quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Aggravated Felony: Obtain a sentence of 364 days or less in order to avoid an aggravated
felony as a crime of violence. In Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007) the Ninth
Circuit found that a conviction for Resisting Arrest under § 13-2508 with a sentence of one year is
categorically an aggravated felony as a crime of violence. Therefore, any conviction with an actual
sentence of 365 days or longer will likely be found an aggravated felony as a “crime of violence.”
However, immigration counsel have strong arguments that Estrada-Rodriguez may no longer be
good law. Two months after the Ninth Circuit issued Estrada-Rodriuez, the Arizona Court of Appeals
issued a decision clarifying that the only logical interpretation of the statute is that A1 may only be
committed by the use of force while A2 may only be committed through non-forcible means that pose a
risk of injury to the police officer. See State v. Lee, 176 P.3d 712, 715 (Ariz. Ct. App. 2008); see also
State v. Lopez, 163 Ariz. 108, 114, 786 P.2d 959, 965 (1990). Therefore, A2 is categorically not an
aggravated felony crime of violence. Counsel should plead to the language of A2; however, until
Estrada-Rodriguez is overturned, most immigration judges will assume they are bound by it, and this
remains a dangerous plea if a sentence of one year or more is imposed.
It is possible but unlikely that a conviction with a one-year sentence imposed also would be an
aggravated felony as obstruction of justice under 8 USC §1101(a)(43)(S). See Matter of Joseph, 22 I&N
799 (BIA 1999) (“we find that it is substantially unlikely that the offense of simply obstructing or
hindering one's own arrest will be viewed as an obstruction of justice aggravated felony under section
101(a)(43)(S) of the Act for removal purposes”).
60. Hindering, ARS § 13-2510-12
For purposes of sections 13-2511 and 13-2512 a person renders assistance to another person by
knowingly:
1. Harboring or concealing the other person; or
2. Warning the other person of impending discovery, apprehension, prosecution or conviction. This does
not apply to a warning given in connection with an effort to bring another into compliance with the law;
or
3. Providing the other person with money, transportation, a weapon, a disguise or other similar means of
avoiding discovery, apprehension, prosecution or conviction; or
4. Preventing or obstructing by means of force, deception or intimidation anyone from performing an act
that might aid in the discovery, apprehension, prosecution or conviction of the other person; or
5. Suppressing by an act of concealment, alteration or destruction any physical evidence that might aid in
the discovery, apprehension, prosecution or conviction of the other person; or
6. Concealing the identity of the other person..
Hindering a person for prosecution of a misdemeanor is a class 1 misdmeanor; for a felony, it is a class 5
felony.
Summary. Hindering can be a useful plea because it does not take on the character of the
underlying offense; thus it is a good alternative to a drug plea, firearms, domestic violence or sex offense
plea. However, it will become an aggravated felony if a sentence of a year or more is imposed and it can
also be a CMT. See Defending Immigrants in the Ninth Circuit, §§ 2.12, 9.24, for an extensive discussion
of accessory and defense arguments.
Aggravated felony: Hindering, similar to the federal accessory after the fact statute, can be a
useful plea because it does not take on the character of the underlying offense. An immigrant’s
Arizona Criminal Chart with Explanatory Endnote – August 2012
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