quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
that a conviction under a New York arson statute was an offense “described in” 18 U.S.C. § 844(i) even
though it lacked an element of interstate commerce since such an element was purely jurisdictional.
Since § 1101(a)(43)(E)(i) does not require a sentence of 365 days, any conviction could be an aggravated
felony even with a sentence of less than one year. However, a sentence of one year or more will also
trigger an aggravated felony as a crime of violence. See, e.g., Matter of Palacios-Pinera, 22 I&N Dec.
434 (BIA 1998) (intentionally damaging property by starting a fire or causing an explosion).
If a conviction under this statute cannot be avoided, defense counsel should obtain 364 days or
less sentence in order to leave immigration counsel arguments that the Arizona statute is broader than 18
U.S.C. § 844(i). If a sentence of one year is imposed, immigration counsel can try to argue that the statute
is divisible because it includes the burning of one’s own structure or property, while a “crime of violence”
requires that the property burned be that of another. Jordison v. Gonzales, 501 F.3d 1134 (9th Cir. 2007)
(Cal. Penal Code § 452(c) not categorically a crime of violence because it can include the burning of
one’s own property). If defense counsel must accept this plea with a sentence of one year or more, leave
the record vague as to the owner of the structure or property. Alternate plea: Reckless Burning §13-
1702.
38. Arson of an occupied structure, ARS § 13-1704.
A. A person commits arson of an occupied structure by knowingly and unlawfully damaging an occupied
structure by knowingly causing a fire or explosion.
B. Arson of an occupied structure is a class 2 felony.
Crime Involving Moral Turpitude (CMT): Yes. See ARS § 13-1703.
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
that a conviction under a New York arson statute was an offense “described in” 18 U.S.C. § 844(i) even
though it lacked an element of interstate commerce since such an element was purely jurisdictional.
Since § 1101(a)(43)(E)(i) does not require a sentence of 365 days, any conviction could be an aggravated
felony even with a sentence of less than one year. However, a sentence of one year or more will also
trigger an aggravated felony as a crime of violence. See, e.g., Matter of Palacios-Pinera, 22 I&N Dec.
434 (BIA 1998) (intentionally damaging property by starting a fire or causing an explosion).
If a conviction under this statute cannot be avoided, defense counsel should obtain 364 days or
less in order to leave immigration counsel arguments that the Arizona statute is broader than 18 U.S.C. §
844(i). If a sentence of one year is imposed, immigration counsel can try to argue that the statute is
divisible because it includes the burning of one’s own structure or property, while a “crime of violence”
requires that the property burned be that of another. Jordison v. Gonzales, 501 F.3d 1134 (9th Cir. 2007)
(Cal. Penal Code § 452(c) not categorically a crime of violence because it can include the burning of
one’s own property). If defense counsel must accept this plea with a sentence of one year or more, leave
the record vague as to the owner of the structure or property. Alternate plea: Reckless Burning §13-
1702.
39. Arson of an occupied jail or prison facility, ARS § 13-1705
A. A person commits arson of an occupied jail or prison facility by knowingly causing a fire or explosion
which results in physical damage to the jail or prison facility.
B. Arson of an occupied jail or prison facility is a class 4 felony
Arizona Criminal Chart with Explanatory Endnote – August 2012
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