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 />
Also, under Matter of Silva-Trevino, supra, the <strong>immigration</strong> judge might elect to look beyond the record<br />
of conviction to determine the underlying conduct.<br />
In practice, <strong>immigration</strong> judges are more likely to find this is not a CMT if the factual basis states<br />
that the identity was used <strong>for</strong> employment purposes <strong>and</strong> involved a fictitious person. Whenever possible,<br />
defense counsel should specifically plead to this as a factual basis; if this is not possible, plead to the<br />
generic language of the statute.<br />
Aggravated Felony: To prevent an aggravated felony conviction as theft, obtain a sentence<br />
imposed of less than a year. If there was a loss to the victim or victims of $10,000 or more, this will<br />
likely be removable as an aggravated felony <strong>for</strong> fraud, regardless of whether the amount of loss appears in<br />
the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009).<br />
Regarding proving a loss exceeding $10,000, see Note: Fraud.<br />
Theft: A theft offense is an aggravated felony if a one-year sentence is imposed. 8 USC<br />
§1101(a)(43)(G). A sufficiently vague record of conviction can prevent a finding that the offense of<br />
conviction constituted “theft” <strong>for</strong> this purpose. The in<strong>for</strong>mation itself need not be stolen, <strong>and</strong> the<br />
unlawful purpose of the crime could be a non-theft offense. See discussion in “crimes involving moral<br />
turpitude” above. For example, a person might use identifying in<strong>for</strong>mation to which he had lawful<br />
access, but without the person’s consent, in order to wrongly obtain someone else’s services (theft of<br />
services is not “theft” as an aggravated felony; see discussion at ARS §13-1802) or <strong>for</strong> some other<br />
criminal purpose not involving theft. In that case even a sentence imposed of a year or more would not<br />
make the conviction an aggravated felony.<br />
Fraud or Deceit if the Loss to the Victim Exceeds $10,000: An offense involving fraud or deceit<br />
is an aggravated felony if there is a loss to the victim of more than $10,000, regardless of whether the<br />
amount of loss appears in the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v. Holder,<br />
129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss to the victim, see Note; Fraud. Where loss to<br />
the victim/s exceeds $10,000, counsel could attempt to avoid a plea to this offense from being found a<br />
crime of “deceit” by keeping the record of conviction clear of evidence that the “criminal purpose” <strong>for</strong><br />
which the in<strong>for</strong>mation was to be used involved fraud or deceit. However, DHS still might charge that<br />
deceit is inherent in the commission of the offense. See e.g. Tijani v. Holder, 628 F.3d 1071, 1075 (9th<br />
Cir. 2010) (even though statute does not have an element of an intent to defraud, fraud is implicit in the<br />
nature of the offense). A safer plea would be to theft, without designating section A3, <strong>and</strong> with a sentence<br />
of less than a year.<br />
53. Smuggling, ARS § 13-2319<br />
A. It is unlawful <strong>for</strong> a person to intentionally engage in the smuggling of human beings <strong>for</strong> profit or<br />
commercial purpose.<br />
B. A violation of this section is a class 4 felony.<br />
C. Notwithst<strong>and</strong>ing subsection B, a violation of this section is a class 2 felony if the human being<br />
smuggled is under eighteen years of age <strong>and</strong> not accompanied by a family member over the age of<br />
eighteen…<br />
2. "Smuggling of human beings" means the transportation or procurement of transportation by a person or<br />
an entity that knows or has reason to know that the person or persons transported or to be transported are<br />
not United States citizens, permanent resident aliens or persons otherwise lawfully in this state.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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