This case was remanded to us by the en banc court. We now consider two principal issues: first, whether the petitioner’s two misdemeanor domestic assault convictions constitute crimes of moral turpitude rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(ii), and second, whether he is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his 1992 theft offense constitutes an aggravated felony as defined in section 1101(a)(43)(G).
I. Factual and Procedural Background
Jose Roberto Fernandez-Ruiz, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident in 1990. In 1992, he pled guilty to the crime of “theft by control of property with a value of $250 or more” in violation of sections 13-1802(A)(1) and (C) of the Arizona Revised Statutes. See ARIZ. REV. STAT. § 13-1802(A)(1) & (C) (1992). He was sentenced to two years probation for the “class six open-ended offense.” In April 1994, he was sentenced to sixty days in county jail for a probation violation. Two months later, in June 1994, he again violated a term of his probation and was sentenced to “twelve months at half time” in county jail for that violation. At that time, the Arizona court designated the theft offense as a misdemeanor.
Approximately eight years later, in 2002, Fernandez-Ruiz was convicted of misdemeanor domestic violenee/assault, in violation of sections 13-1203 and 13-3601 of the Arizona Revised Statutes. See Ariz.Rev. Stat. §§ 13-1203 & 3601. In January, 2003, he was again convicted of domestic violenee/assault pursuant to sections 13-1203 and 13-3601. The latter conviction was designated as a “class 2” misdemean- or.
Fernandez-Ruiz was placed in removal proceedings by the issuance of a Notice to Appear, charging him as subject to removal under 8 U.S.C. § 1227(a)(2)(E)®, for having committed a crime of domestic violence, and under 8 U.S.C. § 1227(a)(2)(A)(ii), for having committed two crimes involving moral turpitude. At a hearing before the Immigration Judge (“IJ”) in June, 2003, he admitted all of the factual allegations in the Notice to Appear. Based on these admissions, the IJ sustained the two charges of removability but informed him that he appeared to be eligible for cancellation of removal and instructed him to fill out an application.
Next, Fernandez-Ruiz submitted an application for cancellation of removal. In response, the Department of Homeland Security (“DHS”) filed an additional charge of removability, charging him as *1162 removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined in 8 U.S.C. § HOKaXéSXG). 1 In support of this charge, DHS alleged that he was sentenced to one year in jail in June 1994, as a result of his probation revocation in connection with his theft offense.
At a hearing before the IJ in August, 2003, Fernandez-Ruiz admitted that in 1994 he was sentenced to one year in jail for a probation violation. The IJ then ruled that his 2002 and 2003 domestic violence/assault convictions were both crimes involving moral turpitude. He also concluded that, because of the one year sentence for violating probation, the theft offense constituted an aggravated felony and relief under former section 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c), was unavailable in view of the two posN1996 domestic violence convictions. Finally, the IJ concluded that Fernandez-Ruiz was not eligible for cancellation of the order removing him on the basis of the two domestic violence offenses because of his “aggravated felony conviction in 1994.” See 8 U.S.C. § 1229b(a)(3).
Fernandez-Ruiz appealed the IJ’s decision. In the opinion it issued, the BIA adopted the IJ’s decision, and offered, as well, its own reasons for rejecting Fernandez-Ruiz’s arguments. The BIA found that both the domestic violence/assault convictions constituted crimes of moral turpitude and were based on crimes of domestic violence. The BIA also found that the theft offense qualified as an aggravated felony. As a result, the BIA concluded that Fernandez-Ruiz was eligible for neither a section 212(c) waiver nor cancellation of removal and ordered him removed to Mexico.
We initially affirmed, concluding, on the basis of our earlier decision in
United States v. Ceron-Sanchez,
The en banc court reversed the BIA’s determination that Fernandez-Ruiz was subject to removal under 8 U.S.C. § 1227(a)(2)(E)®, holding that his 2003 misdemeanor domestic violence/assault
*1163
conviction was not a crime of violence because, under
Leocal,
in order “to constitute a federal crime of violence an offense must involve the intentional use of force against the person or property of another.”
Fernandez-Ruiz v. Gonzales,
II. Jurisdiction and Standard of Review
The en banc court adopted the portion of this panel’s earlier opinion which held that under section 106(a) (1) (A) (iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, “we are no longer barred by § 1252(a)(2)(C) from reviewing Fernandez-Ruiz’s petition on account of his past convictions.”
Fernandez-Ruiz,
at 1124 (quoting
Fernandez-Ruiz v. Gonzales,
Whether a state statutory crime necessarily involves moral turpitude is a question of law that we review de novo.
Carty v. Ashcroft,
III. Discussion
A. Crime Involving Moral Turpitude
We first consider whether Fernandez-Ruiz’s two misdemeanor domestic violence/assault convictions constitute “crimes involving moral turpitude” for purposes of removal. The INA provides: “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, ... is de-portable.” 8 U.S.C. § 1227(a)(2)(A)® (emphasis added). Accordingly, if one of the two convictions does not constitute a crime of moral turpitude, Fernandez-Ruiz is not removable under section 1227(a)(2)(A)®.
To determine whether a specific crime falls within the category of “crimes involving moral turpitude,” we apply the categorical and modified categorical approaches set forth in
Taylor v. United States,
If the statute of conviction is not a categorical match because it criminalizes both conduct that does and does not involve moral turpitude, we apply a “modified” categorical approach “under which we may look beyond the language of the statute to a narrow, specified set of documents that
*1164
are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.”
Tokatly v. Ashcroft,
Here, the BIA concluded that both of Fernandez-Ruiz’s convictions under Arizona Revised Statutes sections 13-1203 and 13-3601, were crimes of moral turpitude. We examine the BIA’s holdings with regard to each conviction in turn, bearing in mind that both offenses must qualify in order for this ground of remova-bility to be sustained. See 8 U.S.C. § 1227(a)(2)(A)®.
1.The 2003 Class 2 Misdemeanor Assault Conviction
Section 13-1203(A), Arizona’s misdemeanor assault statute, provides that 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; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
Akiz. Rev. Stat. § 13-1203(A)(l)-(3). Section 13-3601(A), the other statute under which Fernandez-Ruiz was convicted, defines “domestic violence” as including several crimes, including misdemeanor assault as defined in section 13-1203, if the relationship between the victim and the defendant is one of,
inter alia,
“persons residing or having resided in the same household.” Fernandez-Ruiz’s 2003 domestic assault conviction was designated a “class 2” misdemeanor, which is defined as assault committed
recklessly
pursuant to section 13-1203(A)(1) or assault pursuant to section 13-1203(A)(2).
See id.
§ 13-1203(B). Assault committed recklessly pursuant to subsection (A)(1) requires “recklessly causing any physical injury to another person,” while assault pursuant to subsection (A)(2) requires “[ijntentionally placing another person in reasonable apprehension of imminent physical injury.”
Id.
§§ 13-1203(A)(1), (2). The administrative record before us does not specify whether Fernandez-Ruiz pled guilty to subsection (A)(1) or (A)(2).
3
Accordingly, if either subsection (A)(1) or (A)(2) covers conduct that is not a crime of moral turpitude, then the 2003 conviction cannot, categorically, be such an offense.
See Notash v. Gonzales,
The INA does not define “moral turpitude.”
4
Absent a statutory definition, courts have defined the term as an “act of baseness or depravity contrary to accepted moral standards.”
Grageda v. INS,
The statute at issue here, Arizona Revised Statutes section 13-1203, is considered the “simple assault” statute under Arizona law.
See State v. George,
For two reasons, the BIA erred in relying on Grageda. First, this court’s holding in Grageda rested explicitly on the fact that the California felony spousal abuse statute at issue in that case required intent to cause harm. See id. (emphasizing that the injurious act under California Penal Code “section 273.5(a) must be willful, meaning that the person intended to cause the harm”). 5 In fact, in Grageda, we concluded that the California felony was a crime of moral turpitude “[bjecause spousal abuse is an act of baseness or depravity contrary to accepted moral standards, and willfulness is one of its elements. ... it is the combination of the base or depraved act and the willfulness of the action that makes the crime one of moral turpitude.” Id. (emphasis added). Thus, for purposes of Grageda, while spousal abuse may be a “base or depraved act,” that factor alone is not sufficient for a crime to constitute moral turpitude: the act must also be done willfully. 6
Indeed, this circuit’s precedent generally requires “willfulness” or “evil in
*1166
tent” in order for a crime to be classified as one involving moral turpitude. In
Guerrero de Nodahl v. INS,
a case upon which we relied in deciding
Grageda,
we held that a conviction under California’s felony child abuse statute that prohibited
“willfully
inflicting] upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition,” involved moral turpitude.
Although a finding of willfulness and/or evil intent is necessary in order to establish moral turpitude, Arizona’s class 2 misdemeanor assault does not require a willful or intentional act. Rather, one can be convicted under subsection (A)(1) for “recklessly causing any physical injury to another person.” Ariz. Rev. Stat. § 13-1203(A)(1) (emphasis added). As the en banc court observed, “reckless conduct as defined by Arizona law is not purposeful.” Fernandez-Ruiz, at 1132 (citing Ariz. Rev.Stat. § 13 — 105(c)). 7 Because spousal *1167 abuse without the additional element of willfulness is not a crime involving moral turpitude, and because Fernandez^Ruiz was convicted of an offense that does not require willfulness, his Arizona class 2 misdemeanor assault conviction does not, for this reason alone, categorically qualify as a crime of moral turpitude.
Second, as we recently explained in
Galeana-Mendoza v. Gonzales,
Here, Arizona’s class 2 misdemeanor assault merely requires “recklessly causing
any
physical injury to another person,” or “placing another person in reasonable apprehension of imminent physical injury.” Ariz. Rev. Stat. §§ 13-1203(A)(1), (2) (emphasis added).
8
Subsection (A)(2) contains absolutely no element of injury whatsoever, as it prohibits conduct that merely places another person “in reasonable apprehension of’ physical injury.
Id.
§ 13-1203(A)(2). Accordingly, not only does a conviction under Arizona’s Class 2 misdemeanor assault statute not require “beat[ing] [one’s] spouse
severely enough to cause a traumatic condition,” Grageda,
In sum, Arizona’s class 2 misdemeanor assault offense lacks two elements, each of which was crucial to our holding in
Grage-da:
a conviction for a class 2 offense requires neither willful conduct nor conduct resulting in bodily injury that is more than insubstantial. A simple assault statute which permits a conviction for acts of recklessness, or for mere threats, or for conduct that causes only the most minor or insignificant injury is not limited in scope to crimes of moral turpitude. For similar reasons, we recently held in
Galea-na-Mendoza
that a conviction under California’s domestic battery statute, Cal. Penal Code § 234(e), does not, under the categorical approach, constitute a crime of moral turpitude.
Moreover, we cannot apply the modified categorical approach because the record does not contain any “documentation or judicially noticeable facts that clearly establish that the conviction is a [crime of moral turpitude].”
United States v. Hernandez-Hernandez,
2. The 2002 Misdemeanor Assault Conviction
Even if Fernandez-Ruiz’s 2003 misdemeanor domestic assault conviction did constitute a crime involving moral turpitude (and we hold that it does not), the INA requires that a person be “convicted of two or more crimes involving moral turpitude,” and it is clear that the 2002 conviction cannot qualify as such. 8 U.S.C. § 1227(a)(2)(A)(ii) (emphasis added).
The record does not specify under which subsection of section 13-1203(A) Fernandez-Ruiz was convicted in 2002.
9
Accordingly, if
any
of the three subsections in section 13-1203(A) does not involve moral turpitude, then his 2002 conviction does not qualify as a crime of that nature.
10
See Notash,
Subsection (A)(3) proscribes “knowingly touching another person with the intent to injure, insult or provoke such person.” Ariz. Rev. Stat. § 13-1203(A)(3).
11
As the
*1169
plain text of the provision makes clear, not only does a conviction under subsection (A)(3) not require causing serious bodily injury, it does not require a physical injury of
any
kind.
See In re Jeremiah T.,
Nor is the modified categorical approach of any assistance to the government in its effort to establish to prove that the offense of which Fernandez-Ruiz was convicted constituted a crime of moral turpitude. The documents in the record relating to the 2002 conviction establish only that he pled guilty to a violation of sections 13-1203 and 13-3601.
See supra
note 9. Thus, as with the 2003 conviction,
see supra
p. 1168, the evidence in the record as to the 2002 offense does not demonstrate that Fernandez-Ruiz “pled guilty to elements that constitute a crime involving moral turpitude.”
Cuevas-Gaspar,
Because both Fernandez-Ruiz’s 2002 and 2003 Arizona misdemeanor domestic assault convictions do not qualify as crimes of moral turpitude, the two convictions cannot justify his removal under 8 U.S.C. § 1227(a)(2)(A)(ii).
B. Aggravated Felony
Having concluded that Fernandez-Ruiz is not removable on the ground that he committed two crimes involving moral turpitude, we must now review the BIA’s determination that he is removable under 8 U.S.C. § 1227(a)(2)(a)(iii) because he has been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G). 12 To qualify as an aggravated felony, Fernandez-Ruiz’s theft conviction must fit within the definition of “a theft offense ... for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G).
Fernandez-Ruiz argues that his theft conviction does not constitute an aggravat
*1170
ed felony for two reasons. First, he contends that his conviction does not fit within the definition of a “theft offense” under the federal statute. As to that point, he is wrong. He was convicted of the crime of theft: that is, knowingly, and without lawful authority, controlling the property of another with the intent to deprive that person of it.
See
Ariz. Rev. Stat. § 13-1802(A)(1) & (C) (1992). The crime is, categorically, a “theft offense.”
See Huerta-Guevara v. Ashcroft,
Second, Fernandez-Ruiz contends that his conviction does not qualify as an aggravated felony because it was not an “offense for which the term of imprisonment[was] at least one year.” 8 U.S.C. § 1101(a)(43)(G). Specifically, he argues that the one-year sentence imposed in 1994 is unlawful on its face because at the time the Arizona court imposed the sentence, it designated his theft conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor is, and was at the time, six months.
See
Ariz. Rev. Stat. § 13-707. To support this claim, he asserts that the Arizona Superior Court issued a minute entry on June 30, 2004, which acknowledged that the sentence imposed on him ten years earlier, in June 1994, was illegal. The minute entry is not in the record before us. Nor could this question have been raised during the earlier BIA proceedings because the 18569 Arizona court entered the minute entry over six months after the BIA rendered its decision. Under these circumstances, we conclude that the proper disposition is to remand the case to the BIA for it to consider in the first instance whether Fernandez-Ruiz’s 1994 sentence is illegal on its face, and, if so, whether he may nevertheless be removed as an aggravated felon.
13
See Ve-lezmoro v. Ashcroft,
C. Eligibility for Section 212(c) Relief
Although section 212(c) waivers were eliminated in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) § 304(b), the waiver “remains available for aliens
*1171
... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for[a § 212(c) waiver] at the time of their plea under the law then in effect.”
INS v. St. Cyr,
Because Fernandez-Ruiz pled guilty to his theft offense prior to 1996 and he was not sentenced to a term of at least five years, he is eligible for a waiver of inadmissibility as to his theft offense under former section 212(c) of the INA, if he is not otherwise barred. The IJ held that he was not eligible for a section 212(c) waiver. He expressly stated in his decision, however, that he “would have found that [Fernandez-Ruiz] was eligible for 212(c) relief but for ” the 2002 and 2003 domestic assault convictions which, he concluded, constituted crimes of moral turpitude and rendered him removable and thus ineligible for a 212(c) waiver. In light of our decision that neither the 2002 nor the 2003 conviction qualifies as a crime of moral turpitude, and that Fernandez-Ruiz is therefore not removable under 8 U.S.C. § 1227(a)(2)(A)(ii), it is apparent that he is eligible for section 212(c) relief. 14
IV. Conclusion
We conclude that neither of Fernandez-Ruiz’s two convictions under Arizona Revised Statutes sections 13-1203 and 13-3601 constitutes a crime involving moral turpitude. Arizona’s misdemeanor assault statute requires neither the willful intent nor the type of injury that is necessary for domestic assault to be, categorically, an offense involving moral turpitude. Accordingly, Fernandez-Ruiz is not removable pursuant to 8 U.S.C. § 1227(a)(2) (A) (ii). As to the aggravated felony ground of removal, we remand to the BIA to consider in the first instance whether Fernandez-Ruiz’s 1994 one-year sentence is unlawful on its face and thus cannot support a charge of removability as an aggravated felon. Finally, we hold that Fernandez-Ruiz was eligible for section 212(c) relief as of the time of the BIA ruling.
PETITION GRANTED IN PART; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Notes
. An aggravated felony conviction renders an alien ineligible for cancelation of removal. See 8 U.S.C. § 1229b(a)(3).
. With respect to the crime of violence issue, before this court the government relied only on the 2003 conviction and not on the similar 2002 conviction. That it did so is of no consequence as a decision in its favor on the 2003 offense would permit his removal for having committed a crime of violence and an adverse decision would preclude his removal on the crime of violence ground with respect to both convictions.
. The record contains three documents pertaining to Fernandez-Ruiz's 2003 class 2 misdemeanor offense: (1) the charging document which states that he violated "13-3601/13-1203”; (2) a sentencing minute entry which states that he was convicted of "DV/assault Class 2”; and (3) a pro forma plea agreement which states that he pled guilty to "DV/Aslt Class II.” None of these documents indicates whether he was convicted under subsection (A)(1) or (A)(2).
.As another circuit has observed, "Congress did not see fit to state what meaning it attributes to the phrase 'crime involving moral turpitude’ ... The legislative history leaves no doubt, however, that Congress left the term 'crime involving moral turpitude' to future administrative and judicial interpretation.”
Cabral v. INS,
. Specifically, the California felony spousal abuse statute at issue in Grageda prohibited any person from "willfully inflict[ing] upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition,. ...” Cal. Penal Code § 273.5(a) (emphasis added).
. The BIA applied Grageda correctly in In re *1166 Tran, 21 I. & N. Dec. 291 (BIA 1996). There, the BIA concluded that the "infliction of bodily harm upon a person with whom one has [ ] a familial relationship is an act of depravity which is contrary to accepted moral standards. When such act is committed willfully, it is an offense that involves moral turpitude.” Id. at 294 (emphasis added) (internal citation omitted). In other cases it was less faithful to our decision. See, e.g., In re Fualaau, 21 I. & N. Dec. 475, 478 (BIA 1996) (stating that an assault involving a reckless state of mind is a crime of moral turpitude if it results in "the infliction of serious bodily injury”).
. Arizona Revised Statutes section 13-105(c) defines "recklessly” to mean:
... 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 vol *1167 untary intoxication also acts recklessly with respect to such risk.
. Indeed, the Arizona legislature has provided a tiered structure of punishment for assault based on the severity of the injury, distinguishing between "simple assault” (the statute we consider here) which causes
“any
injury to another person,” or "plac[es] another person in reasonable apprehension of imminent physical injury” and "aggravated assault” which involves,
inter alia,
causing
“serious
physical injury to another.”
Compare
Ariz. Rev. Stat. §§ 13 — 1203(A)(1),
with
§ 13-1204(A)(1) (emphasis added);
see also George,
. The only evidence in the administrative record pertaining to the 2002 conviction is a sentencing minute entry that describes the violation as "DV Aslt.” The Notice to Appear issued by DHS alleged that the 2002 conviction was "for the offense of Domestic Violence/Assault in violation of ARS §§ 13-1203; 13-3601.” Fernandez-Ruiz admitted that allegation as charged when he appeared before the Immigration Judge in June, 2003.
. We note that the en banc court "inferred]” that Fernandez-Ruiz's 2002 conviction constituted a "class three” misdemeanor because he was sentenced to thirty days in jail for this offense, and under Arizona law, a "class three” misdemeanor is punishable by a maximum of thirty days imprisonment. See Fernandez-Ruiz, at 1132 (citing Ariz. Rev. Stat. § 13-707(A)). Assault committed pursuant to section 13-1203(A)(3) is a "class three” misdemeanor under the Arizona assault statute. See Ariz. Rev. Stat. § 13-1203(B). As we explain below, subsection (A)(3) covers a range of conduct that does not involve moral turpitude.
.Under Arizona law, the offense described in subsection (A)(3) "is a less serious offense than the offense described in § 13-1203(A)(1) and a lower class of misdemeanor.”
In re Jeremiah T.,
. In our earlier opinion, we examined the question of Fernandez-Ruiz's eligibility for cancellation of removal in light of his 1994 theft conviction.
See Fernandez-Ruiz,
. Fernandez-Ruiz argues that because the maximum possible sentence he could have received for the theft offense was six months, his conviction cannot be considered a "theft offense ... for which the term of imprisonment [is] at least one year” under 8 U.S.C. § 1101(a)(43)(G).
See Corona-Sanchez,
. The availability of such relief would, of course, only be relevant should the BIA determine that the theft offense constitutes an aggravated felony. Also, we do not foreclose an adverse determination as to such relief based on any offenses committed after the time of the BIA decision in this matter.