Ninth Circuit Finds that Arizona Armed Robbery Conviction is Theft-Related Aggravated Felony

The Ninth Circuit has determined that an Arizona conviction for armed robbery is a theft-related aggravated felony. The court concluded that “to establish armed robbery, the state must prove that the defendant, while armed with a real or simulated deadly weapon, (1) took property from a person or his immediate presence (2) against that person’s will (3) using or threatening force with the coexistent intent to take the property.”

The full text of Guzman-Maldonado v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/02/14/23-9.pdf

Eighth Circuit Finds that Arizona Kidnapping is Crime of Violence

The Eighth Circuit has concluded that an Arizona kidnapping conviction qualifies as a crime of violence because it requires the use of force against the victim (unless the victim is a minor or incompetent).

The full text of US v. Goforth can be found here:

http://media.ca8.uscourts.gov/opndir/23/11/231077P.pdf

Ninth Circuit Finds AZ Drug Statutes Divisible

The Ninth Circuit has determined that the Arizona statutes criminalizing drug possession and possession of drug paraphernalia are divisible with respect to the identity of the controlled substance. The analysis related to the drug possession statute followed the Arizona Supreme Court’s determination that jury unanimity is required with respect to the identity of the substance. But the Arizona Supreme Court declined to address whether such unanimity is required under the paraphernalia statute. Thus, though the Ninth Circuit determined that it is, it also noted that if the Arizona Supreme Court subsequently rules otherwise, the Arizona Supreme Court’s interpretation would govern.

The full text of Romero-Millan v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/29/16-73915.pdf

Eighth Circuit Finds that AZ Aggravated Assault is Crime of Violence

The Eighth Circuit has determined that an Arizona conviction for aggravated assault, which required the defendant to intentionally or knowingly impede the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument, is a crime of violence.

The full text of US v. Lopez-Castillo can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/02/211533P.pdf

BIA Finds AZ Drug Statute Divisible

The Board of Immigration Appeals (BIA) has determined that an Arizona conviction criminalizing conduct involving “dangerous drugs” is divisible with respect to the identity of the drug. The BIA noted that certain substances carry more severe punishment, an indication that the substances are elements of the offense. Proceeding to the modified categorical approach, the BIA determined the substance at issue was methamphetamine, and as such, the respondent was convicted of a deportable offense.

The full text of Matter of P-B-B- can be found here:

https://www.justice.gov/eoir/page/file/1296956/download

Ninth Circuit Certifies Question of Divisibility of AZ Drug Statutes to AZ Supreme Court

The Ninth Circuit has certified the question of whether Arizona’s drug statutes are divisible with respect to the identity of the substances regulated.

The order in Romero=Millan v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/04/16-73915.pdf

Ninth Circuit Finds that AZ Aggravated Assault Conviction is CIMT

The Ninth Circuit has determined that one combination of subsections of Arizona’s basic and aggravated assault statutes qualify as a crime involving moral turpitude. Specifically, an assault committed with by Intentionally placing another person in reasonable apprehension of imminent physical injury through the use of a deadly weapon or dangerous instrument contains a sufficiently high mens rea and sufficiently serious conduct to rise to the level of moral turpitude.

The full text of Altayar v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/14/17-73308.pdf

Ninth Circuit Defers to BIA; Finds that Solicitation to Possess Marijuana for Sale Triggers CIMT Inadmissibility

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Gonzalez Romo, finding that a lawful permanent resident convicted of solicitation to possess marijuana for sale was inadmissible upon presentation at a port of entry under section 212(a)(2)(A)(i)(I) (crime involving moral turpitude), even though that section refers only to conspiracy or attempt to commit a crime involving moral turpitude, not solicitation of a crime involving moral turpitude. The court relief on the absurdity of making a lawful permanent resident deportable under the corresponding crime involving moral turpitude ground for solicitation to commit a crime involving moral turpitude, but not rendering them inadmissible for the conviction.

The full text of Romo v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/14/16-71559.pdf

Ninth Circuit Finds that AZ Aggravated Assault is not Violent Felony

The Ninth Circuit has determined that aggravated assault under Arizona Revised Statute § 13-1203(A)(1) no longer qualifies as a violent felony under the Armed Career Criminal Act (ACCA). Given the similarity between the definition of a violent felony under the ACCA and a crime of violence aggravated felony, this case could have persuasive impact in the immigration context.

The full text of United States v. Orona can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-17508.pdf

Ninth Circuit Issues Amended Opinion on Arizona Domestic Violence Conviction

The Ninth Circuit has amended its decision in Cornejo-Villagrana v. Sessions. In the amended opinion, the court recognized that Arizona’s misdemeanor domestic assault statute is divisible between intentional use of force and reckless use of force. However, the court determined that the record was clear that the petitioner had been convicted of a Class 1 misdemeanor, which required that his assault involve the intentional or knowing infliction of injury. Thus, the court declined to address whether the reckless use of force would be sufficient to constitute a crime of violence.

The amended opinion can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/27/13-72185.pdf

Second Circuit finds that AZ Drug Statute is Overbroad and Indivisible

The Second Circuit has determined that an Arizona statute criminalizing transportation, importation, and sale of a controlled substance is overbroad because it criminalizes substances not found in the Controlled Substances Act. In addition, the statute is indivisible with respect to the substances criminalized. As such, the conviction does not qualify as a drug trafficking conviction for federal sentencing purposes.

The full text of United States v. Guerrero can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/20/doc/17-1851_op.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/20/hilite/

Ninth Circuit Rejects Equal Protection Challenge to Naturalization Statute; Finds that Arizona Third Degree Escape is not a Crime of Violence

The Ninth Circuit has rejected an equal protection challenge to a statute that required the adoptive parents of children to file naturalization petitions for those children. The Court also determined that Arizona’s third degree escape statute does not require the use of violent force, and therefore, is not a crime of violence aggravated felony.

The full text of Dent v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/17-15662.pdf

Ninth Circuit finds that AZ Armed Robbery is not Crime of Violence under Force Clause of Sentencing Guidelines

The Ninth Circuit has determined that the an Arizona conviction for armed robbery does not qualify as a crime of violence under the force clause of the sentencing guidelines because the statute does not necessarily involve violent force.  Given the similarity between the definition of a crime of violence in the immigration context and in the force clause, this decision could have persuasive value in the immigration context.

The full text of US v. Molinar can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/29/15-10430.pdf

An amended opinion was subsequently published here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/05/15-10430.pdf

In a follow up decision, the court also determined that an Arizona conviction for armed robbery is also not a violent felony under the Armed Career Criminal Act.

The full text of US v. Jones can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/15/17-15869.pdf

Ninth Circuit Finds AZ Class 1 Misdemeanor Domestic Violence Conviction to be a Crime of Domestic Violence

The Ninth Circuit has determined that an Arizona conviction for a class one misdemeanor domestic violence offense is a crime of domestic violence.  The court found that the statute is overbroad because it includes “recklessly causing any physical injury to another person.”  However the court also determined that the statute is divisible.  Because the petitioner was convicted of a class 1 misdemeanor, the Court deduced that he was convicted of intentionally or knowingly causing physical injury, which meets the definition of a crime of violence.  Because the relationships in the statute are coextensive with those found in section 237(a)(2)(E)(i) of the INA, the petitioner's conviction qualifies as a crime of domestic violence.

The full text of Cornejo-Villagrana v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/14/13-72185.pdf

Fifth Circuit Finds that AZ Drug Statute is Divisible

The Fifth Circuit has determined that Arizona Revised Statute Section 13-3405(A)(4), which criminalizes sale, transportation, importation, transfer and offers to transport for sale, import, sell, or transfer of marijuana, is divisible.  The court noted that Arizona state courts are divided on whether the "offer to" offenses - known as solicitation offenses - were distinct from the other offenses, or were merely alternative means committing these offenses.  The court took a "peak" at the petitioner's record of conviction, and noted that the indictment charged all of these provisions, but his plea document and judgment listed only “attempted transportation of marijuana for sale.”  This, the court concluded, indicated a divisible statute.  "When the relevant documents use one alternative term to the exclusion of all others, that indicates that the terms within the statute are individual elements."  The court also note that there are separate pattern instructions for transport for sale and offer to transport for sale, reinforcing that these are distinct offenses.

The full text of Ibanez-Beltran v. Lynch can be found here:
http://www.ca5.uscourts.gov/opinions/pub/15/15-60183-CV0.pdf

Fifth Circuit Finds that an Arizona Conviction for Attempted Transportation for Sale of Marijuana is an Aggravated Felony

In an unpublished decision, the Fifth Circuit determined that Arizona Revised Statute Section 13-3405(A)(4) (attempted transportation for sale of marijuana) is a divisible statute, laying out separate offenses for solicitation to transport for sale and transport for sale of marijuana.  The court recognized that Arizona state case law on this issue was conflicting, but determined that because the charging document listed only transportation for sale, this narrowing language indicated that transportation for sale is a distinct offense from offer to transport for sale.  The court also looked at the pattern jury instructions, which contained different instructions for transportation for sale and offering for sale.  Thus, the court concluded the statute was divisible.

The full text of Ibanez-Beltran v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/unpub/15/15-60183.0.pdf

BIA Issues Two Precedential Decisions Addressing Theft Crimes as CIMTS

The Board of Immigration Appeals (Board) has issued a pair of companion cases addressing when theft crimes are properly considered to be crimes involving moral turpitude (CIMT).  In Matter of Diaz-Lizarraga, the Board determined that a conviction for theft would qualify as a CIMT if it required an intent to permanently deprive the owner of the property or circumstances where the owner's property rights are substantially eroded.  The Board then determined that a conviction for shoplifting in Arizona categorically qualified as a CIMT.  In Matter of Obeya, the Board applied this new definition to determine that conviction for petit larceny in New York is also a CIMT.

The full text of Matter of Diaz-Lizarraga can be found here:

https://www.justice.gov/eoir/page/file/910821/download

The full text of Matter of Obeya can be found here:

https://www.justice.gov/eoir/page/file/910826/download