quick reference chart and annotations for determining immigration ...

More documents

Recommendations

Info

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or 5. Controls property of another knowing or having reason to know that the property was stolen; or 6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so. B…… C. The inferences set forth in section 13-2305 apply to any prosecution under subsection A, paragraph 5 of this section…. E. Theft of property or services with a value of twenty-five thousand dollars or more is a class 2 felony. Theft of property or services with a value of three thousand dollars or more but less than twenty-five thousand dollars is a class 3 felony. Theft of property or services with a value of two thousand dollars or more but less than three thousand dollars is a class 4 felony. Theft of property or services with a value of one thousand dollars or more but less than two thousand dollars is a class 5 felony. Theft of property or services with a value of two hundred fifty dollars or more but less than one thousand dollars is a class 6 felony. Theft of any property or services valued at less than two hundred fifty dollars is a class 1 misdemeanor, unless such property is taken from the person of another or is a firearm or is a dog taken for the purpose of dog fighting in violation of section 13-2910.01, in which case the theft is a class 6 felony. F. A person who is convicted of a violation of subsection A, paragraph 1 or 3 of this section that involved property with a value of one hundred thousand dollars or more is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted. Note: If the theft involves a car, besides the other options below consider pleading to joyriding, see ARS § 13-1803. Aggravated Felony. Under immigration laws, an aggravated felony includes a theft offense (including receipt of stolen property) where a sentence of a year or more has been imposed. 8 USC § 1101(a)(43)(G). Avoid an aggravated felony by obtaining a sentence of 364 days or less. If it is not possible to avoid a sentence of a year or more, however, an aggravated felony still can be avoided with careful control of the record of conviction. Counsel should create a record that leaves open the possibility that the offense was A2, A3 or A6 and involved theft of services, or was A2 or A4 and did not involve an intent to deprive the owner either temporarily or permanently. Theft by material misrepresentation, section A3, is analyzed separately. This conviction will not be an aggravated felony under the theft category if a sentence of a year or more is imposed, but will be an aggravated felony as a crime of fraud or deceit if the loss to the victim/s exceeded $10,000, regardless of whether the amount appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss, see Note: Fraud. Explanation. Theft for immigration purposes is defined as “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner or rights and benefits of ownership, even if such deprivation is less than total or permanent.” U.S. v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (emphasis added). Arizona Criminal Chart with Explanatory Endnote – August 2012 55
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 In Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003), the Ninth Circuit held a conviction under A.R.S. § 13-1802 was divisible for this purpose in at least two ways. First, some subparts include the theft of services as opposed to property (see A2, A3 and A6). Second, some subparts do not require an intent to deprive the owner, either temporarily or permanently (see A2, A4 and A5). The Ninth Circuit also found that identically worded subparts of §13-1814, theft of means of transportation, do not constitute theft for this purpose. Nevarez-Martinez v. INS, 326 F.3d 1053, 1055 (9th Cir. 2003). Counsel should not plead to A5, as receiving stolen property under a similar California statute has been held to be an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009); Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1060 (9th Cir. 2009). However, immigration counsel may have an argument that A5 is broader than the California statute since A5 includes not only “knowing” but “having reason to know” that the property was stolen. Defense counsel should avoid any reference to the client “knowing” that the property was stolen or else leave the language of the plea vague. Until the tension in the Ninth Circuit is resolved as to whether one may infer a criminal intent where the statute requires only “knowing,” the safest plea for theft would leave open the possibility that defendant stole services (i.e. judgment / indictment recite boilerplate statutory language thus leaving open possibility that defendant stole services or merely refers to 13-1802 without mentioning a specific subsection). Also, counsel should avoid a plea to A1, which the Ninth Circuit found to constitute a theft offense. Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006). Theft by material misrepresentation. The BIA recognizes the essential difference between theft (by stealth) and fraud or deceit (by trickery). Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008). Section A3 is by trickery, not stealth, and therefore it is likely that it will not be considered theft and a sentence of a year or more will not make it an aggravated felony. Where a sentence of a year or more cannot be avoided, attempt to leave the record of conviction vague between A3 and other sections, or designate A3. As always, in case this argument does not prevail it is far better to obtain 364 days on any single count. Note that a crime involving fraud or deceit is an aggravated felony under 8 USC § 1101(a)(43)(M)(i) if the victim/s loss exceeds $10,000, regardless of whether the amount appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss, see Note: Fraud. If the $10,000 loss will be established, but a sentence of a year or more will not be imposed, leave the record of conviction vague between A3 and the other theft sections, or designate some section other than A3. Crime Involving Moral Turpitude: Intent to permanently deprive is required for a CMT. Theft offenses that do not involve intent to permanently deprive the owner of the property are not classified as theft crimes involving moral turpitude. See e.g. Matter of P, 2 I&N Dec. 887 (BIA 1947); Matter of M, 2 I&N Dec. 686 (BIA 1946) (conviction for joyriding does not involve moral turpitude because defendant did not intent to effect a permanent taking). Theft offenses that require as an essential element the intent to permanently deprive the owner of his or her property have consistently been held to involve moral turpitude. Gutierrez-Chavez v. INS, 8 F.3d 26 (9th Cir. 1993). Where a theft statute prohibits both temporary and permanent taking, the statute is considered divisible, allowing the record of conviction to be examined to determine whether the conviction was under the portion of the statute relating to permanent taking. ARS § 13-1802 is arguably a divisible Arizona Criminal Chart with Explanatory Endnote – August 2012 56
Page 1 and 2:
QUICK REFERENCE CHART AND ANNOTATIO
Page 3 and 4:
that defenders can immediately iden
Page 5 and 6:
DIVISIBLE STATUTES, RECORD OF CONVI
Page 7 and 8:
Immigrant Legal Resource Center, Fl
Page 9 and 10: Immigrant Legal Resource Center, Fl
Page 59: Immigrant Legal Resource Center, Fl
show all

quick reference chart and annotations for determining immigration ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?