering or polluting if such person without lawful authority does any of the following: 1. Throws, places, drops or permits to be dropped on public property or property of another which is not a lawful dump any litter, destructive or injurious material which he does not immediately remove. Arizona Criminal Chart with Explanatory Endnote – August 2012 50
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