Cornejo-Villagrana v. Whitaker
Cornejo-Villagrana v. Whitaker
Opinion of the Court
The panel has granted the petition for panel rehearing. The opinion filed on September 14, 2017, and previously withdrawn, is amended, and the amended opinion is filed.
With these amendments, Judge Wardlaw votes to deny the petition for rehearing en banc, and Judges Kleinfeld and Peterson so recommend. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
IT IS SO ORDERED.
*481Petitioner 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),
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.
I. 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's defense attorney on his behalf stated as the factual basis for the plea 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.
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
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to
III. ANALYSIS
"Any alien who at any time after admission is convicted of a crime of domestic violence" may be deported.
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," citing Ye v. INS ,
Under the categorical approach prescribed by Taylor v. United States ,
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.
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.
Paragraph one contains two classes of misdemeanors: (1) a class one misdemeanor committed intentionally or knowingly; and (2) a class two misdemeanor committed recklessly. Id . Paragraph two defines only a class two misdemeanor.
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.
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,
Arizona state courts view § 13-1203 as containing distinct offenses. See State v. Freeney ,
b. Modified Categorical Analysis
Throughout the administrative proceedings in this matter, Cornejo conceded *484that 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."
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 ,
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
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
*485Moreover, Cornejo's attempt to have us review the underlying facts for his conviction goes beyond the scope of the modified categorical approach. In Descamps v. United States , 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."
Based on the Shepard documents, we know that Cornejo was convicted of a class one 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 ,
Petitioner relies upon dicta in a state intermediate appellate court decision to argue that Arizona law does not require force at all. In that case the court used a hypothetical to illustrate its point that
Turning to federal law, the Supreme Court in Johnson ,
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 ,
Arizona's class one misdemeanor domestic violence assault is a crime of violence under
PETITIONER'S PETITION FOR REVIEW IS DENIED.
See State v. Freeney ,
We disagree with the amicus contention that the Calvillo-Palacios panel held that the defendant's conviction was a crime of violence "only" because he was convicted of aggravated, rather than simple, assault under Texas law. Rather, the Calvillo-Palacios panel recognized that numerous Ninth Circuit opinions support that "bodily injury entails the use of violent, physical force" in the context of assault crimes in general. See 860 F.3d at 1291-92.
Reference
- Full Case Name
- Jose Antonio CORNEJO-VILLAGRANA v. Matthew G. WHITAKER, Acting Attorney General
- Cited By
- 8 cases
- Status
- Published