Fernandez-Ruiz v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ROBERTO FERNANDEZ-RUIZ, 

Petitioner, No. 03-74533

v.

 Agency No.

A90-116-400

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 21, 2006—San Francisco, California

Filed October 26, 2006

Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,

Alex Kozinski, John T. Noonan, Diarmuid F. O’Scannlain,

Michael Daly Hawkins, Kim McLane Wardlaw,

Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Partial Concurrence and Partial Dissent by Judge Kozinski;

Dissent by Judge Wardlaw

17851

FERNANDEZ-RUIZ v. GONZALES 17855

COUNSEL

Erica K. Rocush, Snell & Wilmer L.L.P., Tucson, Arizona,

for the petitioner-appellant.

Peter D. Keisler, Assistant Attorney General; Donald E.

Keener, Deputy Director; John Andre, Senior Litigation

Counsel, Office of Immigration Litigation, Civil Division,

U.S. Department of Justice, Washington, D.C., for the respon-

dent.

Lynn Marcus, Immigration Law Clinic, Rogers College of

Law, University of Arizona, Tucson, Arizona; Vicky Dobrin

and Hilary Han, Dobrin & Han, PC, Seattle, Washington;

Lory Diana Rosenberg, Immigration Defense & Expert Assis-

tance Consultation and Training, Rockville, Maryland, for the

amici.

17856 FERNANDEZ-RUIZ v. GONZALES

OPINION

BEA, Circuit Judge, joined by Chief Judge SCHROEDER,

Judges REINHARDT, NOONAN, HAWKINS, CLIFTON:

This case calls upon us to decide whether the petitioner’s

2003 Arizona conviction for domestic violence was a “crime

of domestic violence” under a federal statute that triggers

removal of a legally admitted resident alien from this country.

The federal statute, as interpreted by the Supreme Court in

Leocal v. Ashcroft, 543 U.S. 1 (2004), covers only those

crimes involving intentional conduct. Because the relevant

Arizona statute permits conviction when a defendant reck-

lessly but unintentionally causes physical injury to another,

and because the petitioner’s documents of conviction do not

prove he intentionally used force against another, we con-

clude the federal statute does not apply. Accordingly, the peti-

tioner is not removable for his 2003 Arizona conviction and

we return the case to the original three-judge panel to decide

whether he is removable on other grounds.

I. Factual and Procedural Background

Jose Roberto Fernandez-Ruiz, a native and citizen of Mex-

ico, petitions for review of the Board of Immigration Appeals’

(BIA’s) order affirming an immigration judge’s (IJ’s) deci-

sion to rescind his lawful permanent resident status, remove

him from the United States, and deny him any relief from

removal.

Fernandez-Ruiz was admitted into the United States as a

lawful permanent resident on October 26, 1990. Thereafter,

he committed several crimes, three of which are relevant to

his petition for review.

In 1992, Fernandez-Ruiz was convicted of “theft by control

of property” in violation of Arizona Revised Statutes § 13-

1802(A)(1) & (C). For this offense, his initial sentence was

FERNANDEZ-RUIZ v. GONZALES 17857

two years’ probation. He later violated the conditions of his

probation and was sentenced to sixty days in jail. For a second

probation violation, he was sentenced to jail for “twelve

months at half time.”

In both 2002 and 2003, Fernandez-Ruiz was convicted of

“domestic violence/assault” in violation of Arizona Revised

Statutes §§ 13-1203 and 13-3601. For the 2002 conviction,

Fernandez-Ruiz was sentenced to thirty days in jail, sus-

pended should he properly perform probation for fifteen

months. From this sentence, we infer his offense constituted

a “class three” misdemeanor.1 The offense underlying

Fernandez-Ruiz’s 2003 conviction, by contrast, was a “class

two” misdemeanor.

On the basis of these convictions, the Department of Home-

land Security (DHS) initiated removal proceedings. As

grounds for removal, the DHS charged that Fernandez-Ruiz

had post-admission convictions for a crime of domestic vio-

lence (the 2003 conviction now at issue), two crimes involv-

ing moral turpitude (the 2002 and 2003 convictions), and an

aggravated felony (the theft by control of property convic-

tion).

An IJ sustained all three charges of removal, deemed

Fernandez-Ruiz ineligible to apply for a discretionary waiver

of deportation, and denied cancellation of removal. In a two-

page, per curiam opinion, the BIA adopted and affirmed the

decision of the IJ.

A three-judge panel of our court denied Fernandez-Ruiz’s

petition for review. See Fernandez-Ruiz v. Gonzales, 410 F.3d

585, 588 (9th Cir. 2005). As a threshold matter, the panel held

our court had jurisdiction over the case. See id. at 587. The

1

Arizona law designates three classes of misdemeanors. See Ariz. Rev.

Stat. § 13-707(A). Class three is the least serious, punishable by a maxi-

mum of thirty days’ imprisonment. See id.

17858 FERNANDEZ-RUIZ v. GONZALES

panel went on to hold that Fernandez-Ruiz’s class two misde-

meanor domestic violence offense constituted a crime of vio-

lence under 18 U.S.C. § 16(a) and rendered him removable

under 8 U.S.C. § 1227(a)(2)(E)(i). See Fernandez-Ruiz, 410

F.3d at 588.2 Because his conviction occurred in 2003, after

the 1996 repeal of 8 U.S.C. § 1182(c), Fernandez-Ruiz was

ineligible to apply for a discretionary waiver of deportation.

Fernandez-Ruiz, 410 F.3d at 588. Because his theft by control

of property offense was an aggravated felony, he was ineligi-

ble for cancellation of removal. Id.

We ordered rehearing en banc to resolve an inter- and intra-

circuit conflict as to whether, under Leocal v. Ashcroft, 543

U.S. 1 (2004), crimes involving the merely reckless use of

force can be crimes of violence. See Fernandez-Ruiz v. Gon-

zales, 431 F.3d 1212, 1212 (9th Cir. 2005).3

II. Jurisdiction

We adopt the portion of the panel’s opinion addressing the

government’s claim that, under 8 U.S.C. § 1252(a)(2)(C), we

lack jurisdiction to consider Fernandez-Ruiz’s petition. See

Fernandez-Ruiz, 410 F.3d at 586-87. As the panel explained,

under section 106(a)(1)(A)(iii) of the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231, “we are no longer barred

by § 1252(a)(2)(C) from reviewing Fernandez-Ruiz’s petition

on account of his past convictions.” Fernandez-Ruiz, 410 F.3d

at 587.

2

Holding Fernandez-Ruiz removable on this ground obviated the

panel’s need to address whether he was also removable because his

domestic violence offenses were crimes involving moral turpitude or

because his theft by control of property offense was an aggravated felony.

See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 588 n.2 (9th Cir. 2005).

3

The three-judge panel opinion shall not be cited as precedent by or to

this court or any district court of the Ninth Circuit, except to the extent

adopted by the en banc court. Fernandez-Ruiz v. Gonzales, 431 F.3d 1212,

1212 (9th Cir. 2005).

FERNANDEZ-RUIZ v. GONZALES 17859

III. Crime of Domestic Violence: Categorical Analysis

[1] The government claims Fernandez-Ruiz’s 2003 misde-

meanor domestic violence conviction subjected him to

removal under 8 U.S.C. § 1227(a)(2)(E)(i), which permits the

deportation of “[a]ny alien who at any time after admission is

convicted of a crime of domestic violence.”4 In this context,

a “crime of domestic violence” is “any crime of violence (as

defined in section 16 of Title 18) against a person” who has

one of several enumerated domestic relationships with the

perpetrator. Id.

[2] To determine whether Fernandez-Ruiz’s state law

domestic violence offense meets the Immigration and Nation-

ality Act’s definition of a crime of domestic violence, we

begin by applying the “categorical approach” laid out in Tay-

lor v. United States, 495 U.S. 575 (1990). See Ruiz-Morales

v. Ashcroft, 361 F.3d 1219, 1221-22 (9th Cir. 2004) (applying

the categorical approach to determine whether mayhem under

California law was a crime of violence under 18 U.S.C. § 16).

Under this approach, without regard to the particular facts of

Fernandez-Ruiz’s offense—and looking beyond the Arizona

statutes’ title for the offense—we must ask whether the “full

range of conduct” proscribed by the statutes under which

Fernandez-Ruiz was convicted meets the definition of a crime

of domestic violence. United States v. Baron-Medina, 187

F.3d 1144, 1146 (9th Cir. 1999) (quoting United States v.

Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994)); see Leocal, 543

U.S. at 7 (explaining that the language of 18 U.S.C. § 16

requires “look[ing] to the elements and the nature of the

offense of conviction, rather than to the particular facts relat-

ing to [a] petitioner’s crime”). Interpreting the definition of a

crime of domestic violence requires us to consider the “ordi-

nary, contemporary, and common meaning of the language

Congress used in defining” a crime of violence. Ruiz-Morales,

4

The government does not now argue that Fernandez-Ruiz’s 2002 mis-

demeanor domestic violence conviction met these requirements.

17860 FERNANDEZ-RUIZ v. GONZALES

361 F.3d at 1222 (quoting United States v. Trinidad-Aquino,

259 F.3d 1140, 1144 (9th Cir. 2001)); see Leocal, 543 U.S.

at 9 (“When interpreting a statute, we must give words their

‘ordinary or natural’ meaning.” (quoting Smith v. United

States, 508 U.S. 223, 228 (1993))).

[3] Of the two statutes under which Fernandez-Ruiz was

convicted, only the assault statute requires in-depth analysis.

See Ariz. Rev. Stat. § 13-1203.5 Both parties agree the spe-

cific focus of our analysis must be whether the offense

defined in Arizona Revised Statutes § 13-1203(A)(1) is a

crime of violence under 18 U.S.C. § 16(a).6 The state statute

reads: “A person commits assault by . . . [i]ntentionally,

knowingly or recklessly causing any physical injury to

another person.” Ariz. Rev. Stat. § 13-1203(A)(1) (emphasis

5

The other statute simply provides that, when the perpetrator of an

assault has one of several domestic relationships with the victim, the

assault constitutes a state law crime of domestic violence. See Ariz. Rev.

Stat. § 13-3601(A). All of the relationships covered under the state statute

are covered under the Immigration and Nationality Act. See 8 U.S.C.

§ 1227(a)(2)(E)(i) (“[T]he term ‘crime of domestic violence’ means any

crime of violence . . . by any . . . individual against a person who is pro-

tected from that individual’s acts under the domestic or family violence

laws of the United States or any State . . . .”).

6

As a class two misdemeanor, Fernandez-Ruiz’s 2003 domestic vio-

lence conviction could have been under either Arizona Revised Statutes

§ 13-1203(A)(1) or (A)(2). See id. § 13-1203(B). The documents of con-

viction do not reveal whether Fernandez-Ruiz was charged and convicted

under one or both of these provisions. As already explained, however,

Fernandez-Ruiz committed a categorical crime of violence only if the “full

range of conduct” for which he could have been convicted meets the

requirements of 18 U.S.C. § 16. United States v. Baron-Medina, 187 F.3d

1144, 1146 (9th Cir. 1999) (quoting United States v. Lomas, 30 F.3d 1191,

1193 (9th Cir. 1994)). Thus, because we ultimately conclude that not all

of the conduct proscribed by Arizona Revised Statutes § 13-1203(A)(1)

meets the definition of a crime of violence, we do not consider Arizona

Revised Statutes § 13-1203(A)(2). Additionally, we need not consider 18

U.S.C. § 16(b) because Fernandez-Ruiz’s assault convictions were both

misdemeanors. See id. (defining a crime of violence, in relevant part, as

“any other offense that is a felony” (emphasis added)).

FERNANDEZ-RUIZ v. GONZALES 17861

added). The federal statute defines a crime of violence as “an

offense that has 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). Thus, the determinative ques-

tion is whether “recklessly causing . . . physical injury to

another person,” Ariz. Rev. Stat. § 13-1203(A)(1), necessarily

involves the “use of physical force against the person . . . of

another,” 18 U.S.C. § 16(a).7

A. Existing Ninth Circuit Precedent

[4] Until recently, it was well established in this circuit that

crimes involving the reckless use of force could be crimes of

violence. For example, in United States v. Ceron-Sanchez,

222 F.3d 1169 (9th Cir. 2000), we interpreted the very statute

at issue here and concluded it satisfied 18 U.S.C. § 16(a):

A conviction under § 13-1203(A)(1) may be based

on reckless conduct, which Ceron-Sanchez argues

does not constitute violent conduct. However, in

order to support a conviction under § 13-1203(A)(1),

the reckless conduct must have caused actual physi-

cal injury to another person. Therefore, the use of

physical force is a required element of § 13-

1203(A)(1).

Ceron-Sanchez, 222 F.3d at 1172-73.

We held that crimes of recklessness could be crimes of vio-

lence even though we recognized there is an element of voli-

7

Our standard of review is de novo. See Singh v. Ashcroft, 386 F.3d

1228, 1230 (9th Cir. 2004); see also Oyebanji v. Gonzales, 418 F.3d 260,

262 (3d Cir. 2005) (“Because the BIA is not charged with administering

18 U.S.C. § 16 and has no special expertise regarding the interpretation of

that criminal statute, we do not defer to the BIA’s interpretation of that

provision.”); Singh, 386 F.3d at 1230 (“We reject the . . . assertion that we

owe ‘substantial deference’ to the Attorney General’s interpretations of

general state and federal criminal statutes.”).

17862 FERNANDEZ-RUIZ v. GONZALES

tion inherent in 18 U.S.C. § 16(a)’s requirement that an

offender “use” physical force “against” another person. See

United States v. Trinidad-Aquino, 259 F.3d 1140, 1145-46

(9th Cir. 2001). Our reasoning was that recklessness “requires

conscious disregard of a risk of a harm that the defendant is

aware of.” Id. at 1146. On similar grounds, we held that

offenses requiring “criminal negligence” could be crimes of

violence. See Park v. INS, 252 F.3d 1018, 1024-25 (9th Cir.

2001). By contrast, we held that crimes of simple negligence

lacked the volitional element necessary for crimes of vio-

lence. Trinidad-Aquino, 259 F.3d at 1145.

Recently, however, we cast doubt on our cases distinguish-

ing recklessness and criminal negligence from simple negli-

gence. In Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir.

2005), a Mexican citizen and national had previously been

convicted under California law of gross vehicular manslaugh-

ter while intoxicated. Id. at 1219. Although this conviction

required a minimum culpability of “gross negligence,” an IJ

found the underlying offense to have been a crime of violence

under 18 U.S.C. § 16 and ordered the alien’s removal. Lara-

Cazares, 408 F.3d at 1219. The BIA affirmed, citing our cases

holding that crimes of criminal negligence and recklessness

could be crimes of violence. Id.

We reversed on the basis of Leocal. Id. at 1222. In Leocal,

the Supreme Court held that driving under the influence of

alcohol (DUI) cannot be a crime of violence if the statute

defining the offense “reach[es] individuals who were negli-

gent or less.” 543 U.S. at 13. Rejecting the government’s

argument “that Leocal add[ed] nothing to our analysis in

Trinidad-Aquino and [did] not extend to gross negligence,”

we held that gross negligence “does not constitute the kind of

active employment of force against another that Leocal

requires for a crime of violence.” Lara-Cazares, 408 F.3d at

1221. Although the facts of Lara-Cazares did not require us

to discuss in detail the implications of Leocal for crimes of

criminal negligence or recklessness, we concluded that Leocal

FERNANDEZ-RUIZ v. GONZALES 17863

abrogated our holdings in Park and Ceron-Sanchez. See id. at

1222 (“To the extent that our decision in Park v. INS, 252

F.3d 1018 (9th Cir. 2001), and the cases there cited [including

Ceron-Sanchez] support a contrary result, we conclude that

they are no longer good law in light of Leocal.”).

Nonetheless, shortly after deciding Lara-Cazares, we relied

on Ceron-Sanchez to hold a crime of recklessness—second-

degree assault under Washington law—a categorical crime of

violence. See United States v. Hermoso-Garcia, 413 F.3d

1085, 1089 (9th Cir. 2005) (Bea, J.). In doing so, we failed to

distinguish Lara-Cazares or Leocal. See id.

[5] Because our existing precedent is inconsistent, we must

examine the reasoning of Leocal to decide the present case.

B. Leocal

1. Reasoning of Leocal

[6] In determining that DUI offenses requiring a mens rea

of mere negligence or less cannot be “shoehorn[ed]” into the

federal definition of a crime of violence, Leocal, 543 U.S. at

13, the Supreme Court emphasized that 18 U.S.C. § 16(a)

requires the “ ‘use . . . of physical force against the person or

property of another,’ ” Leocal, 543 U.S. at 9 (quoting 18

U.S.C. § 16(a)). Whereas the word “use,” taken alone, could

“in theory” connote the accidental employment of force, it

would be “much less natural to say that a person actively

employs [i.e., uses] physical force against another person by

accident.” Id. Thus, the Court reasoned, 18 U.S.C. § 16(a)’s

requirement that force be used “against” someone or some-

thing suggested that crimes of violence require “a higher

degree of intent than negligent or merely accidental conduct.”

Leocal, 543 U.S. at 9 (emphasis added).

As further support for the conclusion that 18 U.S.C. § 16

does not reach merely accidental offenses, the Court looked

17864 FERNANDEZ-RUIZ v. GONZALES

to the ordinary meaning of the term “crime of violence.” See

Leocal, 543 U.S. at 11. That term, the Court observed, natu-

rally suggests a category of crimes more “violent” and “ac-

tive” than DUI offenses. Id.

The Court also remarked that, because courts must interpret

18 U.S.C. § 16 consistently in both criminal and noncriminal

cases, the rule of lenity applies. Leocal, 543 U.S. at 11 n.8.

Under this rule, to whatever extent 18 U.S.C. § 16’s defini-

tions of a crime of violence lack clarity, courts should con-

strue the ambiguous statutory language against the

government. Leocal, 543 U.S. at 11 n.8.

2. Recent Interpretations of Leocal

[7] Although the Court in Leocal expressly reserved the

question whether crimes of violence can include offenses

involving the reckless use of force, see id. at 384, two of our

sister circuits have interpreted the reasoning of Leocal to

place such offenses beyond the reach of 18 U.S.C. § 16.8

In Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir.

2005), a native and citizen of Mexico petitioned for review of

an order that he be removed from the United States for having

committed involuntary manslaughter by driving intoxicated.

Id. at 445. The Virginia statute of conviction required reckless

disregard for human life, but not necessarily reckless disre-

gard for whether force would be used. Id. at 447. Thus, the

court was not required to decide whether offenses requiring

the reckless use of force, or reckless disregard for a risk that

force might be used, can be crimes of violence. See id. Never-

theless, the court deemed Leocal controlling:

8

In so doing, these circuits joined three other circuits that, even before

Leocal, restricted the category of crimes of violence under 18 U.S.C. § 16

to crimes requiring specific intent to use force against a person or prop-

erty. See Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir. 2003); Bazan-

Reyes v. INS, 256 F.3d 600, 610-11 (7th Cir. 2001); United States v.

Chapa-Garza, 243 F.3d 921, 926-27 (5th Cir. 2001).

FERNANDEZ-RUIZ v. GONZALES 17865

[T]he conclusion of the Leocal Court that “[i]n no

‘ordinary or natural’ sense can it be said that a per-

son risks having to ‘use’ physical force against

another person in the course of operating a vehicle

while intoxicated and causing injury” strongly indi-

cates that the result in Leocal would have been the

same even had a violation of the statute there at issue

required recklessness rather than mere negligence.

Id. (citation omitted). Applying this reading of Leocal, the

Fourth Circuit granted the petition for review. Id.

The Third Circuit has on three occasions endorsed a similar

reading of Leocal—beginning with Tran v. Gonzales, 414

F.3d 464 (3d Cir. 2005). Tran involved the petition for review

of a Vietnamese citizen ordered removed from the United

States for having been convicted, under Pennsylvania law, of

“conspiracy to commit reckless burning or exploding.” Id. at

468. The Tran court began its assessment of whether reckless

burning or exploding was a crime of violence by citing dictio-

nary definitions of “use.” Id. at 470. An “obvious commonali-

ty” among these definitions was that “the ‘use’ of force means

more than the mere occurrence of force; it requires the inten-

tional employment of that force, generally to obtain some

end.” Id. (emphasis added).

In concluding that mere recklessness was insufficient under

such a standard, the Tran court expressly disagreed with our

decision in Trinidad-Aquino. Id. Trinidad-Aquino, the court

suggested, could not be reconciled with the Supreme Court’s

emphasis in Leocal that “ ‘use’ requires active employment.”

Id. (quoting Leocal, 543 U.S. at 9 (emphasis added)). Accord-

ingly, the court granted Tran’s petition for review. Id. at 473.

The Third Circuit reaffirmed its interpretation of Leocal in

another immigration case, Popal v. Gonzales, 416 F.3d 249

(3d Cir. 2005). In Popal, the offense at issue was Pennsylva-

nia’s misdemeanor simple assault offense. Id. at 253. The stat-

17866 FERNANDEZ-RUIZ v. GONZALES

ute of conviction required a minimum culpability of

recklessness. Id. at 254.9 In granting the petition for review,

the Popal court both reaffirmed the reasoning of Tran and

rejected a contrary argument based on the legislative history

of 18 U.S.C. § 16(a). See Popal, 416 F.3d at 254-55.

A Senate Report discussing the crime of violence definition

now codified at 18 U.S.C. § 16(a) suggested this definition

“would include a threatened or attempted simple assault or

battery on another person.” S. Rep. No. 98-225, at 307 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3487. In reference to

this suggestion, the Popal court stated:

We acknowledge that the legislative history of

§ 16(a) provides some support for the government’s

theory that that section encompasses simple assault.

Nonetheless, we do not think that this legislative his-

tory undermines our conclusion [that simple assault

committed recklessly is not a crime of violence].

Instead, we think it likely that, when the drafters of

§ 16 mentioned simple assault as an exemplary

crime of violence, they had in mind traditional

common-law simple assault, defined as a crime

“committed by either a willful attempt to inflict

injury upon the person of another, or by a threat to

inflict injury upon the person of another which,

when coupled with an apparent present ability,

causes a reasonable apprehension of immediate bod-

ily harm.” The common law thus required ‘wilfull-

ness,’ i.e., intent, in order to find a defendant guilty

of simple assault. It is entirely plausible that this def-

inition might have been Congress’s referent in dis-

cussing § 16(a).

9

The statute was nearly identical to the one at issue here. It provided,

“A person is guilty of assault if he: (1) attempts to cause or intentionally,

knowingly or recklessly causes bodily injury to another . . . .” 18 Pa. Cons.

Stat. § 2701(a).

FERNANDEZ-RUIZ v. GONZALES 17867

Popal, 416 F.3d at 254 n.5 (citations omitted).

Finally, and perhaps most persuasively, the Third Circuit

interpreted the reasoning of Leocal to reach crimes of reck-

lessness in Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir.

2005). Oyebanji involved a Nigerian citizen who faced

removal for a New Jersey vehicular homicide conviction. Id.

at 261-62. The statute of conviction required proof of

recklessness—defined in part as “consciously disregard[ing]

a substantial and unjustifiable risk that [a] material element

[of an offense] exists or will result from [the actor’s] con-

duct.” Id. at 263 n.4 (quoting N.J. Stat. Ann. § 2C:2-2(3)).

The court concluded that Leocal controlled primarily because

of Leocal’s repeated emphasis that crimes of violence cannot

be “accidental.” See id. at 263-64.

The term “accidental,” the court explained, “is most often

used to describe events that did not ‘occur [ ] as a result of

anyone’s purposeful act.’ ” Id. at 264 (quoting Black’s Law

Dictionary 16 (8th ed. 2004)) (alteration in original). As such,

even though New Jersey’s definition of recklessness involved

conscious disregard of a substantial and unjustifiable risk, the

reckless use of force was not sufficiently “intentional” to pre-

vent an offense from being accidental. See id. (“[W]e cannot

overlook the Court’s repeated statement that ‘accidental’ con-

duct (which would seem to include reckless conduct) is not

enough to qualify as a crime of violence.” (emphasis added)).

As in Popal, the court in Oyebanji acknowledged that “rea-

sonable arguments can be made in support of the proposition

that” crimes of recklessness may be crimes of violence. Id.

Nonetheless, the court interpreted Leocal to foreclose such

arguments—at least at the circuit court level. See id. (“We

recognize that there are plausible grounds for distinguishing

Leocal and that reasonable arguments can be made in support

of the proposition that Oyebanji’s offense of conviction

should be viewed as a crime of violence. But as a lower fed-

17868 FERNANDEZ-RUIZ v. GONZALES

eral court, we are advised to follow the Supreme Court’s

‘considered dicta.’ ”) (citation omitted).

3. Teachings of Leocal

[8] We agree with our sister circuits that the reasoning of

Leocal—which merely holds that using force negligently or

less is not a crime of violence—extends to crimes involving

the reckless use of force.

[9] Citing with approval our holding in Trinidad-Aquino

that crimes of violence must have a volitional element and so

cannot include crimes of negligence, the Leocal Court went

a step further: the Court not only endorsed the position that

crimes of violence must be volitional but also repeatedly

emphasized that such crimes cannot be “accidental.” See Leo-

cal, 543 U.S. at 8-10; see also Lara-Cazares, 408 F.3d at

1221 (rejecting the argument that Leocal adds nothing to

Trinidad-Aquino). “Accidental” means “[n]ot having occurred

as a result of anyone’s purposeful act.” Black’s Law Dictio-

nary 16 (8th ed. 2004). “Purposeful” means “[d]one with a

specific purpose in mind; DELIBERATE.” Id. at 1272. Reck-

less conduct, as generally defined, is not purposeful. See id.

at 1298 (defining recklessness as “[c]onduct whereby the

actor does not desire harmful consequence but nonetheless

foresees the possibility and consciously takes the risk”

(emphasis added)). Even more clearly, reckless conduct as

defined by Arizona law is not purposeful. See Ariz. Rev. Stat.

§ 13-105(9)(c) (defining recklessness as “consciously disre-

gard[ing] a substantial and unjustifiable risk that the result

will occur or that the circumstance exists,” and providing that

“[a] person who creates such a risk but is unaware of such

risk solely by reason of voluntary intoxication also acts reck-

lessly” (emphasis added)). Thus, the reckless use of force is

“accidental” and crimes of recklessness cannot be crimes of

violence. See Oyebanji, 418 F.3d at 264; Tran, 414 F.3d at

470-71.

FERNANDEZ-RUIZ v. GONZALES 17869

[10] Contrary to the dissent, for purposes of 18 U.S.C. § 16,

we see no “important differences between negligence and

recklessness.” See Dissent Op. at 17890. To the extent reck-

lessness differs from criminal negligence, “[t]he difference

between them is that criminal negligence requires only a fail-

ure to perceive a risk, as compared to the recklessness

requirement of an awareness and conscious disregard of the

risk.” In re William G., 963 P.2d 287, 292 n.1 (Ariz. Ct. App.

1997); accord 1 Charles E. Torcia, Wharton’s Criminal Law

§ 27 (15th ed. 1993). But this subjective awareness of possi-

ble injury is not the same as the intentional use of physical

force against the person of another. Neither gross negligence

in failing to perceive, nor conscious disregard of a substantial

and unjustifiable risk of injury implies that physical force is

instrumental to carrying out the crime, such as the plain

meaning of the word “use” denotes. See Leocal, 543 U.S. at

10 (“The reckless disregard in § 16 relates not to the general

conduct or to the possibility that harm will result from a per-

son’s conduct, but to the risk that the use of physical force

might be required in committing a crime.”). Therefore, neither

recklessness nor gross negligence is a sufficient mens rea to

establish that a conviction is for a crime of violence under

§ 16.

As the Court suggested in Leocal—and as illustrated by

considering the full range of conduct proscribed by Arizona

Revised Statutes § 13-1203(A)(1)—any other conclusion

would “blur the distinction between the ‘violent’

crimes Congress sought to distinguish for heightened punish-

ment and other crimes.” Leocal, 543 U.S. at 11. Under the

language of Arizona Revised Statutes § 13-1203(A)(1), a wife

and mother could be convicted of assault and domestic vio-

lence under Arizona law by recklessly running a stop sign and

causing a traffic accident that injured her passenger-husband

and child. Indeed, a person could be convicted of assault

under Arizona Revised Statutes § 13-1203(A)(1) by running

a stop sign “solely by reason of voluntary intoxication” and

causing physical injury to another. Ariz. Rev. Stat. § 13-

17870 FERNANDEZ-RUIZ v. GONZALES

105(9)(c). Such conduct cannot, in the ordinary sense, be cal-

led “active” or “violent.” Leocal, 543 U.S. at 11.10

10

The dissent calls the above hypotheticals “absurd.” Dissent Op. at

17885. However, our example of running a stop sign is similar to actual

cases where a defendant has been convicted of aggravated assault. See

State v. Miles, 123 P.3d 669, 671 (Ariz. Ct. App. 2005) (sustaining convic-

tion for aggravated assault under Arizona Revised Statutes § 13-

1204(A)(1)—which requires a violation of Arizona Revised Statutes § 13-

1203—of a man who ran a stop sign and caused an accident that injured

his passenger); State v. Freeland, 863 P.2d 263, 265-66 (Ariz. Ct. App.

1993) (affirming aggravated assault conviction “prosecuted on the theory

that defendant, by driving while intoxicated and causing a collision, reck-

lessly caused serious injury to his victim”). Moreover, the dissent fails to

cite us to, nor are we aware of, any authority suggesting that Arizona

Revised Statutes § 13-1203(A)(1) cannot reach the conduct described in

our hypothetical examples. Accordingly, our categorical analysis must

address such conduct.

The dissent leads its argument with the trenchant phrase “[m]en do not

beat their wives by accident.” Dissent Op. at 17879. True. But the terms

of Arizona Revised Statutes § 13-3601(A) do not require, and the judi-

cially noticeable documents in the record do not prove, that Fernandez-

Ruiz beat his wife. Rather, whether our record shows a conviction under

such a statute requires a beating, and whether the documents of conviction

show a beating took place, are the precise issues before us. Instead of

looking to the record, the dissent would infer that wife-beating took place

from the “trust and related vulnerability that characterize domestic rela-

tionships.” Dissent Op. at 17883. The dissent does not explain how, within

the confines of Taylor, the perpetrator’s mere domestic relationship to the

victim proves that he intentionally used force against her. The statute’s

title is not enough. See Baron-Medina, 187 F.3d at 1146 (“We look solely

to the statutory definition of the crime, not to the name given to the offense

or to the underlying circumstances of the predicate conviction.”) (empha-

sis added).

Further, it is a commonplace of the criminal law that the confidential

relationship that exists between the perpetrator and the victim cannot sup-

ply the proof of the requisite element of the mens rea with which an act

was done. Were a husband to take his wife’s car without her consent, the

“trust and vulnerability” of the wife would not automatically supply the

proof of the husband’s intent permanently to deprive her of possession of

the car, so as to convert misdemeanor joy-riding into felony car theft.

FERNANDEZ-RUIZ v. GONZALES 17871

Finally, because the text of 18 U.S.C. § 16(a) is sufficiently

clear, we see no need in this case to employ legislative history

as an interpretive aid. See, e.g., United States v. Meek, 366

F.3d 705, 719 (9th Cir. 2004) (“We need not factor in legisla-

tive history because the meaning of the statute is clear from

the text.”). The requirement that the offense have “as an ele-

ment, the use . . . of physical force against the person or prop-

erty of another,” 18 U.S.C. § 16(a) (emphasis added), implies

the use of force must be a means to an end.11

11

The dissent relies on the Senate Judiciary Committee Report accom-

panying the enactment of the Comprehensive Crime Control Act of 1984.

See Dissent Op. at 17891 (citing S. Rep. No. 98-225, at 307 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87). This report cites “bat-

tery” as an example of a crime of violence within the meaning of § 16(a).

See S. Rep. No. 98-225, at 307 & n.12. Since battery as defined by the

Model Penal Code may be accomplished through recklessness, the dissent

asserts that Congress intended § 16 to include reckless conduct. See Dis-

sent Op. at 17892.

Since the statutory language is clear, we need not look to a report issued

by one chamber of Congress as evidence of the statute’s meaning. See

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 267 (2004)

(Scalia, J., concurring) (“[I]t is not only . . . improper but also quite unnec-

essary to seek repeated support in the words of a Senate Committee Report

—which, as far as we know, not even the full committee, much less the

full Senate, much much less the House, and much much much less the

President who signed the bill, agreed with.”).

Even if we do consider the legislative history, it is far from clear that

Congress intended § 16(a) to reach reckless conduct. The Senate Report

cites 18 U.S.C. § 113(d) (1976) in a footnote to the term “battery.” See S.

Rep. No. 98-225, at 307 n.12. Presumably, the Committee had § 113(d) in

mind when it referred to battery. Yet, at least at the time of § 16’s enact-

ment, § 113(d) was a “general intent” crime. See United States v. Knife,

592 F.2d 472, 481-82 & n.12 (8th Cir. 1979) (“The element of intent in

§ 113(f)”—defined as an assault under § 113(d) that results in serious bod-

ily injury—“is satisfied if the general intent to commit the acts of assault

arose when [defendant] initially approached [the victim].”); United States

v. Martin, 536 F.2d 535, 535-36 (2d Cir. 1976) (per curiam) (finding the

mental element of § 113(d) to be adequately proven where “the magistrate

found an intent to strike and to scuffle”). Both these cases involve facts

showing an intent to strike the victim, not merely the creation of such risk.

We therefore doubt that “general intent” under § 113(d) includes reckless

17872 FERNANDEZ-RUIZ v. GONZALES

[11] For these reasons, we hold that the offense underlying

Fernandez-Ruiz’s 2003 misdemeanor domestic violence con-

viction was not a categorical crime of violence under 18

U.S.C. § 16(a) or, by extension, a categorical crime of domes-

tic violence under 8 U.S.C. § 1227(a)(2)(E)(i). The bedrock

principle of Leocal is that to constitute a federal crime of vio-

lence an offense must involve the intentional use of force

against the person or property of another. In light of Leocal,

we expressly overrule our cases holding that crimes of vio-

lence under 18 U.S.C. § 16 may include offenses committed

through the reckless, or grossly negligent, use of force.

IV. Crime of Domestic Violence: Modified Categorical

Analysis

[12] When a petitioner’s state statute of conviction does not

define a categorical crime of violence, we apply a “modified

categorical approach.” See Penuliar v. Gonzales, 435 F.3d

961, 966 (9th Cir. 2006); Ruiz-Morales, 361 F.3d at 1222.

Under this approach, we consider whether any of a limited,

specified set of documents—including “the state charging

document, a signed plea agreement, jury instructions, guilty

pleas, transcripts of a plea proceeding and the judgment”

(sometimes termed “documents of conviction”)—show the

petitioner’s conviction entailed an admission to, or proof of,

the necessary elements of a crime of violence. Hernandez-

Martinez v. Ashcroft, 343 F.3d 1075, 1076 (9th Cir. 2003).

[13] Here, with respect to Fernandez-Ruiz’s 2003 misde-

meanor domestic violence conviction, the record contains

three documents relevant to our modified categorical assess-

conduct, and find the dissent’s argument from legislative history uncon-

vincing. See also Popal, 416 F.3d at 254 n.5 (rejecting for a similar reason

the government’s argument that the same legislative history shows an

intent to include reckless conduct in § 16(a)’s definition of a crime of vio-

lence).

FERNANDEZ-RUIZ v. GONZALES 17873

ment: the complaint, the judgment, and a pro forma plea

agreement. The government concedes, as it must, that none of

these documents demonstrates that Fernandez-Ruiz’s convic-

tion was based upon an admission, or any other proof, that he

used force “intentionally” or “knowingly,” as opposed to

“recklessly.” Ariz. Rev. Stat. § 13-1203(A)(1). Accordingly,

on the record now before us, we cannot conclude under the

modified categorical approach that Fernandez-Ruiz commit-

ted a crime of violence or, by extension, a crime of domestic

violence as defined by federal law.

Although the government concedes we cannot now reach

such a conclusion, it asks us to defer applying the modified

categorical approach and instead remand this case to the BIA

for further development of the record. As support for its

request, the government supplies only a cursory citation to

INS v. Ventura, 537 U.S. 12 (2002) (per curiam). Ventura,

however, is inapplicable.

Ventura involved the asylum application of Orlando Ven-

tura, a citizen of Guatemala. Id. at 14. The IJ and the BIA

determined that Ventura was ineligible for asylum because he

had failed objectively to demonstrate past persecution for a

political opinion. Id. at 15. Because Ventura had not made

this required threshold showing, the BIA noted it did not need

to address whether “changed country conditions” rebutted

Ventura’s claim to a well-founded fear of future persecution.

Id.

We reversed the BIA’s decision. Id. First, we concluded the

evidence compelled a finding that Ventura had demonstrated

past persecution for a political opinion; he had therefore

established the presumption of a well-founded fear of future

persecution. Id. Having reached this conclusion, we rejected

requests from both parties that we remand the case to the BIA

for consideration of changed country conditions. Id. Although

we “recognized that the BIA had not decided the ‘changed

circumstances’ question and that ‘generally’ a court should

17874 FERNANDEZ-RUIZ v. GONZALES

remand to permit that consideration,” we invoked an excep-

tion to the usual rule: A court “need ‘not remand . . . when

it is clear that [it] would be compelled to reverse the BIA’s

decision if the BIA decided the matter against the appli-

cant.’ ” Id. (quoting Ventura v. INS, 264 F.3d 1150, 1157 (9th

Cir. 2001)). This exception applied in Ventura, we concluded,

because a 1997 State Department report about Guatemala

“clearly demonstrate[d] that the presumption of a well-

founded fear of future persecution was not rebutted.” Id.

(quoting Ventura v. INS, 264 F.3d 1150, 1157 (9th Cir.

2001)).

The Supreme Court reversed our decision not to remand.

Id. at 18. The Court gave two reasons why the exception we

had invoked to the “ordinary remand” rule did not apply. Id.

at 17. First, “the State Department report [was], at most,

ambiguous” as to whether conditions in Guatemala were suf-

ficiently changed to rebut the presumption of Ventura’s well-

founded fear of future persecution. Id. “Second, remand could

[have led] to the presentation of further evidence of current

circumstances in Guatemala—evidence that [could] well

[have] prove[d] enlightening given the five years that [had]

elapsed since the report was written.” Id. at 18. Under the cir-

cumstances, invoking the exception to the ordinary remand

rule violated several “basic considerations” of administrative

law: that, for “a matter that statutes place primarily in agency

hands,” an agency should be permitted to “bring its expertise

to bear”; that the agency “can evaluate the evidence”; and that

the agency can “make an initial determination.” Id. at 16-17.

Neither of the Ventura Court’s principal reasons for decid-

ing we should have applied the ordinary remand rule applies

in the present case. First, whereas the State Department report

at issue in Ventura was “ambiguous,” id. at 17, the documents

of conviction in the record here—as the government itself

concedes—cannot possibly be interpreted to establish that

Fernandez-Ruiz used force against his victim intentionally or

knowingly, rather than recklessly. Second, unlike in Ventura,

FERNANDEZ-RUIZ v. GONZALES 17875

there is no possibility here that new evidence has developed

in the years since the BIA’s erroneous decision: Fernandez-

Ruiz was convicted in January 2003, and all relevant docu-

ments of conviction became available before the DHS initi-

ated removal proceedings.

Moreover, the “basic considerations” of administrative law

that favored a remand in Ventura do not apply with equal

force here. Unlike Ventura, the present case does not involve

an issue the law commits to the agency’s expertise. See, e.g.,

Oyebanji, 418 F.3d at 262 (“[T]he BIA is not charged with

administering 18 U.S.C. § 16 and has no special expertise

regarding the interpretation of that criminal statute . . . .”);

Singh, 386 F.3d at 1230 (“We reject the . . . assertion that we

owe ‘substantial deference’ to the Attorney General’s inter-

pretations of general state and federal criminal statutes.”).

Another distinction is that Ventura undeniably involved an

issue the BIA had not considered: whether changed country

conditions rebutted the presumption of the defendant’s well-

founded fear of future persecution. Here, by contrast, whether

the offense underlying Fernandez-Ruiz’s 2003 conviction was

a crime of domestic violence under federal law is an issue the

BIA has already addressed—albeit under the categorical

approach, rather than the modified categorical approach. Ven-

tura, 537 U.S. at 17. Finally, the standard of review differs.

In Ventura, had we remanded to the BIA for a finding on

changed country conditions, we would have reviewed any

such finding under the substantial evidence standard. See

Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th Cir.

2005). Here, we review de novo whether a conviction consti-

tutes an aggravated felony. See, e.g., Penuliar, 435 F.3d at

966. After remanding this issue to the BIA, we would not

“later determine whether [the BIA’s] decision exceeds the lee-

way that the law provides.” Ventura, 537 U.S. at 17.

Our conclusion that Ventura does not apply in the present

case is consistent with Notash v. Gonzales, 427 F.3d 693 (9th

Cir. 2005). In Notash, the petitioner had a prior conviction for

17876 FERNANDEZ-RUIZ v. GONZALES

“attempted entry of goods by means of a false statement.” Id.

at 695. The government contended this offense was a “crime

involving moral turpitude,” such that the petitioner’s convic-

tion rendered him removable. Id. In proceedings before an IJ,

the petitioner “explained that, when completing his customs

declaration form, he had left a line relating to foreign goods

blank because he was not sure how to declare the items.” Id.

He argued that “although crimes involving fraud generally are

considered to involve moral turpitude, crimes involving false

statements are not categorically considered to involve moral

turpitude”; “his offense,” he claimed, “did not involve ‘clear

deceit’ [or] an attempt to obtain a property interest to which

he was not entitled.” Id. The IJ disagreed, applying the cate-

gorical approach without reaching the modified categorical

approach, and the BIA affirmed without an opinion. See id.

We rejected the agency’s assessment that the petitioner had

committed a categorical crime involving moral turpitude. See

id. at 697-98. We then granted the petition for review, holding

that, because “none of the documents that may be examined

under the modified categorical approach were in the record,”

the government had “failed to meet its burden of proving that

the offense for which [the petitioner] was convicted” consti-

tuted a crime involving moral turpitude. Id. at 699-700. Nota-

bly, we reached this conclusion without first remanding the

case for the government to introduce new evidence or the

agency to apply the modified categorical approach. See id.

Admittedly, Notash is not perfectly analogous to the pres-

ent case. At the time of the agency proceedings in Notash,

there was no Ninth Circuit precedent establishing that the

petitioner’s statute of conviction defined a categorical crime

involving moral turpitude. See id. at 698 (explaining that the

agency had based its decision on Supreme Court and agency

precedent, not Ninth Circuit precedent). By contrast, when

Fernandez-Ruiz’s agency proceedings took place in 2003, it

was a matter of settled law in our circuit that violations of his

statute of conviction, Arizona Revised Statutes § 13-

FERNANDEZ-RUIZ v. GONZALES 17877

1203(A)(1), were categorical crimes of violence. See Ceron-

Sanchez, 222 F.3d at 1172-73.

In light of Ceron-Sanchez, we can imagine an argument

that, at the time of Fernandez-Ruiz’s agency proceedings, the

government could not have anticipated the need to build a

record supporting removal under the modified categorical

approach. If the government relied on Ceron-Sanchez when

determining what documents to introduce before the agency,

our decision to overrule Ceron-Sanchez could at least con-

ceivably constitute an unusual, unforeseeable circumstance

justifying remand.

[14] We need not now decide whether changes in our law

may ever justify remanding a case for further development of

the administrative record because the government has not

argued that, in reliance on Ceron-Sanchez, it failed to antici-

pate the necessity of introducing documents of conviction

demonstrating Fernandez-Ruiz’s offense was a crime of

domestic violence under the modified categorical approach.

We consider the government’s reticence significant, but pre-

dictable: the record includes evidence suggesting the govern-

ment did recognize the need to present documents of

conviction in case it lost under the categorical approach.

Beyond the bare-bones documents needed to show

Fernandez-Ruiz had a prior conviction—the complaint and

the judgment—the government presented the agency with

Fernandez-Ruiz’s plea agreement. On these facts, new devel-

opments in the law do not warrant a remand.

[15] In sum, even under the modified categorical approach,

Fernandez-Ruiz’s 2003 conviction under Arizona Revised

Statutes §§ 13-1203 and 13-3601 for misdemeanor domestic

violence assault is not a crime of violence as defined by 18

U.S.C. § 16(a). Accordingly, taken alone, the subject convic-

tion cannot justify his removal. See 8 U.S.C. § 1227(a)(2)

(E)(i).

17878 FERNANDEZ-RUIZ v. GONZALES

V. Remedy

[16] Our decision that Fernandez-Ruiz is not removable

under 8 U.S.C. § 1227(a)(2)(E)(i) necessitates consideration

of issues the panel did not decide. See Fernandez-Ruiz, 410

F.3d at 588 n.2. Although an en banc court takes a case, not

an issue, en banc, it has the discretion to decide the entire case

or only the parts of the case that formed the basis for the en

banc call. Summerlin v. Stewart, 309 F.3d 1193, 1193 (9th

Cir. 2002). It may make that decision either prior to or after

the en banc argument. Here, having resolved the issue that the

panel asked the court to consider in its sua sponte en banc

call, see G.O. 5.4.c.3, we believe it better to return the case

to the panel for resolution of the remaining issues.

RETURNED TO THE PANEL FOR THE ISSUANCE

OF AN OPINION REGARDING THE REMAINING

ISSUES.

KOZINSKI, Circuit Judge, concurring in part, dissenting in

part:

I agree that the government hasn’t shown Fernandez-Ruiz

committed a crime of domestic violence under 18 U.S.C.

§ 16(a) on this record. I reach this conclusion substantially for

the reasons stated in the majority opinion, and because I

would not lightly disregard the view of five other circuits that

have considered the issue. See Tran v. Gonzales, 414 F.3d

464, 471-72 (3d Cir. 2005); Bejarano-Urrutia v. Gonzales,

413 F.3d 444, 447 (4th Cir. 2005); Jobson v. Ashcroft, 326

F.3d 367, 372-73 (2d Cir. 2003); Bazan-Reyes v. INS, 256

F.3d 600, 609-10 (7th Cir. 2001); United States v. Chapa-

Garza, 243 F.3d 921, 925-27 (5th Cir. 2001). I find the dis-

sent’s effort to carve out a special rule for domestic violence

cases unpersuasive.

FERNANDEZ-RUIZ v. GONZALES 17879

However, I cannot agree with the majority’s refusal to send

the case back to the BIA for reconsideration in light of our

opinion. The government presented its case both to the IJ and

the BIA when our caselaw was controlled by United States v.

Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000), and before the

Supreme Court decided Leocal v. Ashcroft, 543 U.S. 1 (2004).

Under that regime, the government had no reason to present

evidence that would sustain its burden under a modified cate-

gorical approach. Now that the law has changed, the govern-

ment is entitled to make its case under the new standard.

I realize that INS v. Ventura, 537 U.S. 12, 17 (2002) (per

curiam), and Gonzales v. Thomas, 126 S. Ct. 1613, 1615

(2006) (per curiam), are not on all fours because both

involved questions as to which the agency had special exper-

tise. But Ventura also held that, when an opinion changes the

legal landscape, giving the government an opportunity to

“present[ ] . . . further evidence” is an independent ground for

a remand. 537 U.S. at 18. I see no reason to do otherwise

here. If the government has no such evidence, a remand will

do no harm. But, if the government does have or can obtain

such evidence, our refusal to remand will mean that someone

Congress meant to have deported may remain at large in the

United States, perhaps to offend again.

Having twice been summarily reversed for failing to

remand to this very agency, I would tread especially lightly

in this area. Discretion, in this case, is not only the better part

of valor, but the better part of justice as well.

WARDLAW, Circuit Judge, with whom Circuit Judges

O’SCANNLAIN, BYBEE, and CALLAHAN join dissenting:

Men do not beat their wives by accident. Blind to this truth,

the majority ignores the realities of domestic violence and dis-

regards congressional intent to hold that an Arizona domestic

17880 FERNANDEZ-RUIZ v. GONZALES

violence conviction is not a “crime of domestic violence” for

purposes of a federal immigration law. The majority’s hyper-

technical analysis stretches the Taylor v. United States, 495

U.S. 575 (1990), categorical approach to absurdity and mis-

reads Leocal v. Ashcroft, 543 U.S. 1 (2004), as barring all

crimes involving the reckless use of force from qualifying as

“crimes of violence” under 18 U.S.C. § 16. I respectfully dis-

sent.

I

On January 13, 2003, Jose Roberto Fernandez-Ruiz, a

native and citizen of Mexico and a lawful permanent resident

of the United States, pled guilty in Arizona state court to mis-

demeanor domestic violence/disorderly conduct and misde-

meanor domestic violence/assault. He was sentenced to six

months in jail and three years of probation. Fernandez-Ruiz

had previously been convicted of theft and domestic violence/

assault and had twice violated his probation. His 2003 domes-

tic violence/assault conviction, designated a class two misde-

meanor, establishes that he violated either subsection (1) or

(2) of Arizona Revised Statute (A.R.S.) § 13-1203(A), which

states in relevant part:

A person commits assault by:

1. Intentionally, knowingly or recklessly causing

any physical injury to another person; or

2. Intentionally placing another person in reason-

able apprehension of imminent physical injury . . . .

Because the record of conviction states that Fernandez-Ruiz

committed a domestic violence offense, he must have been in

a domestic relationship with his victim, as defined by A.R.S.

§ 13-3601(A):

“Domestic violence” means any act which is a dan-

gerous crime against children as defined in § 13-

FERNANDEZ-RUIZ v. GONZALES 17881

604.01 or an offense defined in [any one of twenty

Arizona statutes, including § 13-1203], if any of the

following applies:

1. The relationship between the victim and the

defendant is one of marriage or former marriage or

of persons residing or having resided in the same

household.

2. The victim and the defendant have a child in

common.

3. The victim or the defendant is pregnant by the

other party.

4. The victim is related to the defendant or the

defendant’s spouse by blood or court order as a par-

ent, grandparent, child, grandchild, brother or sister

or by marriage as a parent-in-law, grandparent-in-

law, stepparent, step-grandparent, stepchild, step-

grandchild, brother-in-law or sister-in-law.

5. The victim is a child who resides or has resided

in the same household as the defendant and is related

by blood to a former spouse of the defendant or to

a person who resides or who has resided in the same

household as the defendant.

In March 2003, the Immigration and Naturalization Service

sought to deport Fernandez-Ruiz for committing a crime of

domestic violence. Under 8 U.S.C. § 1227(a)(2)(E)(i),

Any alien who at any time after admission is con-

victed of a crime of domestic violence, a crime of

stalking, or a crime of child abuse, child neglect, or

child abandonment is deportable. For purposes of

this clause, the term “crime of domestic violence”

means any crime of violence (as defined in section

17882 FERNANDEZ-RUIZ v. GONZALES

16 of Title 18) against a person committed by a cur-

rent or former spouse of the person, by an individual

with whom the person shares a child in common, by

an individual who is cohabiting with or has cohab-

ited with the person as a spouse, by an individual

similarly situated to a spouse of the person under the

domestic or family violence laws of the jurisdiction

where the offense occurs, or by any other individual

against a person who is protected from that individu-

al’s acts under the domestic or family violence laws

of the United States or any State, Indian tribal gov-

ernment, or unit of local government.

Eighteen U.S.C. § 16(a) in turn defines a misdemeanor “crime

of violence” as: “(a) an offense that has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another.”

Relying on our decision in United States v. Ceron-Sanchez,

222 F.3d 1169 (9th Cir. 2000), the BIA concluded that

Fernandez-Ruiz’s 2003 conviction was a “crime of domestic

violence” and affirmed an immigration judge’s decision

ordering Fernandez-Ruiz deported. Fernandez-Ruiz petitions

for relief from his deportation order on the ground that Leocal

overruled Ceron-Sanchez and established that a conviction

such as his, which may have been based on reckless conduct,

is not categorically a crime of domestic violence. See gener-

ally Taylor, 495 U.S. at 600-02.

II

Common sense, statutory language, and precedent all com-

pel the conclusion that Fernandez-Ruiz’s domestic violence

conviction necessarily involved the use of physical force

against the person of another and was therefore a crime of

violence under 18 U.S.C. § 16(a) and a crime of domestic vio-

lence under 8 U.S.C. § 1227(a)(2)(E)(i).

FERNANDEZ-RUIZ v. GONZALES 17883

A

Notwithstanding the majority’s attempt to erase the identity

of Fernandez-Ruiz’s victim and treat his crime as a simple

assault, Fernandez-Ruiz was convicted for “domestic

violence/assault,” and the victim was Fernandez-Ruiz’s girl-

friend and the mother of his daughter. The relationship

between Fernandez-Ruiz and his victim cannot be dismissed

as irrelevant; it is an element of his crime, and under Leocal

we are required “to look to the elements and the nature of the

offense of conviction . . . .” 543 U.S. at 7. Instead of analyz-

ing the nature of the offense of conviction, here a violation of

A.R.S. § 13-3601(A), the majority analyzes A.R.S. § 13-

1203(A), without addressing how the additional element of

the crime described in § 13-3601(A) impacts the nature of the

crime. The majority justifies this analytical leap by noting that

the perpetrator-victim relationship that is an element of § 13-

3601(A) is included as part of the definition of a crime of

domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i). Maj.

Op. at 17860 n.5. However, what the majority does not

explain is why the inclusion of similar language in a federal

immigration law justifies ignoring an element of an Arizona

criminal law under Taylor categorical analysis.

The majority’s facile elision gives short shrift to Arizona’s

requirement that the victim be related to the perpetrator; the

very existence of a separate statutory species of assault aimed

at domestic violence demonstrates that the additional element

of relationship is significant to the nature of the crime. One

owes a special duty of care toward one’s spouse and child,

arising from the trust and related vulnerability that character-

ize domestic relationships. See Grageda v. INS, 12 F.3d 919,

922 (9th Cir. 1993) (“[A] spouse is committed to a relation-

ship of trust with, and may be dependent upon, the perpetra-

tor. This relationship makes the crime of spousal abuse

different from violence between strangers or acquaintances

. . . .”); see also, e.g., Patricia Tjaden & Nancy Thoennes,

Nat’l Inst. of Justice & Ctrs. for Disease Control & Preven-

17884 FERNANDEZ-RUIZ v. GONZALES

tion, Prevalence, Incidence, and Consequences of Violence

Against Women: Findings from the National Violence Against

Women Survey 2 (1998) (“Violence against women is primar-

ily partner violence: 76 percent of women who were raped

and/or physically assaulted since age 18 were assaulted by a

current or former husband, cohabiting partner, or date, com-

pared with 18 percent of the men.”).

It is precisely the vulnerability of those in domestic rela-

tionships, particularly women and children, that led Congress

to enact 8 U.S.C. § 1227(a)(2)(E)(i), which is designed to pro-

tect victims and punish perpetrators of domestic violence. As

Senator Robert Dole stated upon introducing the original ver-

sion of the language that now appears at 8 U.S.C.

§ 1227(a)(2)(E)(i):

[O]ur society will not tolerate crimes against women

and children. . . . Nor should we have to wait for that

last violent act. When someone is an alien and has

already shown a predisposition toward violence

against women and children, we should get rid of

them the first time.

142 Cong. Rec. S4058-02, S4059 (1996) (statement of Sen.

Dole); see also Violence Against Women Act of 1994, Pub.

L. No. 103-322, §§ 40001-40703, 1994 U.S.C.C.A.N. (108

Stat.) 1796, 1902-55, invalidated in part by United States v.

Morrison, 529 U.S. 598, 627 (2000). And it is this vulnerabil-

ity that the majority pretends does not exist when it refuses to

acknowledge the identity of Fernandez-Ruiz’s victim and

instead endeavors to sanitize Fernandez-Ruiz’s crime by rele-

gating to a footnote the fact that this is a crime of domestic

violence. See Maj. Op. at 17860 & n.5. Instead of addressing

Fernandez-Ruiz’s crime of conviction, the majority sets out to

rewrite the law for all crimes that may be committed with a

mens rea of recklessness. See Maj. Op. at 17872 (“[W]e

expressly overrule our cases holding that crimes of violence

FERNANDEZ-RUIZ v. GONZALES 17885

under 18 U.S.C. § 16 may include offenses committed

through the reckless, or grossly negligent, use of force.”)

Fernandez-Ruiz did not accidentally cause his girlfriend

and the mother of his daughter physical injury; he did so

“[i]ntentionally, knowingly or recklessly.” A.R.S. § 13-

1203(A)(1). In light of the special duty of care Fernandez-

Ruiz owed his victim, it is difficult to imagine how he could

have committed his crime recklessly, and impossible to con-

clude he could have done so without using force against her.

Cf. Flores v. Ashcroft, 350 F.3d 666, 672-73 (7th Cir. 2003)

(Evans, J., concurring) (lamenting the absence of common

sense in courts’ application of the Taylor categorical approach

and noting that “Flores actually beat his wife[;] . . . . [a]

common-sense review here should lead one to conclude that

Flores committed a ‘crime of domestic violence’ ”). Domestic

abusers may be drunk or otherwise incapacitated when they

commit their crimes, and they may plea bargain down from

a felony to a misdemeanor or from a statute that requires a

mens rea of intentionality to one that can be satisfied by reck-

lessness. But this does not alter the nature of domestic vio-

lence as a crime involving the use of force against someone

in a domestic relationship, a crime that is categorically a

“crime of domestic violence.” See 8 U.S.C. § 1227(a)(2)

(E)(i).

The majority seeks refuge from the plain meaning of

domestic violence in hypotheticals suggesting that an Arizona

domestic violence/assault conviction is not necessarily a

crime of domestic violence. For example, the majority asserts

a wife and mother could be convicted of domestic violence

under Arizona law for “recklessly running a stop sign and

causing a traffic accident that injured her passenger-husband

and child.” Maj. Op. 17869. This hypothetical is absurd.

Under the Taylor categorical approach, we examine the full

range of conduct encompassed by the statute at issue, e.g.,

Ceron-Sanchez, 222 F.3d at 1172, not the full range of appel-

late judges’ fanciful imaginings. Like all legal doctrines, the

17886 FERNANDEZ-RUIZ v. GONZALES

Taylor categorical approach must be applied with reasoned

judgment. See United States v. Kaplansky, 42 F.3d 320, 323-

24 (6th Cir. 1994) (en banc) (employing a commonsense anal-

ysis of “the essence of kidnapping” in holding that a violation

of an Ohio kidnapping statute, which prohibits removing a

person from the place where he is found or restraining his lib-

erty “ ‘by force, threat, or deception,’ ” is categorically a vio-

lent felony); cf. id. at 329-30 (Merritt, C.J., dissenting)

(raising a series of improbable hypotheticals to argue that “it

is possible for Kaplansky to have been convicted of . . . kid-

napping without committing a violent felony”); Flores, 350

F.3d at 672-73.

Running a stop sign and causing a traffic accident with

injury would not be prosecuted under the domestic violence

law. Such conduct would almost certainly result in a traffic

citation for—of all things—reckless driving. See A.R.S. § 28-

693. Unsurprisingly, neither Fernandez-Ruiz nor the majority

cite a single case in which Arizona has prosecuted conduct

remotely like the proffered hypothetical as a domestic vio-

lence offense.1

B

Even if Fernandez-Ruiz had been convicted of assaulting a

stranger, as the majority would have us believe, he would still

be deportable under 8 U.S.C. § 1227(a)(2)(E)(i) because reck-

lessness is a sufficient mens rea for a crime of violence. The

majority argues that Leocal, which explicitly declined to

address whether recklessness is a sufficient mens rea for a

1

In lieu of domestic violence prosecutions the majority offers two cases

in which assault convictions were upheld when automobile passengers

were injured. See State v. Miles, 123 P.3d 669, 675-76 (Ariz. Ct. App.

2005) (affirming aggravated assault conviction after acquittal of DUI);

State v. Freeland, 863 P.2d 263, 265-66 (Ariz. Ct. App. 1993) (affirming

aggravated assault conviction in DUI case). These cases do not even hint

at prosecution for domestic violence.

FERNANDEZ-RUIZ v. GONZALES 17887

crime of violence, overruled our consistent precedent on this

issue. It did not.

In Ceron-Sanchez, we held that a conviction under A.R.S.

§ 13-1203(A)(1) was categorically a “crime of violence” for

purposes of 18 U.S.C. § 16(a), reasoning that reckless conduct

that causes physical injury necessarily involves the use of

physical force. 222 F.3d at 1172-73. We expanded on this rea-

soning in United States v. Trinidad-Aquino, where we held

that a negligent drunk driving offense did not qualify as a

crime of violence, but explained “that recklessness is a suffi-

cient mens rea for a ‘crime of violence’ ” because

recklessness requires conscious disregard of a risk of

a harm that the defendant is aware of—a volitional

requirement absent in negligence. A volitional defi-

nition of “use . . . against” encompasses conscious

disregard of a potential physical impact on someone

or something—it does not encompass non-volitional

negligence as to that impact.

259 F.3d 1140, 1146 (9th Cir. 2001) (omission in original);

see also United States v. Hermoso-Garcia, 413 F.3d 1085,

1089 (9th Cir. 2005) (reckless assault is categorically a crime

of violence); United States v. Grajeda-Ramirez, 348 F.3d

1123, 1125 (9th Cir. 2003) (reckless vehicular assault is cate-

gorically a crime of violence).2 This logic remains sound and

forecloses Fernandez-Ruiz’s argument that his conviction is

not categorically a crime of domestic violence.

Leocal, which addressed a strict liability DUI offense, does

not disturb our consistent precedent on this issue. The peti-

2

Lara-Cazares v. Gonzales, in which we held that under Leocal a Cali-

fornia conviction for gross vehicular manslaughter while intoxicated is not

categorically a crime of violence, is inapposite both because it involved a

DUI offense and because the statute at issue required only a mens rea of

gross negligence. 408 F.3d 1217, 1221 (9th Cir. 2005).

17888 FERNANDEZ-RUIZ v. GONZALES

tioner in Leocal violated a Florida statute making it a crime

to operate a vehicle while under the influence and, “by reason

of such operation, cause[ ] . . . [s]erious bodily injury to

another.” Fla. Stat. § 316.193(3)(c)(2). In determining that the

conviction was not categorically a crime of violence for pur-

poses of § 16(a), the Court noted that the Florida statute “does

not require proof of any particular mental state” and empha-

sized that the

critical aspect of § 16(a) is that a crime of violence

is one involving the “use . . . of physical force

against the person or property of another.” . . .

“[U]se” requires active employment. While one may,

in theory, actively employ something in an acciden-

tal manner, it is much less natural to say that a per-

son actively employs physical force against another

person by accident. Thus, a person would “use . . .

physical force against” another when pushing him;

however, we would not ordinarily say a person

“use[s] . . . physical force against” another by stum-

bling and falling into him. . . . The key phrase in

§ 16(a) . . . most naturally suggests a higher degree

of intent than negligent or merely accidental con-

duct.

Leocal, 543 U.S. at 7, 9 (citations omitted) (first, third, and

fourth omissions in original).

The “bedrock principle” of Leocal is not, as the majority

asserts, that “an offense must involve the intentional use of

force” to be a crime of violence, Maj. Op. at 17872, but rather

that merely accidental or negligent DUI crimes are not crimes

of violence. It is unclear whether Leocal extends beyond DUI

offenses, and, in any event, it explicitly left open “the ques-

tion whether a state or federal offense that requires proof of

the reckless use of force against a person or property of

another qualifies as a crime of violence under 18 U.S.C.

§ 16.” 543 U.S. at 13. Leocal informs our analysis insofar as

FERNANDEZ-RUIZ v. GONZALES 17889

it emphasizes that the key issue in determining whether a

predicate conviction satisfies § 16(a) is whether the convic-

tion involved an active employment of force. See id. at 11

(emphasizing that § 16 “suggests a category of violent, active

crimes”).

Fernandez-Ruiz’s conviction necessarily involved an active

employment of force. The minimum mens rea for a violation

of A.R.S. § 13-1203(A)(1) is recklessness, which Arizona

defines as,

with respect to a result or to a circumstance

described by a statute defining an offense, that a per-

son is aware of and consciously disregards a substan-

tial and unjustifiable risk that the result will occur or

that the circumstance exists. The risk must be of

such nature and degree that disregard of such risk

constitutes a gross deviation from the standard of

conduct that a reasonable person would observe in

the situation. A person who creates such a risk but

is unaware of such risk solely by reason of voluntary

intoxication also acts recklessly with respect to such

risk.

A.R.S. § 13-105(9)(c). Fernandez-Ruiz therefore must have at

least “consciously disregarded” the risk of physically injuring

his girlfriend. Conscious disregard includes an element of

volition: One must be aware of a substantial and unjustifiable

risk and affirmatively choose to act notwithstanding that risk.

See Trinidad-Aquino, 259 F.3d at 1145-46 (cited approvingly

in Leocal, 543 U.S. at 9); see also Vucinich v. Paine, Webber,

Jackson & Curtis, Inc., 739 F.2d 1434, 1435 (9th Cir. 1984)

(per curiam) (“Rather than being merely a greater degree of

ordinary negligence, recklessness is closer to a lesser form of

intent.” (internal quotation marks omitted)); People v. Lara,

44 Cal. App. 4th 102, 107-08 (1996). “Unlike a person who

accidentally injures another person, a person who acts reck-

lessly in bringing about harm to another is aware of the nature

17890 FERNANDEZ-RUIZ v. GONZALES

of his conduct and thus can be said to be ‘actively employ-

[ing]’ the physical force that results in injury ‘against anoth-

er.’ ” Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 449-50

(4th Cir. 2005) (Niemeyer, J., dissenting) (quoting Leocal,

543 U.S. at 9, and citing Trinidad-Aquino, 259 F.3d at 1146).

Recklessness thus requires a volitional, active decision, which

necessarily involves “a higher degree of intent than negligent

or merely accidental conduct,” Leocal, 543 U.S. at 9, and sat-

isfies § 16(a)’s “use . . . of physical force” requirement. Noth-

ing in Leocal requires us to overrule Ceron-Sanchez or re-

interpret Trinidad-Aquino.

In holding that recklessness is not a sufficient mens rea for

a crime of violence, the majority misreads Leocal. The major-

ity asserts that because (1) Leocal holds that accidental con-

duct cannot be a crime of violence, see Leocal, 543 U.S. at 9;

(2) accidental conduct is by definition “ ‘[n]ot . . . purpose-

ful,’ ” Maj. Op. at 17868 (alteration in original) (quoting

Black’s Law Dictionary 16 (8th ed. 2004)); and (3) reckless

conduct is also not purposeful; Leocal compels the conclusion

that “the reckless use of force is ‘accidental’ and crimes of

recklessness cannot be crimes of violence.” Maj. Op. at

17868. This argument defies logic.

The fact that neither negligence nor recklessness is pur-

poseful does not mean that they are identical, or that reckless-

ness, like negligence, necessarily falls outside the scope of

§ 16(a). Recklessness is a distinct mens rea, which lies closer

to intentionality than to negligence. See Vucinich, 739 F.2d at

1435. Leocal’s statement that “negligent or merely accidental

conduct” does not satisfy § 16(a), 543 U.S. at 9, in no way

suggests that intentional conduct is required or that reckless-

ness is an insufficient mens rea for a crime of violence. See

Bejarano-Urrutia, 413 F.3d at 449-500. Indeed, the Leocal

Court specifically declined to decide that issue. See 543 U.S.

at 13. The majority, like the opinions from the Third and

Fourth Circuit on which it relies, ignores the important differ-

ences between negligence and recklessness and improperly

FERNANDEZ-RUIZ v. GONZALES 17891

reads an intentionality requirement into Leocal. See Oyebanji

v. Gonzales, 418 F.3d 260, 264-65 (3d Cir. 2005) (conviction

for vehicular homicide based on driving under the influence);

Tran v. Gonzales, 414 F.3d 464, 470-71 (3d Cir. 2005) (con-

viction for reckless burning or exploding); Bejarano-Urrutia,

413 F.3d at 447 (majority opinion) (conviction for involuntary

manslaughter based on driving under the influence).3

Because the plain language of § 16(a) is clear, the rule of

lenity does not apply, see Lisbey v. Gonzales, 420 F.3d 930,

933 (9th Cir. 2005); nor need we consult the statute’s legisla-

tive history. Nevertheless, were we to look to legislative his-

tory, it would confirm that Fernandez-Ruiz’s conviction is a

crime of violence. The Senate Report accompanying the

Comprehensive Crime Control Act of 1984, which enacted 18

U.S.C. § 16, states that a “crime of violence” under § 16(a)

“would include a threatened or attempted simple assault or

battery on another person.” S. Rep. No. 98-225, at 307 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87 (footnotes

omitted). Congress thus intended to include both simple

assault and battery in the definition of a “crime of violence.”

Battery is traditionally defined as “the unlawful application of

force to the person of another,” committed with a mental state

of at least criminal negligence or recklessness. See Black’s

Law Dictionary 139 (5th ed. 1979); Model Penal Code

§ 211.1(1)(a) (a person is guilty of battery if he “purposely,

knowingly or recklessly causes bodily injury to another”);4

3

The majority also incorrectly relies on a discussion of recklessness in

the context of § 16(b) to bolster its argument that force must be instrumen-

tal in the execution of the crime to qualify as “use” under § 16(a). See

Maj. Op. at 17869 (quoting Leocal, 543 U.S. at 10). In Oyebanji, the Third

Circuit’s analysis was also only of § 16(b). 418 F.3d at 264. Further,

unlike the majority here, the Third Circuit did not make a blanket post-

Leocal announcement about crimes with a recklessness mens rea. In each

case that court examined the actual crime of conviction in reaching its

conclusion.

4

Section 211.1 is entitled “Assault” but incorporates the crime of bat-

tery. See 2 Am. Law Inst., Model Penal Code & Commentaries § 211.1

cmt.2, at 183-84 (1980).

17892 FERNANDEZ-RUIZ v. GONZALES

Wayne R. LaFave, Substantive Criminal Law § 16.2 (2d ed.

2003) (similar). A violation of the Arizona statute at issue,

which incorporates the Model Penal Code’s definition of bat-

tery, see A.R.S. § 13-1203(A); State v. Mathews, 633 P.2d

1039, 1042 (Ariz. Ct. App. 1981), is therefore categorically a

“crime of violence” as that term is used in § 16(a). To read the

legislative history otherwise, to suggest that Congress

intended simple assault but not battery to be a “crime of vio-

lence,” is both incorrect and leads to an awkward result: An

alien would be removable for attempting or threatening to

harm someone but not for actually injuring his spouse through

reckless conduct. It is unlikely Congress intended such an out-

come.

C

After mistakenly concluding that Fernandez-Ruiz’s convic-

tion was not categorically a crime of violence, the majority

compounds its error by refusing the government’s request that

we remand to the BIA to allow the government to further

develop the record so that the BIA may apply the modified

categorical approach. The BIA never decided whether

Fernandez-Ruiz’s conviction was a crime of violence under

the modified categorical approach because, until the majori-

ty’s decision today, Fernandez-Ruiz’s conviction was categor-

ically a crime of violence. See Ceron-Sanchez, 222 F.3d 1169.

For the same reason, the government had no reason to iden-

tify, obtain, or introduce evidence demonstrating that

Fernandez-Ruiz “use[d] . . . physical force against the person

or property of another” and therefore that his 2003 conviction

was a crime of domestic violence under the majority’s highly

restrictive approach.

In light of the new rule the majority announces, the proper

course is to remand to the BIA so that it may apply the modi-

fied categorical approach in the first instance. See Gonzales

v. Thomas, 126 S. Ct. 1613, 1614-15 (2006) (per curiam); INS

v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam). As the

FERNANDEZ-RUIZ v. GONZALES 17893

majority concedes, Notash v. Gonzales is inapposite because,

unlike here, there was no intervening change in law that made

the modified categorical approach relevant where it had not

been so before and therefore justified the government’s failure

to introduce evidence relevant to the modified categorical

approach. 427 F.3d 693 (9th Cir. 2005). Nor is there any merit

in the majority’s entirely unsupported assertion that the gov-

ernment has waived its right to a Ventura remand because it

has not specifically stated that “it failed to anticipate the

necessity of introducing documents of conviction demonstrat-

ing Fernandez-Ruiz’s offense was a crime of domestic vio-

lence under the modified categorical approach.” Maj. Op. at

17877.

****

Consistent with the plain language of 18 U.S.C. § 16(a),

Congress’s intent, and our precedent, I would hold that a con-

viction under the Arizona statutes at issue here is categori-

cally a crime of domestic violence.