quick reference chart and annotations for determining immigration ...

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