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 />
Escape in the second degree, § 13-2503<br />
A. A person commits escape in the second degree by knowingly:<br />
1. Escaping or attempting to escape from a juvenile secure care facility, a juvenile detention facility or an<br />
adult correctional facility; or<br />
2. Escaping or attempting to escape from custody imposed as a result of having been arrested <strong>for</strong>, charged<br />
with or found guilty of a felony; or<br />
3. Escaping or attempting to escape from the Arizona state hospital if the person was committed to the<br />
hospital <strong>for</strong> treatment pursuant to section 8-291.09, 13-502, 13-3994, 13-4507, 13-4512 or 31-226, title<br />
36, chapter 37 or rule 11 of the Arizona rules of criminal procedure.<br />
Escape in the first degree, § 13-2504<br />
A. A person commits escape in the first degree by knowingly escaping or attempting to escape from<br />
custody or a juvenile secure care facility, juvenile detention facility or an adult correctional facility by:<br />
1. Using or threatening the use of physical <strong>for</strong>ce against another person; or<br />
2. Using or threatening to use a deadly weapon or dangerous instrument against another person.<br />
Crime Involving Moral Turpitude (CMT): While §§ 13-2502 <strong>and</strong> 13-2503 are likely not<br />
CMT’s, § 13-2504 is probably a CMT due to the use or threatened use of <strong>for</strong>ce. See Matter of M, 2 I&N<br />
Dec. 871 (BIA 1947) (conviction of breaking prison does not involve moral turpitude since it does not<br />
require the element of <strong>for</strong>ce or fraud); Matter of Z, 1 I&N Dec. 235 (BIA 1942) (prison breach does not<br />
involve moral turpitude since the offense did not require <strong>for</strong>ce or fraud as an essential element).<br />
Aggravated Felony: Escape in the second degree could potentially be charged as an aggravated<br />
felony under 8 U.S.C. § 1101(a)(43)(S) as an offense relating to obstruction of justice <strong>for</strong> which the<br />
sentence imposed is one year or more. Escape in the first degree could be charged as obstruction of<br />
justice or under 8 U.S.C. § 1101(a)(43)(F) as a crime of violence <strong>for</strong> which the sentence imposed is one<br />
year or more.<br />
As obstruction of justice: If possible, obtain a sentence of 364 days or less. The Ninth Circuit<br />
has held that escape from custody that occurs either be<strong>for</strong>e or after the initiation of judicial proceedings<br />
does not meet the definition of obstruction of justice. Salazar-Luviano v. Mukasey, 551 F.3d 857, 862-63<br />
(9th Cir. 2008). Many convictions under this statute occur as a result of defendants who are sentenced to<br />
a work release program <strong>and</strong> fail to appear, which should not qualify as obstruction of justice since no<br />
pending judicial proceedings existed at the time of the offense. But the BIA has recently broadened the<br />
definition of obstruction of justice to include “an affirmative <strong>and</strong> intentional attempt, motivated by a<br />
specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing<br />
criminal investigation or proceeding.” Matter of Valenzuela-Gallardo, 25 I&N Dec. 838 (BIA 2012). In<br />
light of the BIA’s exp<strong>and</strong>ed definition, counsel should assume that a conviction with a one-year sentence<br />
will be found an aggravated felony.<br />
As a crime of violence: Escape in the third or second degree would not meet the definition of a<br />
“crime of violence.” However, the element of “using or threatening to use” physical <strong>for</strong>ce, a deadly<br />
weapon, or a dangerous instrument would make conviction <strong>for</strong> first degree Escape a “crime of violence”<br />
pursuant to 18 U.S.C. §16 if a sentence of one year or more is imposed. Counsel should try to plead to<br />
second or third degree Escape <strong>and</strong>/or secure a sentence of 364 days or less.<br />
58. Failure to Appear, ARS §13-2506-7<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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