Cornejo-Villagrana v. Sessions

• Decision Date: 14 September 2017
• Docket Number: No. 13-72185.,13-72185.
• Citation: 870 F.3d 1099
• Parties: Jose Antonio CORNEJO–VILLAGRANA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

870 F.3d 1099

Jose Antonio CORNEJO–VILLAGRANA, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 13-72185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2017—San Francisco, California

Filed September 14, 2017

Benjamin Wiesinger (argued) and John M. Pope, Pope & Associates P.C., Phoenix, Arizona, for Petitioner.

Corey L. Farrell (argued), Attorney; Terri J. Scadron, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Andrew J. Kleinfeld and Kim McLane Wardlaw, Circuit Judges, and Rosanna Malouf Peterson,^* District Judge.

OPINION

PETERSON, District Judge:

Petitioner Jose Antonio Cornejo–Villagrana ("Cornejo") disputes that he is removable as a resident alien who committed a crime of domestic violence under the Immigration and Nationality Act ("INA") § 237(a)(2)(E), 8 U.S.C. § 1227(a)(2)(E).

Cornejo was convicted of misdemeanor domestic violence assault against his spouse under Arizona Revised Statutes ("Ariz. Rev. Stat.") §§ 13–1203 and 13–3601. The Board of Immigration Appeals ("BIA") adopted the Immigration Judge's ("IJ") reasoning that Petitioner was removable, finding that although categorically not a crime of violence, Cornejo's offense fit the federal generic definition of "crime of domestic violence" under the modified categorical approach.

We agree that Petitioner is removable on the basis of his class one misdemeanor domestic violence assault conviction under Arizona law.

I. FACTS AND PROCEDURAL HISTORY

Cornejo, a native and citizen of Mexico, entered the United States without inspection in 1994. On January 30, 2008, he adjusted his status to lawful permanent resident. On October 3, 2008, Cornejo pleaded guilty to "Assault—Domestic Violence Offense," a "Class 1 Misdemeanor" under Arizona law.

Cornejo had been charged with Aggravated Assault, a "Class 6 Felony and a Domestic Violence Offense," committed by knowingly touching his spouse "with the intent to injure, insult, or provoke" while "in violation of an order of protection. ..." However, Petitioner entered a guilty plea to "Count 2 (Amended) Assault, a Domestic Violence Offense Class 1 misdemeanor." There is no amended complaint in the administrative record.

In the plea transcript, Cornejo admitted that he and his wife were fighting, and that as she was "going down the hallway," he "either punched or pushed her in the back of the head ... with the intention to insult or provoke her ...." The superior court judge found that the factual basis supported Cornejo's admission to the class one misdemeanor domestic violence charge and accepted the plea. The superior court imposed a 12–month term of probation.

In December 2008, the Department of Homeland Security ("DHS") served Petitioner with a Notice to Appear, Form I–862 ("NTA"), in the Immigration Court in Eloy, Arizona. DHS alleged that Petitioner was removable under the INA as an alien who had committed a crime of domestic violence. 8 U.S.C. § 1227(a)(2)(E)(i). The NTA alleged that Cornejo was convicted of "a class 1 misdemeanor" domestic violence assault against his spouse, making him removable under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

The IJ initially terminated Petitioner's removal proceedings. DHS moved the BIA to remand the matter to the IJ, seeking an opportunity to provide the plea transcript that the agency had secured after the initial proceedings were terminated. The BIA granted the motion and remanded to the IJ in December 2010. In August 2012, the IJ determined that Cornejo's conviction qualified as a crime of domestic violence under the modified categorical approach and sustained the charge of removability.

On appeal, the BIA affirmed the IJ's determination that Cornejo was removable based on a crime of domestic violence and ineligible because of insufficient continuous presence for cancellation of removal pursuant to INA § 240A(a), 8 U.S.C. § 1229b(a). Cornejo timely petitioned for review. See 8 U.S.C. § 1252(b)(1).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252. We review questions of law de novo. See, e.g. , Ortega v. Holder , 747 F.3d 1133, 1134 (9th Cir. 2014). The IJ's or BIA's factual findings are reviewed for substantial evidence. See, e.g. , Quijada–Aguilar v. Lynch , 799 F.3d 1303, 1305 (9th Cir. 2015). With respect to the issue of removability, the BIA cited to Matter of Burbano , 20 I. & N. Dec. 872 (BIA 1994), and adopted and affirmed the IJ's decision in its entirety, so we review the IJ's decision directly. Tamang v. Holder , 598 F.3d 1083, 1088 (9th Cir. 2010). Because the BIA did not cite Burbano in affirming the IJ's determinations regarding any other issues, we review the BIA's decision with respect to Cornejo's eligibility for voluntary departure. See Mutuku v. Holder , 600 F.3d 1210, 1212 (9th Cir. 2010).

III. ANALYSIS

"Any alien who at any time after admission is convicted of a crime of domestic violence" may be deported. 8 U.S.C. § 1227(a)(2)(E)(i). For purposes of that ground of deportability, a "crime of domestic violence" is "any crime of violence (as defined in section 16 of title 18, United States Code ) against a person" who has one or more of the enumerated domestic relationships with the perpetrator, including being the perpetrator's spouse. Id. For a misdemeanor to qualify as a crime of violence under 18 U.S.C. § 16, the offense must have "as an element the use, attempted use, or threatened use of physical force against the person or property of another, ...." 18 U.S.C. § 16(a).

a. Categorical Analysis and Divisibility

Cornejo argues that his misdemeanor assault conviction does not support removability as a crime of domestic violence because it was not "violent in nature." Opening Brief of Petitioner at 10 (citing Ye v. INS , 214 F.3d 1128 (9th Cir. 2000) (holding that the force necessary to constitute a crime of violence under 18 U.S.C. § 16(b) must be violent in nature)). Moreover, Cornejo argues that his crime of conviction is overbroad as to 18 U.S.C. § 16.

Under the categorical approach prescribed by Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we must determine whether Ariz. Rev. Stat. § 13–1203 necessarily requires as an element "the use, attempted use, or the threatened use of physical force against the person or property of another," 18 U.S.C. § 16(a). We must consider whether the elements of the state offense align with, are narrower than, or are broader than the federal generic crime of domestic violence. See Rendon v. Holder , 764 F.3d 1077, 1082 (9th Cir. 2014). To accomplish that task, we look to the text of the state statute and to interpretations of the statute's terms by the state's courts. United States v. Strickland , 860 F.3d 1224, 1226–27 (9th Cir. 2017).

In Arizona, a person may commit misdemeanor assault by:

1. Intentionally, knowingly, or recklessly causing any physical injury to another person; or

2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to injure, insult, or provoke such person.

Ariz. Rev. Stat. § 13–1203(A). Subsection (A) must be read in conjunction with subsection (B), which says:

Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1 misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A, paragraph 3 is a class 3 misdemeanor.

Id. at § 13–1203(B).

Paragraph one contains two classes of misdemeanors: (1) a class one misdemeanor committed intentionally or knowingly; and (2) a class two misdemeanor committed recklessly. Ariz. Rev. Stat. § 13–1203(B). Paragraph two defines only a class two misdemeanor. Id. Paragraph three contains only a class three misdemeanor. Id .

Arizona law defines "intentionally" and "knowingly" as follows:

(a) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.

(b) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.

Id. at § 13–105(10)(a), (b). Arizona law defines "physical injury" as "impairment of physical condition." Id. at § 13–105(33).

Petitioner was convicted of an assault in a domestic violence context because the victim was his spouse. The domestic relationships enumerated under Arizona's domestic violence provision, Ariz. Rev. Stat. § 13–3601(A), are coextensive with the domestic relationships described in 8 U.S.C. § 1227(a)(2)(E)(i), the removal statute at issue.

The categorical approach does not apply here because the elements of the state offense are broader than the elements for the federal generic crime of domestic violence. A defendant may be convicted under Ariz. Rev. Stat. § 13–1203(A)(1) for "recklessly causing any physical injury to another person." We, however, have previously found that recklessly or negligently causing physical injury to another person under paragraph one of the Arizona statute was not a categorical crime of violence under 18 U.S.C. § 16(a), or by extension, a categorical crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(I). Fernandez–Ruiz v. Gonzales , 466 F.3d 1121, 1130–32 (9th Cir. 2006) (en banc); but see Voisine v. United States , ––– U.S. ––––, 136 S.Ct. 2272, 2280, 195 L.Ed.2d 736 (2016) (concluding that "a person who assaults another recklessly ‘uses' force no less than one who carries out that same action intentionally.").

To determine whether a modified...