Arturo Aldaco-Quezada v. Jefferson Sessions ( 2017 )

FILED
NOT FOR PUBLICATION
SEP 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTURO ALDACO-QUEZADA, No. 13-71717
Petitioner, Agency No. A088-358-519
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 17, 2017
San Francisco, California
Before: KLEINFELD and WARDLAW, Circuit Judges, and PETERSON,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
Arturo Aldaco-Quezada petitions for review of the Board of Immigration
Appeals’s (“BIA”) order ruling him ineligible for cancellation of removal. We
have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition because his
assault conviction was for a crime of domestic violence under the modified
categorical approach. See Cornejo-Villagrana v. Sessions, No. 13-72185, — F.3d
—, 2017 WL 4051705 (9th Cir. Sept. 14, 2017).
Aldaco-Quezada pleaded guilty to subsection (A)(1) of the Arizona assault
statute, which requires “causing any physical injury to another person.” Ariz. Rev.
Stat. § 13-1203(A)(1). His argument that this statue does not require physical
force is unavailing. He relies on the hypothetical from In re Jeremiah T., 126 P.3d
177, 179 (Ariz. Ct. App. 2006), used to explain the holding that (A)(3) is not a
lesser-included offense within (A)(1), but does not demonstrate “a realistic
probability” that the statute is applied in the manner of the hypothetical (charging
someone who withheld medication under (A)(1)), see Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). The factual basis for the plea further supports the
conclusion that Aldaco-Quezada was convicted of a crime that required the use of
violent force. He admitted that he threw keys at his common-law wife, “which hit
her and caused a red mark.” His plea also satisfies the mens rea requirement
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because he pleaded guilty to class 1 misdemeanor assault, which requires acting
intentionally or knowingly rather than recklessly or negligently. See Fernandez-
Ruiz v. Gonzales, 466 F.3d 1121, 1130–32 (9th Cir. 2006) (en banc). The
domestic relationship requirement is met here because Aldaco-Quezada also
pleaded guilty to Arizona’s domestic violence statute. Ariz. Rev. Stat.
§ 13-1203(A)(1).
Because his assault conviction was for a crime of domestic violence, we do
not reach the issue of whether his convictions for assault and resisting arrest were
for crimes involving moral turpitude.
PETITION FOR REVIEW DENIED.
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