quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Summary: In some Arizona counties, persons who are themselves being smuggled are regularly
charged with conspiracy to commit smuggling under § 13-2319. Since many of these people may, in fact,
be eligible to apply for immigration status, a conviction under this statute could have severe immigration
consequences even if the person him or herself was not the “smuggler.” However, defense counsel
should make it clear in the plea that the offense was committed as an act of “self-smuggling” in order to
give immigration counsel arguments that the offense should not be removable..
Crime Involving Moral Turpitude (CMT): Defense counsel should conservatively assume that
immigration judges will find transporting noncitizens for gain to be a CMT. Since conspiracy to commit
an offense constitutes a CMT if the substantive offense constitutes a CMT, even conspiracy to commit §
13-2319 will likely be a CMT. See Matter of Vo, 25 I&N Dec. 426 (BIA 2011); 9 U.S. Dep’t of State,
(FAM) § 40.21(a), n.2.4(a)(4). However, defense counsel should make it clear in the plea that the offense
was committed as an act of “self-smuggling” in order to give immigration counsel an argument that it is
not a CMT.
Aggravated Felony: Yes, as a smuggling offense pursuant to 8 U.S.C. § 1101(a)(43)(N).
However, there is an exception if the person smuggled is a spouse, child, or parent of the smuggler. If the
person smuggled fits into this exception, counsel should attempt to include this in the record of
conviction; if not, leaving the record vague as to the identity of the person smuggled may give
immigration counsel a slight chance at avoiding an aggravated felony.
Immigration counsel may be able to argue that the statute is overbroad because the mens rea for
13-2319 is negligence while the mens rea for 8 U.S.C. § 1101(a)(43)(N) requires recklessness or
higher. Additionally, 8 U.S.C. § 1101(a)(43)(N) requires that the smuggling be in furtherance of the
alien’s unlawful presence in the U.S., while 13-2319 does not contain such a requirement. While these
arguments have had some success in Arizona immigration courts, there is no guarantee that they will
work with all immigration judges.
Other - Smuggling: Smuggling is a ground of removability for all non-citizens. If a non-citizen
has not been lawfully admitted to the U.S., smuggling committed “at any time” will make her
inadmissible. 8 U.S.C. § 1182(a)(6)(E). If the non-citizen has been lawfully admitted, she will be
deportable if the smuggling was committed “prior to the date of entry, at the time of any entry, or within
five years of the date of any entry.” 8 U.S.C. § 1227(a)(1)(E). Therefore, smuggling that was committed
by a lawfully-admitted person over five years ago may not be removable as long as the person does not
leave the country. An exception may also exist for a lawfully-admitted person if the individual smuggled
is the spouse, parent or child of the smuggler.
Smuggling does not require a conviction but only need be proven in immigration court by clear
and convincing evidence that a person “knowingly has encouraged, induced, assisted, abetted, or aided
any other alien to try to enter” the U.S. Because it requires the act to be committed against “any other
alien,” it should arguably not apply for being convicted of a conspiracy to smuggle oneself.
54. Compounding, ARS § 13-2405
A. A person commits compounding if such person knowingly accepts or agrees to accept any pecuniary
benefit as consideration for:
1. Refraining from seeking prosecution of an offense; or
2. Refraining from reporting to law enforcement authorities the commission or suspected commission of
any offense or information relating to the offense.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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