quick reference chart and annotations for determining immigration ...

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
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