quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
F.3d 1057, 1061 n. 2 (9th Cir. 2006). Additionally, a single conviction under this statute might not trigger
inadmissibility since the Dept. of State definition requires “elements of continuity and regularity,
indicating a pattern of behavior or deliberate course of conduct…as distinguished from the commission of
casual or isolated acts.” 22 C.F.R. § 40.24(b) (2006). Counsel should plead to acts other than sexual
intercourse and avoid references to prior prostitution convictions.
77. Possession, use, production, sale or transportation of marijuana, ARS §13-3405
NOTE: On July 14, 2011, the Ninth Circuit prospectively overturned Lujan-Armendariz v.
INS, 222 F.3d 728 (9th Cir. 2000), which had held that a single state drug possession conviction
expunged pursuant to “rehabilitative relief” would not trigger removability as a controlled
substance offense. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). Therefore, a
single conviction received on or after July 14, 2011 for simple possession, possession of
paraphernalia, or another minor drug offense can no longer be eliminated for immigration
purposes by obtaining a set aside under ARS § 13-907.
A single conviction for simple drug possession or possession of paraphernalia offense
entered prior to July 14, 2011 may still be eliminated for immigration purposes under § 13-907 as
long as the defendant did not violate probation. See Estrada v. Holder, 560 F.3d 1039 (9th Cir.
2009). However, a conviction for use or under the influence of drugs will trigger removability as a
controlled substance offense even if the conviction occurred prior to July 14, 2011. See Nunez-Reyes
v. Holder, 646 F.3d at 695 (overruling Rice v. Holder, 597 F.3d 952 (9th Cir.2010)).
Note also that a TASC disposition in certain Arizona counties where the prosecutor rather
than the court imposes counseling requirements does not constitute a conviction for immigration
purposes. See discussion of these options at Note: Controlled Substances.
A1. Possession or use
a. Possession
Crime Involving Moral Turpitude: No. The BIA reserved judgment on the question in Matter
of Khourn, 21 I&N Dec. 1041 (BIA 1997), but it probably would not be so held. See also Hampton v.
Wong Ging, 299 F. 289, 290 (9th Cir. 1924) (possession of opium is not a CMT).
Aggravated felony: Where there is no prior drug conviction, a conviction for possession of
marijuana is not an aggravated felony. Where there is a drug prior, the law is not established and counsel
should be cautious. (Note that a plea to use, rather than possession, always will prevent an aggravated
felony conviction; see below).
The BIA has held that where a prior controlled substance conviction is pleaded or proved as part
of an “enhancement” of a subsequent possession offense, it will convert the subsequent offense into an
aggravated felony. If the prior conviction was not pleaded or proved for enhancement purposes, the
subsequent possession offense is not an aggravated felony. See Carachuri-Rosendo v. Holder, 130 S. Ct.
2577, 2586, 177 L. Ed. 2d 68 (2010); Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 386 (BIA 2007).
Therefore, counsel should avoid pleading to a controlled substance offense in which a prior drug offense
is an element, is alleged or is otherwise included as an “enhancement” in the charging document or
judgment. Note that the current rule in the Ninth Circuit is better; the court held that a possession
conviction is not an aggravated felony despite a drug prior. Oliveira-Ferreira v. Ashcroft, 382 F.3d 1045
Arizona Criminal Chart with Explanatory Endnote – August 2012
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