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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 5. Refuses to deliver a public record in such person's possession upon proper request of a public servant entitled to receive such record for examination or other purposes. B. In this section "public record" means all official books, papers, written instruments or records created, issued, received or kept by any governmental office or agency or required by law to be kept by others for the information of the government. C. Tampering with a public record is a class 6 felony. Crime Involving Moral Turpitude (CMT): Should be divisible. An intent to deceive is not necessarily a CMT unless elements of fraud and materiality are present. Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962); see also Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2007). Counsel should plead to language of an intent to deceive, rather than to defraud. Aggravated Felony – Fraud: Yes, if the loss to the victim is more than $10,000, regardless of whether the amount appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss to the victim, see Note; Fraud. If the loss to the victim was over $10,000 but the sentence would be less than a year, consider a plea to theft, without designating theft by misrepresentation. Aggravated Felony – Forgery: A conviction relating to a document that has been “falsely made” in which there is a sentence of 365 days or longer may constitute an aggravated felony as forgery under 8 U.S.C. § 1101(a)(43)(R). See Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008). Counsel should plead to language that the person made a “false entry” rather than that the document was “falsely made,” and try to secure a sentence of 364 days or less. 56. Securing the Proceeds of an Offense, ARS § 13-2408 A. A person commits securing the proceeds of an offense if, with intent to assist another in profiting or benefiting from the commission of an offense, such person aids the person in securing the proceeds of the offense. B. Securing the proceeds of an offense is a class 6 felony if the person assisted committed a felony. Securing the proceeds of an offense is a class 2 misdemeanor if the person assisted committed a misdemeanor. Crime Involving Moral Turpitude (CMT): This may be a good alternative for immigration purposes. While there is no case law on point, the statute is extremely broad and could encompass conduct that is not necessarily a CMT, including accessory after the fact. See Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (overturned on other grounds). Although one immigration judge has found it to be categorically a CMT, the arguments are strong to the contrary. Counsel should plead to the straight statutory language of the offense. Aggravated Felony: No. 57. Escape, ARS §§ 13-2502 – 13-2504 Escape in the third degree, § 13-2502 A. A person commits escape in the third degree if, having been arrested for, charged with or found guilty of a misdemeanor or petty offense, such person knowingly escapes or attempts to escape from custody… Arizona Criminal Chart with Explanatory Endnote – August 2012 69
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Escape in the second degree, § 13-2503 A. A person commits escape in the second degree by knowingly: 1. Escaping or attempting to escape from a juvenile secure care facility, a juvenile detention facility or an adult correctional facility; or 2. Escaping or attempting to escape from custody imposed as a result of having been arrested for, charged with or found guilty of a felony; or 3. Escaping or attempting to escape from the Arizona state hospital if the person was committed to the hospital for treatment pursuant to section 8-291.09, 13-502, 13-3994, 13-4507, 13-4512 or 31-226, title 36, chapter 37 or rule 11 of the Arizona rules of criminal procedure. Escape in the first degree, § 13-2504 A. A person commits escape in the first degree by knowingly escaping or attempting to escape from custody or a juvenile secure care facility, juvenile detention facility or an adult correctional facility by: 1. Using or threatening the use of physical force against another person; or 2. Using or threatening to use a deadly weapon or dangerous instrument against another person. Crime Involving Moral Turpitude (CMT): While §§ 13-2502 and 13-2503 are likely not CMT’s, § 13-2504 is probably a CMT due to the use or threatened use of force. See Matter of M, 2 I&N Dec. 871 (BIA 1947) (conviction of breaking prison does not involve moral turpitude since it does not require the element of force or fraud); Matter of Z, 1 I&N Dec. 235 (BIA 1942) (prison breach does not involve moral turpitude since the offense did not require force or fraud as an essential element). Aggravated Felony: Escape in the second degree could potentially be charged as an aggravated felony under 8 U.S.C. § 1101(a)(43)(S) as an offense relating to obstruction of justice for which the sentence imposed is one year or more. Escape in the first degree could be charged as obstruction of justice or under 8 U.S.C. § 1101(a)(43)(F) as a crime of violence for which the sentence imposed is one year or more. As obstruction of justice: If possible, obtain a sentence of 364 days or less. The Ninth Circuit has held that escape from custody that occurs either before or after the initiation of judicial proceedings does not meet the definition of obstruction of justice. Salazar-Luviano v. Mukasey, 551 F.3d 857, 862-63 (9th Cir. 2008). Many convictions under this statute occur as a result of defendants who are sentenced to a work release program and fail to appear, which should not qualify as obstruction of justice since no pending judicial proceedings existed at the time of the offense. But the BIA has recently broadened the definition of obstruction of justice to include “an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing criminal investigation or proceeding.” Matter of Valenzuela-Gallardo, 25 I&N Dec. 838 (BIA 2012). In light of the BIA’s expanded definition, counsel should assume that a conviction with a one-year sentence will be found an aggravated felony. As a crime of violence: Escape in the third or second degree would not meet the definition of a “crime of violence.” However, the element of “using or threatening to use” physical force, a deadly weapon, or a dangerous instrument would make conviction for first degree Escape a “crime of violence” pursuant to 18 U.S.C. §16 if a sentence of one year or more is imposed. Counsel should try to plead to second or third degree Escape and/or secure a sentence of 364 days or less. 58. Failure to Appear, ARS §13-2506-7 Arizona Criminal Chart with Explanatory Endnote – August 2012 70
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