This section has been intentionally left blank to allow for the inclusion of additional safe havens.  We welcome your suggestions, and will be happy to share them with others via future editions of this book and its monthly updates on http://www.CriminalAndImmigrationLaw.com.

Other

SAFE HAVEN - IDENTITY THEFT
ARS 13-2008: Taking Identity of Another Person or Entity, A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person's or entity's identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense. (emphasis added). The section does not apply to a violation of section 4-241 (purchase of alcohol) by a person who is under twenty-one years of age. The offense is a class 4 felony.      Summary. This offense is a good alternative to avoid a moral turpitude offense and an aggravated felony as theft, and possibly as fraud, as long as the record of conviction is sufficiently vague.      Crime Involving Moral Turpitude (CMT):  A very vague record of conviction may prevent this from being a CMT. The minimum conduct to violate the statute is that lawfully obtained information must be used without the other persons consent with the intent to use the identity for an unlawful purpose. For example, an 18-year-old might use his older brothers identification to get a job transporting liquor, in violation of A.R.S. 4-244, or a man might use a relatives identification to purchase an appliance without having his credit rating checked, where he intends to timely complete payment for the appliance.      Aggravated Felony: The best defense is to obtain a sentence of 364 days or less, and in particular to keep the record free of evidence that the loss to the victim exceeded $10,000. But even if that is not possible, counsel should be able to avoid an aggravated felony conviction under theft, and perhaps under fraud or deceit, if the record of conviction is kept clear of certain information. For that reason this may be a good substitute plea where the year or more than $10,000 loss cannot be avoided      Theft: A theft offense is an aggravated felony if a one-year sentence is imposed. 8 USC 1101(a)(43)(G). A sufficiently vague record of conviction can prevent a finding that the offense of conviction constituted "theft" for this purpose. The information itself need not be stolen, and the unlawful purpose of the crime could be a non-theft offense. See discussion in "crimes involving moral turpitude" above. For example, a person might use identifying information to which he had lawful access, but without the persons consent, in order to wrongly obtain someone elses services (theft of services is not "theft" as an aggravated felony; see discussion at ARS 13-1802) or for some other criminal purpose not involving theft. In that case even a sentence imposed of a year or more would not make the conviction an aggravated felony.      Fraud or Deceit if the Loss to the Victim Exceeds $10,000: An offense involving fraud or deceit is an aggravated felony if the record shows a loss to the victim of more than $10,000. 8 USC 1101(a)(43)(M)(i). Counsel should keep the record of conviction clear of evidence that the "criminal purpose" for which the information was to be used did not involve fraud or deceit. Although ARS 13-2008 does not explicitly list fraud or deceit as an element, DHS still might charge that deceit is inherent in the commission of the offense. With a vague record of conviction, immigration counsel can argue that to knowingly use someones information for an unlawful purpose without their consent does not necessarily involve the element of deceit.

CRIMES OF MORAL TURPITUDE - PETTY THEFT - CALIFORNIA - NO INTENT TO PERMANENTLY DEPRIVE -- SAFE HAVENS
Theft under California Penal Code 484 does not require in every case the intent to carry away or to deprive the owner of the property permanently. It therefore is not categorically a CMT. While CALJIC 14.02 states that theft by larceny under Penal Code 487 is committed by "every person who steals, takes, carries" . . . "with the specific intent to deprive the owner permanently of property," CALJIC 14.03 says the specific intent is satisfied "by either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily, but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment."

Thanks to Kathy Brady.

SAFE HAVEN - THEFT OF GOVERNMENT PROPERTY - DIVISIBLE STATUTE
The federal offence of theft of government property, in violation of 18 U.S.C. 641, is defined as follows:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted . . .

Under this divisible statute, it would be possible to dispose of government property or records without authorization but without fraudulent intent. This arguably would not constitute either aggravated felony theft or a crime of moral turpitude.