Jose Cornejo-Villagrana v. Jefferson Sessions , 870 F.3d 1099 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO CORNEJO- No. 13-72185
VILLAGRANA,
Petitioner, Agency No.
A079-648-998
v.
JEFFERSON B. SESSIONS III, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 17, 2017
San Francisco, California
Filed September 14, 2017
Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,
Circuit Judges, and Rosanna Malouf Peterson, *
District Judge.
Opinion by Judge Peterson
*
The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by designation.
2 CORNEJO-VILLAGRANA V. SESSIONS
SUMMARY **
Immigration
The panel denied Jose Antonio Cornejo-Villagrana’s
petition for review of a Board of Immigration Appeals
decision concluding that his conviction for misdemeanor
domestic violence assault under Arizona Revised Statutes
§§ 13-1203 and 13-3601 was a crime of domestic violence
under 8 U.S.C. § 1227(a)(2)(E) that rendered him
removable.
The panel concluded that the Arizona assault statute,
Arizona Revised Statutes § 13-1203, is divisible and that,
under the modified categorical approach, the record
provided a sufficient factual basis to support a finding that
Cornejo-Villagrana was convicted of a class 1 misdemeanor
under Arizona Revised Statutes § 13-1203(A)(1), which
requires intentionally or knowingly causing any physical
injury to another person.
The panel further held that Arizona Revised Statutes
§ 13-1203(A)(1) is a crime of violence under 18 U.S.C.
§ 16(a), and that the domestic relationships enumerated
under Arizona’s domestic violence provision, Arizona
Revised Statutes § 13-3601(A), are coextensive with the
domestic relationships described in 8 U.S.C.
§ 1227(a)(2)(E). Accordingly, the panel concluded that
Cornejo-Villagrana’s conviction was a “crime of domestic
violence” under 8 U.S.C. § 1227(a)(2)(E).
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CORNEJO-VILLAGRANA V. SESSIONS 3
COUNSEL
Benjamin Wiesinger (argued) and John M. Pope, Pope &
Associates P.C., Phoenix, Arizona, for Petitioner.
Corey L. Farrell (argued), Attorney; Terri J. Scadron,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
PETERSON, District Judge:
Petitioner Jose Antonio Cornejo-Villagrana (“Cornejo”)
disputes that he is removable as a resident alien who
committed a crime of domestic violence under the
Immigration and Nationality Act (“INA”) § 237(a)(2)(E),
8 U.S.C. § 1227(a)(2)(E).
Cornejo was convicted of misdemeanor domestic
violence assault against his spouse under Arizona Revised
Statutes (“Ariz. Rev. Stat.”) §§ 13-1203 and
13-3601. The Board of Immigration Appeals (“BIA”)
adopted the Immigration Judge’s (“IJ”) reasoning that
Petitioner was removable, finding that although
categorically not a crime of violence, Cornejo’s offense fit
the federal generic definition of “crime of domestic
violence” under the modified categorical approach.
We agree that Petitioner is removable on the basis of his
class one misdemeanor domestic violence assault conviction
under Arizona law.
4 CORNEJO-VILLAGRANA V. SESSIONS
FACTS AND PROCEDURAL HISTORY
Cornejo, a native and citizen of Mexico, entered the
United States without inspection in 1994. On January 30,
2008, he adjusted his status to lawful permanent resident.
On October 3, 2008, Cornejo pleaded guilty to “Assault—
Domestic Violence Offense,” a “Class 1 Misdemeanor”
under Arizona law.
Cornejo had been charged with Aggravated Assault, a
“Class 6 Felony and a Domestic Violence Offense,”
committed by knowingly touching his spouse “with the
intent to injure, insult, or provoke” while “in violation of an
order of protection. . . .” However, Petitioner entered a
guilty plea to “Count 2 (Amended) Assault, a Domestic
Violence Offense Class 1 misdemeanor.” There is no
amended complaint in the administrative record.
In the plea transcript, Cornejo admitted that he and his
wife were fighting, and that as she was “going down the
hallway,” he “either punched or pushed her in the back of
the head . . . with the intention to insult or provoke her . . . .”
The superior court judge found that the factual basis
supported Cornejo’s admission to the class one
misdemeanor domestic violence charge and accepted the
plea. The superior court imposed a 12-month term of
probation.
In December 2008, the Department of Homeland
Security (“DHS”) served Petitioner with a Notice to Appear,
Form I-862 (“NTA”), in the Immigration Court in Eloy,
Arizona. DHS alleged that Petitioner was removable under
the INA as an alien who had committed a crime of domestic
violence. 8 U.S.C. § 1227(a)(2)(E)(i). The NTA alleged
that Cornejo was convicted of “a class 1 misdemeanor”
domestic violence assault against his spouse, making him
CORNEJO-VILLAGRANA V. SESSIONS 5
removable under INA § 237(a)(2)(E)(i), 8 U.S.C.
§ 1227(a)(2)(E)(i).
The IJ initially terminated Petitioner’s removal
proceedings. DHS moved the BIA to remand the matter to
the IJ, seeking an opportunity to provide the plea transcript
that the agency had secured after the initial proceedings were
terminated. The BIA granted the motion and remanded to
the IJ in December 2010. In August 2012, the IJ determined
that Cornejo’s conviction qualified as a crime of domestic
violence under the modified categorical approach and
sustained the charge of removability.
On appeal, the BIA affirmed the IJ’s determination that
Cornejo was removable based on a crime of domestic
violence and ineligible because of insufficient continuous
presence for cancellation of removal pursuant to INA
§ 240A(a), 8 U.S.C. § 1229b(a). Cornejo timely petitioned
for review. See 8 U.S.C. § 1252(b)(1).
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252. We
review questions of law de novo. See, e.g., Ortega v. Holder,
747 F.3d 1133, 1134 (9th Cir. 2014). The IJ’s or BIA’s
factual findings are reviewed for substantial evidence. See,
e.g., Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th
Cir. 2015). With respect to the issue of removability, the
BIA cited to Matter of Burbano, 20 I. & N. Dec. 872 (BIA
1994), and adopted and affirmed the IJ’s decision in its
entirety, so we review the IJ’s decision directly. Tamang v.
Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). Because the
BIA did not cite Burbano in affirming the IJ’s
determinations regarding any other issues, we review the
BIA’s decision with respect to Cornejo’s eligibility for
6 CORNEJO-VILLAGRANA V. SESSIONS
voluntary departure. See Mutuku v. Holder, 600 F.3d 1210,
1212 (9th Cir. 2010).
ANALYSIS
“Any alien who at any time after admission is convicted
of a crime of domestic violence” may be deported. 8 U.S.C.
§ 1227(a)(2)(E)(i). For purposes of that ground of
deportability, a “crime of domestic violence” is “any crime
of violence (as defined in section 16 of title 18, United States
Code) against a person” who has one or more of the
enumerated domestic relationships with the perpetrator,
including being the perpetrator’s spouse. Id. For a
misdemeanor to qualify as a crime of violence under
18 U.S.C. § 16, the offense must have “as an element the
use, attempted use, or threatened use of physical force
against the person or property of another, . . . .” 18 U.S.C.
§ 16(a).
a. Categorical Analysis and Divisibility
Cornejo argues that his misdemeanor assault conviction
does not support removability as a crime of domestic
violence because it was not “violent in nature.” Opening
Brief of Petitioner at 10 (citing Ye v. INS, 214 F.3d 1128 (9th
Cir. 2000) (holding that the force necessary to constitute a
crime of violence under 18 U.S.C. § 16(b) must be violent in
nature). Moreover, Cornejo argues that his crime of
conviction is overbroad as to 18 U.S.C. § 16.
Under the categorical approach prescribed by Taylor v.
United States, 495 U.S. 575 (1990), we must determine
whether Ariz. Rev. Stat. § 13-1203 necessarily requires as
an element “the use, attempted use, or the threatened use of
physical force against the person or property of another,”
18 U.S.C. § 16(a). We must consider whether the elements
CORNEJO-VILLAGRANA V. SESSIONS 7
of the state offense align with, are narrower than, or are
broader than the federal generic crime of domestic violence.
See Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2012).
To accomplish that task, we look to the text of the state
statute and to interpretations of the statute’s terms by the
state’s courts. United States v. Strickland, 860 F.3d 1224,
1226–27 (9th Cir. 2017).
In Arizona, a person may commit misdemeanor 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.
Ariz. Rev. Stat. § 13-1203(A). Subsection (A) must be read
in conjunction with subsection (B), which says:
Assault committed intentionally or
knowingly pursuant to subsection A,
paragraph 1 is a class 1 misdemeanor.
Assault committed recklessly pursuant to
subsection A, paragraph 1 or assault pursuant
to subsection A, paragraph 2 is a class 2
misdemeanor. Assault committed pursuant
to subsection A, paragraph 3 is a class 3
misdemeanor.
8 CORNEJO-VILLAGRANA V. SESSIONS
Id. at § 13-1203(B).
Paragraph one contains two classes of misdemeanors:
(1) a class one misdemeanor committed intentionally or
knowingly; and (2) a class two misdemeanor committed
recklessly. Ariz. Rev. Stat. § 13-1203(B). Paragraph two
defines only a class two misdemeanor. Id. Paragraph three
contains only a class three misdemeanor. Id.Arizona law defines “intentionally” and “knowingly” as
follows:
(a) “Intentionally” or “with the intent to”
means, with respect to a result or to conduct
described by a statute defining an offense,
that a person’s objective is to cause that result
or to engage in that conduct.
(b) “Knowingly” means, with respect to
conduct or to a circumstance described by a
statute defining an offense, that a person is
aware or believes that the person’s conduct is
of that nature or that the circumstance exists.
It does not require any knowledge of the
unlawfulness of the act or omission.
Id. at § 13-105(10)(a), (b). Arizona law defines “physical
injury” as “impairment of physical condition.” Id. at § 13-
105(33).
Petitioner was convicted of an assault in a domestic
violence context because the victim was his spouse. The
domestic relationships enumerated under Arizona’s
domestic violence provision, Ariz. Rev. Stat. § 13-3601(A),
are coextensive with the domestic relationships described in
8 U.S.C. § 1227(a)(2)(E)(i), the removal statute at issue.
CORNEJO-VILLAGRANA V. SESSIONS 9
The categorical approach does not apply here because
the elements of the state offense are broader than the
elements for the federal generic crime of domestic violence.
A defendant may be convicted under Ariz. Rev. Stat. § 13-
1203(A)(1) for “recklessly causing any physical injury to
another person.” We, however, have previously found that
recklessly or negligently causing physical injury to another
person under paragraph one of the Arizona statute was not a
categorical crime of violence under 18 U.S.C. § 16(a), or by
extension, a categorical crime of domestic violence under 8
U.S.C. § 1227(a)(2)(E)(I). Fernandez-Ruiz v. Gonzales,
466 F.3d 1121, 1130–32 (9th Cir. 2006) (en banc); but see
Voisine v. United States, 136 S. Ct. 2272, 2280 (2016)
(concluding that “a person who assaults another recklessly
‘uses’ force no less than one who carries out that same action
intentionally.”).
To determine whether a modified categorical approach
is appropriate, we must decide whether the relevant statute
is divisible. Arizona state courts view § 13-1203 as
containing distinct offenses. See State v. Freeney, 223 Ariz.
110, 113 (2006) (en banc) (finding that the elements of an
offense under subsection (A)(2) materially differ from those
of an offense under subsection (A)(1), resulting in separate
crimes within the same statute); State v. Waller, 235 Ariz.
479, 488 (App. 2014) (“The three types of assault are distinct
offenses with different elements, not merely different
manners of committing the same offense.”); In re Jeremiah
T., 212 Ariz. 30, 34 (App. 2006) (holding that assault under
subsection (A)(3) is not a lesser-included offense of assault
under subsection (A)(1)). Therefore, as we previously have
concluded, Ariz. Rev. Stat. § 13-1203 is divisible. See
United States v. Cabrera-Perez, 751 F.3d 1000, 1004–05
(9th Cir. 2014).
10 CORNEJO-VILLAGRANA V. SESSIONS
Even where a statute is divisible, a modified categorical
analysis is not appropriate unless at least one of the offenses
contained within the statute defines a crime of violence,
while at least one does not. 1 Recklessly causing physical
injury to another person under paragraph one of the Arizona
statute is not a categorical crime of violence under 18 U.S.C.
§ 16(a). Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130–
32 (9th Cir. 2006) (en banc). But a person who has been
convicted under subsection (A)(2) of Ariz. Rev. Stat. § 13-
1203 of intentional conduct has committed a crime of
violence. Cabrera-Perez, 751 F.3d at 1007. Therefore, a
modified categorical analysis is required to determine
whether Petitioner’s conviction is a crime of violence. 2
b. Modified Categorical Analysis
Throughout the administrative proceedings in this
matter, Cornejo conceded that his crime of conviction was a
class one misdemeanor. Only one offense constitutes a class
one misdemeanor under § 13-1203, intentionally or
knowingly “causing any physical injury to another person.”
Ariz. Rev. Stat. § 13-1203(A)(1). However, Cornejo now
1
When a statute lists alternative offenses rather than means of
commission, so that the structure of the statute “renders opaque which
element played a part in the defendant’s conviction,” we proceed to the
modified categorical approach to determine what part of the divisible
statute formed the basis of conviction. Descamps v. United States, 133 S.
Ct. 2276, 2283 (2013).
2
Petitioner argues that the Arizona assault statute also is overbroad
because one could commit a class one misdemeanor assault without
violent physical force. Given that we have found the statute divisible
and appropriate for a modified categorical analysis, we do not address
that issue.
CORNEJO-VILLAGRANA V. SESSIONS 11
argues that his record of conviction is inconclusive, and so
we proceed under a modified categorical approach.
Under the modified categorical approach, we confine our
inquiry to “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 544 U.S. 13,
16 (2005). The plea colloquy, the order accepting the plea
agreement, and the sentencing order unambiguously state
that Cornejo pleaded guilty to a class one misdemeanor
domestic violence assault.
We acknowledge that the superior court judge and
Cornejo’s defense counsel used the phrase, “with the
intention to insult or provoke” that tracks the offense set
forth in paragraph three of Ariz. Rev. Stat. § 13-1203(A).
However, Cornejo pleaded guilty to a class one
misdemeanor. The only class one misdemeanor in that
statute is in paragraph one and requires that a person
intentionally or knowingly cause physical injury to another
person. Ariz. Rev. Stat. § 13-1203(A)(1). Moreover,
Cornejo admitted that he acted “with the intention to insult
or provoke” his wife, and that he “either punched or pushed”
his wife in the back of the head. These admissions form a
sufficient factual basis to support that Cornejo “intentionally
[or] knowingly . . . caus[ed] any physical injury” to his
spouse. See Ariz. Rev. Stat. § 13-1203(A)(1).
Cornejo argues that the factual basis of the plea shows
that he did not intend to use violent force, because his
intention was to insult or provoke his wife, which follows
the language of Ariz. Rev. Stat. § 13-1203(A)(3). He
misunderstands the intentionally element of the statute. The
statute requires that he intentionally use violent force, which
he did. He punched or pushed her in the back of the head.
12 CORNEJO-VILLAGRANA V. SESSIONS
It is irrelevant whether he used violent force because he
wanted to insult or provoke her. The BIA, in a published
opinion, explained, “The key inquiry is not the alien’s intent
for purposes of assault,” but instead whether the statute of
conviction “requires the intentional use of ‘violent force.’”
Matter of Julio E. Velasquez, 25 I&N Dec. 278, 283 (BIA
2010). This published BIA opinion is entitled to Chevron
deference. Renteria-Morales v. Mukasey, 551 F.3d 1076,
1081 (9th Cir. 2008).
Moreover, Cornejo’s attempt to have us review the
underlying facts for his conviction goes beyond the scope of
the modified categorical approach. In Descamps, the
Supreme Court admonished courts for using the modified
categorical approach to “try to discern what a trial showed,
or a plea proceeding revealed, about the defendant’s
underlying conduct.” 133 S. Ct. at 2288. The Court
explained, “Our modified categorical approach merely
assists the sentencing court in identifying the defendant’s
crime of conviction.” Id. Based on the Shepard documents,
we know that Cornejo was convicted of a class 1
misdemeanor for assault, which means he intentionally or
knowingly caused physical injury to his wife. If Cornejo
wanted to argue that the sentencing court had erred in finding
a factual basis for his plea, he could have done so on direct
appeal in state court.
c. Comparison of Crime of Conviction with Federal
Generic Offense
To determine whether a state court conviction is
coextensive with the federal generic “crime of domestic
violence,” we look to state law to determine the nature of a
prior state conviction, and to federal law to interpret the
federal statute. United States v. Flores-Cordero, 723 F.3d
1085, 1087 (9th Cir. 2013) (citing Johnson v. United States,
CORNEJO-VILLAGRANA V. SESSIONS 13
559 U.S. 133, 138 (2010)). The Arizona statute refers to
“physical injury,” but does not include the word “force.”
Ariz. Rev. Stat. § 13-1203(A)(1). But the Arizona Supreme
Court has determined that “physical injury” may be used
interchangeably with “physical force.” State v. Gordon,
120 Ariz. 172, 174 (1978) (en banc) (citing State v. Dillon,
26 Ariz. App. 220, 222 (1976)).
Turning to federal law, the Supreme Court explicitly
rejected the notion that a statute that prohibits intentionally
or knowingly causing bodily injury may be committed
without employing force, for instance by poisoning a
victim’s drink. United States v. Castleman, 134 S. Ct. 1405,
1415 (2014) (“That the harm occurs indirectly, rather than
directly (as with a kick or punch), does not matter.”).
Castleman held that the common-law meaning of force,
requiring only “offensive touching” rather than “violent
force,” “fits perfectly” within the definition of
“misdemeanor crime of domestic violence” used for
18 U.S.C. § 922(g)(9), restricting individuals convicted of a
“misdemeanor crime of domestic violence” from possessing
a firearm, “because perpetrators of domestic violence are
routinely prosecuted under generally applicable assault or
battery laws . . . .” Id. at 1410–11 (internal quotation marks
omitted). The Court further reasoned that the term
“domestic violence” is a “term of art encompassing acts that
one might not characterize as ‘violent’ in a nondomestic
context.” Id. at 1410–11.
In Castleman, the Court departed from its decision in
Johnson v. United States, 559 U.S. 133 (2010), where the
Court interpreted language in the Armed Career Criminal
Act very similar to that found in the crime of violence
statute. § See 18 U.S.C. § § 924(e)(2)(B)(i) (ACCA);
18 U.S.C. § 16(a) (crime of violence definition). The Court
14 CORNEJO-VILLAGRANA V. SESSIONS
determined that “physical force” should be understood to
mean “violent force—that is, force capable of causing
physical pain or injury to another person.” 559 U.S. at 140;
see also Arellano Hernandez v. Lynch, 831 F.3d 1127, 1131
(9th Cir. 2016) (relying on the Johnson, 559 U.S. at 140,
definition of physical force in the § 16(a) context).
Therefore, “violent force” is present when there is “physical
injury” for purposes of a “crime of violence.” See id.
We have held repeatedly “that threat and assault statutes
necessarily involve the use of violent, physical force,” so
long as they are in the context of knowing and intentional
behavior. United States v. Calvillo-Palacios, 860 F.3d 1285,
1290 (9th Cir. 2017). A defendant charged with “assault
resulting in bodily injury, necessarily must have committed
an act of force in causing the injury.” Id. (quoting United
States v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009)
(internal quotation marks omitted)). Cases subsequent to
Juvenile Female are in accord. See Cabrera-Perez, 751 F.3d
at 1007; Arellano Hernandez, 831 F.3d at 1130–32.
Therefore, the “use of physical force” may not be dissociated
from intentionally or knowingly causing physical injury
under Ariz. Rev. Stat. § 13-1203(a).
Arizona’s class one misdemeanor domestic violence
assault is a crime of violence under 18 U.S.C. § 16(a), and
with the additional element of a domestic relationship, a
“crime of domestic violence” for purposes of 8 U.S.C.
§ 1227(a)(2)(E). Therefore, Petitioner is removable due to
his misdemeanor domestic violence conviction under the
modified categorical approach.
PETITIONER’S PETITION FOR REVIEW IS
DENIED.