Fernando-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

On Remand From En Banc Court

San Francisco, California

Filed November 15, 2006

Before: Stephen Reinhardt, John T. Noonan, and

Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Reinhardt

18549

FERNANDEZ-RUIZ v. GONZALES 18553

COUNSEL

Erica K. Rocush, Tucson, Arizona, for the petitioner.

Peter D. Keisler, Assistant Attorney General; David V. Ber-

nal, Assistant Director; and S. Nicole Nardone, Attorney,

United States Department of Justice, Civil Division, Office of

Immigration Litigation, Washington D.C., for the respondent.

OPINION

REINHARDT, Circuit Judge:

This case was remanded to us by the en banc court. We

now consider two principal issues: first, whether the petition-

er’s two misdemeanor domestic assault convictions constitute

crimes of moral turpitude rendering him removable under 8

U.S.C. § 1227(a)(2)(A)(ii), and second, whether he is remov-

able under 8 U.S.C. § 1227(a)(2)(A)(iii) because his 1992

theft offense constitutes an aggravated felony as defined in

section 1101(a)(43)(G).

I. Factual and Procedural Background

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

ico, was admitted to the United States as a lawful permanent

resident in 1990. In 1992, he pled guilty to the crime of “theft

by control of property with a value of $250 or more” in viola-

tion of sections 13-1802(A)(1) and (C) of the Arizona

Revised Statutes. See ARIZ. REV. STAT. § 13-1802(A)(1) & (C)

(1992). He was sentenced to two years probation for the

“class six open-ended offense.” In April 1994, he was sen-

tenced to sixty days in county jail for a probation violation.

Two months later, in June 1994, he again violated a term of

his probation and was sentenced to “twelve months at half

time” in county jail for that violation. At that time, the Ari-

zona court designated the theft offense as a misdemeanor.

18554 FERNANDEZ-RUIZ v. GONZALES

Approximately eight years later, in 2002, Fernandez-Ruiz

was convicted of misdemeanor domestic violence/assault, in

violation of sections 13-1203 and 13-3601 of the Arizona

Revised Statutes. See Ariz. Rev. Stat. §§ 13-1203 & 3601. In

January, 2003, he was again convicted of domestic violence/

assault pursuant to sections 13-1203 and 13-3601. The latter

conviction was designated as a “class 2” misdemeanor.

Fernandez-Ruiz was placed in removal proceedings by the

issuance of a Notice to Appear, charging him as subject to

removal under 8 U.S.C. § 1227(a)(2)(E)(i), for having com-

mitted a crime of domestic violence, and under 8 U.S.C.

§ 1227(a)(2)(A)(ii), for having committed two crimes involv-

ing moral turpitude. At a hearing before the Immigration

Judge (“IJ”) in June, 2003, he admitted all of the factual alle-

gations in the Notice to Appear. Based on these admissions,

the IJ sustained the two charges of removability but informed

him that he appeared to be eligible for cancellation of removal

and instructed him to fill out an application.

Next, Fernandez-Ruiz submitted an application for cancel-

lation of removal. In response, the Department of Homeland

Security (“DHS”) filed an additional charge of removability,

charging him as removable under 8 U.S.C. § 1227(a)(2)

(A)(iii) for having been convicted of an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(G).1 In support of this

charge, DHS alleged that he was sentenced to one year in jail

in June 1994, as a result of his probation revocation in con-

nection with his theft offense.

At a hearing before the IJ in August, 2003, Fernandez-Ruiz

admitted that in 1994 he was sentenced to one year in jail for

a probation violation. The IJ then ruled that his 2002 and 2003

domestic violence/assault convictions were both crimes

involving moral turpitude. He also concluded that, because of

1

An aggravated felony conviction renders an alien ineligible for cancel-

lation of removal. See 8 U.S.C. § 1229b(a)(3).

FERNANDEZ-RUIZ v. GONZALES 18555

the one year sentence for violating probation, the theft offense

constituted an aggravated felony and relief under former sec-

tion 212(c) of the Immigration and Naturalization Act

(“INA”), 8 U.S.C. § 1182(c), was unavailable in view of the

two post-1996 domestic violence convictions. Finally, the IJ

concluded that Fernandez-Ruiz was not eligible for cancella-

tion of the order removing him on the basis of the two domes-

tic violence offenses because of his “aggravated felony

conviction in 1994.” See 8 U.S.C. § 1229b(a)(3).

Fernandez-Ruiz appealed the IJ’s decision. In the opinion

it issued, the BIA adopted the IJ’s decision, and offered, as

well, its own reasons for rejecting Fernandez-Ruiz’s argu-

ments. The BIA found that both the domestic violence/assault

convictions constituted crimes of moral turpitude and were

based on crimes of domestic violence. The BIA also found

that the theft offense qualified as an aggravated felony. As a

result, the BIA concluded that Fernandez-Ruiz was eligible

for neither a section 212(c) waiver nor cancellation of

removal and ordered him removed to Mexico.

We initially affirmed, concluding, on the basis of our ear-

lier decision in United States v. Ceron-Sanchez, 222 F.3d

1169, 1172-73 (9th Cir. 2000), that Fernandez-Ruiz’s 2003

domestic violence/assault conviction constituted a crime of

violence under 18 U.S.C. § 16(a), and therefore rendered him

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

Ruiz v. Gonzales, 410 F.3d 585, 587-88 (9th Cir. 2005).2

However, on the panel’s own motion, the court ordered

rehearing en banc in order to resolve an intra-circuit conflict

as to whether, under the Supreme Court’s recent decision in

2

With respect to the crime of violence issue, before this court the gov-

ernment relied only on the 2003 conviction and not on the similar 2002

conviction. That it did so is of no consequence as a decision in its favor

on the 2003 offense would permit his removal for having committed a

crime of violence and an adverse decision would preclude his removal on

the crime of violence ground with respect to both convictions.

18556 FERNANDEZ-RUIZ v. GONZALES

Leocal v. Ashcroft, 543 U.S. 1 (2004), crimes involving the

reckless use of force can qualify as crimes of violence. Com-

pare Lara-Cazares v. Gonzales, 408 F.3d 1217, 1220 (9th Cir.

2005) (relying on Leocal to hold that state DUI offense with

a mens rea of gross negligence did not qualify as a crime of

violence because § 16(a) “suggests a higher degree of intent

than negligent or merely accidental conduct”), with United

States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.

2005) (relying on Ceron-Sanchez to hold that second-degree

assault statute requiring “the reckless infliction of bodily

harm” constitutes a crime of violence).

The en banc court reversed the BIA’s determination that

Fernandez-Ruiz was subject to removal under 8 U.S.C.

§ 1227(a)(2)(E)(i), holding that his 2003 misdemeanor

domestic violence/assault conviction was not a crime of vio-

lence because, under Leocal, in order “to constitute a federal

crime of violence an offense must involve the intentional use

of force against the person or property of another.”

Fernandez-Ruiz v. Gonzales, No. 03-74533, slip op. 17872

(9th Cir. 2006) (en banc). It then remanded the case to this

three judge panel to decide the remainder of the issues. We

now decide whether Fernandez-Ruiz is removable on the

basis of the two remaining charges in the order of removal:

that, under 8 U.S.C. § 1227(a)(2)(A)(ii), he has been con-

victed of “two or more crimes involving moral turpitude,” and

that, under 8 U.S.C. § 1227(a)(2)(A)(iii), his 1992 theft

offense constituted an aggravated felony as defined in 8

U.S.C. § 1101(a)(43)(G). See id. at 17878.

II. Jurisdiction and Standard of Review

The en banc court adopted the portion of this panel’s earlier

opinion which held that 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, slip op. at 17858 (quoting Fernandez-Ruiz v.

FERNANDEZ-RUIZ v. GONZALES 18557

Gonzales, 431 F.3d at 587). Accordingly, we have jurisdiction

to review the petition for the reasons set forth in that portion

of our previous opinion.

Whether a state statutory crime necessarily involves moral

turpitude is a question of law that we review de novo. Carty

v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005). Whether a

particular offense constitutes an aggravated felony for which

an alien is removable is also subject to de novo review. Rivas-

Gomez v. Gonzales, 441 F.3d 1072, 1074 (9th Cir. 2006).

III. Discussion

A. Crime Involving Moral Turpitude

We first consider whether Fernandez-Ruiz’s two misde-

meanor domestic violence/assault convictions constitute

“crimes involving moral turpitude” for purposes of removal.

The INA provides: “Any alien who at any time after admis-

sion is convicted of two or more crimes involving moral turpi-

tude, not arising out of a single scheme of criminal

misconduct, . . . is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii)

(emphasis added). Accordingly, if one of the two convictions

does not constitute a crime of moral turpitude, Fernandez-

Ruiz is not removable under section 1227(a)(2)(A)(ii).

To determine whether a specific crime falls within the cate-

gory of “crimes involving moral turpitude,” we apply the cat-

egorical and modified categorical approaches set forth in

Taylor v. United States, 495 U.S. 575 (1990). See Cuevas-

Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005).

Under the categorical approach, we must compare “the ele-

ments of the statute of conviction to the generic definition,

and decide whether the conduct proscribed [by the Arizona

statute] is broader than, and so does not categorically fall

within, this generic definition.” Huerta-Guevara v. Ashcroft,

321 F.3d 883, 887 (9th Cir. 2003). Under this approach, “[t]he

issue is not whether the actual conduct constitutes a crime

18558 FERNANDEZ-RUIZ v. GONZALES

involving moral turpitude, but rather, whether the full range

of conduct encompassed by the statute constitutes a crime of

moral turpitude.” Cuevas-Gaspar, 430 F.3d at 1017.

If the statute of conviction is not a categorical match

because it criminalizes both conduct that does and does not

involve moral turpitude, we apply a “modified” categorical

approach “under which we may look beyond the language of

the statute to a narrow, specified set of documents that are

part of the record of conviction, including the indictment, the

judgment of conviction, jury instructions, a signed guilty plea,

or the transcript from the plea proceedings.” Tokatly v. Ash-

croft, 371 F.3d 613, 620 (9th Cir. 2004) (internal quotation

marks omitted). We may not, however, “look beyond the

record of conviction itself to the particular facts underlying

the conviction.” Id. If the record of conviction that is intro-

duced at the hearing before the IJ is not sufficient to establish

that the offense qualifies as a basis for removal, “the govern-

ment has not met its burden of proving that the conviction

constitutes a predicate offense, and the conviction may not be

used as a basis for removal.” Id. at 620-21; see also Ferreira

v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir. 2004) (“If the

record of conviction does not establish that the offense the

petitioner committed qualifies as an aggravated felony, the

government has not met its burden of proving that the defen-

dant committed an aggravated felony.”).

Here, the BIA concluded that both of Fernandez-Ruiz’s

convictions under Arizona Revised Statutes sections 13-1203

and 13-3601, were crimes of moral turpitude. We examine the

BIA’s holdings with regard to each conviction in turn, bearing

in mind that both offenses must qualify in order for this

ground of removability to be sustained. See 8 U.S.C.

§ 1227(a)(2)(A)(ii).

1. The 2003 Class 2 Misdemeanor Assault Conviction

Section 13-1203(A), Arizona’s misdemeanor assault stat-

ute, provides that a person commits assault by:

FERNANDEZ-RUIZ v. GONZALES 18559

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;

or

3. Knowingly touching another person with the

intent to injure, insult or provoke such person.

ARIZ. REV. STAT. § 13-1203(A)(1)-(3). Section 13-3601(A),

the other statute under which Fernandez-Ruiz was convicted,

defines “domestic violence” as including several crimes,

including misdemeanor assault as defined in section 13-1203,

if the relationship between the victim and the defendant is one

of, inter alia, “persons residing or having resided in the same

household.”

[1] Fernandez-Ruiz’s 2003 domestic assault conviction was

designated a “class 2” misdemeanor, which is defined as

assault committed recklessly pursuant to section 13-

1203(A)(1) or assault pursuant to section 13-1203(A)(2). See

id. § 13-1203(B). Assault committed recklessly pursuant to

subsection (A)(1) requires “recklessly causing any physical

injury to another person,” while assault pursuant to subsection

(A)(2) requires “[i]ntentionally placing another person in rea-

sonable apprehension of imminent physical injury.” Id. §§ 13-

1203(A)(1), (2). The administrative record before us does not

specify whether Fernandez-Ruiz pled guilty to subsection

(A)(1) or (A)(2).3 Accordingly, if either subsection (A)(1) or

(A)(2) covers conduct that is not a crime of moral turpitude,

3

The record contains three documents pertaining to Fernandez-Ruiz’s

2003 class 2 misdemeanor offense: (1) the charging document which

states that he violated “13-3601/13-1203”; (2) a sentencing minute entry

which states that he was convicted of “DV/assault Class 2”; and (3) a pro

forma plea agreement which states that he pled guilty to “DV/Aslt Class

II.” None of these documents indicates whether he was convicted under

subsection (A)(1) or (A)(2).

18560 FERNANDEZ-RUIZ v. GONZALES

then the 2003 conviction cannot, categorically, be such an

offense. See Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir.

2005) (observing that because record contained no evidence

indicating under which section of the statute petitioner was

convicted, he is removable only if a conviction under both

sections would qualify as a crime involving moral turpitude).

[2] The INA does not define “moral turpitude.”4 Absent a

statutory definition, courts have defined the term as an “act of

baseness or depravity contrary to accepted moral standards.”

Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993) (internal

quotation marks omitted); see also Knapick v. Ashcroft, 384

F.3d 84, 89 (3rd Cir. 2004) (defining moral turpitude as “con-

duct that is inherently base, vile, or depraved, contrary to the

accepted rules of morality and the duties owed other persons,

either individually or to society in general”). With regard to

the crime of assault, courts generally have held that a convic-

tion for simple assault does not involve moral turpitude. See,

e.g., Reyes-Morales v. Gonzales, 435 F.3d 937, 945 n.6 (8th

Cir. 2006) (observing that simple assault does not involve

moral turpitude); Knapik, 384 F.3d at 90 (same); United

States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir.

1933) (same).

The statute at issue here, Arizona Revised Statutes section

13-1203, is considered the “simple assault” statute under Ari-

zona law. See State v. George, 79 P.3d 1050, 1055 (Ariz. Ct.

App. 2003); see also State v. Sanders, 68 P.3d 434, 445 (Ariz.

Ct. App. 2003) (referring to section 13-1203 as “the simple

assault statute”). In Fernandez-Ruiz’s case, the BIA correctly

observed that “simple assault is not considered to be a crime

4

As another circuit has observed, “Congress did not see fit to state what

meaning it attributes to the phrase ‘crime involving moral turpitude’ . . .

The legislative history leaves no doubt, however, that Congress left the

term ‘crime involving moral turpitude’ to future administrative and judi-

cial interpretation.” Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994) (inter-

nal citation omitted).

FERNANDEZ-RUIZ v. GONZALES 18561

involving moral turpitude.” The BIA went on to conclude,

however, that “the additional element of the domestic rela-

tionship turns the assault into a crime involving moral turpi-

tude.” In so holding, the BIA relied on Grageda, in which we

held that “when a person willfully beats his or her spouse

severely enough to cause ‘a traumatic condition,’ he or she

has committed an act of baseness or depravity contrary to

accepted moral standards.” Grageda, 12 F.3d at 922 (quoting

CAL. PENAL CODE § 273.5(a)).

For two reasons, the BIA erred in relying on Grageda.

First, this court’s holding in Grageda rested explicitly on the

fact that the California felony spousal abuse statute at issue in

that case required intent to cause harm. See id. (emphasizing

that the injurious act under California Penal Code “section

273.5(a) must be willful, meaning that the person intended to

cause the harm”).5 In fact, in Grageda, we concluded that the

California felony was a crime of moral turpitude “[b]ecause

spousal abuse is an act of baseness or depravity contrary to

accepted moral standards, and willfulness is one of its ele-

ments. . . . it is the combination of the base or depraved act

and the willfulness of the action that makes the crime one of

moral turpitude.” Id. (emphasis added). Thus, for purposes of

Grageda, while spousal abuse may be a “base or depraved

act,” that factor alone is not sufficient for a crime to constitute

moral turpitude: the act must also be done willfully.6

5

Specifically, the California felony spousal abuse statute at issue in

Grageda prohibited any person from “willfully inflict[ing] upon a person

who is his or her spouse, former spouse, cohabitant, former cohabitant, or

the mother or father of his or her child, corporal injury resulting in a trau-

matic condition, . . . .” CAL. PENAL CODE § 273.5(a) (emphasis added).

6

The BIA applied Grageda correctly in In re Tran, 21 I. & N. Dec. 291

(BIA 1996). There, the BIA concluded that the “infliction of bodily harm

upon a person with whom one has [ ] a familial relationship is an act of

depravity which is contrary to accepted moral standards. When such act

is committed willfully, it is an offense that involves moral turpitude.” Id.

at 294 (emphasis added) (internal citation omitted). In other cases it was

less faithful to our decision. See, e.g., In re Fualaau, 21 I. & N. Dec. 475,

478 (BIA 1996) (stating that an assault involving a reckless state of mind

is a crime of moral turpitude if it results in “the infliction of serious bodily

injury”).

18562 FERNANDEZ-RUIZ v. GONZALES

Indeed, this circuit’s precedent generally requires “willful-

ness” or “evil intent” in order for a crime to be classified as

one involving moral turpitude. In Guerrero de Nodahl v. INS,

a case upon which we relied in deciding Grageda, we held

that a conviction under California’s felony child abuse statute

that prohibited “willfully inflict[ing] upon any child any cruel

or inhuman corporal punishment or injury resulting in a trau-

matic condition,” involved moral turpitude. 407 F.2d 1405,

1406 n.1 (9th Cir. 1969) (emphasis added) (quoting California

Penal Code § 273d). In Guerrero de Nodahl, we observed that

inflicting such injury upon a child “is so offensive to Ameri-

can ethics that the fact that it was done purposely or willingly

. . . ends debate on whether moral turpitude was involved.” Id.

at 1406-07 (emphasis added); see also, e.g., Gonzalez-

Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (“A crime

involving the willful commission of a base or depraved act is

a crime involving moral turpitude, . . . .”) (emphasis added);

Goldeshtein v. INS, 8 F.3d 645, 648 (9th Cir. 1993) (holding

that structuring financial transactions to avoid currency

reports is not a crime of moral turpitude because, inter alia,

“evil intent, such as intent to defraud is not necessarily an

essential element of the crime”) (emphasis added) (internal

quotation marks omitted); Hirsch v. INS, 308 F.2d 562, 567

(9th Cir. 1962) (holding that making false statements to a fed-

eral agency “is not necessarily a crime involving moral turpi-

tude” because it “does not necessarily involve evil intent”)

(emphasis added). Other circuits similarly emphasize that

willfulness is critical to a moral turpitude determination. See

generally Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000)

(“[C]orrupt scienter is the touchstone of moral turpitude.”);

see also Reyes-Morales, 435 F.3d at 945 n.6 (stating that sim-

ple assault is not a crime of moral turpitude because it “does

not require the offender to act with a vicious motive or cor-

rupt mind”); Chanmouny v. Ashcroft, 376 F.3d 810, 814-15

(8th Cir. 2004) (observing that simple assault is not a crime

of moral turpitude because it “typically is a general intent

crime, and it is thus different in character from those offenses

FERNANDEZ-RUIZ v. GONZALES 18563

that involve a vicious motive, corrupt mind, or evil intent”)

(internal quotation marks omitted).

[3] Although a finding of willfulness and/or evil intent is

necessary in order to establish moral turpitude, Arizona’s

class 2 misdemeanor assault does not require a willful or

intentional act. Rather, one can be convicted under subsection

(A)(1) for “recklessly causing any physical injury to another

person.” ARIZ. REV. STAT. § 13-1203(A)(1) (emphasis added).

As the en banc court observed, “reckless conduct as defined

by Arizona law is not purposeful.” Fernandez-Ruiz, slip op.

at 17868 (citing ARIZ. REV. STAT. § 13-105(c)).7 Because

spousal abuse without the additional element of willfulness is

not a crime involving moral turpitude, and because

Fernandez-Ruiz was convicted of an offense that does not

require willfulness, his Arizona class 2 misdemeanor assault

conviction does not, for this reason alone, categorically qual-

ify as a crime of moral turpitude.

[4] Second, as we recently explained in Galeana-Mendoza

v. Gonzales, 2006 WL 2846379, *5 (9th Cir. 2006), Grageda

stands only for the proposition that “when a person beats his

or her spouse severely enough to cause ‘a traumatic condi-

tion,’ he or she has committed an act of baseness or depravity

contrary to accepted moral standards.” Id. (quoting Grageda,

12 F.3d at 922 (discussing CAL. PENAL CODE § 273.5(a)))

(emphasis added). It does not suggest that a spousal contact

7

Arizona Revised Statutes section 13-105(c) defines “recklessly” to

mean:

. . . with respect to a result or to a circumstance described by a

statute defining an offense, that a person is aware of and con-

sciously disregards a substantial 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.

18564 FERNANDEZ-RUIZ v. GONZALES

that causes minor injury or a spousal threat that results in no

physical injury constitutes a crime of moral turpitude. Rather,

the California spouse abuse and child abuse statutes that we

held to involve moral turpitude in Grageda and Guerrero de

Nodahl both required the willful infliction of bodily “injury

resulting in a traumatic condition.” Grageda, 12 F.3d at 921

(quoting CAL. PENAL CODE § 273.5(a)) (emphasis added);

Guerrero de Nodahl, 407 F.2d at 1406 n.1 (quoting CAL.

PENAL CODE § 273d) (emphasis added).

[5] Here, Arizona’s class 2 misdemeanor assault merely

requires “recklessly causing any physical injury to another

person,” or “placing another person in reasonable apprehen-

sion of imminent physical injury.” ARIZ. REV. STAT. §§ 13-

1203(A)(1), (2) (emphasis added).8 Subsection (A)(2) con-

tains absolutely no element of injury whatsoever, as it prohib-

its conduct that merely places another person “in reasonable

apprehension of” physical injury. Id. § 13-1203(A)(2).

Accordingly, not only does a conviction under Arizona’s

Class 2 misdemeanor assault statute not require “beat[ing]

[one’s] spouse severely enough to cause a traumatic condi-

tion,” Grageda, 12 F.3d at 922 (emphasis added), it does not

require inflicting bodily injury of any kind. The BIA thus

overreads Grageda; our decision there does not suggest that

physical contacts that result in the most minor of injuries or

threats that cause no injury at all involve moral turpitude. A

statute encompassing such conduct includes within it acts that

are not necessarily base, vile or depraved.

8

Indeed, the Arizona legislature has provided a tiered structure of pun-

ishment for assault based on the severity of the injury, distinguishing

between “simple assault” (the statute we consider here) which causes “any

injury to another person,” or “plac[es] another person in reasonable appre-

hension of imminent physical injury” and “aggravated assault” which

involves, inter alia, causing “serious physical injury to another.” Compare

ARIZ. REV. STAT. §§ 13-1203(A)(1), with § 13-1204(A)(1) (emphasis

added); see also George, 79 P.3d at 1055.

FERNANDEZ-RUIZ v. GONZALES 18565

[6] In sum, Arizona’s class 2 misdemeanor assault offense

lacks two elements, each of which was crucial to our holding

in Grageda: a conviction for a class 2 offense requires neither

willful conduct nor conduct resulting in bodily injury that is

more than insubstantial. A simple assault statute which per-

mits a conviction for acts of recklessness, or for mere threats,

or for conduct that causes only the most minor or insignificant

injury is not limited in scope to crimes of moral turpitude. For

similar reasons, we recently held in Galeana-Mendoza that a

conviction under California’s domestic battery statute, CAL.

PENAL CODE § 234(e), does not, under the categorical

approach, constitute a crime of moral turpitude. 2006 WL

2846379, *6. Because the offenses set forth in Arizona’s bat-

tery statute, sections 13-1203(A)(1) and (A)(2), likewise

include conduct that does not necessarily involve moral turpi-

tude, Fernandez-Ruiz’s class 2 misdemeanor offense cannot,

under the categorical approach, constitute a crime involving

moral turpitude.

[7] Moreover, we cannot apply the modified categorical

approach because the record does not contain any “documen-

tation or judicially noticeable facts that clearly establish that

the conviction is a [crime of moral turpitude].” United States

v. Hernandez-Hernandez, 431 F.3d 1212, 1217 (9th Cir.

2005) (internal quotation marks omitted). As described supra

note 2, the documents in the record pertaining to the 2003

conviction demonstrate only that Fernandez-Ruiz was con-

victed of Class 2 misdemeanor domestic violence/assault pur-

suant to sections 13 1203 and 13-3601. Those documents do

not narrow his offense or show that he “pled guilty to ele-

ments that constitute a crime involving moral turpitude.”

Cuevas-Gaspar, 430 F.3d at 1020. Accordingly, the govern-

ment has failed to meet its burden of proving that the offense

of which Fernandez-Ruiz was convicted in 2003 “constitutes

a predicate offense, and the conviction may not be used as a

basis for removal.” Tokatly, 371 F.3d at 620-21; see also

Notash, 427 F.3d at 699 (internal quotation marks omitted)

(concluding that because “none of the documents that may be

18566 FERNANDEZ-RUIZ v. GONZALES

examined under the modified categorical approach are in the

record,” the government “failed to meet its burden of proving

that the offense for which [the petitioner] was convicted con-

stitutes a predicate offense”).

2. The 2002 Misdemeanor Assault Conviction

Even if Fernandez-Ruiz’s 2003 misdemeanor domestic

assault conviction did constitute a crime involving moral tur-

pitude (and we hold that it does not), the INA requires that a

person be “convicted of two or more crimes involving moral

turpitude,” and it is clear that the 2002 conviction cannot

qualify as such. 8 U.S.C. § 1227(a)(2)(A)(ii) (emphasis

added).

[8] The record does not specify under which subsection of

section 13-1203(A) Fernandez-Ruiz was convicted in 2002.9

Accordingly, if any of the three subsections in section 13-

1203(A) does not involve moral turpitude, then his 2002 con-

viction does not qualify as a crime of that nature.10 See

Notash, 427 F.3d at 697.

[9] Subsection (A)(3) proscribes “knowingly touching

another person with the intent to injure, insult or provoke such

9

The only evidence in the administrative record pertaining to the 2002

conviction is a sentencing minute entry that describes the violation as “DV

Aslt.” The Notice to Appear issued by DHS alleged that the 2002 convic-

tion was “for the offense of Domestic Violence/Assault in violation of

ARS §§ 13-1203;13-3601.” Fernandez-Ruiz admitted that allegation as

charged when he appeared before the Immigration Judge in June, 2003.

10

We note that the en banc court “infer[red]” that Fernandez-Ruiz’s

2002 conviction constituted a “class three” misdemeanor because he was

sentenced to thirty days in jail for this offense, and under Arizona law, a

“class three” misdemeanor is punishable by a maximum of thirty days

imprisonment. See Fernandez-Ruiz, slip op. at 17857 (citing ARIZ. REV.

STAT. § 13-707(A)). Assault committed pursuant to section 13-1203(A)(3)

is a “class three” misdemeanor under the Arizona assault statute. See ARIZ.

REV. STAT. § 13-1203(B). As we explain below, subsection (A)(3) covers

a range of conduct that does not involve moral turpitude.

FERNANDEZ-RUIZ v. GONZALES 18567

person.” ARIZ. REV. STAT. § 13-1203(A)(3).11 As the plain text

of the provision makes clear, not only does a conviction under

subsection (A)(3) not require causing serious bodily injury, it

does not require a physical injury of any kind. See In re Jere-

miah T., 126 P.3d 177, 180 (Ariz. Ct. App. 2006) (stating that

“subsection (A)(3) requires touching but not resultant inju-

ry”). Subsection (A)(3) proscribes a range of conduct that is

not necessarily “inherently base, vile, or depraved, and con-

trary to accepted rules of morality.” Tseung Chu v. Cornell,

247 F.2d 929, 934 (9th Cir. 1957); see also Grageda, 12 F.3d

at 921. Indeed, it is quite obvious that the act of “touching”

one’s spouse in order to “insult” or “provoke” her can encom-

pass acts that are a far cry from the conduct at issue in

Grageda and, more important, from the type of conduct that

can fairly be labeled “moral turpitude.” See Grageda, 12 F.3d

at 922. For example, a husband who inadvisedly pats his wife

on the rear end and says, “You could stand to lose a little

weight, fatso,” could be guilty under subsection (A)(3) of

“knowingly touching [her] with the intent to . . . insult or pro-

voke [her].” Because subsection (A)(3) plainly covers conduct

that may be undesirable and unacceptable but that does not

constitute “baseness or depravity contrary to accepted moral

standards,” Guerrero de Nodahl, 407 F.2d at 1406,

Fernandez-Ruiz’s 2002 conviction is not, under the categori-

cal test, for a crime involving moral turpitude. Cf. Rodriguez-

Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995) (holding that

Washington crime of “malicious mischief” does not involve

moral turpitude because its reach “extends to include prank-

sters with poor judgment”).

[10] Nor is the modified categorical approach of any assis-

tance to the government in its effort to establish to prove that

the offense of which Fernandez-Ruiz was convicted consti-

11

Under Arizona law, the offense described in subsection (A)(3) “is a

less serious offense than the offense described in § 13-1203(A)(1) and a

lower class of misdemeanor.” In re Jeremiah T., 126 P.3d 177, 180 (Ariz.

Ct. App. 2006).

18568 FERNANDEZ-RUIZ v. GONZALES

tuted a crime of moral turpitude. The documents in the record

relating to the 2002 conviction establish only that he pled

guilty to a violation of sections 13-1203 and 13-3601. See

supra note 9. Thus, as with the 2003 conviction, see supra p.

18565, the evidence in the record as to the 2002 offense does

not demonstrate that Fernandez-Ruiz “pled guilty to elements

that constitute a crime involving moral turpitude.” Cuevas-

Gaspar, 430 F.3d at 1020.

[11] Because both Fernandez-Ruiz’s 2002 and 2003 Ari-

zona misdemeanor domestic assault convictions do not qual-

ify as crimes of moral turpitude, the two convictions cannot

justify his removal under 8 U.S.C. § 1227(a)(2)(A)(ii).

B. Aggravated Felony

[12] Having concluded that Fernandez-Ruiz is not remov-

able on the ground that he committed two crimes involving

moral turpitude, we must now review the BIA’s determination

that he is removable under 8 U.S.C. § 1227(a)(2)(a)(iii)

because he has been convicted of an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(G).12 To qualify as an

aggravated felony, Fernandez-Ruiz’s theft conviction must fit

within the definition of “a theft offense . . . for which the term

of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)

(43)(G).

Fernandez-Ruiz argues that his theft conviction does not

constitute an aggravated felony for two reasons. First, he con-

12

In our earlier opinion, we examined the question of Fernandez-Ruiz’s

eligibility for cancellation of removal in light of his 1994 theft conviction.

See Fernandez-Ruiz, 410 F.3d at 588. We stated, however, that we would

not resolve the question of his removability under 8 U.S.C. § 1227(a)(2)

(A)(iii) for being an aggravated felon. See id. at n.2. The en banc court has

now remanded to us the remaining issues. See Fernandez-Ruiz, slip op. at

17878. In order to fulfill that assignment, we examine fully the question

whether the theft conviction at issue constituted an aggravated felony for

which he is removable.

FERNANDEZ-RUIZ v. GONZALES 18569

tends that his conviction does not fit within the definition of

a “theft offense” under the federal statute. As to that point, he

is wrong. He was convicted of the crime of theft: that is,

knowingly, and without lawful authority, controlling the prop-

erty of another with the intent to deprive that person of it. See

ARIZ. REV. STAT. § 13-1802(A)(1) & (C) (1992). The crime is,

categorically, a “theft offense.” See Huerta-Guevara v. Ash-

croft, 321 F.3d 883, 886-87 (9th Cir. 2003); United States v.

Corona-Sanchez, 291 F.3d 1201, 1204-05 (9th Cir. 2002) (en

banc). As we noted in our earlier opinion, Fernandez-Ruiz,

410 F.3d at 588, two apparent linguistic differences exist

between the Arizona statute and the federal theft statute. Nei-

ther constitutes a material difference for purposes of the cate-

gorical analysis. First, Arizona’s requirement that the taking

occur “without lawful authority,” is, if anything, narrower

than the federal law’s requirement that the taking be “without

consent.” Compare ARIZ. REV. STAT. § 13-802(A)(1) & (C)

(1992), with Corona-Sanchez, 291 F.3d at 1203. Second, Ari-

zona’s requirement of “intent to deprive” appears in a crimi-

nal statute, and thus is identical to the federal requirement of

“criminal intent to deprive.” Id. Accordingly, the Arizona

theft statute is, categorically, a theft offense.

[13] Second, Fernandez-Ruiz contends that his conviction

does not qualify as an aggravated felony because it was not

an “offense for which the term of imprisonment [was] at least

one year.” 8 U.S.C. § 1101(a)(43)(G). Specifically, he argues

that the one-year sentence imposed in 1994 is unlawful on its

face because at the time the Arizona court imposed the sen-

tence, it designated his theft conviction a misdemeanor, and

under Arizona law the maximum term of imprisonment for a

misdemeanor is, and was at the time, six months. See ARIZ.

REV. STAT. § 13-707. To support this claim, he asserts that the

Arizona Superior Court issued a minute entry on June 30,

2004, which acknowledged that the sentence imposed on him

ten years earlier, in June 1994, was illegal. The minute entry

is not in the record before us. Nor could this question have

been raised during the earlier BIA proceedings because the

18570 FERNANDEZ-RUIZ v. GONZALES

Arizona court entered the minute entry over six months after

the BIA rendered its decision. Under these circumstances, we

conclude that the proper disposition is to remand the case to

the BIA for it to consider in the first instance whether

Fernandez-Ruiz’s 1994 sentence is illegal on its face, and, if

so, whether he may nevertheless be removed as an aggravated

felon.13 See Velezmoro v. Ashcroft, 362 F.3d 1231, 1233-34

(9th Cir. 2004) (remanding to the BIA to consider in the first

instance whether petitioner continues to be barred from apply-

ing for adjustment of status); see also INS v. Ventura, 537

U.S. 12, 17 (2002) (per curiam) (remanding “changed circum-

stances” issue to the BIA to give the agency “the opportunity

to address the matter in the first instance”).

C. Eligibility for Section 212(c) Relief

[14] Although section 212(c) waivers were eliminated in

1996 by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”) § 304(b), the waiver

“remains available for aliens . . . whose convictions were

obtained through plea agreements and who, notwithstanding

those convictions, would have been eligible for [a § 212(c)

waiver] at the time of their plea under the law then in effect.”

INS v. St. Cyr, 533 U.S. 289, 326 (2001). Prior to 1996, an

alien could qualify for section 212(c) relief unless he was con-

victed of an aggravated felony and sentenced to a term of

imprisonment of at least five years. See United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1044 (9th Cir. 2004);

United States v. Gonzalez-Valerio, 342 F.3d 1051, 1053-54

(9th Cir. 2003).

13

Fernandez-Ruiz argues that because the maximum possible sentence

he could have received for the theft offense was six months, his conviction

cannot be considered a “theft offense . . . for which the term of imprison-

ment [is] at least one year” under 8 U.S.C. § 1101(a)(43)(G). See Corona-

Sanchez, 291 F.3d at 1210 (holding that because the maximum possible

sentence for the violation was six months, the petitioner’s conviction was

not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G)).

FERNANDEZ-RUIZ v. GONZALES 18571

[15] Because Fernandez-Ruiz pled guilty to his theft

offense prior to 1996 and he was not sentenced to a term of

at least five years, he is eligible for a waiver of inadmissibility

as to his theft offense under former section 212(c) of the INA,

if he is not otherwise barred. The IJ held that he was not eligi-

ble for a section 212(c) waiver. He expressly stated in his

decision, however, that he “would have found that

[Fernandez-Ruiz] was eligible for 212(c) relief but for” the

2002 and 2003 domestic assault convictions which, he con-

cluded, constituted crimes of moral turpitude and rendered

him removable and thus ineligible for a 212(c) waiver. In

light of our decision that neither the 2002 nor the 2003 con-

viction qualifies as a crime of moral turpitude, and that

Fernandez-Ruiz is therefore not removable under 8 U.S.C.

§ 1227(a)(2)(A)(ii), it is apparent that he is eligible for section

212(c) relief.14

IV. Conclusion

We conclude that neither of Fernandez-Ruiz’s two convic-

tions under Arizona Revised Statutes sections 13-1203 and

13-3601 constitutes a crime involving moral turpitude. Arizo-

na’s misdemeanor assault statute requires neither the willful

intent nor the type of injury that is necessary for domestic

assault to be, categorically, an offense involving moral turpi-

tude. Accordingly, Fernandez-Ruiz is not removable pursuant

to 8 U.S.C. § 1227(a)(2)(A)(ii). As to the aggravated felony

ground of removal, we remand to the BIA to consider in the

first instance whether Fernandez-Ruiz’s 1994 one-year sen-

tence is unlawful on its face and thus cannot support a charge

of removability as an aggravated felon. Finally, we hold that

Fernandez-Ruiz was eligible for section 212(c) relief as of the

time of the BIA ruling.

14

The availability of such relief would, of course, only be relevant

should the BIA determine that the theft offense constitutes an aggravated

felony. Also, we do not foreclose an adverse determination as to such

relief based on any offenses committed after the time of the BIA decision

in this matter.

18572 FERNANDEZ-RUIZ v. GONZALES

PETITION GRANTED IN PART; REMANDED FOR

FURTHER PROCEEDINGS CONSISTENT WITH THIS

OPINION.