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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 1. Engages in disorderly, disrespectful or insolent behavior during the session of a court which directly tends to interrupt its proceedings or impairs the respect due to its authority; or 2. Disobeys or resists the lawful order, process or other mandate of a court; or 3. Refuses to be sworn or affirmed as a witness in any court proceeding; or 4. Publishes a false or grossly inaccurate report of a court proceeding; or 5. Refuses to serve as a juror unless exempted by law; or 6. Fails inexcusably to attend a trial at which he has been chosen to serve as a juror. B. Interfering with judicial proceedings is a class 1 misdemeanor. Summary: Unlikely to trigger immigration consequences EXCEPT A2 is likely deportable for violating a DV protective order. 8 U.S.C. § 1227(a)(2)(E)(ii). Crime Involving Moral Turpitude: While possible, it is unlikely that any subsection will be found a CMT. See Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir. 2008) (“[w]hen the only ‘benefit’ the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude”). Aggravated Felony: An offense relating to obstruction of justice with a sentence of one year or more is an aggravated felony under 8 U.S.C. § 1101(a)(43)(S). However, since the maximum sentence under the statute is six months, this offense should never be an aggravated felony. Other – Domestic Violence: Under 8 U.S.C. § 1227(a)(2)(E)(ii), a noncitizen who engages in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury is deportable. The Ninth Circuit has interpreted this broadly to include most convictions under protection orders. Alanis-Alvarado v. Holder, 558 F.3d. 833, 836 (9th Cir. 2009); Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). While a straight plea to this offense may be safe (particularly if no subsection is cited), any citation or reference in the plea to DV or §§ 13-3601, 13-3601.01, or 13-3602 will likely trigger deportability. Use of Telephone to Annoy, ARS § 13-2916 is a better option. 67. Disorderly Conduct, ARS § 13-2904 A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person: 1. Engages in fighting, violent or seriously disruptive behavior; or 2. Makes unreasonable noise; or 3. Uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person; or 4. Makes any protracted commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession; or 5. Refuses to obey a lawful order to disperse issued to maintain public safety in dangerous proximity to a fire, a hazard or any other emergency; or 6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument. B. Disorderly conduct under subsection A, paragraph 6 is a class 6 felony. Disorderly conduct under subsection A, paragraph 1, 2, 3, 4 or 5 is a class 1 misdemeanor. Summary: A good plea for immigration, except for A6. Crime Involving Moral Turpitude: Except for A6, this offense should not be held a CMT. However, to be safe it is advisable to leave the record of conviction vague as to the underlying facts. Arizona Criminal Chart with Explanatory Endnote – August 2012 77
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Normally petty offenses such as disturbing the peace are not CMTs. See e.g. Matter of P, 2 I&N Dec. 117, 122 (1944) (stating in dicta that “most states also have, in the exercise of their police powers, statutes punishing the disturbance of the peace, sauntering and loitering, and like trivial breaches of the peace. It could be hardly contended that a violation of such statutes involves moral turpitude”). Section A6, recklessly discharging a dangerous weapon, ought not to be held a CMT. Generally recklessness is a CMT only if coupled with serious physical injury. See, e.g., Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). However, where possible counsel should avoid specifically pleading to A6, and if a plea is made to A6, counsel should attempt to leave the record of conviction vague. An alternate plea would be to carrying a deadly weapon under ARS §13-3102(A)(1) (a class 1 misdemeanor), which has no immigration consequences as long as the weapon is not identified as a firearm or explosive device. Aggravated Felony: AF as Crime of Violence: No. The Ninth Circuit has held that a mens rea of “recklessness” does not meet the definition of a “crime of violence” as defined by 18 U.S.C. § 16. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) AF as Firearms Offense: No, because this offense does not deal with trafficking and does not have a federal analogue. Firearms Ground of Deportation: If defendant pleads to A6 and the record of conviction clearly identifies that defendant had a firearm or destructive device (i.e. explosive), then he/she is deportable under this ground. Defense counsel should keep the record of conviction vague as to the type of weapon used, i.e., plead defendant to the statutory language, “a deadly weapon or dangerous weapon.” DV Ground of Deportation: Some immigration judges have held this to be deportable as a crime of domestic violence with a § 13-3601 tag, although immigration counsel have strong arguments against this. If defendant pleads to A6 and the offense was committed against a child, he/she may be deportable under the child abuse ground. See Note: Domestic Violence. 68. False reporting to law enforcement agencies, ARS § 13-2907.01 A. It is unlawful for a person to knowingly make to a law enforcement agency of either this state or a political subdivision of this state a false, fraudulent or unfounded report or statement or to knowingly misrepresent a fact for the purpose of interfering with the orderly operation of a law enforcement agency or misleading a peace officer. B. Violation of this section is a class 1 misdemeanor. Summary. This offense is not an aggravated felony and might fit the facts of the aftermath of a domestic violence or statutory rape event, i.e. when the perpetrator denies wrongdoing. If the prosecution is willing to plead to a class 1 misdemeanor, it is not a crime of violence or sexual offense. Crime Involving Moral Turpitude. Maybe not, no requirement of materiality or bad intent. See Blanco v. Mukasey, 518 F.3d 714, 719 (9th Cir. 2008) (falsely identifying oneself to law enforcement is not a CMT since fraudulent intent only inheres when the individual employs false statements to obtain something tangible). Other grounds: This may be a good alternate plea where overly harsh immigration consequences would attach to a relatively minor offense, and where a false statement was made at some point. Arizona Criminal Chart with Explanatory Endnote – August 2012 78
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