Fernandez-Ruiz v. Gonzales

status, permanent resident remove him SCHROEDER, Before MARY M. Chief States, deny the United him REINHARDT, Judge, STEPHEN ALEX relief from removal. KOZINSKI, NOONAN, JOHN T. Fernandez-Ruiz was admitted into the O’SCANNLAIN, F. DIARMUID permanent United States as lawful resi- HAWKINS, MICHAEL DALY KIM Thereafter, dent on October he WARDLAW, R. McLANE RICHARD crimes, committed several three of which CLIFTON, BYBEE, JAY S. CONSUELO are relevant to his petition for review. CALLAHAN, BEA, T. M. and CARLOS Fernandez-Ruiz was convicted Judges. Circuit by of “theft control of viola- property” in BEA, joined Judge, by Chief Circuit tion of Arizona Revised Statutes 13- SCHROEDER, Judge Judges 1802(A)(1) (C). offense, & For this his REINHARDT, NOONAN, HAWKINS, was years’ probation. initial sentence two CLIFTON. pro- He later violated the conditions of his upon This case calls us to decide wheth- days bation and to sixty was sentenced in petitioner’s er 2003 Arizona conviction jail. violation, probation For a second he for domestic violence was a “crime of do- jail was sentenced to for “twelve months at mestic violence” under a federal statute half time.” triggers legally removal admitted In both 2002 and Fernandez-Ruiz resident alien from country. this The fed- was convicted “domestic violence/as- statute, interpreted by eral the Su- sault” violation of Arizona Revised Stat- preme Ashcroft, Court Leocal §§ utes 13-1203 and 13-3601. For the U.S. 160 L.Ed.2d 271 conviction, Fernandez-Ruiz sen- was (2004), only those involving covers crimes days jail, to thirty tenced suspended intentional conduct. Because the relevant properly perform probation should he Arizona permits statute conviction when a sentence, From this fifteen months. recklessly unintentionally defendant but infer his offense three” constituted “class another, causes injury and be- underlying misdemeanor.1 The offense petitioner’s cause the documents of convic- conviction, con- Fernandez-Ruiz’s 2003 prove intentionally tion do not he used trast, a “class two” misdemeanor. against another, we conclude the fed- convictions, On basis these apply. Accordingly, eral statute does not (DHS) petitioner Department Security is not of Homeland removable for his 2003 proceedings. Arizona conviction and we return the removal As case initiated designates thirty days’ imprisonment. 1. Arizona law three classes of mis- a maximum of 13-707(A). demeanors. See Ariz.Rev.Stat. See id. serious, punishable by Class three the least rehearing removal, ordered en banc resolve charged DHS We grounds for intra-circuit conflict as to an inter- and post-admission had that Fernandez-Ruiz whether, Ashcroft, 543 under Leocal v. for a crime domestic convictions (the issue), two 160 L.Ed.2d 271 now conviction (the (2004), involving merely reck involving turpitude moral crimes crimes convictions), aggravated can be of violence. and an use of force crimes and 2003 less (the control of felony theft See Fernandez-Ruiz (9th Cir.2005).3 conviction). 1212, 1212 all charges three An IJ sustained II. Jurisdiction removal, ineligi- Fernandez-Ruiz deemed discretionary adopt portion panel’s opin a of of the apply to for waiver We ble government’s addressing of re- ion claim and denied cancellation deportation, 1252(a)(2)(C), that, § per curiam under we two-page, opinion, moval. adopted jurisdiction and affirmed the lack to consider Fernandez- the BIA decision Fernandez-Ruiz, 410 See petition. the IJ. Ruiz’s panel explained, F.3d at 586-87. As the three-judge panel A of our court denied 106(a)(1)(A)(iii)of the REAL under section petition for Fernandez-Ruiz’s review. See 2005, 109-13, 119 ID Act of Pub.L. No. Gonzales, v. 410 F.3d Fernandez-Ruiz 231, by longer are no barred Stat. “we (9th Cir.2005). 585, 588 As threshold 1252(a)(2)(C) reviewing Fernan matter, panel juris held our court had petition past dez-Ruiz’s on account his at over the case. See id. 587. The diction Fernandez-Ruiz, convictions.” 410 F.3d panel went to hold that Fernandez- on at 587. class misdemeanor domestic vi Ruiz’s two crime olence offense constituted a of vio III. Crime of Domestic Violence: U.S.C. and ren lence 18 Categorical Analysis him under 8 dered removable U.S.C. 1227(a)(2)(E)®. Fernandez-Ruiz, government The claims Fernandez- F.3d at his Ruiz’s 2003 misdemeanor domestic vio- 410 588.2 Because conviction repeal subjected him to after the 1996 of 8 lence conviction removal occurred 1227(a)(2)(E)®, 1182(c), was ine under 8 which U.S.C. Fernandez-Ruiz U.S.C. discretionary permits deportation “[a]ny to alien who ligible apply for waiver Fernandez-Ruiz, time deportation. any 410 F.3d at after admission is convicted of his a crime of In this 588. Because theft control domestic violence.”4 context, felony, was an a “crime of domestic violence” is property aggravated offense (as ineligible “any of remov crime of defined in sec- he was cancellation violence 18) against person” 16 of Title who al. Id. tion Circuit, Holding except district of the Ninth Fernandez-Ruiz removable on this court panel’s ground obviated the need address adopted by the the extent en banc court. Fer- he also his Gonzales, whether was removable because v. 1212 431 F.3d nandez-Ruiz were crimes in domestic violence offenses (9th Cir.2005). volving turpitude theft moral or because his aggra control offense government argue 4.The does not now felony. vated See Fernandez-Ruiz 2002 misdemeanor domes- Fernandez-Ruiz's Cir.2005). (9th n. 2 410 F.3d 588 require- these tic conviction met ments. panel three-judge opinion not be shall precedent by or to this court or cited as

1125 conviction, nature of has one of enumerated domestic the offense of rather several Id. than to relationships perpetrator. particular relating with the facts to [a] crime”). petitioner’s the defi Interpreting Fernandez- To determine whether nition of a domestic violence re law domestic violence offense Ruiz’s state us to quires “ordinary, consider the con Immigration Nationality meets the temporary, meaning and common of the of a crime of domestic vio Act’s definition language Congress used in defining” a lence, begin by applying “categori Ruiz-Morales, crime of violence. approach” Taylor cal laid out in v. United F.3d at 1222 (quoting States v. United States, U.S. S.Ct. 1140,1144 Trinidad-Aquino, (1990). L.Ed.2d 607 See Ruiz-Morales v. Cir.2001)); see Ashcroft, Cir. (“When statute, interpreting 2004) categorical approach (applying give ‘ordinary we must words their mayhem determine under Califor whether natural’ meaning.” (quoting Smith Unit nia law was a crime of violence under 18 States, 223, 228, ed 16). approach, Under this with 2050,124 (1993))). L.Ed.2d 138 out regard particular to the facts of Fer looking offense—and be nandez-Ruiz’s Of the two statutes under which yond convicted, the Arizona statutes’ title for the Fernandez-Ruiz was only the must requires offense—we ask whether “full assault statute in-depth analysis. range proscribed by § of the stat conduct” par Ariz.Rev.Stat. 13-1203.5 Both agree utes under which Fernandez-Ruiz specific analysis was ties focus of our of a convicted meets definition crime of must be whether the offense defined 13-1203(A)(1) § domestic violence. United States v. Bar Arizona Revised Statutes (9th on-Medina, 187 F.3d 1146 Cir. ais crime of violence under 18 U.S.C. 1999) 16(a).6 Lomas, United (quoting § States 30 per The state statute “A reads: (9th Cir.1994)); F.3d 1193 see Leo commits ... [i]ntentionally, son assault cal, 7, 125 knowingly (explaining recklessly any physi S.Ct. 377 or causing § language injury of 18 person.” U.S.C. re cal to another Ariz.Rev. 13-1203(A)(1) quires “looking] added). § the elements and the (emphasis Stat. that, simply provides charged The other statute and convicted under one or both of perpetrator when the of an has assault one of provisions. already explained, these As how- relationships several domestic with the vic- ever, categori- Fernandez-Ruiz committed a tim, the a law assault constitutes state crime only range cal crime of if violence the "full of domestic violence. See Ariz.Rev.Stat. conduct” for which he could have been con- 13-3601(A). § relationships All of the cov- requirements victed meets the of 18 U.S.C. ered state statute covered under the are under Baron-Medina, § 16. United States v. Immigration Nationality and Act. See 8 (9th 1999) F.3d (quoting Cir. Unit- 1227(a)(2)(E)(i) ("[T]he § U.S.C. term 'crime Lomas, ed States v. any of domestic violence’ means crime of Thus, Cir.1994)). ultimately because we con- by any against violence ... ... individual proscribed by clude that not of the all conduct protected who is from individual’s 13-1203(A)(1) § Arizona Revised Statutes family acts domestic under violence, meets of a the definition crime of we State....”). laws of the United States or do not consider Arizona Statutes Revised 13-1203(A)(2). § Additionally, need we misdemeanor, 6. As a two class Fernandez- 16(b) § consider 18 U.S.C. because Fernan- Ruiz’s 2003 domestic violence conviction dez-Ruiz's assault convictions were both mis- could have been under Revised either Arizona 1203(A)(1) (A)(2). (defining demeanors. of vio- See id. Statutes See id. 13— lence, 13-1203(B). part, "any in relevant as other offense The documents of conviction ” added)). felony (emphasis do not reveal whether Fernandez-Ruiz was that is a disregard of a a crime of vio- risk harm that defines The federal statute “an that has an element is aware of.” Id. at 1146. On lence as offense defendant use, use, attempted or threatened use held that re- grounds, similar we offenses physical force negligence” quiring “criminal could be 16(a). of another.” 18 U.S.C. INS, 252 crimes of violence. See Park v. Thus, is wheth- question the determinative (9th Cir.2001). By F.3d ... causing physical injury er “recklessly contrast, simple we held crimes § 13- person,” to another Ariz.Rev.Stat. negligence the volitional element lacked 1203(A)(1),necessarily the “use of involves necessary for crimes of Trini- violence. person ... of 259 F.3d at 1145. dad-Aquino, 16(a).7 another,” however, Recently, we doubt our cast on distinguishing cases recklessness Ninth Precedent Existing A. Circuit negligence simple negli- criminal recently, it well established in Until gence. Lara-Cazares v. involving circuit the reck- this that crimes (9th Cir.2005), F.3d 1217 Mexican citizen of vio- of force could be crimes less use previously national had been convicted example, lence. For in United States vehicular gross California law Ceron-Sanchez, 222 Cir. intoxicated. manslaughter while Id. 2000), very interpreted statute at Although required this conviction here and concluded satisfied 18 issue culpability “gross minimum negligence,” 16(a): the underlying IJ found offense to have 13-1203(A)(1) may A conviction under been a crime violence under 18 U.S.C. conduct, based on reckless which § 16 and the ordered alien’s removal. argues does not consti- Ceron-Sanchez Lara-Cazares, F.3d at 1219. BIA 408 However, in order tute violent conduct. affirmed, citing our holding cases § support a under 13- to conviction negligence crimes of criminal and reckless- 1203(A)(1), the reckless conduct must ness could be crimes of violence. Id. injury have actual physical caused to Therefore, person. another the use of We on the of Id. reversed basis Leocal. required Leocal, is a of physical force element Supreme at 1222. Court 13-1203(A)(1). driving held that under the influence of (DUI) alcohol of cannot be crime violence Ceron-Sanchez, 222 F.3d at 1172-73. if defining statute offense of held that crimes recklessness We negligent individuals who were “reach[es] though of even could be crimes violence we 13, or less.” 543 U.S. 125 S.Ct. 377. is an of recognized there element volition argument Rejecting government’s 16(a)’s in require- inherent nothing analy- “that to our add[ed] Leocal physical ment that an offender “use” force in Trinidad-Aquino sis not ex- [did] “against” person. another See United negligence,” tend gross we held that Trinidad-Aquino, 259 States v. F.3d (9th Cir.2001). gross negligence “does not constitute the Our reasoning kind of force “requires employment against recklessness conscious active of statute, interpre- 7. of is de we do Our standard review novo. See not defer the BIA’s Ashcroft, Singh v. 386 provision.”); F.3d 1230 Singh, 386 tation of that F.3d Cir.2004); Oyebanji also see 418 ("We reject ... we 1230 assertion that (3d ("Because Cir.2005) F.3d 262 Attorney owe 'substantial deference' to the charged administering is not BIA with 18 interpretations general state and General's of special expertise U.S.C. 16 has re- no statutes.”). federal criminal interpretation garding that criminal

1127 [ie., requires actively another that Leocal for a crime of that a person employs uses] Lara-Cazares, 408 F.3d at violence.” person by another the facts of Lara-Cazares Although Thus, reasoned, accident.” Id. the Court in require did not us to discuss detail the 16(a)’s 18 requirement U.S.C. that force implications Leocal for crimes of crimi- used “against” someone or something recklessness, nal negligence conclud- suggested require that crimes of violence ed that abrogated holdings Leocal our “a higher degree negligent intent than Park 1222 and Ceron-Sanchez. See id. at or merely Leocal, accidental conduct.” (“To the extent our decision Park v. (emphasis U.S. at S.Ct. 377 INS, (9th Cir.2001), 252 F.3d 1018 and the added). cases cited[including there Ceron-San- support As further conclusion result, contrary support chez] we con- that 18 U.S.C. 16 does merely not reach good clude that are no they longer law offenses, accidental the Court looked to Leocal”). light of ordinary meaning of the term “crime Nonetheless, shortly deciding after Leocal, violence.” See 543 U.S. at Lara-Cazares, we relied on Cerorir-San- term, 125 S.Ct. 377. That the Court ob- chez to hold crime of recklessness— served, naturally suggests category second-degree assault Washington crimes more “violent” and than “active” law—a categorical crime of violence. See DUI offenses. Id. Hermoso-Garcia, United States that, The Court also remarked Cir.2005) J.). (Bea, interpret courts must 16 con- so, U.S.C. distinguish In doing we failed to Lara- sistently in both criminal and noneriminal Cazares or Leocal. See id. cases, of lenity applies. the rule existing precedent Because our is incon- at 11 n. Under sistent, reasoning we must examine rule, this whatever extent Leocal to the present decide case. § 16’s of a definitions B. Leocal lack clarity, courts should construe the ambiguous statutory language 1. Reasoning of Leocal Leocal, 8, government. 543 at 11 n. U.S. In determining that offenses DUI re 125 S.Ct. 377. quiring a rea of negligence mens mere or less cannot into be the fed “shoehorn[ed]” Interpretations 2. Recent Leocal of violence, eral definition of a crime of Leo Court in Although expressly the Leocal cal, 13, at 543 125 U.S. the reserved question the whether crimes of Supreme emphasized Court that 18 U.S.C. involving can include offenses the “ 16(a) ... of requires ‘use physical force, reckless see two use of id. at of force the person of ” interpreted our sister circuits have Leocal, another,’ 543 U.S. at reasoning place of Leocal such offenses 16(a)). 377 (quoting 18 U.S.C. Whereas beyond the reach of 18 16.8 U.S.C. “use,” alone, the word taken “in could the Gonzales, In Bejarano-Urrutia ory” employment connote accidental of force, (4th Cir.2005), say “much natural to F.3d 444 a and citi- would be less native (2d Ashcroft, doing, joined 8. In so these three circuits other Jobson v. 373-74 that, Leocal, Cir.2003); INS, Bazan-Reyes circuits even before restricted the F.3d (7th Cir.2001); category of crimes of violence under 18 610-11 United States v. Cha specific pa-Garza, requiring U.S.C. 16 to crimes F.3d intent Cir. against person property. to use force a See 2001). employment quires of an intentional for review petitioned zen of Mexico the United force, from some end.” Id. generally that he be removed to obtain order involuntary having added). committed States for (emphasis by driving intoxicated. Id. manslaughter concluding mere recklessness statute of conviction Virginia at 445. The standard, the under such a was insufficient life, human disregard for required reckless disagreed our expressly Tran court with disregard for necessarily reckless but not Id. Trini- Trinidad-Aquino. decision Id. at 447. force would be used. whether suggested, could the court dad-Aquino, Thus, required decide the court was the Supreme not be reconciled with requiring the reckless whether offenses “ emphasis in ‘use’ Court’s Leocal that force, disregard for a or reckless use of employment.” (quoting Id. requires active used, can might force be risk that (em- Leocal, at 125 S.Ct. 377 Nevertheless, id. crimes of violence. See added)). court phasis Accordingly, the controlling: the court deemed Leocal at granted for Id. petition Tran’s review. Leocal conclusion of the Court [T]he ‘ordinary no or natural’ sense that “[i]n having risks can it be said that Third inter- The Circuit reaffirmed its another ‘use’ pretation immigration of Leocal another in the operating course vehi- (3d case, Popal v. 416 F.3d 249 causing injury” cle intoxicated while Cir.2005). In offense at issue Popal, the that the result in Leo- strongly indicates Pennsylvania’s simple misdemeanor even had cal would have been same at The assault offense. Id. statute at there issue violation the statute culpability a minimum required conviction required rather than mere recklessness In granting of recklessness. Id. 254.9 negligence. review, Popal court petition for (citation omitted). Applying this read- Id. reasoning of Tran and both reaffirmed granted Fourth ing of Circuit rejected contrary argument on the based petition for review. Id. 16(a). history legislative Third has on Circuit three occasions Popal, F.3d at 254-55. reading endorsed similar Leocal— Report discussing A Senate Gonzales, 414 beginning with Tran v. violence definition now codified at 18 (3d Cir.2005). the peti- Tran involved suggested this definition tion review of a Vietnamese citizen for attempted “would include a threatened ordered removed the United States per- on simple battery assault or another convicted, having Pennsyl- been 98-225, (1983), S.Rep. son.” No. law, of “conspiracy vania to commit reck- 3487. reprinted 1984 U.S.C.C.A.N. burning less or Id. at 468. exploding.” Popal In reference to this suggestion, the began The Tran court its assessment of court stated: burning exploding whether reckless acknowledge legislative his- We that by citing dictionary violence tory provides support some An Id. at 470. definitions “use.” “obvi- government’s theory that for the that commonality” among ous these definitions encompasses simple section assault. was that “the'use’ of force means more force; Nonetheless, than the mere occurrence of it re- we do not think that this intentionally, knowingly nearly recklessly statute was identical to the one causes bodily provided, person guilty injury is 18 Pa. Cons. issue here. It "A another....'' (1) 2701(a). attempts to of assault if he: cause or Stat. our con- legislative history undermines recklessness involved conscious disregard risk, of a simple unjustifiable clusion assault committed substantial and [that not a crime of recklessly sufficiently violence]. reckless use of force was not Instead, that, likely think it when the “intentional” to prevent we an offense from (“[W]e simple being §of 16 mentioned as- accidental. drafters See id. cannot violence, exemplary repeated sault as an crime of overlook the Court’s statement (which that they had in mind traditional common- ‘accidental’ conduct would assault, conduct) as a crime simple law defined seem to include reckless is not attempt to enough qualify “committed either willful as a crime of violence.” added)). another, injury inflict upon (emphasis injury upon a threat to inflict Popal, As in the court in Oyebanji ac- which, coupled of another when knowledged that arguments “reasonable ability, with an apparent present causes can be made in support proposition of the a reasonable of immediate apprehension that” crimes of may recklessness be crimes bodily harm.” The common law thus Nonetheless, of violence. Id. the court ‘wilfullness,’ i.e., intent, required in or- interpreted Leocal to argu- foreclose such guilty simple der to find a defendant ments —at least at the circuit court level. entirely plausible assault. It is that this (“We recognize See id. that there are might Congress’s definition have been plausible grounds distinguishing Leocal 16(a). discussing § referent in and that arguments reasonable can be (citations n. Popal, 416 F.3d omit- in support made of the proposition ted). Oyebanji’s offense of conviction should be viewed as a crime of violence. But aas

Finally, perhaps persuasively, most court, lower federal are advised to fol- interpreted the Third Circuit the reason- Supreme low the Court’s dic- ‘considered ing Leocal to reach crimes of reckless- ”) (citation omitted). ta.’ in Oyebanji ness 418 F.3d 260 (3d Cir.2005). Oyebanji involved a Niger- Teachings of Leocal

ian citizen who faced removal for a New Jersey agree vehicular homicide conviction. Id. We with our sister circuits reasoning at 261-62. that the of Leocal—which mere The statute of conviction re- quired proof ly using negligently holds that or less of recklessness—defined part “consciously disregarding] is not a crime of violence—extends to a sub- unjustifiable stantial and risk that ma- of force. involving crimes the reckless use [a] terial element exists or will [of offense] Citing approval holding with our result conduct.” Id. at from[the actor’s] Trinidad-Aquino crimes of violence Ann. § n. 4 (quoting N.J. Stat. 2C:2- must have a so can volitional element and 2(3)). The court concluded that Leocal negligence, not include crimes of the Leo- primarily controlled LeocaVs step cal Court went a further: the Court repeated emphasis that crimes of violence only not position endorsed the crimes cannot be “accidental.” See id. at 263-64. of must also re be volitional but “accidental,”

The term the court ex- crimes can peatedly emphasized such plained, “is most often used to describe “accidental.” See 8-10, 377; that a of events did not ‘occur as result see also Lara- [ ] ” Cazares, anyone’s purposeful (quot- (rejecting act.’ Id. at 264 F.3d at 1221 408 (8th ing Dictionary argument Black’s Law 16 adds to nothing Leocal (alteration ed.2004)) such, As “Accidental” means original). Trinidad-Aquino). though Jersey’s having any even New definition of occurred as a result of “[n]ot 1130 physical use of force Law Dictio act.” Black’s purposeful

one’s in fail ed.2004). gross negligence another. Neither “Purposeful” nary disregard of nor conscious “[djone ing perceive, specific purpose with a means inju unjustifiable risk a and Id. at 1272. substantial mind; DELIBERATE.” defined, force is instrumen conduct, ry implies physical generally as Reckless crime, such as the (defining carrying out the id. at 1298 tal See purposeful. not “[cjonduct “use” denotes. whereby meaning the ac of the word plain as recklessness Leocal, 10, 125 S.Ct. 377 consequence 543 U.S. at desire See tor does not harmful (“The § possibility disregard 16 relates foresees reckless nonetheless but (emphasis possi the risk” or to the consciously general takes to the conduct and added)). clearly, reckless con a person’s Even more harm result from bility that will by Arizona law is not conduct, the use of duct as defined but to the risk § Ariz.Rev.Stat. 13- See in com purposeful. might required be 105(9)(c) as “con (defining crime.”). Therefore, recklessness neither a mitting and a sciously disregarding] substantial is a suf gross negligence nor recklessness that the result will occur unjustifiable risk that a convic ficient mens rea to establish exists,” pro and or that the circumstance § under tion is for a crime of violence a creates such viding who “[a] in Leocal—and suggested As the Court solely by unaware such risk risk but is by considering range the full as illustrated also acts voluntary intoxication reason of Arizona Revised proscribed by of conduct added)). Thus, the (emphasis recklessly” 13-1203(A)(1) any § other con- Statutes — of force is “accidental” and reckless use “blur the distinction between clusion would cannot be crimes of of recklessness crimes Congress sought the ‘violent’ crimes 264; Oyebanji, 418 F.3d violence. See distinguish heightened punishment for Tran, at 470-71. Leocal, 543 U.S. at other crimes.” dissent, language of Arizona 377. Under the Contrary pur to the S.Ct. 13-1203(A)(1), § a wife “impor no Revised Statutes we see poses mother could be convicted of assault negligence and and tant differences between under Arizona law and domestic violence Op. Dissent at 17890. See recklessness.” recklessly running stop sign a and caus- the extent recklessness differs To injured pas- a traffic accident that her ing difference be negligence, criminal “[t]he Indeed, per- a senger-husband and child. negligence that criminal tween them is risk, could be convicted of assault only perceive a failure to a son requires 13-1203(A)(1) require Arizona Revised Statutes to the compared recklessness by running stop sign “solely reason disre ment of an awareness and conscious G., causing physi- voluntary intoxication” and In re gard of the risk.” William injury to another. Ariz.Rev.Stat. 13- n. 1 cal (Ct.App. Ariz. 963 P.2d 105(9)(e). cannot, Torcía, in the or- Such conduct 1997); E. Whar accord Charles ed.1993). sense, called “active” or “vio- dinary Law 27 ton’s Criminal 11, 125 543 U.S. at subjective possible lent.” But this awareness 377.10 not the same as the intentional injury is aggravated Revised hypotheticals assault under Arizona calls the above The dissent Op. 1204(A)(1)—which Dissent at 1138-39. Howev- requires "absurd." Statutes 13— er, example running stop sign is our Statutes 13— of Arizona Revised violation where a defendant has similar to actual cases stop sign who ran 1203—of man aggravated convicted of assault. been injured passen- his caused an accident that Miles, P.3d State v. 211 Ariz. Freeland, ger); 176 Ariz. State (sustaining (Ct.App.2005) conviction for text.”).

Finally, because the text of 18 U.S.C. statute is clear from the The re- 16(a) clear, no that sufficiently quirement § is we see need the offense have “as an element, the use history ... employ legislative in this case to See, e.g., United interpretive aid. the of anoth- Meek, 16(a) er,” § States (emphasis added), 366 F.3d Cir.2004) (“We in legisla- implies need not factor the use force must be a means history meaning tive of the to an end.11 (Ct.App.1993) (affirming ag- Judiciary P.2d 265-66 11. The dissent relies on the Senate gravated "prosecuted assault conviction on Report accompanying Committee the enact- defendant, theory by driving while Comprehensive ment of the Crime Control collision, causing recklessly intoxicated and Op. Act of 1984. See Dissent at 1141-42 victim”). injury 98-225, caused serious to his More- (1983), (citing S.Rep. No. at 307 re- over, to, the dissent fails to cite us nor are we 3182, 3486-87). printed in 1984 U.S.C.C.A.N. of, any authority suggesting that Ari- aware report "battery” example This cites as an of a 13-1203(A)(1) § zona Revised Statutes cannot meaning crime of violence within the hypotheti- reach the conduct described in our 16(a). 98-225, S.Rep. § See No. at 307 & n. Accordingly, categorical examples. cal our battery by 12. Since as defined Model analysis must address such conduct. may accomplished through Code Penal argument recklessness, The dissent leads its with the Congress the dissent asserts that phrase do not their "[m]en trenchant beat § 16 to intended include reckless conduct. Op. wives accident.” Dissent at 1142. Op. See Dissent at 1142-43. of Arizona Revised Stat- Ti'ue. But the terms clear, statutory language Since the 13-3601(A) require, § utes do not and the report need not look to a issued one cham-

judicially the record noticeable documents in Congress ber of as evidence of the statute's prove, do not that Fernandez-Ruiz beat his meaning. Corp. See Intel v. Advanced Micro Rather, wife. whether our record shows a Devices, Inc., 241, 267, requires conviction under such a statute (2004) (Scalia, J„ 159 L.Ed.2d 355 con- beating, and whether the documents of con- (“[I]t curring) only improper is not ... but beating place, viction show a took are the quite unnecessary repeated sup- also to seek precise looking issues before us. Instead of port in the words of a Senate Committee record, to the the dissent would infer know, Report which, as far as we not even — wife-beating place took from the "trust and committee, Senate, the full much less the full vulnerability that related characterize domes- House, much much less the and much much relationships.” Op. tic Dissent at 1137-38. bill, signed much who less President how, explain The dissent does not within the with.”). agreed Taylor, perpetrator's confines of mere do- legislative Even if we do consider the histo relationship proves mestic to the victim ry, Congress it is from clear that intended far intentionally he used force her. The § to reach reckless conduct. The Sen enough. statute's title is not na, See Baron-Medi- 113(d) (1976) Report § ate cites 18 U.S.C. ("We solely 187 F.3d at 1146 look to the "battery.” S.Rep. a footnote to the term crime, statutory definition not to the 98-225, Presumably, No. at 307 n. 12. given underlying name to the or to the offense 113(d) Committee had in mind when it re conviction.”) predicate circumstances of the Yet, battery. ferred to at least at the time of added). (emphasis enactment, 113(d) "general Further, 16's commonplace it is a of the crimi- Knife, intent” crime. See United States v. relationship nal law that the confidential (8th Cir.1979) ("The 481-82 & n. 12 perpetrator exists between the and the victim 113(f)” element of intent in as an supply proof requisite cannot of the ele- —defined 113(d) assault under that results in serious ment of the mens rea with which an act was bodily injury general satisfied if the in done. Were a to take his car husband wife's —"is consent, tent to commit the acts of assault arose when without her the "trust and vulnera- initially approached[the bility” automatically [defendant] vic of the wife would not Martin, tim].”); supply proof per- United States v. of the husband's intent curiam) (2d Cir.1976) (per (finding manently deprive possession her of car, 113(d) joy-riding element to be ade so as to convert misdemeanor the mental felony quately proven magistrate into car theft. where "the found 1132 cate- reasons, to our modified the documents relevant we hold

For these complaint, underlying gorical Fernandez-Ruiz’s assessment: offense violence conviction pro plea agree- domestic forma judgment, misdemeanor and a of violence concedes, crime categorical it was not government ment. The extension, or, under 18 U.S.C. must, dem- that none of these documents un- of domestic violence categorical crime conviction that Fernandez-Ruiz’s onstrates 1227(a)(2)(E)(i). The bed- der 8 U.S.C. admission, any upon an or other was based that to consti- Leocal is principle rock “intentionally” used force or proof, he an offense crime of violence tute a federal opposed “recklessly.” “knowingly,” as use of force the intentional must involve 13-1203(A)(1). Accord- Ariz.Rev.Stat. property of another. us, now before we ingly, on the record expressly overrule light we cate- cannot conclude under the modified of violence holding crimes our cases that Fernandez-Ruiz gorical approach may include offenses under 18 U.S.C. or, by exten- committed a crime of violence reckless, through grossly committed sion, violence as de- a crime of domestic use of force. negligent, fined federal law. Although government concedes of Domestic Violence: IV. Crime conclusion, Categorical Modified reach such a we cannot now Analysis applying us to defer the modified asks remand categorical approach and instead state statute of petitioner’s When develop to the BIA for further this case categorical not define a conviction does for its support ment of the record. As violence, apply we a “modified crime of supplies only a request, government approach.” See Penuliar categorical Ventura, cursory citation INS Cir.2006); Gonzales, 435 F.3d 353, 154 L.Ed.2d 272 123 S.Ct. Ruiz-Morales, 361 F.3d at Under curiam). (2002) Ventura, however, (per consider whether approach, this inapplicable. limited, specified set of documents—in document, a cluding charging “the state asylum application involved the Ventura instructions, agreement, jury signed plea Ventura, a citizen of Gua- of Orlando transcripts plea proceed of a guilty pleas, 353. The IJ temala. Id. (sometimes ing judgment” termed BIA that Ventura was and the determined conviction”)—show peti “documents of asylum he had failed ineligible for an admission tioner’s conviction entailed objectively past persecu- to demonstrate to, of, necessary elements of a proof opinion. tion Id. at political Hernandez-Martinez v. violence. not made 353. Because Ventura had Ashcroft, 343 F.3d Cir. showing, the BIA required this threshold 2003). noted it did not need to address whether country rebutted “changed conditions” Here, respect to Fernandez- with claim to a well-founded fear domestic vio Ventura’s Ruiz’s 2003 misdemeanor conviction, persecution. contains three future Id. lence the record scuffle”). legislative history unconvincing. See also Po Both an intent to strike and to (rejecting showing pal, for a an intent to 254 n. these cases involve facts victim, government's argument merely creation of similar reason strike the legislative history "general the same shows an such risk. We therefore doubt that 16(a)’s 113(d) conduct in con intent to include reckless intent” under includes reckless violence). duct, argument definition a crime of the dissent's and find that, Id. law: We reversed the BIA’s decision. for “a matter that place statutes First, hands,” we concluded the evidence com primarily in agency an agency had finding that demon pelled Ventura permitted “bring should be to its expertise for a past persecution political strated bear”; to agency that the “can evaluate he had therefore established the opinion; evidence”; the that agency the can of a fear of fu presumption well-founded “make an initial determination.” Id. at Id. persecution. Having ture reached this 16-17, 123 S.Ct. 353. conclusion, rejected requests we from both Neither of the Ventura Court’s principal that we remand the case to the parties reasons for deciding we should have ap- for changed country BIA consideration of plied the ordinary applies remand rule in Id. Although “recognized conditions. First, present the case. whereas the State ‘changed that the BIA had not the decided Ventura Department at issue in report ‘general and that question circumstances’ id. “ambiguous,” was at 123 S.Ct. a court to ly’ permit should remand that the documents of conviction in the record consideration,” an exception we invoked government here —as the itself concedes— the usual rule: A court “need ‘not remand cannot possibly interpreted to establish ... when is clear that would be [it] that Fernandez-Ruiz used compelled force to reverse the BIA’s decision if BIA intentionally decided the matter the his victim or knowingly, the rath- ” INS, Id. Ventura v. (quoting applicant.’ Second, recklessly. er than unlike in Ven- (9th Cir.2001)). This tura, there possibility is no here that new Ventura, exception applied in we conclud years evidence has developed the since ed, because a Department 1997 State re the BIA’s decision: erroneous Fernandez- port “clearly about Guatemala demon Ruiz January 2003, was convicted presumption strate[d] the a well- all relevant documents conviction be- founded fear of future was not persecution came available before the DHS initiated INS, Id. Ventura v. (quoting rebutted.” removal proceedings. (9th Cir.2001)). 1150, 1157 Moreover, the “basic considerations” of Supreme The reversed our Court deci administrative law that favored a remand Id. not to at sion remand. Ventura do not apply equal with why gave Court two reasons the Ventura, present here. Unlike case exception “ordinary we had invoked does not involve an issue the law commits Id. at apply. remand” rule did not See, e.g., Oye agency’s to the expertise. First, Department State “the (“[T]he banji, BIA 418 F.3d at 262 is not [was], most, ambiguous” report as to charged administering with whether conditions in suf Guatemala were special expertise regarding and has no ficiently changed presumption rebut interpretation criminal stat Ventura’s fear of well-founded future .”); (“We Singh, ute... F.3d at 1230 “Second, Id. remand persecution. could reject the ... that we owe assertion ‘sub presentation to the of further [have led] Attorney stantial deference’ to Gener evidence current circumstances in Gua general al’s interpretations of state and well [could] temala —evidence [have] statutes.”). federal criminal Another dis prove[d] enlightening given years the five tinction is that Ventura undeniably in elapsed report [had] since volved an issue the BIA had consid Id. S.Ct. 353. written.” Under country changed ered: whether conditions circumstances, invoking exception presumption rebutted the the defen ordinary to the rule violated remand sever persecu al “basic dant’s of future considerations” administrative well-founded fear contrast, Here, opinion. whether the of firmed without an See id. tion. We underlying Fernandez-Ruiz’s 2003 fense rejected assessment that the agency’s a crime of conviction was domestic committed a petitioner categorical had is an issue the BIA has under federal law involving turpitude. moral See id. under the cate already addressed —albeit granted petition at 697-98. then We rather than modified gorical approach, review, that, holding “none of Ventura, categorical approach. may the documents that be examined un- Finally, at the standard the categorical approach der modified Ventura, In had we review differs. record,” government were the the had finding BIA for a on to the remanded proving “failed to its burden of meet conditions, changed country we would have petitioner] the [the offense for which finding under the reviewed such sub a crime involving convicted” constituted stantial evidence standard. See Smolnia turpitude. Notably, moral Id. at 699-700. Gonzales, kova 422 F.3d we reached this conclusion without first Cir.2005). Here, we review de novo government the case for the to remanding aggra a conviction constitutes an whether introduce agency new evidence or the to See, Penuliar, felony. e.g., vated 435 F.3d apply categorical approach. modified remanding this at 966. After issue to the See id. BIA, not “later we would determine decision BIA’s]

whether exceeds the [the Admittedly, perfectly is not anal- Notash Ventura, leeway provides.” that the law ogous to the case. At the present time of 17, 123 Notash, agency proceedings there Our conclusion Ventura does not precedent was no Ninth Circuit establish- apply case is present in the consistent with ing that petitioner’s statute of convic- Notash v. F.3d 693 categorical tion crime involving defined a Cir.2005). Notash, petitioner In had moral turpitude. (explaining See id. prior “attempted entry conviction that the agency had based its decision on goods by means of false statement.” Id. Supreme agency precedent, Court not government at 695. The this contended By contrast, Ninth precedent). Circuit involving “crime turpi- offense was a moral agency when proceed- Fernandez-Ruiz’s tude,” petitioner’s such that the conviction took ings place in it was a matter of him Id. proceed- rendered removable. In settled law in our circuit violations of IJ, ings petitioner before an “explained conviction, his statute of Arizona Revised that, his completing when customs declara- 1203(A)(1), Statutes were categorical form, relating tion had left a line he 13— Ceron-Sanchez, crimes of foreign violence. See goods blank he was not sure how to declare the Id. He items.” at 1172-73. argued “although involving crimes Ceron-Sanchez, light imag- we can fraud generally are to involve considered that, ine an argument at the time of Fer- turpitude, moral crimes involving false agency proceedings, nandez-Ruiz’s statements are not categorically consid- government anticipated not could have turpitude”; ered to moral involve “his of- need to supporting build a record removal

fense,” claimed, he “did involve ‘clear categorical approach. the modified attempt deceit’ an to obtain a property [or] government If the relied on Ceron-San- he was not interest to which entitled.” Id. determining chez when what documents to disagreed, applying categorical IJ introduce agency, before the our decision approach reaching without the modified categorical af- could approach, the BIA overrule Ceron-Sanchez at least unusual, prior unfore- make that decision either to or conceivably constitute after justifying Here, remand. argument. seeable circumstance the en banc having re panel solved the issue that the asked the now decide whether We need not sponte court to consider in its sua en banc may justify ever re changes our law call, see G.O. we believe better to 5.4.C.3, development for further manding a case return panel the case for resolution administrative gov record because the remaining of the issues. that, argued in reliance ernment has not Ceron-Sanchez, anticipate it failed to on THE RETURNED TO PANEL FOR necessity introducing documents of THE ISSUANCE OF AN RE- OPINION demonstrating Fernandez- conviction THE GARDING REMAINING ISSUES. a crime of domestic Ruiz’s offense was categorical ap under the modified KOZINSKI, Judge, concurring Circuit proach. government’s consider the We in part, dissenting part: significant, predictable: reticence but the suggesting record includes evidence the I agree government the hasn’t recognize need government did to shown Fernandez-Ruiz a committed of conviction in case it present documents of domestic violence under 18 U.S.C. categorical approach. lost under the Be on this I record. reach this con yond the bare-bones documents needed to substantially clusion for the reasons stated prior show Fernandez-Ruiz had convic majority opinion, I because complaint judgment and the tion'—-the — lightly disregard would not the view of five government agency with presented other circuits that have considered the is plea agreement. Fernandez-Ruiz’s On Gonzales, 464, sue. 414 See Tran v. F.3d facts, developments these in the law new (3d Cir.2005); Bejarano-Urrutia 471-72 v. do not warrant a remand. (4th 444, Cir.2005); 413 F.3d 447 sum, even under the modified cate- 367, v. Ashcroft, Jobson 326 F.3d 372-73 gorical approach, Fernandez-Ruiz’s 2003 (2d Cir.2003); INS, Bazan-Reyes v. 256 conviction under Arizona Revised Statutes 600, Cir.2001); F.3d United §§ 13-1203 and 13-3601 for misdemeanor Chapa-Garza, States v. 925- domestic violence assault is not a crime of (5th Cir.2001). 27 I find the dissent’s ef 16(a). violence as defined 18 U.S.C. special fort to carve out a rule for domestic alone, Accordingly, subject taken con- unpersuasive. violence cases justify viction cannot his removal. See 8 However, agree major- I cannot with 1227(a)(2)(E)®.

ity’s to send the case to the refusal back Remedy V. light BIA for of our reconsideration government opinion. presented its Our decision that Fernandez-Ruiz to the and the BIA when our case both IJ removable caselaw controlled United States v. 1227(a)(2)(E)® necessitates consider Ceron-Sanchez, 222 F.3d 1169 Cir. panel ation of issues the did not decide. 2000), Supreme and before the Court de- Fernandez-Ruiz, 410 F.3d at 588 n. 2. Ashcroft, cided Leocal v. 543 U.S. 125 case, an court Although en banc takes (2004). 377, 160 Under L.Ed.2d issue, banc, not an en it has the discretion had no regime, government rea- only parts to decide the entire case present son to evidence that would sustain of the case that formed the basis for the en Stewart, categorical its burden under modified banc call. Summerlin v. (9th Cir.2002). may approach. changed, It Now that the law has qualifying case use of is entitled make its “crimes government § 16. I respect- under the new standard. violence” under 18 U.S.C. fully dissent. Ventura, I realize that INS L.Ed.2d 272 123 S.Ct. (2002) curiam), and (per Gonzales I — --, Thomas, -, 13, 2003, On Jose Roberto January Fer- (2006) 1613, 1615, (per L.Ed.2d nandez-Ruiz, a and citizen of native Mexi- curiam), not on all fours both are permanent co and a resident lawful of the agency as to questions involved which the States, in Arizona pled guilty United state expertise. But also special had Ventura court misdemeanor domestic vio- that, opinion changes an held when lence/disorderly conduct and misdemeanor legal landscape, giving government domestic He was sen- violence/assault. “present! ... further evi- opportunity ] jail tenced to months in six three independent ground dence” is an years probation. Fernandez-Ruiz had I remand. 537 U.S. S.Ct. 353. previously convicted of theft been and do- to do otherwise If the see no reason here. mestic and had twice vio- evidence, government has no such a re- violence/assault But, lated his His 2003 probation. domestic govern- mand will do no harm. if the conviction, designated ment or can evi- does have obtain such violence/assault dence, misdemeanor, our refusal will mean remand class two establishes that he Congress (1) (2) that someone meant to have de- violated either subsection or of Ari- ported may large in (A.R.S.) remain the United zona Revised Statute 13- States, again. perhaps to offend 1203(A), part: which states relevant Having summarily twice been reversed person by: A commits assault failing very agency, to remand to this I 1. Intentionally, knowingly or reckless- lightly especially would tread in this area. ly any injury to causing another Discretion, case, is only in this person; or valor, but the part part better better Intentionally placing another justice as well. apprehension reasonable of imminent

WARDLAW, Judge, Circuit with whom physical injury.... O’SCANNLAIN, BYBEE, Circuit Judges Because the record of conviction states join dissenting: and CALLAHAN that Fernandez-Ruiz committed a domes- by do not beat their Men wives accident. offense, tic have he must been in a truth, majority ignores Blind to this victim, relationship domestic with his as the realities of domestic violence and disre- 13-3601(A): by defined A.R.S. gards congressional intent to an hold that any “Domestic violence” means act Arizona domestic violence conviction is not dangerous which is a chil- pur- “crime of domestic violence” for as dren defined in 13-604.01 an or poses immigration of a federal law. The [any twenty offense defined in one of majority’s hypertechnical analysis statutes, 13-1203], Arizona including if States, Taylor stretches United any of following applies: 575, 110 U.S. S.Ct. L.Ed.2d (1990), relationship between victim categorical approach absurdity and the marriage defendant is one of or Leocal v. Ashcroft, and misreads 1,125 (2004), former marriage persons residing 160 L.Ed.2d 271 as or involving barring having all crimes the reckless resided in the same household. Eighteen 2. The victim and the defendant have a in turn defines a “(a) child common. misdemeanor “crime of violence” as: use, offense has as an preg- 3. The victim or the defendant is element the use, by party. attempted nant the other or threatened physi- use of cal force 4. The victim is related to the defen- another.” by spouse

dant or the defendant’s blood a parent, grandparent, or court order as Relying on our decision in United States child, grandchild, brother sister or Ceron-Sanchez, 222 F.3d 1169 Cir. marriage a parent-in-law, grandpar- as 2000), BIA concluded that Fernandez- ent-in-law, stepparent, step-grandpar- Ruiz’s 2003 conviction was a “crime of ent, stepchild, step-grandchild, brother- domestic violence” and immi- affirmed an in-law or sister-in-law. gration judge’s ordering decision Fernan- 5. The victim is a child who resides or deported. dez-Ruiz peti- Fernandez-Ruiz in the same household has resided as the tions for deportation relief from his order defendant and is blood to a related ground on the that Leocal overruled Cer- spouse former of the defendant or to a on-Sanchez and established that a convic- person who or who has resides resided his, tion such as may which have been in the same household the defendant. conduct, based on categori- reckless is not Immigration In March and Natu- cally a crime of domestic violence. See sought deport ralization Service Fer- generally Taylor, 600-02, committing nandez-Ruiz for a crime of S.Ct. 2143. domestic violence. Under 1227(a)(2)(E)®, II Any alien who at time after admis- sense, statutory language, Common sion is convicted of a crime of domestic all precedent compel the conclusion that violence, stalking, a crime of or a crime Fernandez-Ruiz’s domestic con- violence abuse, neglect, of child child or child necessarily viction involved the use of deportable. pur- abandonment is For against person the anoth- of clause, poses of this the term “crime of er and was therefore crime of violence any domestic violence” means crime of § under 18 U.S.C. and a crime of (as

violence defined in section 16 of Title domestic violence under 18) against person by committed 1227(a)(2)(E)®. § spouse current or former of the person, by person an individual with whom the A common, by shares a child in an individ- Notwithstanding majority’s attempt the cohabiting ual who is with or has cohab- identity to erase the of Fernandez-Ruiz’s spouse, person ited with the victim and treat a simple his crime as similarly individual to a spouse situated assault, Fernandez-Ruiz was convicted for of the under domestic or violence/assault,” victim “domestic and the family jurisdiction violence laws of the girlfriend was Fernandez-Ruiz’s and the occurs, by any where the offense daughter. mother of The relationship his against other individual who is between Fernandez-Ruiz and his victim protected from that individual’s acts un- irrelevant; cannot be dismissed as it is an family der the domestic or violence laws crime, State, and under we element his Leocal the United States or Indian government, required unit are “to look to the elements and gov- tribal of local ernment. nature of the offense convic- husband, date, cohabiting partner, com-

tion....” analyzing men.”). the nature of the Instead of of the pared percent with 18 conviction, here a violation offense of vulnerability It is precisely of those 13-3601(A), majority analyzes A.R.S. particularly relationships, domestic 13-1203(A), addressing without A.R.S. children, women that led to Congress and element the crime how the additional 1227(a)(2)(E)®, enact 8 which is U.S.C. 13~3601(A) na- impacts described designed protect punish victims and justifies majority ture crime. The of the perpetrators of domestic As violence. analytical leap noting this that upon Senator Dole stated perpetrator-victim is an Robert introduc- relationship 13-3601(A) is §of included as ing original language element version of the part of a crime of domes- of the definition appears now U.S.C. tic violence 1227(a)(2)(E)®: 1227(a)(2)(E)®. Maj. Op. n. at 17860 society will not [O]ur tolerate crimes However, majority not ex- what does and children.... women Nor plain why the inclusion of lan- is similar should have to wait for that last immigration justi- guage in a federal law violent act. someone is an When alien fies ignoring an element of an Arizona already a predisposition has shown Taylor categorical criminal law under anal- toward violence women and chil ysis. dren, get we should rid of them the first majority’s facile elision gives short time. requirement shrift Arizona’s victim related to the perpetrator; S4058-02, (1996) 142 Cong. Rec. S4059 very a separate statutory spe- existence of (statement Dole); see also of Sen. Violence cies of aimed at assault domestic Against Act of Women Pub.L. No. demonstrates that the element additional 103-322, 40001-40703, §§ relationship significant to the nature (108 Stat.) 1796, 1902-55, U.S.C.C.A.N. in- special duty of the crime. One owes a part by validated in United States v. Mor- child, care spouse arising toward one’s rison, 598, 627, vulnerability from the trust and related (2000). And L.Ed.2d 658 it is this that characterize domestic relationships. vulnerability majority pretends INS, Grageda v. does not exist when refuses acknowl- (“[A] Cir.1993) spouse is committed to a edge identity of Fernandez-Ruiz’s vic- with, relationship may of trust be de- and tim and instead endeavors to sanitize Fer- pendent upon, perpetrator. This rela- by relegating nandez-Ruiz’s crime to a tionship the crime of spousal makes abuse footnote a the fact that this is crime of from strangers different violence between Maj. domestic Op. violence. See at 17860 ....”); also, or see acquaintances e.g., Pa- & n. 5. addressing Instead of Fernandez- Thoennes, Tjaden Nancy tricia & Nat’l conviction, Ruiz’s the majority crime of Inst, of Justice & Ctrs. for Disease Control sets out to rewrite the law for all crimes Prevalence, Prevention, Incidence, & and may be committed with a rea of mens Consequences Against Violence Women: Maj. Op. recklessness. See at 17872 Findings the National Violence (“[W]e overrule our expressly cases hold- (1998) (“Vio- Against Survey Women ing of violence under crimes 18 U.S.C. is against primarily partner lence women may include offenses committed percent violence: 76 of women who were reckless, through grossly raped negligent, physically age assaulted since and/or force.”) a assaulted or former use of were current accidentally hypothetical Taylor Fernandez-Ruiz did is absurd. Under the and the mother of his girlfriend cause his categorical approach, we examine the full injury; daughter physical he did so “[i]n- range encompassed by of conduct recklessly.” tentionally, knowingly or issue, Ceron-Sanchez, e.g., statute at 13-1203(A)(1). In light of the A.R.S. F.3d at not the full range appel- special duty of care Fernandez-Ruiz owed judges’ late imaginings. fanciful Like all victim, imagine his it is difficult to how he doctrines, legal Taylor categorical ap- recklessly, could have committed his crime proach applied must be with reasoned impossible and to conclude he could have judgment. Kaplan- See United States v. using without her. done so (6th Cir.1994) (en sky, 42 F.3d 323-24 Ashcroft, Flores Cf. banc) (employing analysis a commonsense (7th Cir.2003) (la- (Evans, J., concurring) of “the essence of kidnapping” holding menting the absence of common sense that a violation of an kidnapping Ohio application Taylor categori- courts’ of the statute, prohibits which a removing person approach noting cal and “Flores actu- place from the where he is found or re- wife[;] ally .... beat his common-sense [a] “ threat, straining liberty ‘by force, his here should lead one to conclude review deception” categorically a violent felo- that Flores committed a ‘crime of domestic (Merritt, C.J., ny); id. at 329-30 dis- cf. ”). may violence’ Domestic abusers be senting) a (raising improbable series of incapacitated drunk or otherwise when hypotheticals to argue possible that “it is crimes, they may they commit their for Kaplansky to have been convicted of felony from a plea bargain down to mis- ... kidnapping committing without a vio- requires demeanor from statute that Flores, felony”); lent 350 F.3d at 672-73. intentionality mens rea to one can But be satisfied recklessness. this does Running stop sign causing a traf- not alter the nature domestic violence as injury fic accident with would not pros- involving a crime the use of force ecuted under the domestic violence law. someone in a domestic relationship, conduct would almost certainly Such result categorically crime that is a “crime of do- in a things— traffic citation for—of all mestic violence.” driving. reckless See A.R.S. 28-693. 1227(a)(2)(E)®. Unsurprisingly, neither Fernandez-Ruiz majority refuge seeks from the majority single nor the cite a case in which plain meaning of domestic prosecuted remotely Arizona has conduct hypothetical suggesting that an Arizona proffered hypothetical like the as a domes- domestic conviction is not violenee/assault tic violence offense.1 necessarily a crime of domestic violence. majority example, For asserts a wife B and mother could be convicted of domestic Even if Fernandez-Ruiz had been con- “recklessly violence under Arizona law for assaulting victed of stranger, a as the ma- running sign a stop causing a traffic believe, jority injured would have us he would still passenger-hus- accident that her Maj. and child.” Op. deportable band 17869. This be Freeland, DUI); prosecutions acquittal lieu In of domestic violence tion after of State v. majority 263, offers two cases which in assault (Ct.App. 176 Ariz. 863 P.2d 265-66 upheld were convictions when automobile 1993) (affirming aggravated assault convic Miles, injured. passengers were v. See State case). tion in DUI cases do not even These (Ct.App. 123 P.3d 211 Ariz. prosecution hint at for domestic violence. 2005) (affirming aggravated assault convic petition- this issue. The precedent tent on 1227(a)(2)(E)© is a because recklessness of violence. a Florida statute for a crime in Leocal violated mens rea er sufficient Leocal, which argues a vehicle majority operate The a crime to making it whether to address and, declined explicitly “by reason influence while under the mens rea for a a sufficient [sjerious recklessness is ... operation, cause[ ] of such violence, overruled our consistent of crime Fla. Stat. bodily injury to another.” not. this It did precedent on issue. 316.193(3)(c)(2). determining that In Ceron-Sanchez, a categorically was not held that con- the conviction we 13-1203(A)(1) 16(a), of purposes under A.R.S. of violence for viction crime pur- a “crime of violence” categorically statute that the Florida the Court noted 16(a), reasoning of 18 U.S.C. poses any particular of require proof not “does inju- physical that causes reckless conduct emphasized that the mental state” and physical use of ry necessarily involves the 16(a) a crime is that aspect critical expanded at We F.3d 1172-73. force. ... involving the “use is one v. Trin- reasoning in States on this United person physical force negli- that a we held idad-Aquino, where ... re- “[U]se” another.” qualify not driving drunk offense did gent employment. While one quires active violence, “that explained but as a crime of may, theory, actively employ in some- rea for a is a sufficient mens recklessness manner, it is much thing in an accidental ” ‘crime violence’ actively that a say person less natural to requires conscious disre- recklessness employs physical force another harm that the defen- a risk of a gard of Thus, accident. require- of—a volitional dant is aware against” ... “use would A volitional negligence. ment absent him; however, pushing another when ... encom- against” of “use definition ordinarily say person “use[s] would not disregard potential of a passes conscious against” ... another physical force or some- physical impact on someone him.... stumbling falling into The non-voli- encompass does not thing'—-it naturally §in ... most key phrase impact. to that negligence tional degree of intent than suggests higher (9th Cir.2001) (omis 1140, 1146 259 F.3d negligent merely accidental conduct. v. original); see also States sion United Leocal, 125 S.Ct. 377 Hermoso-Garcia, 1085, 1089 omitted) (citations third, (first, and fourth Cir.2005) (reckless categorically assault is in original). omissions violence); a crime of United States not, principle” of Leocal is “bedrock Grajedar-Ramirez, 348 asserts, majority that “an offense (9th Cir.2003) (reckless as the assault is vehicular violence).2 use of force” must involve the intentional a crime of This categorically violence, Maj. Op. Fer remains sound and forecloses to be logic argument that his convic merely negli- nandez-Ruiz’s rather that accidental but categorically a crime of domes tion is gent crimes are not crimes vio- DUI tic violence. Leocal ex- lence. It unclear whether and, offenses, beyond tends DUI liability a strict which addressed event, open question left “the offense, explicitly our eonsis- does not disturb DUI inapposite it involved a DUI we held both because in which 2. Lara-Cazares the statute at issue re- conviction for offense and because Leocal a California that under gross negligence. quired only a of manslaughter mens rea gross vehicular while intoxicat- violence, 1217, (9th Cir.2005). 1221 categorically is 408 F.3d is a crime of ed not

1141 ordinary negligence, a offense that recklessness is state or federal closer whether (internal reckless use of force to a requires proof of the lesser form of intent.” quota- a or of another person omitted)); Lara, People tion marks 44 a violence under 18 qualifies as crime of 102, 107-08, Cal.App.4th 51 Cal.Rptr.2d 13, § at 16.” 125 S.Ct. 543 U.S. (1996). person 402 “Unlike a who acciden- analysis Leocal informs our insofar tally injures person, person another a who key emphasizes issue acts recklessly bringing about harm to predicate convic- determining whether a another is aware the nature of his con- whether the tion satisfies is convic- duct and thus can said to ‘actively be be employment of tion involved an active employfing]’ that results ” 11, (empha- at 125 S.Ct. 377 force. See id. in injury ‘against Bejarano-Ur- another.’ sizing category a “suggests rutia v. 413 F.3d crimes”). violent, active (4th Cir.2005) J., (Niemeyer, dissenting) necessarily Fernandez-Ruiz’s conviction Leocal, (quoting U.S. at employment involved an of force. active 377, and citing Trinidad-Aquino, 259 F.3d for a The minimum mens rea violation of 1146). at requires thus Recklessness 13-1203(A)(1) recklessness, A.R.S. volitional, decision, active which necessari- as, which Arizona defines ly degree involves “a higher intent than respect with to a result to a circum- negligent conduct,” accidental merely defining stance a statute described Leocal, 543 U.S. at S.Ct. and offense, that a is aware of and 16(a)’s satisfies ... of physical “use consciously disregards substantial and requirement. Nothing force” in Leocal re- unjustifiable risk that result will oc- quires us to overrule Ceron-Sanchez re- cur or that the circumstance exists. The interpret Trinidadr-Aquino. degree risk must be of such nature and In holding that recklessness is not a disregard risk of such constitutes a violence, sufficient mens rea for crime gross deviation from the standard of majority major- misreads Leocal. The conduct that a reasonable would (1) ity asserts that Leocal holds A person observe the situation. who that accidental cannot conduct creates such a risk but is unaware of violence, Leocal, see 543 U.S. at such solely by voluntary risk reason of (2) 377; S.Ct. accidental conduct is recklessly intoxication also acts with re- “ ” purposeful,’ Maj. definition ... ‘[n]ot spect to such risk. (alteration Op. at in original) (quot- 13-105(9)(c). A.R.S. Fernandez-Ruiz Dictionary ing Black’s Law “consciously therefore must have at least ed.2004)); (3) reckless conduct is also disregarded” physically injuring the risk of purposeful; compels not Leocal the conclu- girlfriend. disregard his in- Conscious sion that “the reckless use of force is cludes an element of volition: One must be ‘accidental’ and of recklessness can- crimes unjustifiable of a aware substantial Maj. Op. be crimes of violence.” risk and choose to act affirmatively not- logic. defies argument 17868. This withstanding that risk. See Trinidad- negligence The fact that neither nor (cited Aquino, approv- 259 F.3d at 1145-46 purposeful recklessness is does not mean ingly in identical, or they are that reckless- 377); Paine, Webber, see also Vucinich ness, necessarily Curtis, Inc., negligence, like falls out- & Jackson 16(a). curiam) (“Rather Cir.1984) scope side the Recklessness is (per rea, being greater a distinct mens which lies closer to merely degree than simple assault or attempted or Vu- threatened negligence. to See intentionality than person.” S.Rep. No. battery on another cinick, Leocal’s state- at 1435. 739 F.2d (1983), 98-225, in 1984 reprinted at 307 merely accidental “negligent ment (footnotes 3182, 16(a), 3486-87 satisfy § 543 U.S. U.S.C.C.A.N. not conduct” does omitted). thus intended to in- Congress 377, way suggests 9,125 no battery in simple clude both assault required or conduct is intentional of a “crime of violence.” rea for the definition is an insufficient mens recklessness un- traditionally defined as “the Bejarano-Urru- Battery is crime of violence. See Indeed, tia, force to the application at 449-50. the Leo- 413 F.3d lawful another,” to decide a mental state of specifically declined committed with cal Court 13, negligence 125 S.Ct. or reckless- that issue. See 543 U.S. at least criminal majority, opinions Dictionary like Black’s Law ness. See 2U.l(l)(a) it § on ed.1979); Third and Fourth Circuit which Model Penal Code relies, differences ignores important (a battery “pur- if he guilty is negligence and recklessness recklessly between causes knowingly or posely, intentionality require- reads an improperly another”);4 bodily injury to Oyebanji v. Gon- ment into Leocal. See LaFave, R. Criminal Wayne Substantive (3d Cir.2005) zales, 260, 264-65 418 F.3d ed.2003) (similar). (2d A § viola- Law 16.2 (conviction on for vehicular homicide based issue, which of the Arizona statute at tion influence); Tran v. driving under the Gon- defi- incorporates the Model Penal Code’s (3d Cir.2005) zales, 414 F.3d 13-1203(A); § battery, nition of see A.R.S. (conviction burning explod- for reckless Mathews, P.2d 130 Ariz. State at 447 ing); Bejarano-Urrutia, 413 F.3d (Ct.App.1981), is therefore cate- (conviction (majority opinion) for involun- a “crime of violence” as term gorically driving under tary manslaughter based on 16(a). legislative § is used in To read the influence).3 otherwise, suggest to that Con- history 16(a) § plain language of Because the simple assault but not bat- gress intended clear, lenity apply, does not see the rule of violence,” is both tery to be “crime Lisbey v. leads to an awkward result: incorrect and Cir.2005); nor need we consult the stat- attempt- An alien would removable for Nevertheless, history. legislative ute’s harm but ing threatening someone legislative history, were we to look actually spouse injuring his that Fernandez-Ruiz’s con- would confirm unlikely It is through reckless conduct. is a crime of violence. The Senate viction intended such an outcome. Congress Comprehensive Report accompanying the C Act which enacted Crime Control mistakenly concluding that Fer that a “crime of After states was not cate “would include a nandez-Ruiz’s conviction violence” under here, majority incorrectly the Third Circuit did not make blanket 3. The also relies on post-Leocal with announcement about crimes in the context of discussion of recklessness each case that a recklessness mens rea. In 16(b) argument to bolster its that force conviction court examined the actual crime of in the execution of the must be instrumental reaching its conclusion. 16(a). qualify as ''use” (quoting Maj. Op. at 1130 543 U.S. at is entitled “Assault” but in- 4. Section 211.1 377). Oyebanji, the Third battery. corporates the crime of See Am. 16(b). analysis only Inst., Circuit’s was also Model Penal Code & Commentar- Law cmt.2, (1980). Further, majority at 183-84 ies 211.1 418 F.3d at unlike violence, majori categorical approach.” Maj. a crime of fied gorically Op. by refusing the ty compounds its error 1135. request that we remand to government’s * * * * fur government BIA to allow plain language Consistent with the of 18 that the BIA develop

ther the record so 16(a), intent, Congress’s ap and our may apply categorical the modified BIA proach. precedent, never decided whether I would hold that a conviction Fernandez-Ruiz’s conviction was crime under the Arizona statutes at issue here is categori of violence under the modified categorically a crime of domestic violence. because, approach majority’s cal until the today,

decision Fernandez-Ruiz’s convic categorically

tion was a crime of vio Ceron-Sanchez, 222

lence. reason, govern

1169. For the same obtain, identify,

ment had no reason to demonstrating

or introduce evidence

Fernandez-Ruiz ... “use[d] America, UNITED STATES another” and therefore that his 2003 Plaintiff-Appellee, conviction was crime of domestic vio v. majority’s highly lence under the restric approach. tive Jasper BLACK, Defendant-Appellant. light majority of the new rule the No. 05-10640. announces, proper course is to remand may BIA that it apply to the so the modi Appeals, United States Court of categorical approach in the first in fied Ninth Circuit. , — stance. See Gonzales Thomas Argued Sept. and Submitted -,----, 1613, 1614-15, 126 S.Ct. (2006) curiam); (per 164 L.Ed.2d 358 INS Filed Oct. Ventura, 12, 16-17, (2002) curiam). (per 154 L.Ed.2d 272 concedes, majority As the Notash v. Gon because, here, inapposite

zales is unlike intervening change

there was no law categorical ap made modified

proach relevant where it had not been so justified govern

before and therefore failure to introduce rele

ment’s evidence to the categorical approach.

vant modified (9th Cir.2005).

427 F.3d 693 is there Nor majority’s entirely unsup merit in the

ported government assertion that the has right

waived its to a be Ventura remand specifically

cause it has not stated that “it anticipate necessity

failed to of intro

ducing documents of conviction demon

strating Fernandez-Ruiz’s offense was

crime of domestic violence under the modi

Case Details

Case Name: Fernandez-Ruiz v. Gonzales

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 25, 2006

Citation: 466 F.3d 1121

Docket Number: 03-74533

Court Abbreviation: 9th Cir.