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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Matter of Balao, 20 I&N Dec. 440 (BIA 1992). ARS § 13-1807 requires merely that the person act “knowing that the person does not have sufficient funds.” While Arizona courts have not spoken on the issue of whether proof of fraudulent intent is necessary to sustain a conviction, it appears that it is not. For example, a person could be found guilty who wrote a non-postdated bad check but intended to place sufficient money in the account by the time the check cleared. However, if the record of conviction established fraudulent intent, it is possible that a court would consider that as an element of the offense, so counsel should keep the record clear of this. Aggravated Felony as Fraud or Deceit: Possibly divisible. If §13-1807 is considered to have fraud or deceit as an element, it will be an aggravated felony regardless of the sentence imposed if the “loss to the victim or victims exceeds $10,000.” 8 USC § 1101(a)(43)(M) and (U). This is true regardless of whether the amount of loss appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). ARS § 13-1807 requires that the defendant pass a check “knowing” that he lacks sufficient funds. Again, immigration counsel will point out that intent to deceive is not an element, and the statute could be violated by a person who intended to place funds in the account immediately. However, a more secure plea can be obtained based on the difference between a crime of deceit and the crime of theft, which is a taking without consent. See Matter of Garcia-Madruga, 24I&N Dec. 436 (BIA 2008). As long as a sentence of a year or more will not be imposed, where there is a loss exceeding $10,000 a more secure plea would be to a straight theft offense. (While a sentence of a year or more will make a conviction of theft an aggravated felony, the fact that the loss to the victim/s exceeded $10,000 will not.) A plea to ARS § 13-1802 should avoid an aggravated felony even with a showing of a loss to the victim/s of over $10,000, as long as the record does not describe fraud or deceit and section A3 (theft by material misrepresentation) is not specifically designated. Regarding proof of $10,000 loss, see Note: Fraud. 46 Theft of means of transportation, ARS §13-1814 A. A person commits theft of means of transportation if, without lawful authority, the person knowingly does one of the following: 1. Controls another person's means of transportation with the intent to permanently deprive the person of the means of transportation. 2. Converts for an unauthorized term or use another person's means of transportation that is entrusted to or placed in the defendant's possession for a limited, authorized term or use. 3. Obtains another person's means of transportation by means of any material misrepresentation with intent to permanently deprive the person of the means of transportation. 4. Comes into control of another person's means of transportation that is lost or misdelivered under circumstances providing means of inquiry as to the true owner and appropriates the means of transportation to the person's own or another's use without reasonable efforts to notify the true owner. 5. Controls another person's means of transportation knowing or having reason to know that the property is stolen. Summary: The statute is divisible; plead to the statute as a whole or to A2 or A4. Aggravated Felony. Maybe. Avoid an aggravated felony by avoiding a sentence imposed of a year or more. Even if a sentence of a year or more is imposed, a conviction under ARS §13-1804 does not constitute an aggravated felony if the record of conviction does not eliminate the possibility that the conviction was for A2 or A4, with no indication of an intent to deprive the owner. In Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. 2003) the Court found that § 13-1814 is divisible because sections A2, A4 Arizona Criminal Chart with Explanatory Endnote – August 2012 61
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 and A5 contain no element of deprivation and, thus, do not meet the generic definition of theft. Sections A1 and A3 contain an element of intent to deprive and as such are aggravated felonies. Counsel should avoid a plea to A5, as receiving stolen property under the 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, 1062 (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. CMT. A2 and A4 should not categorically be held to be CMT’s because they do not involve intent to permanently deprive the owner of the property. See e.g. Matter of D, 1 I&N Dec. 143 (BIA 1941) (driving an automobile without the consent of the owner is not a crime involving moral turpitude); 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). In practice, however, many immigration judges may find these to be CMTs. A1 and A3 are CMTs because each contains the element of intent to permanently deprive. A5 may be held a CMT as akin to receipt of stolen property. Wadman v. INS, 329 F.2d 812 (9th Cir. 1964). However, receipt of stolen property is not a CMT unless it involved a permanent taking. Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 2009). Defense counsel should strive to indicate on the record that there was no intent to deprive, or that the taking was only temporary. Under current law, a vague record is not sufficient. 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, pre-sentenced 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 documents outside of the record to find that a conviction for Theft of Means of Transportation under § 13-1814 is categorically a CMT, particularly with pro se respondents. Therefore, defense counsel should conservatively assume that a plea in which the intent to deprive is left vague between a permanent and temporary taking will be found a CMT. 47 Robbery Offenses Robbery, ARS § 13-1902. A. A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property. Crime Involving Moral Turpitude (CMT): Yes. Arizona Criminal Chart with Explanatory Endnote – August 2012 62
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