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