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 />
Matter of Balao, 20 I&N Dec. 440 (BIA 1992). ARS § 13-1807 requires merely that the person act<br />
“knowing that the person does not have sufficient funds.” While Arizona courts have not spoken on the<br />
issue of whether proof of fraudulent intent is necessary to sustain a conviction, it appears that it is not.<br />
For example, a person could be found guilty who wrote a non-postdated bad check but intended to place<br />
sufficient money in the account by the time the check cleared. However, if the record of conviction<br />
established fraudulent intent, it is possible that a court would consider that as an element of the offense,<br />
so counsel should keep the record clear of this.<br />
Aggravated Felony as Fraud or Deceit: Possibly divisible. If §13-1807 is considered to have<br />
fraud or deceit as an element, it will be an aggravated felony regardless of the sentence imposed if the<br />
“loss to the victim or victims exceeds $10,000.” 8 USC § 1101(a)(43)(M) <strong>and</strong> (U). This is true<br />
regardless of whether the amount of loss appears in the record of conviction. See Nijhawan v. Holder,<br />
129 S. Ct. 2294 (2009). ARS § 13-1807 requires that the defendant pass a check “knowing” that he lacks<br />
sufficient funds. Again, <strong>immigration</strong> counsel will point out that intent to deceive is not an element, <strong>and</strong><br />
the statute could be violated by a person who intended to place funds in the account immediately.<br />
However, a more secure plea can be obtained based on the difference between a crime of deceit <strong>and</strong> the<br />
crime of theft, which is a taking without consent. See Matter of Garcia-Madruga, 24I&N Dec. 436 (BIA<br />
2008). As long as a sentence of a year or more will not be imposed, where there is a loss exceeding<br />
$10,000 a more secure plea would be to a straight theft offense. (While a sentence of a year or more will<br />
make a conviction of theft an aggravated felony, the fact that the loss to the victim/s exceeded $10,000<br />
will not.) A plea to ARS § 13-1802 should avoid an aggravated felony even with a showing of a loss to<br />
the victim/s of over $10,000, as long as the record does not describe fraud or deceit <strong>and</strong> section A3 (theft<br />
by material misrepresentation) is not specifically designated. Regarding proof of $10,000 loss, see Note:<br />
Fraud.<br />
46 Theft of means of transportation, ARS §13-1814<br />
A. A person commits theft of means of transportation if, without lawful authority, the person knowingly<br />
does one of the following:<br />
1. Controls another person's means of transportation with the intent to permanently deprive the person of<br />
the means of transportation.<br />
2. Converts <strong>for</strong> an unauthorized term or use another person's means of transportation that is entrusted to<br />
or placed in the defendant's possession <strong>for</strong> a limited, authorized term or use.<br />
3. Obtains another person's means of transportation by means of any material misrepresentation with<br />
intent to permanently deprive the person of the means of transportation.<br />
4. Comes into control of another person's means of transportation that is lost or misdelivered under<br />
circumstances providing means of inquiry as to the true owner <strong>and</strong> appropriates the means of<br />
transportation to the person's own or another's use without reasonable ef<strong>for</strong>ts to notify the true owner.<br />
5. Controls another person's means of transportation knowing or having reason to know that the property<br />
is stolen.<br />
Summary: The statute is divisible; plead to the statute as a whole or to A2 or A4.<br />
Aggravated Felony. Maybe. Avoid an aggravated felony by avoiding a sentence imposed of a<br />
year or more. Even if a sentence of a year or more is imposed, a conviction under ARS §13-1804 does<br />
not constitute an aggravated felony if the record of conviction does not eliminate the possibility that the<br />
conviction was <strong>for</strong> A2 or A4, with no indication of an intent to deprive the owner. In Nevarez-Martinez<br />
v. INS, 326 F.3d 1053 (9th Cir. 2003) the Court found that § 13-1814 is divisible because sections A2, A4<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
61