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 />
FTA in the first degree, §13-2507, occurs when a person, having been required by law to appear in<br />
connection with any felony, knowingly fails to appear as required. FTA in the second degree, ARS<br />
§13-2506, occurs when a misdemeanor or petty offense is involved.<br />
Summary: While §13-2506 is harmless, §13-2507 can be very dangerous. Plead to something<br />
else <strong>and</strong> take additional time on the underlying offense.<br />
Crime Involving Moral Turpitude (CMT): Probably not a CMT.<br />
Aggravated Felony: An offense is an aggravated felony if it involves (a) failure to appear <strong>for</strong><br />
service of sentence if the underlying offense carries a possible sentence of five years or more, or (b)<br />
failure to appear be<strong>for</strong>e a court pursuant to a court order to answer to or dispose of” a felony carrying a<br />
possible sentence of two years or more. 8 USC §§ 1101(a)(43)(Q), (T). Because § 13-2506 requires<br />
failure to appear <strong>for</strong> a misdemeanor or petty offense, it cannot be an aggravated felony. However, a<br />
conviction under § 13-2507 will be an aggravated felony if it satisfies either of the above grounds.<br />
59. Resisting Arrest, ARS § 13-2508<br />
A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person<br />
reasonably known to him to be a peace officer, acting under color of such peace officer's official<br />
authority, from effecting an arrest by:<br />
1. Using or threatening to use physical <strong>for</strong>ce against the peace officer or another; or<br />
2. Using any other means creating a substantial risk of causing physical injury to the peace officer or<br />
another.<br />
B. Resisting arrest is a class 6 felony.<br />
Physical <strong>for</strong>ce is defined in ARS 13-105(28) as “<strong>for</strong>ce used upon or directed toward the body of another<br />
person <strong>and</strong> includes confinement, but does not include deadly physical <strong>for</strong>ce.”<br />
Summary: With careful pleading, this may not constitute a CMT, although <strong>immigration</strong> judges<br />
would likely find it to be so. Obtain a sentence of 364 days or less to avoid an aggravated felony.<br />
Crime Involving Moral Turpitude: Probably not, although it is possible. This is akin to simple<br />
assault against a police officer, in that only the added factor that the victim is an officer would make it a<br />
CMT. Certainly it is a better alternative than aggravated assault against an officer under ARS §13-1204.<br />
If possible plead specifically to an offensive touching under §13-1203(A)(3), or another less dangerous<br />
offense in Note: Safer Pleas. Or, to prevent inadmissibility or deportability <strong>for</strong> a single moral turpitude<br />
conviction, plead to attempt or another ancillary offense with a lesser potential sentence.<br />
A1. While there may be some confusion on this issue, the better view is that only aggravated<br />
assault against a police officer (involving, e.g., felonious intent, use of physical <strong>for</strong>ce or violence, serious<br />
bodily harm, or use of deadly weapon) has been held to involve moral turpitude. See discussions in<br />
Matter of Logan, 17 I&N Dec. 367 (BIA 1980); Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988);<br />
Matter of Short, 20 I&N 136, 139 (BIA 1989); Matter of B-, 5 I&N Dec. 538 (BIA 1953). Matter of<br />
Fualaau, 21 I&N Dec. 475, 478 (BIA 1996); Matter of Baker, 15 I&N Dec. 50 (BIA 1974); Matter of O,<br />
4 I&N Dec. 301 (BIA 1951).<br />
A2. This should not be held to involve moral turpitude because there is no intent to injure, only<br />
to stop the arrest.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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