Fernandez-Ruiz v. Gonzales, No. 03-74533.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Bea
• Citation: 466 F.3d 1121
• Parties: Jose Roberto FERNANDEZ-RUIZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Docket Number: No. 03-74533.
• Decision Date: 26 October 2006

466 F.3d 1121 Jose Roberto FERNANDEZ-RUIZ, Petitioner,
v.
Alberto R. GONZALES, Attorney General, Respondent. No. 03-74533. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 21, 2006. Filed October 26, 2006.

[466 F.3d 1122]

Erica K. Rocush, Snell & Wilmer L.L.P., Tucson, AZ, for the petitioner-appellant.

Peter D. Keisler, Assistant Attorney General; Donald E. Keener, Deputy Director; John Andre, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

[466 F.3d 1123]

Lynn Marcus, Immigration Law Clinic, Rogers College of Law, University of Arizona, Tucson, AZ; Vicky Dobrin and Hilary Han, Dobrin & Han, PC, Seattle, WA; Lory Diana Rosenberg, Immigration Defense & Expert Assistance Consultation and Training, Rockville, MD, for the amici.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before MARY M. SCHROEDER, Chief Judge, STEPHEN REINHARDT, ALEX KOZINSKI, JOHN T. NOONAN, DIARMUID F. O'SCANNLAIN, MICHAEL DALY HAWKINS, KIM McLANE WARDLAW, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge, joined by Chief Judge SCHROEDER, Judges REINHARDT, NOONAN, HAWKINS, CLIFTON.

This case calls upon us to decide whether the petitioner's 2003 Arizona conviction for domestic violence was a "crime of domestic violence" under a federal statute that triggers removal of a legally admitted resident alien from this country. The federal statute, as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply. Accordingly, the petitioner is not removable for his 2003 Arizona conviction and we return the case to the original three-judge panel to decide whether he is removable on other grounds.

I. Factual and Procedural Background

Jose Roberto Fernandez-Ruiz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' (BIA's) order affirming an immigration judge's (IJ's) decision to rescind his lawful permanent resident status, remove him from the United States, and deny him any relief from removal.

Fernandez-Ruiz was admitted into the United States as a lawful permanent resident on October 26, 1990. Thereafter, he committed several crimes, three of which are relevant to his petition for review.

In 1992, Fernandez-Ruiz was convicted of "theft by control of property" in violation of Arizona Revised Statutes § 13-1802(A)(1) & (C). For this offense, his initial sentence was two years' probation. He later violated the conditions of his probation and was sentenced to sixty days in jail. For a second probation violation, he was sentenced to jail for "twelve months at half time."

In both 2002 and 2003, Fernandez-Ruiz was convicted of "domestic violence/assault" in violation of Arizona Revised Statutes §§ 13-1203 and 13-3601. For the 2002 conviction, Fernandez-Ruiz was sentenced to thirty days in jail, suspended should he properly perform probation for fifteen months. From this sentence, we infer his offense constituted a "class three" misdemeanor.¹ The offense underlying Fernandez-Ruiz's 2003 conviction, by contrast, was a "class two" misdemeanor.

On the basis of these convictions, the Department of Homeland Security (DHS) initiated removal proceedings. As

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grounds for removal, the DHS charged that Fernandez-Ruiz had post-admission convictions for a crime of domestic violence (the 2003 conviction now at issue), two crimes involving moral turpitude (the 2002 and 2003 convictions), and an aggravated felony (the theft by control of property conviction).

An IJ sustained all three charges of removal, deemed Fernandez-Ruiz ineligible to apply for a discretionary waiver of deportation, and denied cancellation of removal. In a two-page, per curiam opinion, the BIA adopted and affirmed the decision of the IJ.

A three-judge panel of our court denied Fernandez-Ruiz's petition for review. See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 588 (9th Cir.2005). As a threshold matter, the panel held our court had jurisdiction over the case. See id. at 587. The panel went on to hold that Fernandez-Ruiz's class two misdemeanor domestic violence offense constituted a crime of violence under 18 U.S.C. § 16(a) and rendered him removable under 8 U.S.C. § 1227(a)(2)(E)(i). See Fernandez-Ruiz, 410 F.3d at 588.² Because his conviction occurred in 2003, after the 1996 repeal of 8 U.S.C. § 1182(c), Fernandez-Ruiz was ineligible to apply for a discretionary waiver of deportation. Fernandez-Ruiz, 410 F.3d at 588. Because his theft by control of property offense was an aggravated felony, he was ineligible for cancellation of removal. Id.

We ordered rehearing en banc to resolve an inter- and intra-circuit conflict as to whether, under Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), crimes involving the merely reckless use of force can be crimes of violence. See Fernandez-Ruiz v. Gonzales, 431 F.3d 1212, 1212 (9th Cir.2005).³

II. Jurisdiction

We adopt the portion of the panel's opinion addressing the government's claim that, under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to consider Fernandez-Ruiz's petition. See Fernandez-Ruiz, 410 F.3d at 586-87. As the panel explained, under section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, "we are no longer barred by § 1252(a)(2)(C) from reviewing Fernandez-Ruiz's petition on account of his past convictions." Fernandez-Ruiz, 410 F.3d at 587.

III. Crime of Domestic Violence: Categorical Analysis

The government claims Fernandez-Ruiz's 2003 misdemeanor domestic violence conviction subjected him to removal under 8 U.S.C. § 1227(a)(2)(E)(i), which permits the deportation of "[a]ny alien who at any time after admission is convicted of a crime of domestic violence."⁴ In this context, a "crime of domestic violence" is "any crime of violence (as defined in section 16 of Title 18) against a person" who

466 F.3d 1125

has one of several enumerated domestic relationships with the perpetrator. Id.

To determine whether Fernandez-Ruiz's state law domestic violence offense meets the Immigration and Nationality Act's definition of a crime of domestic violence, we begin by applying the "categorical approach" laid out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221-22 (9th Cir. 2004) (applying the categorical approach to determine whether mayhem under California law was a crime of violence under 18 U.S.C. § 16). Under this approach, without regard to the particular facts of Fernandez-Ruiz's offense—and looking beyond the Arizona statutes' title for the offense—we must ask whether the "full range of conduct" proscribed by the statutes under which Fernandez-Ruiz was convicted meets the definition of a crime of domestic violence. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (quoting United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir.1994)); see Leocal, 543 U.S. at 7, 125 S.Ct. 377 (explaining that the language of 18 U.S.C. § 16 requires "look[ing] to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [a] petitioner's crime"). Interpreting the definition of a crime of domestic violence requires us to consider the "ordinary, contemporary, and common meaning of the language Congress used in defining" a crime of violence. Ruiz-Morales, 361 F.3d at 1222 (quoting United States v. Trinidad-Aquino, 259 F.3d 1140, 1144 (9th Cir.2001)); see Leocal, 543 U.S. at 9, 125 S.Ct. 377 ("When interpreting a statute, we must give words their `ordinary or natural' meaning." (quoting Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993))).

Of the two statutes under which Fernandez-Ruiz was convicted, only the assault statute requires in-depth analysis. See Ariz.Rev.Stat. § 13-1203.⁵ Both parties agree the specific focus of our analysis must be whether the offense defined in Arizona Revised Statutes § 13-1203(A)(1) is a crime of violence under 18 U.S.C. § 16(a).⁶ The state statute reads: "A person commits assault by ... [i]ntentionally, knowingly or recklessly causing any physical injury to another person." Ariz.Rev. Stat. § 13-1203(A)(1) (emphasis added).

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The federal statute defines a crime of violence as "an offense that has 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). Thus, the determinative question is whether "recklessly causing ... physical injury to another person," Ariz.Rev.Stat. § 13-1203(A)(1), necessarily involves the "use of physical force against the person ... of another," 18 U.S.C. § 16(a).⁷

A. Existing Ninth Circuit Precedent

Until recently, it was well established in this circuit that crimes involving the reckless use of force could be crimes of violence. For example, in United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000), we interpreted the very statute at issue here and concluded it satisfied 18 U.S.C. § 16(a):

A conviction under § 13-1203(A)(1) may be based on reckless conduct, which Ceron-Sanchez argues does not constitute violent conduct. However, in order to support a conviction under § 13-1203(A)(1), the reckless conduct must have caused actual physical injury to another person. Therefore, the use of physical force is a required element of § 13-1203(A)(1).

Ceron-Sanchez, 222 F.3d at 1172-73.

We held that crimes of recklessness could be...