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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 but not less than one hundred dollars. Commercial bribery is a class 1 misdemeanor if the value of the benefit is less than one hundred dollars. Crime Involving Moral Turpitude (CMT): Yes, corrupt intent to influence. See, e.g., Matter of H-, 6 I&N Dec. 358, 361 (BIA 1953). Aggravated Felony: Commercial bribery will be held an aggravated felony if a sentence of a year or more is imposed. See 8 USC § 1101(a)(43)(R). 63. Perjury, ARS § 13-2702. A. A person commits perjury by making either: 1. A false sworn statement in regard to a material issue, believing it to be false. 2. A false unsworn declaration, certificate, verification or statement in regard to a material issue that the person subscribes as true under penalty of perjury, believing it to be false. Perjury is a class 4 felony. Crime Involving Moral Turpitude (CMT): Because materiality is an element of § 13-2702, perjury will be considered a CMT. Matter of H, 1 I&N 669 (BIA 1943) (Michigan statute included materiality as a required element of the crime of perjury and therefore necessarily involves moral turpitude). As an alternative see false swearing, ARS § 13-2703. Aggravated Felony: Perjury is an aggravated felony where the court imposes a term of imprisonment of one year or more. 8 U.S.C. § 1101(a)(43)(S). If such a sentence cannot be avoided, consider false swearing, ARS § 13-2703. 64. False swearing, ARS § 13-2703. A person commits false swearing by making a false sworn statement, believing it to be false. False swearing is a class 6 felony. Crime Involving Moral Turpitude (CMT): False swearing should not be found to be a CMT because it does not involve materiality, or necessarily a fraudulent intent. Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2007); Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962); Matter of C, 1 I&N Dec. 14 (BIA, AG 1940) (false statements held not to involve moral turpitude where there is no indication that fraud was involved). Because an immigration judge may elect to look beyond a vague record of conviction under Matter of Silva-Trevino, supra, counsel should attempt to plead specifically to false swearing of a nonmaterial fact. If that is not possible, counsel should keep evidence regarding materiality or fraudulent intent out of the record of conviction in case the immigration authorities (wrongly) attempt to use that in evaluating whether the offense is a CMT. Aggravated Felony as Perjury. Even if a sentence of a year or more is imposed, false swearing should not be considered an aggravated felony as perjury, because there is no requirement of materiality. See, e.g., discussion in Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001) (Calif. statute requiring knowingly false sworn material statement is perjury). Still, as always counsel should obtain 364 days or less where possible. Even though there is no requirement of materiality, immigration judges may look to the record of conviction to determine whether the defendant’s false statement was material. See United States v. Aguila-Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc). Arizona Criminal Chart with Explanatory Endnote – August 2012 75
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Aggravated Felony as Fraud or Deceit with a $10,000 Loss. A crime of fraud or deceit that results in a loss of over $10,000 to the government (including tax revenue) or other victim is an aggravated felony, regardless of whether the amount appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Because “deceit” is not well-defined, it is possible that a conviction under §13-2703 would be held an aggravated felony under this category. Regarding proof of $10,000 loss to the victim, see Note; Fraud. 65. Tampering, ARS § 13-2809. A. A person commits tampering with physical evidence if, with intent that it be used, introduced, rejected or unavailable in an official proceeding which is then pending or which such person knows is about to be instituted, such person: 1. Destroys, mutilates, alters, conceals or removes physical evidence with the intent to impair its verity or availability; or 2. Knowingly makes, produces or offers any false physical evidence; or 3. Prevents the production of physical evidence by an act of force, intimidation or deception against any person… C. Tampering with physical evidence is a class 6 felony. Summary. While there are no cases on point, tampering with the evidence probably shares the immigration benefits and disadvantages of hindering and accessory after the fact. Please read Annotation to ARS § 13-2510. Tampering with the evidence should not take on the character of the underlying offense, so for example tampering with evidence relating to a drug sale is not itself a drug aggravated felony. However, it will be held to be an aggravated felony as obstruction of justice if a sentence of a year or more is imposed. As a class 6 felony, tampering may present a better chance of avoiding such a sentence. However, tampering, as opposed to hindering, really should be classed as obstruction of justice, since it relates to an ongoing proceeding. Aggravated Felony. Because this will likely be held obstruction of justice, counsel must avoid a sentence of 365 days. 8 U.S.C. § 1101(a)(43)(S). Crime Involving Moral Turpitude. The BIA has held that obstruction of justice is a crime involving moral turpitude, so this should not be considered a safer plea to avoid a CMT. Other Grounds: Drug conviction, firearms conviction, domestic violence, rape or sexual abuse of a minor. Tampering is a good alternative to any of these offenses, since the conviction will not take on the character of the principal’s offense. Reason to believe trafficking. If the principal committed a drug trafficking crime, the government may assert that a tampering conviction provides “reason to believe” that the defendant aided a drug trafficker and therefore the person is inadmissible under 8 USC § 1182(a)(2)(C). This will have a devastating effect on persons who must apply for lawful status in the future, although not such a harsh effect on a permanent resident, unless s/he plans to travel outside the country. See discussion of “reason to believe” at Note: Controlled Substances. 66. Interfering with judicial proceedings, ARS § 13-2810 A. A person commits interfering with judicial proceedings if such person knowingly: Arizona Criminal Chart with Explanatory Endnote – August 2012 76
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