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 />
See ARS § 13-1704.<br />
40. Burning of wildl<strong>and</strong>s, ARS § 13-1706<br />
A. It is unlawful <strong>for</strong> any person, without lawful authority, to intentionally, knowingly, recklessly or with<br />
criminal negligence to set or cause to be set on fire any wildl<strong>and</strong> other than the person's own or to permit<br />
a fire that was set or caused to be set by the person to pass from the person's own grounds to the grounds<br />
of another person….<br />
C. A person who violates this section is guilty of an offense as follows:<br />
1. If done with criminal negligence, the offense is a class 2 misdemeanor.<br />
2. If done recklessly, the offense is a class 1 misdemeanor.<br />
3. If done intentionally or knowingly <strong>and</strong> the person knows or reasonably should know that the person's<br />
conduct violates any order or rule that is issued by a governmental entity <strong>and</strong> that prohibits, bans, restricts<br />
or otherwise regulates fires during periods of extreme fire hazard, the offense is a class 6 felony.<br />
4. If done intentionally <strong>and</strong> the person's conduct places another person in danger of death or serious<br />
bodily injury or places any building or occupied structure of another person in danger of damage, the<br />
offense is a class 3 felony.<br />
Summary: This is a good alternative to arson under §§ 13-1703, 13-1704, <strong>and</strong> 13-1705 if<br />
counsel can plead to a reckless or negligent mens rea. Otherwise, client may be better off with § 13-1703.<br />
Arson of a Structure or Property.<br />
Crime Involving Moral Turpitude (CMT): The government will likely charge this as a CIMT,<br />
saying it matches the definition of “arson.” See § 13-1703, CMT. However, <strong>immigration</strong> counsel has a<br />
good argument if the mens rea is recklessness or negligence. See Matter of Fualaau, 21 I&N 475 (BIA<br />
1996); Matter of Sweetster, 22 I&N Dec. 709 (BIA 1999).<br />
Aggravated Felony: If counsel pleads to a mens rea of negligence or recklessness under C1 or<br />
C2, this should not be considered an aggravated felony as a “crime of violence.” See Fern<strong>and</strong>ez-Ruiz v.<br />
Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc); Leocal v Ashcroft, 125 S.Ct. 377 (2004). A plea to<br />
C3 will likely be found an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i) regardless of the length<br />
of sentence. Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (conviction under a New York arson statute<br />
was an offense “described in” 18 U.S.C. § 844(i) even though it lacked an element of interstate commerce<br />
since such an element was purely jurisdictional). Since § 1101(a)(43)(E)(i) does not require a sentence of<br />
365 days, any conviction under C3 could be an aggravated felony even with a sentence of less than one<br />
year. A sentence of one year or more will also trigger an aggravated felony as a crime of violence. See,<br />
e.g., Matter of Palacios-Pinera, 22 I&N Dec. 434 (BIA 1998) (intentionally damaging property by<br />
starting a fire or causing an explosion). See § 13-1704.<br />
41. Theft, ARS §13-1802<br />
A. A person commits theft if, without lawful authority, the person knowingly:<br />
1. Controls property of another with the intent to deprive the other person of such property;<br />
2. Converts <strong>for</strong> an unauthorized term or use services or property of another entrusted to the defendant or<br />
placed in the defendant's possession <strong>for</strong> a limited, authorized term or use; or<br />
3. Obtains services or property of another by means of any material misrepresentation with intent to<br />
deprive the other person of such property or services; or<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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