quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
is implicated. Note that possession of a firearm or destructive device by a felon or an undocumented
immigrant is an aggravated felony,
Safer categories:
• A person who has been found a danger to self or others, where the record of conviction does not
establish commitment to a mental institution. While the analogous federal offense requires
commitment to a mental institution (18 USC § 922(g)(4)), ARS §26-540 permits various options
including outpatient care.
• A person who is imprisoned at the time of possession. There is no federal analogue.
• A person who is serving probation for a domestic violence conviction, under ARS § 13-
3101(A)(7)(d). (Federal law has similar provisions at 18 USC § 922(g)(8), (9), but these are not
included in the aggravated felony definition at 8 USC 1101(a)(43)(E).)
A1 and A2: Carrying a concealed deadly weapon without a permit pursuant to ARS § 13-3112;
carrying it without the permit within immediate control of any person in or on a means of
transportation.
Crime Involving Moral Turpitude (CMT): No. Carrying a concealed weapon without a license
or permit has been held not to involve moral turpitude because an act licensed by the state is merely a
regulatory offense and cannot properly be considered morally turpitudinous. Ex parte Sarceno, 182 F.
955, 957 (Cir. Ct. N.Y. 1910); United States ex rel. Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y. 1926);
Matter of Granados, 16 I. & N. Dec. 726 (1979) (possession of sawed-off shotgun).
Aggravated Felony: Simple possession of a machine-gun may be found an aggravated felony
because it is analogous to 18 USC §922(o). Otherwise not an aggravated felony.
Firearms Deportation Ground: Only if the record of conviction specifies that the weapon was
a firearm or other destructive device. To avoid this ground, defense counsel should plead defendant to
carrying a “deadly weapon” or to a specific weapon that is not a firearm or destructive device.
A3. Manufacturing, possessing, transporting, selling or transferring a prohibited weapon
Crime Involving Moral Turpitude (CMT): Probably not; at least divisible. While possession
of a weapon is not a CMT, it is possible that a conservative judge would hold that the manufacture,
transport, sale, or transfer of prohibited weapons is a CMT because of pecuniary gain. Matter of R, 6
I&N Dec. 444, 451 (1954) (element of pecuniary gain creates a distinction between fornication, not a
CMT, and prostitution, a CMT). Against this is the fact that firearms can be legally sold, so this is merely
a regulatory offense, and such offenses usually are held not to involve moral turpitude. Where possible,
defense counsel should keep the record of conviction vague by pleading either to “possessing” or
“manufacturing, possessing, transporting, selling, or transferring.”
Aggravated Felony: AF as a Firearms Trafficking Offense: Trafficking in firearms or explosive
devices is an aggravated felony. The record should not preclude the possibility that a nunchaku was the
weapon, and/or should be vague as to whether trafficking versus possession was involved. Avoid
reference to a machine-gun.
Firearms Deportation Ground: Deportable under this ground if the record of conviction
specifies that the weapon was a firearm or other destructive device. To avoid this ground, defense
counsel should plead defendant to a “prohibited weapon.”
Arizona Criminal Chart with Explanatory Endnote – August 2012
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