quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
leaves open the possibility of reckless as opposed to intentional action, or indicates or leaves open the
possibility of nonviolent acts, e.g. spray-painting as opposed to smashing property.
Other – Domestic Violence: Immigration counsel have strong arguments that the use of force
against property is not a crime of domestic violence, but if possible, defense counsel should try to exclude
the § 13-3601 label from the record of conviction.
36. Reckless burning, ARS § 13-1702.
A person commits reckless burning by recklessly causing a fire or explosion which results in damage to
an occupied structure, a structure, wildland or property. Class 1 misdemeanor.
Crime Involving Moral Turpitude (CMT): The government often charges this as a CMT, but
immigration counsel would have a good argument that it is not if there is a vague record of conviction.
Criminally reckless behavior may be a basis for a finding of moral turpitude (see e.g. Matter of Medina,
15 I&N Dec. 611 (BIA 1976), aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977)), but
only if there is another aggravating factor present for an offense to constitute a CMT (Matter of Fualaau,
21 I&N 475 (BIA 1996)) or if the act is “reprehensible” (Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G.
2008). In this case, reckless burning is a relatively minor offense and does not necessarily involve an “act
of baseness or depravity.” See Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995) (Wash.
second-degree malicious mischief statute does not rise to the level of either depravity or fraud that would
qualify it as necessarily involving moral turpitude because is a relatively minor offense and did not
necessarily involve a base act contrary to moral standards). Baseness and depravity should be held
equivalent to “reprehensible.”
Aggravated Felony: Reckless burning cannot be an aggravated felony as a crime of violence
because as a Class 1 misdemeanor it carries a maximum sentence of less than 365 days. Even with a
sentence of 365 days, it would still not likely be held as an aggravated felony due to the mens rea of
recklessness. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). It should also
not be found an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i) as an offense “described in” the
federal criminal statute since the federal statute requires “maliciously” damaging or destroying property,
which is not equivalent to recklessness. See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012)
37. Arson of a structure or property, ARS § 13-1703.
Knowingly and unlawfully damaging a structure or property by knowingly causing a fire or explosion.
Arson of a structure is a class 4 felony. Arson of property is a class 4 felony if the property had a value of
more than one thousand dollars. Arson of property is a class 5 felony if the property had a value of more
than one hundred dollars but not more than one thousand dollars. Arson of property is a class 1
misdemeanor if the property had a value of one hundred dollars or less.
Summary: This can be a dangerous offense. Consider a plea to §§ 13-1602 or 1702. Avoiding a
sentence imposed of a year or more will avoid an aggravated felony here.
Crime Involving Moral Turpitude (CMT): Arson is a CMT. Borromeo v. INS, 213 F.3d 641
(9th Cir. 2000) (arson constitutes a CMT); Matter of T, 6 I&N Dec. 835 (BIA 1955).
Aggravated Felony: This may be held an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i)
regardless of the length of sentence. In Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), the BIA found
Arizona Criminal Chart with Explanatory Endnote – August 2012
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