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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 3. Pretending to be, or assuming a false identity of, an employee or a representative of some person or organization with the intent to induce another person to provide or allow access to property. This paragraph does not apply to peace officers in the performance of their duties. B. Criminal impersonation is a class 6 felony. Crime Involving Moral Turpitude (CMT): May be divisible. A1 and A2 are CMTs due to the fraud element. A3 ought not to be held a CMT because falsely identifying oneself with no intent to obtain something of value has been held not to constitute a CMT by the Ninth Circuit. See Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008). Since providing or allowing access to property is not necessarily something of monetary value or otherwise “tangible,” a conviction under A3 should not be considered a CMT. However, in practice, many immigration judges will still find this to be a CMT. Aggravated Felony: Yes, if the loss to the victim or victims exceeds $10,000, regardless of whether the amount of loss appears in the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proving a loss exceeding $10,000, see Note: Fraud. 52. Taking Identity of Another Person or Entity, ARS 13-2008 A. A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person's or entity's identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense… E. Taking the identity of another person or entity is a class 4 felony. Summary. While there are strong arguments that a conviction for Taking Identity should not be a CMT, many immigration judges in Arizona are currently finding that it is. The Ninth Circuit has held that falsely identifying oneself to a police officer is not a CMT; therefore, immigration counsel may have stronger arguments that § 13-2008 is not categorically a CMT since the elements of the California and Arizona statutes are similar. See Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008). In terms of aggravated felony designations, the statute is divisible because it covers an extremely broad range of conduct. It doesn’t necessarily involve writing (required for the aggravated felony forgery), property (required for theft), or money (required for fraud). It seems to include offenses such as giving a false name to the police to avoid a warrant; using someone else’s social security number to get a job; person using a fake ID to prove he’s 25 to rent a car. (Use of fake ID for access to alcohol is specifically excluded by recent amendment; ARS § 13-2008(D)). If a person pleads to the language of the statute, the government will not be able to establish sufficient facts for an aggravated felony. Crime Involving Moral Turpitude (CMT): A very vague record of conviction may prevent this from being a CMT. See Tijani v. Holder, 628 F.3d 1071, 1078 (9th Cir. 2010) (“identity theft is a crime that may not involve fraud”). The minimum conduct to violate the statute is that lawfully obtained information must be used without the other person’s consent with the intent to use the identity for an unlawful purpose. For example, an 18-year-old might use his older brother’s identification to get a job transporting liquor in violation of A.R.S. §4-244, someone who doesn’t have a social security number might use someone else’s to get a job, or a man might use a relative’s identification to purchase an appliance without having his credit rating checked, where he intends to timely complete payment for the appliance. However, counsel should assume that immigration judges will find this to be a CMT. Arizona Criminal Chart with Explanatory Endnote – August 2012 65
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Also, under Matter of Silva-Trevino, supra, the immigration judge might elect to look beyond the record of conviction to determine the underlying conduct. In practice, immigration judges are more likely to find this is not a CMT if the factual basis states that the identity was used for employment purposes and involved a fictitious person. Whenever possible, defense counsel should specifically plead to this as a factual basis; if this is not possible, plead to the generic language of the statute. Aggravated Felony: To prevent an aggravated felony conviction as theft, obtain a sentence imposed of less than a year. If there was a loss to the victim or victims of $10,000 or more, this will likely be removable as an aggravated felony for fraud, regardless of whether the amount of loss appears in the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proving a loss exceeding $10,000, see Note: Fraud. Theft: A theft offense is an aggravated felony if a one-year sentence is imposed. 8 USC §1101(a)(43)(G). A sufficiently vague record of conviction can prevent a finding that the offense of conviction constituted “theft” for this purpose. The information itself need not be stolen, and the unlawful purpose of the crime could be a non-theft offense. See discussion in “crimes involving moral turpitude” above. For example, a person might use identifying information to which he had lawful access, but without the person’s consent, in order to wrongly obtain someone else’s services (theft of services is not “theft” as an aggravated felony; see discussion at ARS §13-1802) or for some other criminal purpose not involving theft. In that case even a sentence imposed of a year or more would not make the conviction an aggravated felony. Fraud or Deceit if the Loss to the Victim Exceeds $10,000: An offense involving fraud or deceit is an aggravated felony if there is a loss to the victim of more than $10,000, regardless of whether the amount of loss appears in the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss to the victim, see Note; Fraud. Where loss to the victim/s exceeds $10,000, counsel could attempt to avoid a plea to this offense from being found a crime of “deceit” by keeping the record of conviction clear of evidence that the “criminal purpose” for which the information was to be used involved fraud or deceit. However, DHS still might charge that deceit is inherent in the commission of the offense. See e.g. Tijani v. Holder, 628 F.3d 1071, 1075 (9th Cir. 2010) (even though statute does not have an element of an intent to defraud, fraud is implicit in the nature of the offense). A safer plea would be to theft, without designating section A3, and with a sentence of less than a year. 53. Smuggling, ARS § 13-2319 A. It is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose. B. A violation of this section is a class 4 felony. C. Notwithstanding subsection B, a violation of this section is a class 2 felony if the human being smuggled is under eighteen years of age and not accompanied by a family member over the age of eighteen… 2. "Smuggling of human beings" means the transportation or procurement of transportation by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state. Arizona Criminal Chart with Explanatory Endnote – August 2012 66
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