Fernandez-Ruiz v. Gonzales, (9th Cir. Nov. 15, 2006)

AZ Rev. Stat. §13-1203 requires neither "willful intent" nor abuse severe enough to cause "a traumatic injury" and therefore, does not qualify as a categorical crime involving moral turpitude.

Petitioner was convicted of several crimes after having been admitted to the U.S. as a lawful permanent resident in 1990. In 2002 and 2003, Petitioner was convicted of violating Ariz. Rev. Stat. §§13-1203 and 13-3601, "domestic violence/assault." In removal proceedings, Petitioner was charged with removability based on (1) his crime of domestic violence (the 2003 conviction); (2) two crimes involving moral turpitude (the 2002 and 2003 convictions); and (3) an aggravated felony (a 1992 theft conviction). The immigration judge sustained all charges of removability and denied cancellation of removal. The BIA affirmed. A three-judge Ninth Circuit panel denied the subsequent petition for review, finding Petitioner's 2003 domestic violence offense constituted a "crime of violence" as defined by 18 USC §16(a) which rendered him removable under INA §237(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 588 (9th Cir. 2005). An en banc court reversed, holding that under Leocal v. Ashcroft, 543 U.S. 1 (2004), a federal "crime of violence" must involve the intentional use of force against the person or property of another. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006). The en banc court then remanded the case for a three-judge panel decision on the remainder of the issues: (1) whether Petitioner's 2002 and 2003 convictions constituted crimes involving moral turpitude; and (2) whether his 1992 theft conviction constituted an aggravated felony.

AZ Rev. Stat. §13-1203(A) states that a person commits misdemeanor assault by "(1) [i]ntentionally, knowingly or recklessly causing any physical injury to another person; or (2) [i]ntentionally placing another person in reasonable apprehension of imminent physical injury; or (3) [k]knowingly touching another person with the intent to injure, insult or provoke such person." Petitioner's 2003 conviction constituted a "class 2" misdemeanor conviction which is classified as either "reckless" assault under subsection (A)(1) or assault pursuant to subsection (A)(2).

The court applied the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), and held that Petitioner's 2003 class 2 assault conviction did not qualify as a crime involving moral turpitude. The court explained that generally, a conviction for simple assault does not involve moral turpitude and pointed out that AZ Rev. Stat. §13-1203 is in fact a "simple assault" statute. The court also found the BIA's reliance on Grageda v. INS, 12 F.3d 919 (9th Cir. 2003) to support its holding that "the additional element of the domestic relationship turns the assault into a crime involving moral turpitude," to be misplaced. First, the court explained that while Grageda involved a California domestic violence conviction which was found to constitute a crime involving moral turpitude, its holding was limited to those acts of domestic violence that are done willfully. The court further noted that "a finding of willfulness and/or evil intent is necessary in order to establish moral turpitude [and] Arizona's class 2 misdemeanor assault does not require a willful or intentional act." The court stated that it's holding in Grageda is further limited to situations where "a person beats his or her spouse severely enough to cause 'a traumatic condition' [and] does not suggest that a spousal contact that causes minor injury…constitutes a crime involving moral turpitude." Not only does AZ Rev. Stat. §13-1203(A) not require a level of injury of this magnitude, its does not require bodily injury of any kind. The court then applied the modified categorical approach but quickly concluded that the record of conviction did not contain any information that would indicate that Petitioner pleaded guilty to acts involving moral turpitude. The court held that Petitioner's 2003 conviction could not be used as a basis for removal.

For similar reasons, the court also found that Petitioner's 2002 conviction did not qualify as a crime involving moral turpitude. Examining AZ Rev. Stat. §13-1203(A)(3), the court found that the plain text clearly states that a conviction under this subsection does not require physical injury of any kind, as it only requires an act of "touching" one's spouse in order to "insult" or "provoke." The record of the 2002 conviction provided no additional information and the court held that Petitioner's 2002 conviction could also not be used as a basis for removal.

Finally, the court turned to the question of whether Petitioner's 1992 theft conviction constituted an aggravated felony. INA §101(a)(43)(G) defines as an aggravated felony, "a theft offense…for which the term of imprisonment [is] at least one year." Although Petitioner was sentenced to one year of imprisonment, he argued that the sentence was unlawful because at the time sentence was imposed, his conviction was classified as a misdemeanor and under AZ law, the maximum term of imprisonment for a misdemeanor is, and was, six months. The court remanded the case to the BIA for it to consider whether Petitioner's one-year sentence is illegal on its face and, if so, whether he may still be removed as an aggravated felon. The court concluded by holding that because Petitioner is no longer removable for two crimes involving moral turpitude, he would be eligible for a waiver of inadmissibility as to his theft offense under former INA §212(c) if he is not otherwise barred. The petition for review was granted.