Jose Valdivia-Rodriguez v. Jefferson Sessions

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE VALDIVIA-RODRIGUEZ, No. 14-72168
Petitioner, Agency No. A201-147-919
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
Jose Valdivia-Rodriguez petitions for review of the Board of Immigration
Appeals’s (“BIA”) order ruling that he was ineligible for cancellation of removal
because he was convicted of a crime of domestic violence. We have jurisdiction
under 8 U.S.C. § 1252(a) and deny the petition.
Valdivia-Rodriguez’s assault conviction was for a crime of violence as
defined by 18 U.S.C. § 16(a) under the modified categorical approach. He 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). The
Arizona Criminal Code defines “[p]hysical injury” to mean “the impairment of
physical condition.” Id. § 13-105(33). His argument that the assault statute does
not require physical force is therefore without merit. He relies on the hypothetical
from In re Jeremiah T., 126 P.3d 177, 180 (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 mens rea requirement
was satisfied, because Valdivia-Rodriguez pleaded guilty to class 1 misdemeanor
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assault, which requires acting intentionally or knowingly. See Leocal v. Ashcroft,
543 U.S. 1, 9 (2004).
The domestic relationship requirement was also met here. In Arizona, the
State may charge the defendant with domestic violence by including the letters
“DV” in the charging document and need not charge the defendant specifically
under section 13-3601, which is Arizona’s domestic violence statute. Ariz. Rev.
Stat. § 13-3601(H). The signed plea states that Valdivia-Rodriguez was charged
with and pleaded guilty to “Assault and Disorderly Conduct DV.” And the
domestic relationships enumerated in section 13-3601(A) are coextensive with
those listed in 8 U.S.C. § 1227(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1125 n.5 (9th Cir. 2006) (en banc).
PETITION FOR REVIEW DENIED.
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