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 />
is part of a finding of a violation of such an order, it may cause deportability. See also ARS § 13-<br />
3601.01(A)(1).<br />
This offense does not constitute a “crime of domestic violence,” because a misdemeanor is a<br />
“crime of violence” only if it has as an element the intent to use or threaten <strong>for</strong>ce. See Note: Domestic<br />
Violence.<br />
72. Aggravated harassment, ARS § 13-2921.01<br />
A. A person commits aggravated harassment if the person commits harassment as provided in section 13-<br />
2921 <strong>and</strong> any of the following applies:<br />
1. A court has issued an order of protection or an injunction against harassment against the person <strong>and</strong> in<br />
favor of the victim of harassment <strong>and</strong> the order or injunction has been served <strong>and</strong> is still valid.<br />
2. The person has previously been convicted of an offense included in section 13-3601.<br />
B. The victim of any previous offense shall be the same as in the present offense.<br />
C. A person who violates subsection A, paragraph 1 of this section is guilty of a Class 6 felony. A person<br />
who commits a second or subsequent violation of subsection A, paragraph 1 of this section is guilty of a<br />
Class 5 felony. A person who violates subsection A, paragraph 2 of this section is guilty of a Class 5<br />
felony.<br />
D. For the purposes of this section, "convicted" means a person who was convicted of an offense included<br />
in section 13-3601 or who was adjudicated delinquent <strong>for</strong> conduct that would constitute a historical prior<br />
felony conviction if the juvenile had been tried as an adult <strong>for</strong> an offense included in section 13-3601.<br />
Summary: A conviction under A2 may avoid <strong>immigration</strong> consequences <strong>and</strong> certainly is safer<br />
than a conviction <strong>for</strong> stalking. A conviction under A1 offers few <strong>immigration</strong> benefits.<br />
Crime Involving Moral Turpitude (CMT): If analogies to DUI hold, A1 is a CMT but A2 is<br />
not. A1 may be held a CMT because the inclusion of the element of an existing protection order is<br />
sufficient to establish the bad intent required <strong>for</strong> a CMT. See Matter of Lopez-Meza, 22 I&N. Dec. 1188,<br />
1195 (BIA 1999) (the aggravated circumstances of being on a suspended license while DUI under<br />
predecessor to ARS 23-1383(A)(1) “establishes a culpable mental state adequate to support a finding of<br />
moral turpitude”); Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). A2 should not<br />
be held to be a CMT, because multiple commissions of an offense do not cause the offense to become a<br />
CMT. See Matter of Torres-Varela, 23 I. & N. Dec. 78 (BIA 2001) (predecessor to ARS 28-1383(A)(2),<br />
aggravated driving with prior DUI convictions, is not a CMT because no culpable mental state is<br />
required).<br />
Aggravated Felony: A “crime of violence” defined under 18 USC 16 is an aggravated felony if<br />
a sentence of a year or more is imposed. This calculation includes time imposed as a result of a recidivist<br />
enhancement,<br />
A conviction under A1 might be held an aggravated felony if a sentence of a year or more is<br />
imposed. However, A1 does not require the making of any threat <strong>and</strong> can merely seriously annoy the<br />
other person. That would not necessarily be likely to result in violent <strong>for</strong>ce between the parties. See<br />
Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2000), discussed supra at § 13-3601. There<strong>for</strong>e, if<br />
counsel cannot avoid a sentence imposed of one year, <strong>and</strong> cannot keep the record vague between A1 <strong>and</strong><br />
A2, a conviction under A1 still might avoid being an aggravated felony if the record is vague as to the<br />
underlying facts.<br />
Arizona Criminal Chart with Explanatory Endnote – August 2012<br />
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