quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
Crime Involving Moral Turpitude: Yes, if the importation is necessarily for trafficking as
opposed to personal use.
Aggravated Felony: Yes, to the extent that the importation is for trafficking. Or, to the extent
that this offense is analogous to 21 U.S.C. § 952(a), which criminalizes the importation of controlled
substances or, if they are listed in schedules III, IV, or V, dangerous drugs. However, an argument could
be made that importation into the state is akin to transportation, which does not meet the general
definition of trafficking. United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999).
Controlled Substance Conviction Causing Deportability and Inadmissibility. Yes, as a
ground of inadmissibility and deportability as an offense relating to controlled substances.
c. Offer to transport for sale; Offer to sell; Offer to transfer.
Crimes Involving Moral Turpitude: Yes as trafficking, except that if the record leaves open
the possibility that the offer was to transfer for free, this may not be a CMT.
Aggravated felony: No. A conviction for an “offer” to transport for sale, sell, transfer, or import
is analogous to a solicitation offense, which does not constitute an aggravated felony. See Rosas-
Castaneda v. Holder, 655 F.3d 875, 885 (9th Cir. 2011). In Rosas-Castaneda, the Ninth Circuit even
found that a charging document and plea agreement that showed a conviction for Attempted Transport for
Sale under ARS § 13-3405(A)(4) was not categorically an aggravated felony since “[n]either document in
the record of conviction produces any specific information that definitively rules out the possibility that
Rosas was convicted of a solicitation offense. Id. at 886. However, a transcript of a plea colloquy that
did not specifically mention an “offer” to transport for sale, sell, transfer, or import would likely trigger
removal for an aggravated felony. While a plea to the generic solicitation statute of § 13-1002 is much
safer in avoiding an aggravated felony, defense counsel who cannot otherwise avoid a drug trafficking
offense should plead to § 13-3405(A)(4) and specify “offer” in the factual basis.
If pleading to this statute, counsel could also plead to “transfer,” which is defined as furnishing,
delivering or giving away marijuana. ARS § 13-3401(37). This will provide immigration counsel with
an additional argument that the offense is not an aggravated felony; see Part d, infra. However, a plea to
“offer” is the better option.
Other Grounds: A conviction under Arizona’s “generic” solicitation statute, § 13-1002, is not a
deportable controlled substance conviction or an aggravated felony. Coronado-Durazo v. INS, 123 F.3d
1322, 1324 (9th Cir. 1997); see also Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999). However, the
Ninth Circuit has found that a conviction under a “specific” solicitation statute, such as that contained in
ARS §§ 13-3405(A)(4), 13-3407(A)(7), or 13-3408(A)(7) would render a noncitizen removable for an
offense relating to a controlled substance. See Rosas-Castaneda v. Holder, 655 F.3d 875, 885 (9th Cir.
2011); Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009). Therefore, counsel should attempt to
plead their client to the generic solicitation statute under ARS § 13-1002.
d. Transfer. “Transfer” means to furnish, deliver or give away.
Crimes Involving Moral Turpitude: Yes as trafficking, except that if the record leaves open
the possibility that the offer was to transfer for free, this may not be a CMT.
Arizona Criminal Chart with Explanatory Endnote – August 2012
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