and A5 contain no element of deprivation and, thus, do not meet the generic definition of theft. Sections A1 and A3 contain an element of intent to deprive and as such are aggravated felonies.
Counsel should avoid a plea to A5, as receiving stolen property under the California statute has been held to be an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Matter of Cardiel, 25 I&N Dec.
12 (BIA 2009); Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir 2009). However, immigration counsel may have an argument that A5 is broader than the California statute since A5 includes not only “knowing” but “having reason to know” that the property was stolen. Defense counsel should avoid any reference to the client “knowing” that the property was stolen or else leave the language of the plea vague.
CMT. A2 and A4 should not categorically be held to be CMT’s because they do not involve intent to permanently deprive the owner of the property. See e.g. Matter of D, 1 I&N Dec. 143 (BIA 1941) (driving an automobile without the consent of the owner is not a crime involving moral turpitude);
Matter of P, 2 I&N Dec. 887 (BIA 1947); Matter of M, 2 I&N Dec. 686 (BIA 1946) (conviction for joyriding does not involve moral turpitude because defendant did not intent to effect a permanent taking).
In practice, however, many immigration judges may find these to be CMTs.
A1 and A3 are CMTs because each contains the element of intent to permanently deprive. A5 may be held a CMT as akin to receipt of stolen property. Wadman v. INS, 329 F.2d 812 (9th Cir. 1964).
However, receipt of stolen property is not a CMT unless it involved a permanent taking. Castillo-Cruz v.
Holder,581 F.3d 1154, 1161 (9th Cir. 2009). Defense counsel should strive to indicate on the record that there was no intent to deprive, or that the taking was only temporary. Under current law, a vague record is not sufficient.
IMPORTANT: Recent case law has altered the process by which immigration judges decide whether an offense is a CMT. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). While judges were previously restricted to the record of conviction in determining whether a state offense qualified as a CMT, currently any evidence – including police reports, pre-sentenced investigations, and even the defendant’s own testimony – may be considered in the finding of whether a conviction constitutes a CMT under a divisible statute. As a practical consequence, many Arizona immigration judges are using documents outside of the record to find that a conviction for Theft of Means of Transportation under § 13-1814 is categorically a CMT, particularly with pro se respondents. Therefore, defense counsel should conservatively assume that a plea in which the intent to deprive is left vague between a permanent and temporary taking will be found a CMT.
47 Robbery Offenses
Robbery, ARS § 13-1902.
A. A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.
Crime Involving Moral Turpitude (CMT): Yes.
Aggravated Felony: If a sentence of a year or more is imposed, robbery will be an aggravated felony as a theft crime or as a crime of violence. State v. Hudson, 152 Ariz.121, 730 P2d 830 (1986) (finding that robbery is, by definition, a crime involving violence).
Aggravated robbery, ARS § 13-1903.
See Robbery, § 13-1902.
Armed robbery, ARS § 13-1904.
A. A person commits armed robbery if, in the course of committing robbery as defined in section 13-1902, such person or an accomplice:
1. Is armed with a deadly weapon or a simulated deadly weapon; or
2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.
Crime Involving Moral Turpitude (CMT): Yes.
Aggravated Felony: If sentenced to a year or more, aggravated robbery will be an aggravated felony as a crime of violence or a theft crime. See Robbery, § 13-1902. United States v. Taylor, 529 F.3d 1232, 1237 (9th Cir. 2008) (armed robbery under Arizona law involves the threat or use of force and is therefore a crime of violence).
Firearms Ground: Armed robbery may be a deportable offense under 8 U.S.C. 1227(a)(2)(C) as a firearms offense if the record of conviction indicates that a firearm was involved in the offense.
Because not all deadly weapons are firearms, if the record of conviction does not indicate that a firearm was involved, the conviction does not trigger deportability under the firearms ground. Matter of
Pichardo, 21 I&N Dec. 330 (BIA 1996) (where the record of conviction failed to identify the subdivision under which the alien was convicted or the weapon he was convicted of possessing, deportability is not proven even where the alien testified in immigration proceedings that the weapon he possessed was a gun).
48. Forgery, A.R.S. 13-2002 With intent to defraud, the person:
1. Falsely makes, completes or alters a written instrument; or 2. Knowingly possesses a forged instrument; or
3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information.
Crime Involving Moral Turpitude: Yes.
Aggravated felony as Forgery: Counsel should conservatively assume that the offense will be held to constitute forgery, and therefore be an aggravated felony if a sentence of at least a year is
imposed. 8 USC §1101(a)(43)(R). However, immigration counsel have strong arguments that the statute is divisible since a conviction can involve a real document that contains false information, such as a validly-issued driver’s license with a false name or date of birth. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008) (Cal. Penal Code § 475(c) encompasses conduct involving real, unaltered
documents and thus is not categorically an offense "relating to forgery" under 8 U.S.C. § 1101(a)(43)(R));
State of Arizona v. Thompson, 194 Ariz. 295 (1999) (MVD employee was convicted for including false information on an otherwise genuine document).
Aggravated Felony as Fraud or Deceit: Yes, if it involved a loss to the victim or victims of more than $10,000, regardless of whether the amount of loss appears in the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss, see Note: Fraud.
49 Possession of forgery device, A.R.S. § 13-2003A.
A. A person commits criminal possession of a forgery device if the person either:
1. Makes or possesses with knowledge of its character and with intent to commit fraud any plate, die, or other device…. specifically designed or adapted for use in forging written instruments, or
2. Makes or possesses any device, apparatus …. adaptable for use in forging written instruments with intent to use it or to aid or permit another to use it for purposes of forgery.
Crime Involving Moral Turpitude (CMT): Both sections are CMTs because both involve fraud.
Aggravated Felony as Forgery. To avoid an aggravated felony, avoid a sentence imposed of a year or more. Assume both will be deemed “an offense relating to forgery” and be an aggravated felony if a sentence of a year or more is imposed. See 8 USC §1101(a)(43)(R). However, immigration counsel can argue that this is not categorically an aggravated felony since the device can be used to create documents that do not fall within the generic definition of a “forged document.” Vizcarra-Ayala v.
Mukasey, 514 F.3d 870 (9th Cir. 2008).
Aggravated Felony as Fraud. Yes, if the loss to the victim or victims exceeds $10,000 , regardless of whether the amount of loss appears in the record of conviction. See 8 USC
§1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proving a loss exceeding
$10,000, see Note: Fraud.
50. Criminal simulation, ARS § 13-2004.
A. A person commits criminal simulation if,with intent to defraud, such person makes, alters, or presents or offers, whether accepted or not, any object so that it appears to have an antiquity, rarity, source, authorship or value that it does not in fact possess.
B. Criminal simulation is a class 6 felony.
Crime Involving Moral Turpitude (CMT): Yes, because it requires an intent to defraud.
Aggravated Felony as Fraud or Deceit. Yes, if the loss to the victim or victims exceeds
$10,000, regardless of whether the amount of loss appears in the record of conviction. See 8 USC
§1101(a)(43)(M); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proving a loss exceeding
$10,000, see Note: Fraud.
51. Criminal impersonation, ARS § 13-2006 A. A person commits criminal impersonation by:
1. Assuming a false identity with the intent to defraud another; or
2. Pretending to be a representative of some person or organization with the intent to defraud; or
3. Pretending to be, or assuming a false identity of, an employee or a representative of some person or organization with the intent to induce another person to provide or allow access to property. This paragraph does not apply to peace officers in the performance of their duties.
B. Criminal impersonation is a class 6 felony.
Crime Involving Moral Turpitude (CMT): May be divisible. A1 and A2 are CMTs due to the fraud element. A3 ought not to be held a CMT because falsely identifying oneself with no intent to obtain something of value has been held not to constitute a CMT by the Ninth Circuit. See Blanco v.
Mukasey, 518 F.3d 714 (9th Cir. 2008). Since providing or allowing access to property is not necessarily something of monetary value or otherwise “tangible,” a conviction under A3 should not be considered a CMT. However, in practice, many immigration judges will still find this to be a CMT.
Aggravated Felony: Yes, if the loss to the victim or victims exceeds $10,000, regardless of whether the amount of loss appears in the record of conviction. See 8 USC §1101(a)(43)(M); Nijhawan v.
Holder, 129 S. Ct. 2294 (2009). Regarding proving a loss exceeding $10,000, see Note: Fraud.