quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Misconduct involving weapons under subsection A, paragraph 9, 14 or 15 of this section is a class 3
felony. Misconduct involving weapons under subsection A, paragraph 3, 4, 8 or 13 of this section is a
class 4 felony. Misconduct involving weapons under subsection A, paragraph 12 of this section is a class
1 misdemeanor unless the violation occurs in connection with conduct which violates the provisions of
section 13-2308, subsection A, paragraph 5, section 13-2312, subsection C, section 13-3409 or section
13-3411, in which case the offense is a class 6 felony. Misconduct involving weapons under subsection
A, paragraph 5, 6 or 7 of this section is a class 6 felony. Misconduct involving weapons under subsection
A, paragraph 1, 2, 10 or 11 of this section is a class 1 misdemeanor.
Summary: Conviction of almost any activity relating to a firearm or “destructive device”
(explosive), including possession of an unregistered firearm, causes deportability under the firearms
ground. 8 USC § 1227(a)(2)(C). Conviction of trafficking in firearms or destructive devices, or
conviction of a state offense that is analogous to certain federal offenses such as felon in possession of a
firearm, is an aggravated felony. 8 USC § 1101(a)(43)(C), (E). See Note: Firearms. Counsel can
fashion a plea under § 13-3102 to avoid these consequences by avoiding identification of a qualifying
weapon in the record of conviction, and/or avoiding a match-up with the analogous federal offense. This
can be a valuable alternate plea.
Note on Sentence. Avoiding a sentence imposed of a year or more will not avoid the firearms
deportation ground or the firearms aggravated felony classification. For example, sale of a firearm with
a sentence imposed of six months is an aggravated felony, and also a basis for deportation under the
firearms ground.
The one-year sentence threshold does remain relevant for any violent offense, whether or not a
firearm is involved. For example, A8, using a deadly weapon during a felony, will be an aggravated
felony as a crime of violence if a sentence of a year or more is imposed.
Note: “deadly weapons,” “prohibited weapons,” and “prohibited possessors” and the
firearms categories. Section 13-3102 can be a valuable plea because it is a divisible statute. With a
vague record of conviction, or a plea to certain subsections, the conviction will not be an aggravated
felony as a firearms offense, or be an offense that causes deportability under the firearms ground.
Deadly weapons and prohibited weapons. An offense is an aggravated felony firearms offense,
or causes deportability under the firearms ground, if it involves certain actions relating to a firearm or
explosive device. Both “deadly weapon” and “prohibited weapon” are defined to include weapons that
are not firearms or explosive devices. (“Deadly weapon” is any lethal weapon, and “prohibited weapon”
includes a nunchaku. See § 13-3101.) In these cases, counsel may be able to avoid conviction of a
firearms aggravated felony or a deportable firearms offense by (a) specifically identifying a nonfirearms/explosive
device in the record, or (b) keeping the record vague enough to permit the possibility
that this was the weapon, e.g. pleading to a “deadly weapon.”
“Prohibited possessor.” A state offense that has the same elements as certain federal firearms
offenses will be held an aggravated felony, even if it doesn’t involve trafficking. See federal offenses
referenced at 8 USC § 1101(a)(43)(E). The list of “prohibited possessors” at ARS § 13-3101(A)(7) does
not exactly match the federal crimes designated as firearms aggravated felonies for immigration purposes.
The following categories relating to prohibited possessors are safer pleas. In an offense involving a
prohibited possessor using a firearm or explosive device, counsel should specifically identify one of the
following categories, or leave the record of conviction vague as to which subset of ARS § 13-3101(A)(7)
Arizona Criminal Chart with Explanatory Endnote – August 2012
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