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Ice Training on Immigration Consequences Az April 2012

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MacKenzie Debbie
From:
Sent:
To:
Subject:

Lehman Kristian
Tuesday, April 03, 20129:06 AM
MacKenzie Debbie
FW: CLE Friday, Jan 6, 2012

From: McGregor Rene
Sent: Tuesday, December 27, 2011 10:33 AM
Cc: Lehman Kristian
Subject: CLE Friday, Jan 6, 2012

Brown Bag -- CLE
Up to 1 hour of ClE Credit
You do not need to register for this CLE, just show up and sign in.
The room seats up to 80, and it will be first come first seated.

Immigration
Consequences
A discussion on the most common types of Arizona convictions in
immigration proceedings
and
how certain plea agreements impact immigration proceedings.

Dominique J. Honea
Assistant Chief Counsel
U.S. Immigration and Customs Enforcement
1

U.S. Department of Homeland Security
When:

Friday, January 6, 2012
12:15 p.m. to 1:15 p.m.

Where:

Admin Building
301 W. Jefferson
th
10 Floor Board of Supervisors Conference Room

Please email me with any questions.
Thanks,

'Rene
S. Rene McGregor
Attorney Career Trainer Manager
Maricopa County Attorney's Office
Training & Development
11 W. Jefferson, 2"d Floor
Phoenix, AZ 85003
602-372-0136 office
602-526-1362 blackberry

From:

To:
Subject:
Date:

Rene
"Hooea Dominique J"
RE: Immigration Consequences Presentation
Tuesday, January 03, 2012 4:19:28 PM
tk0t@Qr'

Thanks, I figured it would not be approved to record but I have had a lot of requests because they
are unavailable.
You can email me a copy of the Power Point or if you would prefer to bring copies the room seats
80 people.
I will meet you at 301 W. Jefferson on the 10 th floor. I will be there between 11:30 and 11:45 am.

to make sure the room is set up and ready.

Thanks,

R.ene
S. Rene McGregor
Attorney Career Trainer Manager
Maricopa County Attorney's Office
Training & Development
11 W. Jefferson, 2 nd Floor
Phoenix, AZ 85003
602-372-0136 office
602-526-1362 blackberry
From: Honea, Dominique J [mailto:DJHonea@ice.dhs.gov]
Sent: Tuesday, January 03, 2012 4:14 PM
To: McGregor Rene
Subject: RE: Immigration Consequences Presentation

Renee:
We are still awaiting permission from our headquarters to use the most current POllller Point
presentation. I will let you know as soon as we obtain approval. As to the second question, we are
not permitted to video-tape our presentations. However, as mentioned before, we would be
willing to come back to present to those who have other commitments.
Please let me know if you have any other questions!
Thanks,
-Dominique
Dominique J. Honea

Assistant Chief Counsel
U.S. immigration and Customs Enforcement

U.S. Department of Homeland Security

Are we still aiming for January 6?

Thanks,

Dominique J Honea
Assistant Chief Counsel
U.S. Immigration and Customs Enforcement
U.S. Department of Homeland Security
1705 E. Hanna Rd.
Eloy, AZ 85131
Tel: (520) 464-3032
Fa)(: (520) 466-2031
Email: dominique.honea@dhs gov
*** Warning *** Attorney/Client Privilege *** Attorney Work Product ***
This communication and any attachments may contain confidential andlor sensitive attorney/client
privileged information or attorney work product andlor law enforcement sensitive inforrnation. It is not
for release, review, retransmission, dissemination, or use by anyone other than the intended recipient
Please notify the sender if this email has been misdirected and immediately destroy all originals and
copies. Furthermore do not print, copy, re-transmit, disseminate, or otherwise use this information.
Any disclosure of this communication or its attachments must be approved by the Office of the Principal
Legal Advisor, U.S. Immigration and Customs Enforcement. This document is for INTERNAL
GOVERNMENT USE ONLY and rnay be exempt from disclosure under the Freedorn of Information
Act, 5 USC §§ 552(b)(5), (b)(7).

From: Honea, Dominique J
Sent: Wednesday, November 23, 2011 1:31 PM

To: 'McGregor Rene'
Subject: RE: Imrnigration Consequences Presentation
Rene:

January 6, 2012 should work. I'm not sure whether our headquarters will approve of video-taping.
However, I'm sure that we could come back on an additional date if necessary. Let me get back to
you on that. Also, I don't see why I couldn't mail you a copy of the PowerPoint presentation we intend
to use. I'll see about doing that once we ie-tweak our presentation.
As for the presentation itself, I would not be presenting alone. I believe that our Senior Attorney,
Jennifer Wiles, and another colleague, Christopher Kelly will be present.
Let's keep in touch, and plan for January 6.
Thanks and have a great holiday!

Dominique J. Honea
Assistant Chief Counsel
U.S. Immigration and Customs Enforcement
U.S. Department of Homeland Security
1705 E. Hanna Rd.
Eloy, AZ 85131
Tel: (520) 464-3032
Fax: (520) 466-2031
Email: dominigue.honea@d~

From: Honea, Dominique J [mailto:D.JHonea@ice.dhs.gov]
Sent: Tuesday, November 22, 2011 8:41 AM
To: McGregor Rene
Subject: FW: Immigration Consequences Presentation
Rene:
Please see below,
Dominique J, Honea
Assistant Chief Counsel
U,S, Immigration and Customs Enforcement
U,S. Department of Homeland Security
1705 E. Hanna Rd.
Eloy, AZ 85131
Tel: (520) 464-3032
Fax: (520) 466-2031
Email: dominique hQoea@dhs.9 Q v

*** Warning *** Attorney/Client Privilege *** Attorney Work Product ***
This communication and any attachments may contain confidential and/or sensitive attorney/client

privileged information or attorney work product and/or law enforcement sensitive information, It is not
for release, review, retransmisSion, dissemination, or use by anyone other than the intended recipient.

Please notify the sender if this email has been misdirected and immediately destroy all originals and
copies. Furthermore do not print. copy, re-transmit, disseminate, or otherwise use this information.
Any disclosure of this communication or its attachments must be approved by the Office of the Principal
Legal Advisor, U,S, Immigration and Customs Enforcement. This document is for INTERNAL
GOVERNMENT USE ONLY and may be exempt from disclosure under the Freedom of Information
Act, 5 USC §§ 552(b)(5), (b)(7).

From: Honea, Dominique J
Sent: Thursday, November 03, 2011 3:54 PM
To: (Iehmank@mcao.maricopa.gov)
Subject: Immigration Consequences Presentation
Kris:
Just a follow up from my last email. We've finalized our presentation, and in fact already
presented to the Pinal County Attorney's Office. The presentation as previously presented
took about 90 minutes, including a question period, However, we've trimmed down the
presentation to about 60 minutes. Is your office still interested?
Let me know your thoughts,
Thanks,
Dominique J Honea
Assistant Chief Counsel
U,S. Immigration and Customs Enforcement
U,S, Department of Homeland Security
1705 E. Hanna Rd.

GOVERNMENT USE ONLY and may be exempt from disclosure under the Freedom of Information
Act, 5 USC §§ 552(b)(5), (b)(7),

Immigration Consequences of
Common Arizona Convictions
Date:
Jennifer Wiles, Senior Attorney
Dominique Honea, Assistant Chief Counsel
Christopher Kelly, Assistant Chief Counsel
ICE Office of Chief Counsel - Arizona

Il'1h11ligration Consequences of
Criminal Convictions
Violations of many state criminal laws can render an alien:
• Subject to removal from the United States
Ineligible for certain forms of relief from removal
- Subject to mandatory detention by ICE
Subject to high bond or no bond

1

Sources of Immigration Law
Governing bodies of law:
Title 8 of the U.S. Code (the Immigration and Nationality Act Act or INA)
Title 8 of the Code of Federal Regulations
Board of Immigration Appeals decisions
-

Federal Circuit Court decisions (Ninth Circuit)
U.S. Supreme Court decisions

Categories of Removable Offenses
1. Controlled Substance Offenses-INA sections 212
(a j(2)(A)(i)(lI), 237 (a)(2)(8)(i)

2. Firearms Offenses - INA section 237(a)(2)(C)
3. Crimes Involving Moral Turpitude - INA sections
212(a){2)(A)(i)(I), 237(a)(2)(A)(i), 237(a)(2)(A)(ii)

4. Domestic Violence and Child Abuse -I NA sections
237(a)(2)(E)(i),237(a)(2)(E)(ii)

5. Aggravated Felonies -INA section 101 (a)(43),
237 (a)(2)(A)(iii)

2

Establishing Charges of Removal
- By clear and convincing evidence;
- The elements of state offenses must mirror their federal
counterparts.

By using Taylor-Shephard categorical approach or modified
categorical approach.
By using a three-part test discussed in Matter Si/va- Trevino,
24 I&N Dec. 687 (AG. 2008) to establish that an offense
involves moral turpitude.
.

Conviction Documents to
Establish the Charges
Complaint/Indictment/Information
Plea Agreement
- Minute Entries (from change of plea hearing and sentencing
hearing)
Judgment and Sentence
Plea Transcript
Presentence Investigation Reports
Police Reports
Conviction documents must specify the subsection!

3

Controlled Substances
" INA section 237(a)(2)(B)U)- Any alien who at any time after
admission has been convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance (as defined in
section 802 olTiUe 21), other than a single offense involving
possession for one's own use of 30 grams or less of marijuana, is
deportable
-INA section 212(a)(2)(A)(i)(IJ) - Any alien convicted of, or who admits
having committed, or who admits committing acts that constitute the
essential elements of a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in section 802 of
Title 21), is inadmissible.

Controlled Substances
Possession or Use of Marijuana -ARS. § 13-3405(A)(1) =
simple possession
-ICE LITIGATION CHALLENGE: a first time offense does not
necessarily constitute a removable offense unless record of
conviction speCifies that the amount is greaterthan 30 grams
- BUT NO PROBLEM IF: The amount of marijuana is specified
throughout the record of conviction
-GOVERNING LAW: INA section 237(a)(2)(8)(i)

4

Controlled Substances
Possession or Use of Marijuana -A.R.S .. § 13-3405(A)(1)"
simple possession
-ICE LITIGATION CHALLENGE: The inchoate offense of
Solicitation renders the substantive drug offense non-removable
for immigration purposes
• BUT NO PROBLEM IF: Charged as Attempt or Conspiracy to
Possess or Use Marijuana, which constitute removable offenses.
-GOVERNING LAW: Coronado-Durazo v. INS, 123 F.3d 1322
(9th Cir. 1997) and Leyva-Licea v.INS, 187 F.3d 1147 (9th Cir.
1999)

Controlled Substances
Possession or Use of Dangerous Drugs -A.R.S. § 13-3407;
Possession or Use of Narcotic Drugs - A.R.S. § 13-3408
-ICE LITIGATION CHALLENGE: Arizona definition of
"dangerous drugs" and "narcotic drugs" encompass a greater
variety of drugs than contemplated by the federal Controlled
Substances Act (is not coextensive)
- BUT NO PROBLEM IF: The drug is identified throughout the
record of conviction.
-GOVERNING LAW: Ruiz-Vida/ v. Gonzalez, 473 F,3d 1072 (9th
Cir. 2007)

5

Controlled Substances
Drug Paraphernalia -A.R.S. § 13-3415
iCE LITIGATION CHALLENGE: None!
GOVERNING LAW: Luu-Le v. INS, 224 F.3d 911 (9th Gir. 2000)

Deportability Requirements for
Controlled Substance Convictions
-If a defendant pleads to the complaint/indictment/information,
then the complaint must specify a drug listed in the federal
Controlled Substances Act. See Ruiz-Vidal v. Gonzalez, 473
F.3d 1072 (9th Cir. 2007)
• The judgment and sentence must specify guilty faS ch<lrgeci I"
the COmp1[1~nt/indi,GtrnentijrdorrnBtj()n; however! not fatal. See

U.S. v. Vidal, 504 F.3d 1072 (9th Cir. 2007)
• if a defendant pleads to an amended count, then the
complaintlindictmentlinfonnation must state the ernender.l count
and
the drug at IS-SUe:. See Ruiz-Vidaf.

6

Deportability Requirements for
Controlled Substance Convictions
-If there is no amended complaintlindictmentiinformation, then
the plea agreement must include a written factual basiC',
identifying thl1
at issue, See Ruiz-Vidal.
-If there is no factual basis in the plea agreement, then tile drug
record at the plea hearing. See Ruizrnust be identified on

Vidal.
liThe tiHe of offense throughout the record of conviction must
specify the drug (e,g., minute entries of judgment and sentence
can title offense "Possession of a Dangerous Drug
(Methamphetamine)," See Ramirez-Villalpando v. Holder, 645
F.3d 1035 (9th CiL 2011).

Defense Counsel Strategies for
Controlled Substance Convictions
-Defense counsel is likely familiar with Ruiz-Vidal and will ask for
a plea to an unspecified controlled substance,
-Defense counsel is likely familiar with Coronado-Durazo v. INS,
123 F,3d 1322 (9th Cif. 1997) and Leyva-Licea v. INS, 1B7 F,3d .
1147 (9th Cil'. 1999), and will ask to plead down to a solicitation
offense.

7

Crimes Involving Moral Turpitude
INA section 237(a)(2)(A)m - Any alien who is convicted of a crime involving
mora! turpitude committed within five years (or 10 years in the case of an alien
provided lawful permanent resident stalus) after the date of admission, and is
convicted of a crime for which a sentence of one year or longer may be
imposed, is deportable.
INA section 237(a)(2)(A)(ii) - Any alien who at any time after admission is
convicted of two or more crimes involvIng moral turpitude, not arising out of a

single scheme of criminal misconduct, regardless of whether confined therefor
and regardless of whether the convictions were in a single trial, is deportable,
INA section 212(a)(2)(A)(i)(I) - Any alien convicled of, or who admits having
committed, or who admits committing acts which constitute the essential
elements of a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime, is inadmissible.

Crimes Involving Moral Turpitude
Endangerment-A.R.S. § 13-1201(A)(1)
-ICE LITIGATION CHALLENGE; To establish reprehensible
conduct
- NO PROBLEM IF; Defendant's actions are identified with
particularity throughout the record of conviction
-GOVERNING LAW; Matter of Silva-Trevino, 24 I&N Dec. 687
(A.G.2008)
Mirroring the language of the substantive statute throughout the record
of conviction is not enough!

Crimes Involving Moral Turpitude
AggravatedAssault-A.R.S, § § 13-1204, 1203
-ICE LITIGATION CHALLENGE: Establishing the level of
scienter and level of conduct
- NO PROBLEM IF: Mens rea is identified by specifying
subsection under AR,S, § 13-1203,
• NO PROBLEM IF: Type of conduct is identified by specifying
subsection under A.R,S, § 13-1204, Defendant's actions are
identified with particularity throughout the record of conviction,
-GOVERNING LAW: Matter of Silva-Trevino

Crimes Involving Moral Turpitude
Possession of Burglary Tools -A.R,S, § 13-1505(A)(1)
• ICE liTIGATION CHALLENGE: To establish reprehensible
conduct

- NO PROBLEM IF: Defendant's actions are identified with
particularity throughout the record of conviction,
• GOVERNING LAW: Matter of Silva-Trevino

9

Crimes Involving Moral Turpitude
Third Degree Burglary ~A.R.S. § 13-1506(A)(1)
• ICE LITIGATION CHALLENGE: To establish conduct that
constitutes entering or remaining unlawfully in or on a
nonresidential structure or in a fenced commercial or
residential yard with the intent to commit any theft or felony
• NO PROBLEM IF: Defendant's actions are identified with
particularity throughout the record of conviction
• EXAMPLE FACTUAL BASIS: "Defendant broke into X store
through the front window with the intent to steal equipment"

Crimes Involving Moral Turpitude
-~

Second Degree Burglary - A.R.S. § 13-1507
• ICE LITIGATION CHALLENGE: To establish that the
residential structure is occupied/inhabitad
• NO PROBLEM IF: The record of conviction identifies whether
the residential structure is occupiedlinhabited
• GOVERNING LAW: Malter of Louissaint, 24 I&N Dec. 754
(BIA2009)

10

Crimes Involving Moral Turpitude
Theft-A.R.S. § 13-1802
• ICE LITIGATION CHALLENGE: To establish that an offense
involves intent to permanently deprive
• NO PROBLEM IF: Defendant's actions are identified with
particularity throughout the record of conviction
• EXAMPLE FACTUAL BASIS: "Defendant took X that belongs
to John Doe and did not intend to return the item or with the
intent to permanently deprive"

Crimes Involving Moral Turpitude
Shoplifting - A.R.S.

s 13-1805

• Generally there are no challenges for ICE with shoplifting
convictions, but identification of subsections and providing a
detailed factual basis are helpful.
• Definition of "deprive" (13-1801(A)(4)) includes withholding of
property interest of another permanently or for a period in
which the property interest loses portion of its economic value
or usefulness

11

Crimes Involving Moral Turpitude
Forgery - A.R.S. § 13-2002(A)
• Generally, no litigation challenges for ICE with forgery
convictions
• "A person commits forgery if, with intent to defraud, the
person, .. " '" this language is key, and all subsections include
inherently reprehensible conduct

Crimes Involving Moral Turpitude
Criminal Possession of Forgery Device -A.R.S. § 13-2003
• Generally, no litigation challenges for ICE with these
convictions
• Both subsections (A)(i) and (A)(2) include either intent to
commit fraud or intent to use for purpose of forgery "
inherently reprehensible conduct

12

Crimes Involving Moral Turpitude
Criminal Impersonation -A.R.S. § 13-2006
• ICE LITIGATION CHALLENGE: 13-2006(A)(3) includes
conduct that is not inherently reprehensible, However,
subsections (A)(1) and (A)(2) require reprehensible conduct.
• NO PROBLEM IF: Subsection specified,
• NO PROBLEM IF' Defendant's actions are identified with
particularity throughout the record of conviction. For example,
if the defendant stole an actual person's identity/social
security number, the record of conviction must so state, and
identify what it was used for and resulting harm,

Crimes Involving Moral Turpitude
Taking Identity of Another - A.R.S, § 13-2008
• ICE LITIGATION CHALLENGE: To establish inherently
reprehensible conduct
• NO PROBLEM IF: Defendant's actions are identified with
particularity throughout the record of conviction, For example,
if the defendant stole an actual person's identity/social
security number, the record of conviction must so state, and
identify what they it was used for and resulting harm.

13

Crimes Involving Moral Turpitude
Aggravated Driving or Actual Physical Control While Under the
Influence -A.R.S. § 28-1383(A)(1)
• ICE LITIGATION CHALLENGE: To establish actual driving
knowing that the driver's license was suspended.
• NO PROBLEM IF'. Record of conviction identifies that the
defendant drove a vehicle while knowing that his driver's
license was suspended.
• GOVERNING LAW: Marmolejo-Campos v. Holder, 558 F.3d
903 (9th Cir. 2009)

Crimes Involving Moral Turpitude
-Congress did not define "crime involving moral turpitude';
therefore, under administrative law, the United States Attorney
General is charged with gatekeeping thedefinilion and is entitled
to Chevron deference, where published (precedential) decision
is involved
-Traditionally, crime involving moral turpitude (CIMT) viewed as
an offense that is "inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general." Matter of Ajami, 22
I&N Dec. 949 (BIA 1999)

14

Crimes Involving Moral Turpitude
-The United States Attorney General defined crime involving
moral turpitude in published decision, Matter of Silva-Trevino, 24
I&N Dec. 687 (A.G. 2008), as involving both reprehensible
conduct and some degree of scienter, whether specific intent,
deliberateness, willfulness, or recklessness
Scienter/Mens Rea + Reprehensible Conduct

Analysis of Crimes Involving
Moral Turpitude
-Analyze statutory elements (categorica! approach).
-If the statute of conviction is overinciusive, determine what
conduct is described throughout the record of conviction
(modified categorical approach).
-If the record of conviction is inconciusive as to the conduct,
examine the presentence investigation report, probation report,
police report, and possibly even the defendant's own testimony
(extended modified categorical analysis).

15

Class 6 Undesignated Felonies
• Re-designation of an offense from class 6 undesignated felony
to a misdemeanor can render the offense non-removable for .
immigration purposes.

Firearms
INA section 237(a)(2)(C)':' Any alien who at any time after
admission is convicted under any law of purchasing, selling,
offering for sale, exchanging, using, owning, possessing, or
carrying, or of attempting or conspiring to purchase, sell, offer for
sale, exchange, use, own, possess, or carry, any weapon, part,
or accessory which is a firearm or destructive device (as defined
in section 921(a) of Title 18) in violation of any law is deportable.

16

Firearms
Misconduct Involving Weapons-A.R.S. § 13-3102; Drive-by
Shooting -A.R.S. § 13'1209
• ICE LITIGATION CHALLENGE: Proving that the weapon is a
firearm
• NO PROBLEM IF: Weapon is specified or identified as a nO(lantique firearm throughout the record of conviction.
• GOVERNING LAW: INA section 237(a)(2)(C)

Firearms
Aggravated Assault with a Deadly Weapon - A.R.S. § 131204(A)(2); Disorderly Conduct with a Deadly Weapon or
Dangerous Instrument - A.R.S. § 13-2904(A)(6) .
• ICE LITIGATION CHALLENGE: To establish that the weapon
is not an antique firearm.
• NO PROBLEM IF: Weapon is specified or identified as a (lonantique firearm throughout the record of conviction.
• GOVERNING LAW: INA section 237(a)(2)(C)

17

Firearms - Practical Considerations
fs,the weapon a firearm? "From a plain reading of
[237(a)(2)(C)], it is clear that Congress intended to embrace the
entire panoply of firearms offenses," Valerio-Ochoa v, INS, 241
F,3d 1092, i095(9thCir.2001)

• If the statute of conviction does not specifically require
possession or use of a firearm (I.e., cases where a person
may be convicted for having/using a "deadly weapon"), the
record of conviction must identify the specific weapon (I.e.
9mm handgun), or at the very least must state that the
weapon involved was a firearm.

Domestic Violence and Child Abuse
INA section 237(a)(2)(E)(i) -Any alien who at any time after
admission is convicted of a crime of domestic violence, a crime
of stalking, or a crime of child abuse, child neglect, or child
abandonment is deportable,
INA section 237(a)(2)(E)(ii) - Any alien who at any time after
admission is enjoined under a protection order issued by a court
and whom the court determines has engaged in conduct that
violates the portion of a protection order that involves protection
against credible threats of violence, repeated harassment, or
bodily injury to the person or persons for whom the protection
order was issued is deportable,

18

Domestic Violence and Child Abuse
Stalking - A.RS. § 13-2923
• Record of conviction must establish with particularity how the
defendant committed the act of stalking.

Domestic Violence and Child Abuse
DomesticViolence-A.R.S. § § 13c 3601, 13-1203
• ICE LITIGATION CHALLENGE: To establish that the offense
is a crime of violence as defined by 18 U.S.C. § 16

• NO PROBLEM IF: Record of conviction identifies conduct
involving the intentional use of force that is violent in nature,
and identifies the relationship of the victim to the defendant.
• GOVERNING LAW: Femandez-Ruiz v. Gonzalez, 466 F.3d
1121 (9th Cir. 2006); Matter of Velasquez, 251&N Dec. 278
(BIA 2010)

19

Domestic Violence and Child Abuse
Child or Vulnerable Adult Abuse - A.R.S. § 13-3623
• ICE LITIGATION CHALLENGE: To establish that the victim
was a child
• NO PROBLEM IF: Record of conviction identifies the victim
as a child and specifies how the child washarmed/abused.
• GOVERNING LAW: Matter of Soram, 25 I&N D<;;c. 378 (BIA
2010), Matter of Velasquez-Herrera, 241&N Dec. 503 (BIA

2008)

Domestic Violence and Child Abuse
Violation of Protective Order; Interfering with Judicial Proceeding A.R.S. § 13-2810
•

ICE LITIGATION CHALLENGE: To establish that a lawfully issued
domestic violence order of protection was violated, and what portion
of the order was violated.

•

NO PROBLEM IF: Record of conviction identifies subsection 13"
2810(A)(2), which states "!djisobeys or resists the lawful order,
process or other mandate of a court," identifies the portion of the
protective order the defendant has violated, describes how the
defendant has violated it; and identifies the relationship between
the victim and the defendant.

•

GOVERNING LAW: Matter of Strydom, 251&N Dec. 507 (BIA2011)

20

Aggravated Felonies
There are many different types of aggravated felonies under the
Act. Most common are convictions involving illicit trafficking in a
controlled substance, crimes of violence, theft, and prohibited
possession offirearms.
Many of the aggravated felony charges require a sentence of
one year, which is defined as 365 days or more.
Reduction of sentence from 365 to 364 days disqualifies certain crimes
(e.g., crimes ofvioience, theft offenses) from being Aggravated
Felonies for immigration purposes.

~~~------------------"'-~---~-I

Aggravated Felonies - Illicit
Trafficking in a Controlled Substance
Possession, Use, Production, Saie or Transportation of Marijuana A.R.S. § 13-3405
•

ICE LITIGATION CHALLENGE: AR.S. § 13-3405(A)(4) includes
the language that constitutes Solicitation = not a categorical
trafficking offense

•

NO PROBLEM IF: Defendant's actions are identified with
particularity throughout the record of conviction or subsection 133405(A)(2), which provides that "[a) person shall not knowingly
possess marijuana for sale," is specified.

•

GOVERNING LAW: Leyva-Licea v INS, 187 F.3d1147 (9th Cir.

1

21

Aggravated Felonies - Crime of
Violence
• ICE LITIGATION CHALLENGE: To establish that the
defendant's conduct amounted to a crime of violence as
defined in 18 U.S.C. § 16, and that a sentence of
incarceration of one year or more was imposed.
• NO PROBLEM IF: Record of conviction specifically notes that
the defendant's conduct was intentional and involved violent
force. Record of conviction also specifies that a sentence of
365 or more days was imposed.

Aggravated Felonies - Theft
• ICE LITIGATION CHALLENGE: To establish thai a
theftJtaking involved property or services and that the
sentence of incarceration of one year or more was imposed.
• NO PROBLEM IF: Record of conviction identifies with
particularity tilat the theft/taking involved property or services
and specifies that the sentence was at least 365 days.

22

Aggravated Felonies - Prohibited
Possessor ofFireanns
Misconduct Involving Weapons - A.R.S, § 13-3102(A)(4)
• ICE LITIGATION CHALLENGE'. To establish that the weapon
is a non-antique firearm and that the defendant is a prohibited
possessor because of a prior felony conviction.
• NO PROBLEM IF: Record of conviction identifies the weapon
as a non-antique firearm and specifies the defendant's prior
felony conviction or cites ARS. § 13-31 01 (A)(7)(b),

Questions?
Contact:

DUty Attorney
Office of Chief Counsel - Arizona
Eloy Detention Center
1705 E, Hanna Rd,
Eloy, AZ 85131
(520) 464-3032

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