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 />
Aggravated Felony: Obtain a sentence of 364 days or less in order to avoid an aggravated<br />
felony as a crime of violence. In Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007) the Ninth<br />
Circuit found that a conviction <strong>for</strong> Resisting Arrest under § 13-2508 with a sentence of one year is<br />
categorically an aggravated felony as a crime of violence. There<strong>for</strong>e, any conviction with an actual<br />
sentence of 365 days or longer will likely be found an aggravated felony as a “crime of violence.”<br />
However, <strong>immigration</strong> counsel have strong arguments that Estrada-Rodriguez may no longer be<br />
good law. Two months after the Ninth Circuit issued Estrada-Rodriuez, the Arizona Court of Appeals<br />
issued a decision clarifying that the only logical interpretation of the statute is that A1 may only be<br />
committed by the use of <strong>for</strong>ce while A2 may only be committed through non-<strong>for</strong>cible means that pose a<br />
risk of injury to the police officer. See State v. Lee, 176 P.3d 712, 715 (Ariz. Ct. App. 2008); see also<br />
State v. Lopez, 163 Ariz. 108, 114, 786 P.2d 959, 965 (1990). There<strong>for</strong>e, A2 is categorically not an<br />
aggravated felony crime of violence. Counsel should plead to the language of A2; however, until<br />
Estrada-Rodriguez is overturned, most <strong>immigration</strong> judges will assume they are bound by it, <strong>and</strong> this<br />
remains a dangerous plea if a sentence of one year or more is imposed.<br />
It is possible but unlikely that a conviction with a one-year sentence imposed also would be an<br />
aggravated felony as obstruction of justice under 8 USC §1101(a)(43)(S). See Matter of Joseph, 22 I&N<br />
799 (BIA 1999) (“we find that it is substantially unlikely that the offense of simply obstructing or<br />
hindering one's own arrest will be viewed as an obstruction of justice aggravated felony under section<br />
101(a)(43)(S) of the Act <strong>for</strong> removal purposes”).<br />
60. Hindering, ARS § 13-2510-12<br />
For purposes of sections 13-2511 <strong>and</strong> 13-2512 a person renders assistance to another person by<br />
knowingly:<br />
1. Harboring or concealing the other person; or<br />
2. Warning the other person of impending discovery, apprehension, prosecution or conviction. This does<br />
not apply to a warning given in connection with an ef<strong>for</strong>t to bring another into compliance with the law;<br />
or<br />
3. Providing the other person with money, transportation, a weapon, a disguise or other similar means of<br />
avoiding discovery, apprehension, prosecution or conviction; or<br />
4. Preventing or obstructing by means of <strong>for</strong>ce, deception or intimidation anyone from per<strong>for</strong>ming an act<br />
that might aid in the discovery, apprehension, prosecution or conviction of the other person; or<br />
5. Suppressing by an act of concealment, alteration or destruction any physical evidence that might aid in<br />
the discovery, apprehension, prosecution or conviction of the other person; or<br />
6. Concealing the identity of the other person..<br />
Hindering a person <strong>for</strong> prosecution of a misdemeanor is a class 1 misdmeanor; <strong>for</strong> a felony, it is a class 5<br />
felony.<br />
Summary. Hindering can be a useful plea because it does not take on the character of the<br />
underlying offense; thus it is a good alternative to a drug plea, firearms, domestic violence or sex offense<br />
plea. However, it will become an aggravated felony if a sentence of a year or more is imposed <strong>and</strong> it can<br />
also be a CMT. See Defending Immigrants in the Ninth Circuit, §§ 2.12, 9.24, <strong>for</strong> an extensive discussion<br />
of accessory <strong>and</strong> defense arguments.<br />
Aggravated felony: Hindering, similar to the federal accessory after the fact statute, can be a<br />
useful plea because it does not take on the character of the underlying offense. An immigrant’s<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
72