quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Stalking. Defense counsel should try to plead to an intent to annoy or offend and avoid any mention of
threats to inflict physical harm.
71. Harassment, ARS § 13-2921
A. A person commits harassment if, with intent to harass or with knowledge that the person is harassing
another person, causing a reasonable person to be seriously alarmed, annoyed or harassed and the conduct
in fact seriously alarms, annoys or harasses the person, does the following:
1. Anonymously or otherwise communicates or causes a communication with another person by verbal,
electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.
2. Continues to follow another person in or about a public place for no legitimate purpose after being
asked to desist.
3. Repeatedly commits an act or acts that harass another person.
4. Surveils or causes another person to surveil a person for no legitimate purpose.
5. On more than one occasion makes a false report to a law enforcement, credit or social service agency.
6. Interferes with the delivery of any public or regulated utility to a person.
C. Harassment under subsection A is a class 1 misdemeanor. Harassment under subsection B (public
employee) is a class 5 felony.
E. For purposes of this section, "harassment" means conduct directed at a specific person which would
cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously
alarms, annoys or harasses the person.
Summary: This is a possible alternative to stalking, to avoid immigration consequences.
Crime Involving Moral Turpitude (CMT): No, because it does not require the transmission of
threats or intent to harm or the intent to commit a CMT. However, in practice, some immigration judges
may find it to be a CMT.
Aggravated Felony: No, because as a class 1 misdemeanor simple harassment has a maximum
six-month sentence. Additional time imposed for recidivist behavior will be counted toward the required
one-year sentence. See Note: Sentences.
Domestic violence ground: If the record shows that the victim had a domestic relationship with
the defendant (either by § 13-3601 or other evidence in the record), the offense might be held to cause
deportability under the domestic violence ground at 8 USC §1227(a)(2)(E) as a crime of stalking.
However, it is a better alternative than §13-2923, Stalking.
A conviction of “stalking” is a basis for deportation under 8 USC §1227(a)(2)(E). While stalking
remains an undefined term in this context, it is unlikely that §13-2921 would categorically come within
this because it involves no threats and can result only in annoying the person. See Malta-Espinoza v.
Gonzales, 478 F.3d 1080 (9th Cir. 2000) (conviction under Cal. Penal Code § 646.9 is not categorically a
crime of violence because it need not be proven that the defendant had the intent, or the ability to carry
out, the threat). A plea that left open the possibility of conviction under A6 might especially avoid this
possibility. Also, immigration counsel will argue that the existence of the more serious §13-2923 argues
against this categorization, and stalking should be defined as more harmful than merely “annoying.”
Note that a civil or criminal finding that a noncitizen violated a domestic violence protection
order is a basis for deportability. See 8 USC § 1227(a)(2)(E)(i). To the extent the § 13-3601 conviction
Arizona Criminal Chart with Explanatory Endnote – August 2012
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