Endangerment not just Dangerous, but Fatal, for Immigrants

In Leal v. Holder –F.3d–, No. 12-73381 (9th Cir. Nov. 6, 2014) the panel, according Chevron deference to the BIA (Matter of Leal), effectively held that a conviction under Arizona’s “Endangerment” statute, ARS § 13-1201, is a Crime Involving Moral Turpitude (CIMT), and thus a substantive basis for deportation.

There, Leal, an undocumented alien, convicted of ARS 28-1381(a)(1) misdemeanor DUI & ARS § 13-1201 felony endangerment, was placed into deportation proceedings and, after applying for relief, ordered removed. In so ordering, the IJ made the specific finding that Arizona’s endangerment conviction rendered Leal statutorily ineligible for relief because it was a “CIMT”.

On appeal, the government argued, and the 9th Cir. panel ultimately agreed,  that the because the elements of  ARS § 13-1201,  requires that State prove that the defendant 1) was aware of and consciously disregarded an 2) “actual substantial risk” 3) “of imminent death,” the crime, at least as a felony, requires sufficient scienter to be classified as a CIMT. The order of removal was upheld.

Although seldom a stand-alone, and not quite a “best friend,”  “endangerment,” because of its broad language, is an enduringly popular prosecutorial add-on (sort of like federal “conspiracy” 18 USC § 371) to proposed indictments and other charging forms, at least for core DUI and domestic violence cases.  These charges are handed out like candy in Arizona.

Not surprisingly therefore, thousands charged with Arizona felony DUI, and sometimes felony DV assault, eventually plea to the perceived “good deal”: a “probation available” “lesser” plea to endangerment. But as of Nov. 6 endangerment is not a good deal, at least not for immigrants. In fact, counseling an immigrant client in many if not most situations to take one of these packages, even without the mandate, would, per Padilla,  likely constitute IAC, and then some.   Endangerment is no longer dangerous; it is fatal.

But note that at CLE’s when lecturing on immigration consequences, I, and some other, but certainly not all, immigration attorneys, have long and conservatively counseled that endangerment should be avoided precisely because it likely would be considered a CIMT.  See e.g. our Ariz. DUI-Immigration Consequences 2012 Quick Reference Chart. (one page, Michael Harwin author, §1201 is a CIMT); but see FIIRP & Maricopa County Public Defenders Resource & Annotations for Determining Immigration consequences of Selected Arizona Offenses 2012 ( §1201 is only “maybe” a CIMT “if record shows serious physical injury” and is “good alternate to other charges”).  Leal therefore both confirms our fears and changes the landscape.

From the trenches in Leal, Kara Hartzler, formerly of the Florence Immigrant and Refugee Rights Project (FIRRP) [now at San Diego Legal Defenders], and Nic Suriel, a highly experienced Phoenix immigration attorney, indicate that they plan to petition for rehearing en banc.  Best to them.

 

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Michael Harwin

About Michael Harwin

Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books