quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing,
substituting or otherwise disfiguring any label, price tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment.
B. A person is presumed to have the necessary culpable mental state pursuant to subsection A of this
section if the person does either of the following:
1. Knowingly conceals on himself or another person unpurchased merchandise of any mercantile
establishment while within the mercantile establishment.
2. Uses an artifice, instrument, container, device or other article to facilitate the shoplifting.
Shoplifting is a class 5 felony if the value was $2,000 or more, if undertaken during a “continuing
criminal episode,” or if done to assist a criminal street gang or syndicate. Shoplifting is a class 6 felony if
the value was $1000 or more but less than $2000, and a class 1 misdemeanor if property is less than
$1000, except for a firearm. Certain priors can make it a class 4 felony.
Summary: Theft is a better means of avoiding an aggravated felony with a year’s sentence.
Crime Involving Moral Turpitude (CMT): Shoplifting is a CMT when it includes as an
element intent to steal or deprive permanently. An IJ will likely find that result here.
Immigration counsel can make the difficult argument that if the record of conviction does not
show that the theft was completed, and the record does not preclude the possibility that the person might
have had a momentary intent to deprive but then changed his or her mind, it is not a CIMT. In
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1103 (9th Cir. 2011), the Ninth Circuit held that a person who
enters a store with an intent to commit theft and then changes his mind and leaves has not committed a
CMT. Id. at 1109 (“To harbor an inchoate intent to commit a crime, never acted upon, simply does not
‘shock society's conscience’”). Both A4 and A5 involve situations in which a person may initially
manifest an intent to shoplift by transferring merchandise from one container to another or concealing
merchandise before abandoning the plan and leaving the store without committing the necessary “taking”
for a CMT. See Sulavka v. State, 223 Ariz. 208, 212, 221 P.3d 1022, 1026 (Ct. App. 2009) (the act of
removing an item from the shelf and concealing it, without more, is sufficient for a shoplifting
conviction). While Arizona shoplifting requires a more substantial step towards theft than the statute in
Hernandez-Cruz, defense counsel should leave open the option of a plea to A4 or A5 in order to allow
immigration counsel to argue that the offense is not a CMT.
In addition, immigration counsel may argue that the statute is divisible because it does not require
intent to permanently as opposed to temporarily deprive. For instance, the statute may reach a person
who intends to “borrow” the object from the store and return it. Again, this is a difficult argument.
Note that a first moral turpitude offense that is a misdemeanor cannot cause deportability or
inadmissibility because it has a maximum sentence of only six months. A class 6 felony can, only if the
offense was committed within five years of admission to the United States. See Note: Crimes Involving
Moral Turpitude.
IMPORTANT: Recent case law has altered the process by which immigration judges decide
whether an offense is a CMT. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). While judges
were previously restricted to the record of conviction in determining whether a state offense qualified as a
CMT, currently any evidence – including police reports, presentence investigations, and even the
defendant’s own testimony – may be considered in the finding of whether a conviction constitutes a CMT
under a divisible statute. As a practical consequence, many Arizona immigration judges are using
Arizona Criminal Chart with Explanatory Endnote – August 2012
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