Sample Brief--Shoplifting in Arizona

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
FLORENCE, ARIZONA

RESPONDENT’S BRIEF IN SUPPORT OF ARGUMENT THAT A CONVICTION FOR SHOPLIFTING UNDER ARIZONA CRIMINAL CODE §13-1805 IS NOT A CRIME INVOLVING MORAL TURPITUDE

Respondent is currently in removal proceedings, and a Notice to Appear (“NTA”) has been issued in his case. The INS has charged the Respondent with being convicted of four offenses: three misdemeanor shoplifting offenses in 1995 all pursuant to ARS § 13-1805(a)(1) and one aggravated assault in 1997 pursuant to ARS § 13-1204(a)(5)(b). The INS alleges that these convictions are all crimes of moral turpitude. The issue in this brief is whether the shoplifting convictions are crimes of moral turpitude as listed in section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act (“INA”) such that Respondent would be removable for them.

The Arizona shoplifting statute at issue is divisible, so that a conviction under that statute does not necessarily involve moral turpitude. The statute requires different elements than those typically inherent in theft offenses and cannot be categorized as theft, which the Board of Immigration Appeals (“BIA”) has found to be a crime of moral turpitude in some circumstances. This Court should not find Respondent’s convictions for shoplifting under A.R.S. § 13-1805(a)(1) to involve moral turpitude. In this case, the record of conviction does not show that Respondent’s particular offense in this case did involve moral turpitude, Respondent’s case should be terminated.

In analyzing whether a crime is a crime of moral turpitude, courts look at the elements of the crime of which the respondent was convicted and not the respondent’s actual, specific conduct. Rodriguez-Herrera v. INS, 52 F.3d 238, 239-40 (9^th Cir. 1995). In determining what the actual crime is, courts may look to the statute under which respondent was convicted. Id. If the statute is divisible such that some crimes under the statute constitute crimes of moral turpitude and others may not, courts may look to the record of conviction. See e.g., Wadman v. INS, 329 F.2d 812, 813-814 (9^th Cir. 1964)(where stolen property could have been received either knowing it was stolen or without such knowledge, courts may examine record of conviction to determine alien’s actual crime). The record of conviction includes only the charge, plea, verdict and sentence. Matter of Pichardo, Int. Dec. 3275 (BIA 1996).

With respect to the three shoplifting charges, the INS has charged that the Respondent was convicted under A.R.S. § 13-1805(a)(1) which reads in pertinent part:

While there is no established definition of a crime of moral turpitude, the Board of Immigration Appeals has often found “theft” crimes to be crimes of moral turpitude. See, United States v. Villa-Fabela, 882 F.2d 434, 440 (9^th Cir. 1992), overruled in part on other grounds, United States v. Proa-Tovar, 975 F.2d 592 (9^th Cir. 1992)(en banc); Chiaramonte v. INS, 626 F.2d 1093, 1097 (2^nd Cir. 1980); Morasch v. INS, 363 F.2d 30, 31 (9^th Cir. 1966). However, theft universally requires a permanent intent to deprive one of goods. Theft is defined in Black’s Law Dictionary, Sixth Edition, (1990) as “any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of his property …” (emphasis added). Black’s Law Dictionary 1477 (6th Edition, 1990). The BIA has also held that only offenses involving taking of goods with the permanent intent to deprive constitute crimes of moral turpitude. Matter of Grazely, 14 I&N Dec. 330, 333 (BIA 1973). Unless Respondent’s records of conviction clearly show that he had the intent to permanently deprive the owners, he did not commit a crime involving moral turpitude.

In a consistent line of precedent decisions, and in a recent unpublished decision, the Board has held that in order for a theft conviction to constitute a crime of moral turpitude and a theft offense, it must involve the intent to permanently deprive a person of his or her property. Matter of Grazley, supra at 333; See, Matter of N, 7 I&N Dec. 356 (BIA 1956)(“Moral turpitude exists where there is a taking with intent to permanently deprive the owner of property.”); Matter of T, 3 I&N Dec. 641 (BIA 1949).[i] In Matter of Grazley, the respondent was convicted under the Canadian theft statute, which required the intent to deprive the owner, either temporarily or absolutely. Matter of Grazley, at 332. The BIA looked to the record of conviction to conclude that the respondent had intended a permanent taking, and thus involved moral turpitude. Id. at 332-333. In this case, Respondent’s records of conviction do not show that he had a permanent intent to deprive the owner, and Respondent did not commit a crime of moral turpitude.

The shoplifting offenses in this case are akin to the offense of joyriding. In Matter of D, the BIA held that since the California “joyriding” statute at issue allowed for conviction with intent either to permanently or temporarily to deprive the owner of the vehicle, the record of conviction was not clear enough to show that the crime involved moral turpitude. Matter of D, 1 I&N. Dec. 143, 145 (BIA 1941). Also, in Matter of P, the BIA found that a Canadian conviction under a statute similar to various U.S. “joyriding” statutes “does not comprehend theft of automobile (sic) or intent to deprive the owner thereof permanently, and, therefore, does not involve moral turpitude . . .” Matter of P, supra at 887.

The Arizona shoplifting statute is divisible. The Arizona statute defines shoplifting as obtaining goods of another “with intent to deprive him of such goods . . . ” Ariz. Rev. Statutes §13-805. The statute does not expressly, by its language, include as a required element the intent to permanently deprive a person of his/her property, required for theft crimes to be considered crimes of moral turpitude. See, Matter of Grazley, supra at 333. Someone can be convicted of shoplifting in Arizona if they took an item from a store to use for certain period of time and then returned it, such as browsing a magazine or a book in the store. Just as a person might take a car temporarily for an evening of fun, under Arizona’s shoplifting statute one could be convicted for taking a boombox to impress his friends, and then returning it later to the rightful owner. The records of conviction in this case are silent with respect to Respondent’s intent and with respect to what goods he took and this Court cannot inquire beyond those records.

Because the statute in this case is divisible, this Court may look only to the record of conviction to determine whether the offense at issue involves moral turpitude. Matter of Grazley, supra at 333; See, Matter of Sweetser, Int. Dec. 3390 (BIA 1999); Matter of Madrigal, Int. Dec. 3274 (1996). The record of conviction does not show that Mr. Barrientos-Gomez had a permanent intent to deprive with respect to the three shoplifting offenses, so the Court must look to the minimum offense of which Respondent could have been convicted under the statute. See Matter of Marchena, 12 I&N Dec. 355, 357 (BIA 1976)(“In determining whether a crime involved moral turpitude, the definition of the crime must be taken at its minimum.”). The respondent in In Re Barna was convicted of auto theft. In Re Barna, A27-770-408 (BIA 1998)(unpublished decision). The BIA found that where the record did not indicate whether the offense at issue involved the intent to deprive the owner of property permanently or temporarily, respondent’s conviction could not be assumed to be the highest offense of theft. Id. at 3-4. In this case, the minimum offense under the Arizona shoplifting statute would be one involving a temporary intent to deprive the owner of the goods in question. Again, because the records of conviction do not indicate whether Respondent’s intent was to deprive permanently or temporarily, this Court must conclude his intent was to temporarily deprive the owner of the goods at issue.

“When the statute under which an alien is convicted includes some crimes which may, and some which may not, involve moral turpitude, an alien is not excludable or deportable on moral turpitude grounds unless the record of conviction itself demonstrates that the particular offense involved moral turpitude.” Matter of L-V-C-, Int. Dec. 3382 (BIA 1999)(citing cases); Matter of Sweetser, Int. Dec. 3390 (BIA 1999). In this case, the Arizona shoplifting statute at issue is divisible. The records of conviction do not clearly establish that Respondent had a permanent intent to deprive, and his alleged convictions for shoplifting cannot be considered offenses involving moral turpitude. The INS has not met its burden to prove their charge of removability under the INA § 237(a)(2)(A)(ii), and Respondent’s case should be terminated.

[i][i] While the offense of shoplifting cannot be considered theft under immigration precedent, it is also not a theft under Arizona law. The elements of shoplifting in Arizona are distinctly different from the elements of theft. See A.R.S. 13-1802, 1801(a) and A.R.S. 13-1805. The Arizona shoplifting statute is not a lesser included crime of theft under the revised criminal code, and was not a lesser included crime of larceny under the prior criminal code. See, State of Arizona v. Robinson, 128 Ariz. 145 (Ct. App. Div. 2 1980)(shoplifting cannot be a lesser included crime of theft because theft can be committed without committing the crime of shoplifting); State of Arizona v. White, 118 Ariz. 279 (Ct. App. Div. 2 1978)(shoplifting statute creates a separate and distinct offense from larceny under prior criminal code). See also, State of Arizona v. Embree, 130 Ariz. 64 (Ct. App. Div 2 1981)(shoplifting is not a lesser included crime of burglary).

[ii][ii] This brief was prepared by Melynda H. Barnhart, a legal intern for the Florence Immigrant and Refugee Rights Project, under the supervision of Elizabeth Dallam.