For further discussion see Defending Immigrants in the Ninth Circuit, Chapters 4 and 9, www.ilrc.org/criminal.php
UPart I. Burglary
Burglary as an aggravated felony. A burglary conviction with a one-year sentence imposed might qualify as an aggravated felony in any of three ways: as “burglary,” as a
“crime of violence,” or, if it involves intent to commit theft, as “attempted theft.” See 8 USC §1101(a)(43)(F), (G). With careful pleading counsel may be able to avoid
immigration penalties for this offense.
Burglary is not an aggravated felony under any of these categories unless a sentence of at least a year has been imposed. A sentence of 364 days or less avoids an aggravated felony, and avoids the necessity for using the following analysis. For suggestions on how to avoid a one-year sentence, see Note “Sentence.”
If a one-year sentence is imposed, the only burglary conviction that is not an aggravated felony is
• burglary of an automobile or other non-structure, as defined in §13-1501, and
• the record of conviction shows intent to commit “any felony” and the record does not identify the felony (or identifies a felony that is not an aggravated felony).
However, even if the record shows intent to commit “any theft,” immigration counsel will point out that subsections of Arizona theft statutes have been held not to be aggravated felonies because they do not require an intent to deprive the owner temporarily or permanently. See Part II, infra.
The “generic” definition of burglary for this purpose is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”
Taylor v. United States, 494 U.S. 575 (1990). Auto burglary does not come within this definition of burglary and thus is not an aggravated felony as burglary. Neither is auto burglary a crime of violence, absent the presence on the record of information about violence against people or property. Ye v. INS, 214 F.3d 1128 (9th Cir. 2000). However, conviction of auto burglary might be held an aggravated felony as attempted theft if the record of conviction establishes that the offense was committed with intent to commit the aggravated felony “theft.” To prevent this, counsel should create a record of conviction where the client is guilty only of “any felony,” or an undesignated “any theft,” which under Arizona law includes offenses that are and are not “theft” for aggravated felony purposes.
Although difficult, counsel may be able to preserve an argument that a client’s conviction for burlgary of a residential structure under Arizona law is not categorically an
aggravated felony. First, to provide an argument that the offense is not an aggravated felony as burglary, counsel should create a record that leaves open the possibility that (a) the person remained unlawfully “on” rather than “in” a residential structure, and/or (b) the entry or remaining was with consent, albeit with unauthorized intent (see State v.
Altamirano, 166 Ariz. 432 (Ct. App. 1990). This is because the definition of burglary for immigration purposes is entry or remaining in, not on, a structure, and where the entry is unlawful, meaning without consent. Second, to provide an argument that the offense is not an aggravated felony as a “crime of violence,” counsel should leave open the
possibility (a) that no force was used against the property (e.g., a window was not broken to gain entrance) and (b) the dwelling was not occupied at the time (meaning that it was not currently rented or lived in, as opposed to that the occupant was not at home). This is because the Arizona definition of dwelling includes an unoccupied dwelling, U.S. v.
Martinez-Martinez, 468 F.3d 604 (9th Cir. 2006), which counters the assumption that a burglar may surprise an occupant and violence would ensue. Finally, to provide an argument that the offense is not an aggravated felony as attempted theft, counsel should plead to “any felony” or “theft or any felony.” While a plea to less than 365 is much safer in avoiding an aggravated felony, counsel may at least preserve an argument using this strategy.
Burglary as a Crime Involving Moral Turpitude. Burglary is a crime involving moral turpitude (“CMT”) only if the intended offense involved moral turpitude. Entry with intent to commit larceny where there is an intent to permanently deprive is a CMT, while entry with intent to commit an undesignated offense (“a felony”), or an offense that does not involve moral turpitude is not a CMT.
A class 6 felony for misdemeanor possession of burglary tools (§13-1505) may be held a CMT if the record reveals intent to commit a CMT, as opposed to, e.g., “any felony” or arguably “any theft.” See Chart.
Part II. Theft
A. Theft as an Aggravated Felony
The aggravated felony definition of theft includes a permanent or temporary taking.
(Compare to the moral turpitude definition of theft, below, which only includes a
permanent taking). A theft offense is “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” U.S. v.
Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002); cited approvingly in Duenas-Alvarez v. Gonzales, 127 S.Ct. 815, 820 (2007). While a temporary taking still constitutes the aggravated felony “theft,” the Ninth Circuit has found that there is no theft where there is no intent to deprive the owner of rights and benefits, as is the case under some Arizona sections.
1. A conviction under ARS §13-1814(A) is not necessarily a “theft offense” because subsections (2), (4), and (5) do not require an intent to deprive the owner of rights and benefits. Nevarez-Martinez v. INS, 326 F. 3d 1053 (9th Cir. 2003).
2. A conviction for unlawful use of means of transportation, likewise, is not a theft offense because ARS § 13-1803 does not require an intent to deprive the owner. U.S.
v. Perez-Corona, 295 F.3d 996 (9th Cir. 2002).
3. A theft conviction under ARS §1802 is not necessarily a “theft offense” because some subsections do not require an intent to deprive. Huerta-Guevara v. Ashcroft, 321 F. 3d 883 (9th Cir. 2003). Moreover, even if “receipt of stolen property” is equated with possession of stolen property, the government must establish that the person was convicted under a subsection requiring knowledge that the property was stolen. See id., p. 887.
4. Theft of services does not constitute “theft” for aggravated felony purposes. If the record of conviction under ARS § 13-1802 is kept vague between theft of services and other theft, the offense is not an aggravated felony as theft.
One-year sentence must be imposed. An offense is not an aggravated felony as theft if a sentence of 364 days or less is imposed. 8 USC § 1101(a)(43)(G). See Note Sentence.”
B. Theft as a Crime Involving Moral Turpitude.
Divisible Statute. The Board of Immigration Appeals has long held that for theft to be a CMT, the offense must involve an intent to deprive the owner permanently, as opposed to temporarily, of rights and benefits. Where both types of offenses are contained in a statute, the statute is considered divisible for moral turpitude and the conviction is not a CMT unless the record establishes that the noncitizen was convicted of an intent to permanently deprive. See, e.g., Matter of Grazely, 14 I&N Dec. 330 (BIA 1973). While there is no Ninth Circuit case on point, ARS § 13-1802, 1803, and 1814(A) should be considered divisible for moral turpitude purposes, because some subsections do not include an intent to deprive the owner of rights and benefits, even temporarily. See discussion in Part A, supra.
A single theft conviction and the CMT deportability/inadmissibility grounds. A single conviction of a CMT committed within five years of last admission will make a noncitizen deportable only if the offense has a maximum possible sentence of a year or more. 8 USC § 1227(a)(2)(A).
A single conviction of a CMT will make a noncitizen inadmissible for moral turpitude.
Under the “petty offense” exception, however, the noncitizen is not inadmissible if (a) she has committed only one CMT in her life and (b) the offense has a maximum sentence of a year and a sentence of six months or less was imposed. 8 USC § 1182(a)(2)(A). To meet the petty offense exception, criminal counsel should plead defendant to a
misdemeanor with an actual sentence of six months or less or if necessary, a class 6
felony with no finding of aggravators, which arguably post-Blakely has a maximum sentence of one year, along with a sentence imposed of six months or less.
Theft by Fraud. A conviction of theft by fraud where the loss to the victim was
$10,000 or more might be charged as an aggravated felony even if a sentence of a year or more was not imposed. See next section. However, the Board has acknowledged the difference between theft (without consent) and fraud (by deception), so that a conviction of a “straight” theft offense, where there was a loss to the victim of $10,000 is not an aggravated felony under the fraud ground. Matter of Garcia-Madruga, 24 I&N 436 (BIA 2008).
Part III. Fraud
Overview. An “offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” is an aggravated felony regardless of sentence imposed.67 Tax fraud where the loss to the government exceeds $10,000 and money laundering or illegal monetary transactions involving $10,000 also are aggravated felonies.68 Any offense containing fraud as an element is a crime involving moral turpitude.
Avoiding an Aggravated Felony: Plead to an Offense that Does Not Involve Fraud or Deceit. Where there was a loss to the victim of more than $10,000, counsel can avoid conviction of an aggravated felony by pleading to a theft offense rather than an offense involving fraud or deceit – or by creating a record that is vague between those options.
The Board of Immigration Appeals has acknowledged that theft and fraud are distinct offenses, such that a conviction for theft, i.e. a taking without consent, with a loss to the victim exceeding $10,000 is not an aggravated felony under the fraud and deceit
category.69 Section 13-1802(A) lists offenses that would be construed as involving deceit (e.g., (A)(3)) or as theft (e.g., (A)(1)). If the record of conviction indicates (A)(1), or is vague between the subsections, the fact that the victim’s loss exceeded $10,000 should not cause the conviction to be an aggravated felony. Recall, however, that a theft conviction is an aggravated felony if a sentence of a year or more is imposed. See discussion at Part II, supra.
67 At the time of completion of these Notes, the Ninth Circuit has recently held in Kawashima v. Mukasey, __ F.3d __, 2008 WL 2579212 (9th Cir. July 1, 2008) that since the statute to which the defendant pleaded guilty did not require proof of any particular monetary loss, the record of conviction cannot be consulted to prove that the offense involved a loss exceeding $10,000. For practical purposes, this will render the aggravated felonies of fraud and money laundering under 8 USC § 1101(a)(43)(M) and (D) a nullity. This is at odds with the BIA’s decision in Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007), which held that any document, even one outside the record of conviction, may be consulted to prove the loss exceeding
$10,000. Since Kawashima will likely be reheard en banc, and since it is difficult to predict where case law will ultimately settle, this version of the Notes will not attempt to advise counsel on these issues.
68 8 USC § 1101(a)(43)(D), (M).
69 Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008) (welfare welfare fraud offense in violation of § 40-6-15 of the General Laws of Rhode Island is not a “theft offense”), citing with approval Soliman v.
Gonzales, 419 F.3d 276 (4th Cir. 2005) (Virginia's credit card fraud offense, § 18.2-195, did not
substantially correspond to a theft offense under 8 USCS § 1101(a)(43)(G). Thus, the Virginia offense for which the alien was convicted was not a "categorical" match for an § 1101(a)(43)(G) offense).
Where a Plea to an Offense Involving Deceit or Fraud is Unavoidable. Note that
“deceit” may be broadly defined to include offenses that do not contain all of the
elements of fraud. If it is not possible to avoid such a plea, counsel should try to contain the record of conviction as described below. Counsel should be aware, however, that the Board of Immigration Appeals recently broke from extensive precedent to hold that any credible evidence, including evidence from outside the criminal record, can be used to establish the amount of loss. 70 While the Ninth Circuit has recently held that even evidence in the record of conviction cannot establish the amount of loss, it is possible that eventually the Supreme Court will consider the issue and will rule with the Board.71 This is another reason to make every attempt to plead to a theft or other offense not involving fraud or deceit, where evidence would show a loss in excess of $10,000.
(While the Board departs from the normal analysis to determine whether the loss exceeded $10,000, it will hold to the normal analysis, which only permits review of strictly limited documents from the conviction, in determining whether the offense of conviction involved theft versus deceit or fraud.)
Counsel should be wary of pleading to any fraud offense in which the loss to the victim(s) was $10,000 or more, regardless of whether this appears in the record of conviction. If possible, counsel should try to include a specific statement in the plea agreement that the loss to the victim under that count was less than $10,000. The Ninth Circuit held that a conviction of one count of bank fraud for passing a $600 bad check did not involve a loss over $10,000 since the plea agreement specified a $600 loss to the victim, even though restitution ordered as a result of the entire scheme (involving dismissed counts to which the defendant did not plead guilty but did make restitution) exceeded $10,000 and the probation report described a scheme involving more than $10,000. Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). However, to the extent that restitution is held to equal “loss to the victim” under Arizona law, this strategy might not prevent the offense from being categorized as an aggravated felony. See Ferreira v. Ashcroft, 390 F.3d 1091, 1099-1100 (9th Cir. 2004).
See Note: Safer Pleas for suggestions of offenses that may be held not to involve fraud.
See also additional discussion in the California Quick Reference Chart and Notes, at Note Fraud, at www.ilrc.org/criminal.php.
Note: Forgery §13-2002 is deportable as a crime involving moral turpitude. Forgery will only be an aggravated felony if the sentence is 365 days or more.
70 See Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007) (testimony to the immigration judge can establish loss of over $10,000 in a fraud conviction).
71 See fn. 67.