Lead Opinion
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,
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.
On the basis of these convictions, the Department of Homeland Security (DHS) initiated removal proceedings. As
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,
We ordered rehearing en banc to resolve an inter- and intra-circuit conflict as to whether, under Leocal v. Ashcroft,
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,
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)®, which permits the deportation of “[a]ny alien who at any time after admission is convicted of a crime of domestic violence.”
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,
Of the two statutes under which Fernandez-Ruiz was convicted, only the assault statute requires in-depth analysis. See Ariz.Rev.Stat. § 13-1203.
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,
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,
We held that crimes of recklessness could be crimes of violence even though we recognized there is an element of volition inherent in 18 U.S.C. § 16(a)’s requirement that an offender “use” physical force “against” another person. See United States v. Trinidad-Aquino,
Recently, however, we cast doubt on our cases distinguishing recklessness and criminal negligence from simple negligence. In Lara-Cazares v. Gonzales,
We reversed on the basis of Leocal. Id. at 1222. In Leocal, the Supreme Court held that driving under the influence of alcohol (DUI) cannot be a crime of violence if the statute defining the offense “reach[es] individuals who were negligent or less.”
Nonetheless, shortly after deciding Lara-Cazares, we relied on Cerorir-Sanchez to hold a crime of recklessness— second-degree assault under Washington law — a categorical crime of violence. See United States v. Hermoso-Garcia,
Because our existing precedent is inconsistent, we must examine the reasoning of Leocal to decide the present case.
B. Leocal
1. Reasoning of Leocal
In determining that DUI offenses requiring a mens rea of mere negligence or less cannot be “shoehorn[ed]” into the federal definition of a crime of violence, Leocal,
As further support for the conclusion that 18 U.S.C. § 16 does not reach merely accidental offenses, the Court looked to the ordinary meaning of the term “crime of violence.” See Leocal,
The Court also remarked that, because courts must interpret 18 U.S.C. § 16 consistently in both criminal and noneriminal cases, the rule of lenity applies. Leocal, 543 U.S. at 11 n. 8,
2. Recent Interpretations of Leocal
Although the Court in Leocal expressly reserved the question whether crimes of violence can include offenses involving the reckless use of force, see id. at 384, two of our sister circuits have interpreted the reasoning of Leocal to place such offenses beyond the reach of 18 U.S.C. § 16.
In Bejarano-Urrutia v. Gonzales,
[T]he conclusion of the Leocal Court that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of operating a vehicle while intoxicated and causing injury” strongly indicates that the result in Leo-cal would have been the same even had a violation of the statute there at issue required recklessness rather than mere negligence.
Id. (citation omitted). Applying this reading of Leocal, the Fourth Circuit granted the petition for review. Id.
The Third Circuit has on three occasions endorsed a similar reading of Leocal— beginning with Tran v. Gonzales,
In concluding that mere recklessness was insufficient under such a standard, the Tran court expressly disagreed with our decision in Trinidad-Aquino. Id. Trinidad-Aquino, the court suggested, could not be reconciled with the Supreme Court’s emphasis in Leocal that “ ‘use’ requires active employment.” Id. (quoting Leocal,
The Third Circuit reaffirmed its interpretation of Leocal in another immigration case, Popal v. Gonzales,
A Senate Report discussing the crime of violence definition now codified at 18 U.S.C. § 16(a) suggested this definition “would include a threatened or attempted simple assault or battery on another person.” S.Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487. In reference to this suggestion, the Popal court stated:
We acknowledge that the legislative history of § 16(a) provides some support for the government’s theory that that section encompasses simple assault. Nonetheless, we do not think that this*1129 legislative history undermines our conclusion [that simple assault committed recklessly is not a crime of violence]. Instead, we think it likely that, when the drafters of § 16 mentioned simple assault as an exemplary crime of violence, they had in mind traditional common-law simple assault, defined as a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” The common law thus required ‘wilfullness,’ i.e., intent, in order to find a defendant guilty of simple assault. It is entirely plausible that this definition might have been Congress’s referent in discussing § 16(a).
Popal,
Finally, and perhaps most persuasively, the Third Circuit interpreted the reasoning of Leocal to reach crimes of recklessness in Oyebanji v. Gonzales,
The term “accidental,” the court explained, “is most often used to describe events that did not ‘occur [ ] as a result of anyone’s purposeful act.’ ” Id. at 264 (quoting Black’s Law Dictionary 16 (8th ed.2004)) (alteration in original). As such, even though New Jersey’s definition of recklessness involved conscious disregard of a substantial and unjustifiable risk, the reckless use of force was not sufficiently “intentional” to prevent an offense from being accidental. See id. (“[W]e cannot overlook the Court’s repeated statement that ‘accidental’ conduct (which would seem to include reckless conduct) is not enough to qualify as a crime of violence.” (emphasis added)).
As in Popal, the court in Oyebanji acknowledged that “reasonable arguments can be made in support of the proposition that” crimes of recklessness may be crimes of violence. Id. Nonetheless, the court interpreted Leocal to foreclose such arguments — at least at the circuit court level. See id. (“We recognize that there are plausible grounds for distinguishing Leocal and that reasonable arguments can be made in support of the proposition that Oyebanji’s offense of conviction should be viewed as a crime of violence. But as a lower federal court, we are advised to follow the Supreme Court’s ‘considered dicta.’ ”) (citation omitted).
3. Teachings of Leocal
We agree with our sister circuits that the reasoning of Leocal — which merely holds that using force negligently or less is not a crime of violence — extends to crimes involving the reckless use of force.
Citing with approval our holding in Trinidad-Aquino that crimes of violence must have a volitional element and so cannot include crimes of negligence, the Leo-cal Court went a step further: the Court not only endorsed the position that crimes of violence must be volitional but also repeatedly emphasized that such crimes cannot be “accidental.” See Leocal,
Contrary to the dissent, for purposes of 18 U.S.C. § 16, we see no “important differences between negligence and recklessness.” See Dissent Op. at 17890. To the extent recklessness differs from criminal negligence, “[t]he difference between them is that criminal negligence requires only a failure to perceive a risk, as compared to the recklessness requirement of an awareness and conscious disregard of the risk.” In re William G.,
As the Court suggested in Leocal — and as illustrated by considering the full range of conduct proscribed by Arizona Revised Statutes § 13-1203(A)(1) — any other conclusion would “blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Leocal,
IV. Crime of Domestic Violence: Modified Categorical Analysis
When a petitioner’s state statute of conviction does not define a categorical crime of violence, we apply a “modified categorical approach.” See Penuliar v. Gonzales,
Here, with respect to Fernandez-Ruiz’s 2003 misdemeanor domestic violence conviction, the record contains three documents relevant to our modified categorical assessment: the complaint, the judgment, and a pro forma plea agreement. The government concedes, as it must, that none of these documents demonstrates that Fernandez-Ruiz’s conviction was based upon an admission, or any other proof, that he used force “intentionally” or “knowingly,” as opposed to “recklessly.” Ariz.Rev.Stat. § 13-1203(A)(1). Accordingly, on the record now before us, we cannot conclude under the modified categorical approach that Fernandez-Ruiz committed a crime of violence or, by extension, a crime of domestic violence as defined by federal law.
Although the government concedes we cannot now reach such a conclusion, it asks us to defer applying the modified categorical approach and instead remand this case to the BIA for further development of the record. As support for its request, the government supplies only a cursory citation to INS v. Ventura,
Ventura involved the asylum application of Orlando Ventura, a citizen of Guatemala. Id. at 14,
The Supreme Court reversed our decision not to remand. Id. at 18,
Neither of the Ventura Court’s principal reasons for deciding we should have applied the ordinary remand rule applies in the present case. First, whereas the State Department report at issue in Ventura was “ambiguous,” id. at 17,
Moreover, the “basic considerations” of administrative law that favored a remand in Ventura do not apply with equal force here. Unlike Ventura, the present case does not involve an issue the law commits to the agency’s expertise. See, e.g., Oyebanji,
Our conclusion that Ventura does not apply in the present case is consistent with Notash v. Gonzales,
Admittedly, Notash is not perfectly analogous to the present case. At the time of the agency proceedings in Notash, there was no Ninth Circuit precedent establishing that the petitioner’s statute of conviction defined a categorical crime involving moral turpitude. See id. at 698 (explaining that the agency had based its decision on Supreme Court and agency precedent, not Ninth Circuit precedent). By contrast, when Fernandez-Ruiz’s agency proceedings took place in 2003, it was a matter of settled law in our circuit that violations of his statute of conviction, Arizona Revised Statutes § 13 — 1203(A)(1), were categorical crimes of violence. See Ceron-Sanchez,
In light of Ceron-Sanchez, we can imagine an argument that, at the time of Fernandez-Ruiz’s agency proceedings, the government could not have anticipated the need to build a record supporting removal under the modified categorical approach. If the government relied on Ceron-Sanchez when determining what documents to introduce before the agency, our decision to overrule Ceron-Sanchez could at least
We need not now decide whether changes in our law may ever justify remanding a case for further development of the administrative record because the government has not argued that, in reliance on Ceron-Sanchez, it failed to anticipate the necessity of introducing documents of conviction demonstrating Fernandez-Ruiz’s offense was a crime of domestic violence under the modified categorical approach. We consider the government’s reticence significant, but predictable: the record includes evidence suggesting the government did recognize the need to present documents of conviction in case it lost under the categorical approach. Beyond the bare-bones documents needed to show Fernandez-Ruiz had a prior conviction' — -the complaint and the judgment — the government presented the agency with Fernandez-Ruiz’s plea agreement. On these facts, new developments in the law do not warrant a remand.
In sum, even under the modified categorical approach, Fernandez-Ruiz’s 2003 conviction under Arizona Revised Statutes §§ 13-1203 and 13-3601 for misdemeanor domestic violence assault is not a crime of violence as defined by 18 U.S.C. § 16(a). Accordingly, taken alone, the subject conviction cannot justify his removal. See 8 U.S.C. § 1227(a)(2)(E)®.
V. Remedy
Our decision that Fernandez-Ruiz is not removable under 8 U.S.C. § 1227(a)(2)(E)® necessitates consideration of issues the panel did not decide. See Fernandez-Ruiz,
RETURNED TO THE PANEL FOR THE ISSUANCE OF AN OPINION REGARDING THE REMAINING ISSUES.
Notes
. Arizona law designates three classes of misdemeanors. See Ariz.Rev.Stat. § 13-707(A). Class three is the least serious, punishable by a maximum of thirty days’ imprisonment. See id.
. Holding Fernandez-Ruiz removable on this ground obviated the panel’s need to address whether he was also removable because his domestic violence offenses were crimes involving moral turpitude or because his theft by control of property offense was an aggravated felony. See Fernandez-Ruiz v. Gonzales,
. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. Fernandez-Ruiz v. Gonzales,
.The government does not now argue that Fernandez-Ruiz's 2002 misdemeanor domestic violence conviction met these requirements.
. The other statute simply provides that, when the perpetrator of an assault has one of several domestic relationships with the victim, the assault constitutes a state law crime of domestic violence. See Ariz.Rev.Stat. § 13-3601(A). All of the relationships covered under the state statute are covered under the Immigration and Nationality Act. See 8 U.S.C. § 1227(a)(2)(E)(i) ("[T]he term 'crime of domestic violence’ means any crime of violence ... by any ... individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State....”).
. As a class two misdemeanor, Fernandez-Ruiz’s 2003 domestic violence conviction could have been under either Arizona Revised Statutes § 13 — 1203(A)(1) or (A)(2). See id. § 13-1203(B). The documents of conviction do not reveal whether Fernandez-Ruiz was charged and convicted under one or both of these provisions. As already explained, however, Fernandez-Ruiz committed a categorical crime of violence only if the "full range of conduct” for which he could have been convicted meets the requirements of 18 U.S.C. § 16. United States v. Baron-Medina,
. Our standard of review is de novo. See Singh v. Ashcroft,
. In so doing, these circuits joined three other circuits that, even before Leocal, restricted the category of crimes of violence under 18 U.S.C. § 16 to crimes requiring specific intent to use force against a person or property. See Jobson v. Ashcroft,
. The statute was nearly identical to the one at issue here. It provided, "A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another....'' 18 Pa. Cons. Stat. § 2701(a).
. The dissent calls the above hypotheticals "absurd." Dissent Op. at 1138-39. However, our example of running a stop sign is similar to actual cases where a defendant has been convicted of aggravated assault. See State v. Miles,
The dissent leads its argument with the trenchant phrase "[m]en do not beat their wives by accident.” Dissent Op. at 1142. Ti'ue. But the terms of Arizona Revised Statutes § 13-3601(A) do not require, and the judicially noticeable documents in the record do not prove, that Fernandez-Ruiz beat his wife. Rather, whether our record shows a conviction under such a statute requires a beating, and whether the documents of conviction show a beating took place, are the precise issues before us. Instead of looking to the record, the dissent would infer that wife-beating took place from the "trust and related vulnerability that characterize domestic relationships.” Dissent Op. at 1137-38. The dissent does not explain how, within the confines of Taylor, the perpetrator's mere domestic relationship to the victim proves that he intentionally used force against her. The statute's title is not enough. See Baron-Medina,
Further, it is a commonplace of the criminal law that the confidential relationship that exists between the perpetrator and the victim cannot supply the proof of the requisite element of the mens rea with which an act was done. Were a husband to take his wife's car without her consent, the "trust and vulnerability” of the wife would not automatically supply the proof of the husband's intent permanently to deprive her of possession of the car, so as to convert misdemeanor joy-riding into felony car theft.
. The dissent relies on the Senate Judiciary Committee Report accompanying the enactment of the Comprehensive Crime Control Act of 1984. See Dissent Op. at 1141-42 (citing S.Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87). This report cites "battery” as an example of a crime of violence within the meaning of § 16(a). See S.Rep. No. 98-225, at 307 & n. 12. Since battery as defined by the Model Penal Code may be accomplished through recklessness, the dissent asserts that Congress intended § 16 to include reckless conduct. See Dissent Op. at 1142-43.
Since the statutory language is clear, we need not look to a report issued by one chamber of Congress as evidence of the statute's meaning. See Intel Corp. v. Advanced Micro Devices, Inc.,
Even if we do consider the legislative history, it is far from clear that Congress intended § 16(a) to reach reckless conduct. The Senate Report cites 18 U.S.C. § 113(d) (1976) in a footnote to the term "battery.” See S.Rep. No. 98-225, at 307 n. 12. Presumably, the Committee had § 113(d) in mind when it referred to battery. Yet, at least at the time of § 16's enactment, § 113(d) was a "general intent” crime. See United States v. Knife,
Concurrence Opinion
concurring in part, dissenting in part:
I agree that the government hasn’t shown Fernandez-Ruiz committed a crime of domestic violence under 18 U.S.C. § 16(a) on this record. I reach this conclusion substantially for the reasons stated in the majority opinion, and because I would not lightly disregard the view of five other circuits that have considered the issue. See Tran v. Gonzales,
However, I cannot agree with the majority’s refusal to send the case back to the BIA for reconsideration in light of our opinion. The government presented its case both to the IJ and the BIA when our caselaw was controlled by United States v. Ceron-Sanchez,
I realize that INS v. Ventura,
Having twice been summarily reversed for failing to remand to this very agency, I would tread especially lightly in this area. Discretion, in this case, is not only the better part of valor, but the better part of justice as well.
Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a “crime of domestic violence” for purposes of a federal immigration law. The majority’s hypertechnical analysis stretches the Taylor v. United States,
I
On January 13, 2003, Jose Roberto Fernandez-Ruiz, a native and citizen of Mexico and a lawful permanent resident of the United States, pled guilty in Arizona state court to misdemeanor domestic violence/disorderly conduct and misdemeanor domestic violence/assault. He was sentenced to six months in jail and three years of probation. Fernandez-Ruiz had previously been convicted of theft and domestic violence/assault and had twice violated his probation. His 2003 domestic violence/assault conviction, designated a class two misdemeanor, establishes that he violated either subsection (1) or (2) of Arizona Revised Statute (A.R.S.) § 13-1203(A), which states in relevant part:
A person commits 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....
Because the record of conviction states that Fernandez-Ruiz committed a domestic violence offense, he must have been in a domestic relationship with his victim, as defined by A.R.S. § 13-3601(A):
“Domestic violence” means any act which is a dangerous crime against children as defined in § 13-604.01 or an offense defined in [any one of twenty Arizona statutes, including § 13-1203], if any of the following applies:
1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
*1137 2. The victim and the defendant have a child in common.
3. The victim or the defendant is pregnant by the other party.
4. The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
In March 2003, the Immigration and Naturalization Service sought to deport Fernandez-Ruiz for committing a crime of domestic violence. Under 8 U.S.C. § 1227(a)(2)(E)®,
Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
Eighteen U.S.C. § 16(a) in turn defines a misdemeanor “crime of violence” as: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
Relying on our decision in United States v. Ceron-Sanchez,
II
Common sense, statutory language, and precedent all compel the conclusion that Fernandez-Ruiz’s domestic violence conviction necessarily involved the use of physical force against the person of another and was therefore a crime of violence under 18 U.S.C. § 16(a) and a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)®.
A
Notwithstanding the majority’s attempt to erase the identity of Fernandez-Ruiz’s victim and treat his crime as a simple assault, Fernandez-Ruiz was convicted for “domestic violence/assault,” and the victim was Fernandez-Ruiz’s girlfriend and the mother of his daughter. The relationship between Fernandez-Ruiz and his victim cannot be dismissed as irrelevant; it is an element of his crime, and under Leocal we are required “to look to the elements and the nature of the offense of convic
The majority’s facile elision gives short shrift to Arizona’s requirement that the victim be related to the perpetrator; the very existence of a separate statutory species of assault aimed at domestic violence demonstrates that the additional element of relationship is significant to the nature of the crime. One owes a special duty of care toward one’s spouse and child, arising from the trust and related vulnerability that characterize domestic relationships. See Grageda v. INS,
It is precisely the vulnerability of those in domestic relationships, particularly women and children, that led Congress to enact 8 U.S.C. § 1227(a)(2)(E)®, which is designed to protect victims and punish perpetrators of domestic violence. As Senator Robert Dole stated upon introducing the original version of the language that now appears at 8 U.S.C. § 1227(a)(2)(E)®:
[O]ur society will not tolerate crimes against women and children.... Nor should we have to wait for that last violent act. When someone is an alien and has already shown a predisposition toward violence against women and children, we should get rid of them the first time.
142 Cong. Rec. S4058-02, S4059 (1996) (statement of Sen. Dole); see also Violence Against Women Act of 1994, Pub.L. No. 103-322, §§ 40001-40703, 1994 U.S.C.C.A.N. (108 Stat.) 1796, 1902-55, invalidated in part by United States v. Morrison,
The majority seeks refuge from the plain meaning of domestic violence in hypothetical suggesting that an Arizona domestic violenee/assault conviction is not necessarily a crime of domestic violence. For example, the majority asserts a wife and mother could be convicted of domestic violence under Arizona law for “recklessly running a stop sign and causing a traffic accident that injured her passenger-husband and child.” Maj. Op. 17869. This hypothetical is absurd. Under the Taylor categorical approach, we examine the full range of conduct encompassed by the statute at issue, e.g., Ceron-Sanchez,
Running a stop sign and causing a traffic accident with injury would not be prosecuted under the domestic violence law. Such conduct would almost certainly result in a traffic citation for — of all things— reckless driving. See A.R.S. § 28-693. Unsurprisingly, neither Fernandez-Ruiz nor the majority cite a single case in which Arizona has prosecuted conduct remotely like the proffered hypothetical as a domestic violence offense.
B
Even if Fernandez-Ruiz had been convicted of assaulting a stranger, as the majority would have us believe, he would still be deportable under 8 U.S.C.
In Ceron-Sanchez, we held that a conviction under A.R.S. § 13-1203(A)(1) was categorically a “crime of violence” for purposes of 18 U.S.C. § 16(a), reasoning that reckless conduct that causes physical injury necessarily involves the use of physical force.
recklessness requires conscious disregard of a risk of a harm that the defendant is aware of — a volitional requirement absent in negligence. A volitional definition of “use ... against” encompasses conscious disregard of a potential physical impact on someone or something' — -it does not encompass non-volitional negligence as to that impact.
Leocal, which addressed a strict liability DUI offense, does not disturb our eonsistent precedent on this issue. The petitioner in Leocal violated a Florida statute making it a crime to operate a vehicle while under the influence and, “by reason of such operation, cause[ ] ... [sjerious bodily injury to another.” Fla. Stat. § 316.193(3)(c)(2). In determining that the conviction was not categorically a crime of violence for purposes of § 16(a), the Court noted that the Florida statute “does not require proof of any particular mental state” and emphasized that the
critical aspect of § 16(a) is that a crime of violence is one involving the “use ... of physical force against the person or property of another.” ... “[U]se” requires active employment. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use ... physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] ... physical force against” another by stumbling and falling into him.... The key phrase in § 16(a) ... most naturally suggests a higher degree of intent than negligent or merely accidental conduct.
Leocal,
The “bedrock principle” of Leocal is not, as the majority asserts, that “an offense must involve the intentional use of force” to be a crime of violence, Maj. Op. at 1132, but rather that merely accidental or negligent DUI crimes are not crimes of violence. It is unclear whether Leocal extends beyond DUI offenses, and, in any event, it explicitly left open “the question
Fernandez-Ruiz’s conviction necessarily involved an active employment of force. The minimum mens rea for a violation of A.R.S. § 13-1203(A)(1) is recklessness, which Arizona defines as,
with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.
A.R.S. § 13-105(9)(c). Fernandez-Ruiz therefore must have at least “consciously disregarded” the risk of physically injuring his girlfriend. Conscious disregard includes an element of volition: One must be aware of a substantial and unjustifiable risk and affirmatively choose to act notwithstanding that risk. See Trinidad-Aquino,
In holding that recklessness is not a sufficient mens rea for a crime of violence, the majority misreads Leocal. The majority asserts that because (1) Leocal holds that accidental conduct cannot be a crime of violence, see Leocal,
The fact that neither negligence nor recklessness is purposeful does not mean that they are identical, or that recklessness, like negligence, necessarily falls outside the scope of § 16(a). Recklessness is a distinct mens rea, which lies closer to
Because the plain language of § 16(a) is clear, the rule of lenity does not apply, see Lisbey v. Gonzales,
Wayne R. LaFave, Substantive Criminal Law § 16.2 (2d ed.2003) (similar). A violation of the Arizona statute at issue, which incorporates the Model Penal Code’s definition of battery, see A.R.S. § 13-1203(A); State v. Mathews,
C
After mistakenly concluding that Fernandez-Ruiz’s conviction was not cate
In light of the new rule the majority announces, the proper course is to remand to the BIA so that it may apply the modified categorical approach in the first instance. See Gonzales v. Thomas, — U.S. -,----,
* * * *
Consistent with the plain language of 18 U.S.C. § 16(a), Congress’s intent, and our precedent, I would hold that a conviction under the Arizona statutes at issue here is categorically a crime of domestic violence.
. In lieu of domestic violence prosecutions the majority offers two cases in which assault convictions were upheld when automobile passengers were injured. See State v. Miles,
. Lara-Cazares v. Gonzales, in which we held that under Leocal a California conviction for gross vehicular manslaughter while intoxicated is not categorically a crime of violence, is inapposite both because it involved a DUI offense and because the statute at issue required only a mens rea of gross negligence.
. The majority also incorrectly relies on a discussion of recklessness in the context of § 16(b) to bolster its argument that force must be instrumental in the execution of the crime to qualify as ''use” under § 16(a). See Maj. Op. at 1130 (quoting Leocal,
. Section 211.1 is entitled “Assault” but incorporates the crime of battery. See 2 Am. Law Inst., Model Penal Code & Commentaries § 211.1 cmt.2, at 183-84 (1980).