Sazar Dent v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAZAR DENT, aka Cesar Augusto No. 17-15662

Jimenez-Mendez,

Petitioner-Appellant, D.C. No.

2:10-cv-02673-

v. GMS

JEFFERSON B. SESSIONS III, Attorney

General, OPINION

Respondent-Appellee.

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted July 10, 2018

San Francisco, California

Filed August 17, 2018

Before: Susan P. Graber and Richard C. Tallman, Circuit

Judges, and Ivan L.R. Lemelle,* District Judge.

Opinion by Judge Graber

*

The Honorable Ivan L.R. Lemelle, United States District Judge for

the Eastern District of Louisiana, sitting by designation.

2 DENT V. SESSIONS

SUMMARY**

Immigration

The panel denied a petition for review insofar as it raised

due process claims related to the district court’s rejection of

Sazar Dent’s United States citizenship claim, and granted the

petition and remanded to the Board of Immigration Appeals

insofar as the BIA ruled that Dent’s conviction for third-

degree escape under Arizona Revised Statutes § 13-2502 is a

crime of violence aggravated felony.

Dent was born in Honduras, but was admitted to the

United States on the basis of being adopted by a United States

citizen. His adoptive mother filed an application for

naturalization for Dent, but that application was terminated

after Dent and his mother missed scheduled interviews and

he turned 18. Dent then filed his own naturalization

application, but it was denied for failure to prosecute. After

criminal convictions, Dent was placed in removal

proceedings and the immigration judge and BIA found him

removable for a controlled substance offense, and for having

been convicted of an aggravated felony based on his

conviction for third-degree escape.

Dent petitioned for review with this court, which

transferred the case to the District Court of Arizona for a

hearing on his citizenship claim. The district court

determined that Dent was not a United States citizen and

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DENT V. SESSIONS 3

ultimately granted the government’s motion for summary

judgment.

As a preliminary matter, the panel concluded that Dent

had standing to assert due process and equal protection claims

on behalf of his mother.

Dent claimed that the applicable citizenship statute,

8 U.S.C. § 1433 (1982), violated his mother’s rights under the

Fifth Amendment’s Equal Protection Clause because the

statute required citizen-parents of foreign-born, adopted

children to petition for naturalization of their children, while

biological parents, as well as adoptive parents who

naturalized after adoption, could confer citizenship on their

children automatically, without petitioning.

The panel explained that, under Sessions v. Morales-

Santana, 137 S. Ct. 1678 (2017), Dent’s equal protection

claims do not necessarily receive rational basis review simply

because they are in the immigration context; rather, when a

petitioner presents a claim for citizenship, his or her equal

protection claims are treated the same as they would be in a

non-immigration case.

However, the panel held that rational basis review applied

to Dent’s equal protection claims because he failed to identify

any protected class. The panel further held that, because a

legitimate governmental interest is rationally related to

§ 1433’s requirement that citizen-parents petition to

naturalize their adopted, foreign-born children, § 1433 does

not violate the Fifth Amendment’s Equal Protection Clause.

The panel also rejected Dent’s due process claims. The

panel held that the district court correctly concluded that the

4 DENT V. SESSIONS

former Immigration and Naturalization Service was not

deliberately indifferent to Dent’s mother’s application for his

citizenship, or his own adult application for citizenship. The

panel also concluded that Dent could not establish prejudice.

Finally, the panel held that the BIA erred in concluding

that third-degree escape under Arizona Revised Statutes § 13-

2502 is a crime of violence and, therefore, an aggravated

felony. Comparing the generic federal definition of “crime of

violence” under 18 U.S.C. § 16 to the Arizona statute, the

panel held that Arizona third-degree escape is not crime of

violence because it does not necessarily involve the “physical

force” required by § 16(a). The panel also observed that the

Supreme Court recently declared, in Sessions v. Dimaya, 138

S. Ct. 1204, 1223 (2018), that § 16(b) is unconstitutionally

vague and, therefore, that subsection cannot be the basis for

an aggravated felony.

Noting that Dent is still removable for a controlled

substance offense, the panel remanded the case to the BIA for

a new hearing to address Dent’s request for cancellation of

removal.

COUNSEL

Anne R. Traum (argued), Supervising Attorney; Andrew

Clark, Scott Cardenas, Beatriz Aguirre, and Sabrina Clymer,

Student Attorneys; Thomas & Mack Legal Clinic, William S.

Boyd School of Law, University of Nevada, Las Vegas,

Nevada; for Petitioner-Appellant.

DENT V. SESSIONS 5

Katherine E. Clark (argued) and Russell J.E. Verby, Senior

Litigation Counsel; Papa Sandhu, Assistant Director; Chad A.

Readler, Acting Assistant Attorney General; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent-

Appellee.

OPINION

GRABER, Circuit Judge:

Petitioner Sazar Dent, a native and citizen of Honduras,

appeals the summary judgment entered in favor of

Respondent Attorney General Sessions on the question of

Petitioner’s citizenship. He also challenges the Board of

Immigration Appeals’ (“BIA”) conclusion that Arizona third-

degree escape is an aggravated felony. We deny the petition

insofar as it raises due process and equal protection claims

related to the citizenship determination; but we grant and

remand insofar as the BIA ruled that the escape conviction is

an aggravated felony.

FACTUAL AND PROCEDURAL BACKGROUND1

Petitioner was born in Honduras in 1967. He was

admitted to the United States in early 1981, when he was

13 years old, on the basis of his then-pending adoption by

1

With respect to the facts surrounding the due process claim, which

the district court resolved on summary judgment, we view the facts in the

light most favorable to Petitioner. Citizens for Better Forestry v. U.S.

Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003).

6 DENT V. SESSIONS

Roma Dent, a United States citizen. The adoption was

finalized later in 1981.

In January of 1982, the former Immigration and

Naturalization Service (“INS”) received an application filed

by Petitioner’s adoptive mother seeking to naturalize

Petitioner (who was then 14 years old) as a United States

citizen. Petitioner and his mother lived in Arkansas. The

INS transferred the application to its New Orleans office

because there was no office in Arkansas and because the

Memphis office was overworked. More than 200,000

naturalization petitions were filed with the INS in 1982. At

that time, it typically took about a year and a half, after the

filing of an application for a child’s naturalization petition, to

schedule an interview.2

The INS scheduled an interview on Roma Dent’s

application for August 4, 1983, less than 17 months after it

was filed. The INS arranged for the interview to be held in

Arkansas, near the Dents’ home. But neither Petitioner nor

his mother appeared at the appointed time and place.

Petitioner’s mother then asked for a new interview date,

explaining that Petitioner would be in Honduras “for

6 months probably.” The INS obliged the request, setting a

second interview date of March 13, 1984. There is no

evidence that the INS knew that Petitioner would still be

2

Petitioner contests an INS official’s testimony that, at that time, it

typically took 18 months to schedule an interview. But, as proof, he offers

only data about processing times in 1986, four years later. That evidence

is insufficient to create a genuine issue of material fact. See Brinson v.

Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995) (“If the

evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.” (internal quotation marks omitted)).

DENT V. SESSIONS 7

abroad at that time. Again, neither he nor his mother

appeared.

In August of 1984, Petitioner’s mother contacted the INS

about the status of the naturalization application. The INS

responded:

So good to hear from you. Am unable to

locate Sazar[’s] records in our office as I do

not have his Alien card number. Also include

Sazar[’s] complete name and date of birth.

We will do all we can to get him his

citizenship.

Petitioner’s mother wrote the requested information on the

form, adding: “Is 16 will be 17 Nov 15.” That note was

postmarked August 27, 1984.

On June 10, 1985, the INS placed the following note in

Petitioner’s file:

Joan of U.S. Court Clerk’s Office of Fort

Smith, AR called this date to inquire about

Sazar Dent’s status. She advised he had been

in a lot of trouble, had run away from several

boy’s homes, etc. They (the authorities) were

hoping they could “deport” him. Advised her

that he was a legal permanent resident; having

been adopted by a U.S. citizen.

The INS did not schedule any additional interviews on the

application of Petitioner’s mother. When Petitioner turned

18, he aged out of his mother’s application, but he became

8 DENT V. SESSIONS

eligible to naturalize on his own, as an adult. 8 U.S.C.

§§ 1433(a), 1445(b) (1980).

The INS scheduled an interview for Petitioner on

February 25, 1986. He missed that appointment, but the INS

“squeezed” him in the next day. At that interview, the INS

deemed Roma Dent’s application “nonfiled,” thereby

terminating that application. Also on February 26, 1986,

Petitioner filed his own naturalization application and

petition. The INS immediately recommended approval of the

petition. In 1986, when the INS determined that an applicant

was eligible to naturalize, the applicant would file a petition

with the local federal district court and the INS would

recommend its approval. Here, Petitioner filed a petition in

the District Court for the Western District of Arkansas on the

day it was approved by the INS. All that remained for him to

do was to (1) submit to a preliminary examination by the INS,

(2) appear in a district court for a final determination on

naturalization, and (3) take the oath of naturalization.

8 U.S.C. §§ 1445–48 (1986).3

Thereafter, the INS scheduled Petitioner for the

preliminary examination on at least two different dates

between 1986 and 1987. He did not show up for any of the

appointments. Although at least one notice was returned to

sender, Petitioner admitted that he received at least one of the

3

At the time Roma Dent’s petition to naturalize Petitioner was

pending, the naturalization process for adopted children was essentially

the same as for a naturalizing adult. A parent seeking her child’s

naturalization had to appear for a preliminary examination, which would

be followed by a district court’s positive determination and the child’s

taking of the oath of naturalization. 8 U.S.C. §§ 1433(a), (b); 1446 (b),

(d); 1448(a) (1982).

DENT V. SESSIONS 9

notices, and the INS sent all the notices to addresses that

Petitioner had provided.

Because Petitioner had failed to appear for at least two

scheduled interviews on his own petition, the INS scheduled

a final hearing for March 23, 1989, at which it would

recommend denial of the application for failure to prosecute.

The INS sent notice of that hearing to the address at which

Petitioner had received one of the 1986 notices, which also

was Petitioner’s address of record, but the notice was returned

to sender. Petitioner admitted that he had failed to notify the

INS of his changes of address and that he had failed to appear

for the final hearing. The district court denied his

naturalization petition on March 23, 1989, for failure to

prosecute.

In 2003, Petitioner was convicted of two Arizona crimes:

possession or use of narcotics (Ariz. Rev. Stat. §§ 13-3401,

3408), and third-degree escape (Ariz. Rev. Stat. § 13-2502).

Several months later, the Department of Homeland Security

(“DHS”) initiated removal proceedings. DHS charged that

Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii),

on the ground that the escape conviction is a crime of

violence and, therefore, an aggravated felony. Later, DHS

added a charge that Petitioner was removable under 8 U.S.C.

§ 1227(a)(2)(B)(i), on the ground that possession of narcotics

is a controlled substance offense.

After the immigration judge and the BIA concluded that

Petitioner was removable, he petitioned for review with this

court, bringing a citizenship claim, among others. We

transferred the case to the District of Arizona “for a new

hearing on [his] nationality claim.” Dent v. Holder, 627 F.3d

365, 376 (9th Cir. 2010) (alteration in original). The district

10 DENT V. SESSIONS

court determined that Petitioner was not a citizen, Dent v.

Holder, No. 2:10-CV-02673-TMB, 2013 WL 11311230, at *6

(D. Ariz. Sept. 30, 2013), and he appealed to this court. We

vacated the district court’s determination and remanded the

case so that the district court could consider his due process

claim in light of intervening authority. Dent v. Lynch, 606 F.

App’x 405 (9th Cir. 2015) (unpublished). The district court

rejected Petitioner’s due process claim and granted

Respondent’s motion for summary judgment, while denying

Petitioner’s motion for summary judgment. Dent v. Sessions,

243 F. Supp. 3d 1062, 1074 (D. Ariz. 2017). Petitioner

timely appeals.

DISCUSSION4

A. Standing

Petitioner has standing to assert due process and equal

protection claims on his mother’s behalf. An individual has

third-party standing when “[(1)] the party asserting the right

has a close relationship with the person who possesses the

right [and (2)] there is a hindrance to the possessor’s ability

to protect his own interests.” Sessions v. Morales-Santana,

137 S. Ct. 1678, 1689 (2017) (internal quotation marks

omitted). In Morales-Santana, the Supreme Court held that

the petitioner—a non-citizen asserting the equal protection

rights of his late, United States citizen father—had standing

4

We review all issues de novo. See Rendon v. Holder, 764 F.3d

1077, 1082 (9th Cir. 2014) (providing de novo standard for determining

whether a prior conviction is an aggravated felony); Rocky Mountain

Farmers Union v. Corey, 730 F.3d 1070, 1086 (9th Cir. 2013) (providing

de novo standard for summary judgment); Hernandez-Mancilla v. Holder,

633 F.3d 1182, 1184 (9th Cir. 2011) (providing de novo review for equal

protection claims).

DENT V. SESSIONS 11

to vindicate his father’s rights. Id. The Court reasoned that

he “easily satisfie[d] the ‘close relationship’ requirement.”

Id. And, because the petitioner’s father had died years before

the petitioner brought the case, he also satisfied the

“hindrance” requirement. Id.

In this case, Petitioner—as his mother’s adopted

child—satisfies the close relationship requirement. And, like

the petitioner in Morales-Santana, Petitioner’s mother died

years ago, so he also satisfies the hindrance requirement.

B. Equal Protection

Petitioner brings a facial challenge to 8 U.S.C. § 1433

(1982), a citizenship statute that was in effect when he began

the naturalization process. He contends that § 1433 violated

his mother’s rights under the Fifth Amendment’s Equal

Protection Clause. That statute required citizen-parents of

foreign-born, adopted children to petition for their

naturalization. Id. § 1433(c). Because biological parents, as

well as naturalizing parents of adopted children, could confer

citizenship on their children automatically, without

petitioning, Petitioner contends that § 1433 violated his

mother’s equal protection rights.5

1. Level of Scrutiny

Morales-Santana dictates that Petitioner’s equal

protection claims do not necessarily receive rational basis

5

Petitioner further argues that—because § 1433 was

unconstitutional—he is entitled to citizenship as a remedy. Because we

hold that § 1433 was constitutional, we need not consider what remedy

would be appropriate were the statute unconstitutional.

12 DENT V. SESSIONS

review simply because they are in the immigration context.

137 S. Ct. at 1689, 1693–94. Before the Supreme Court

decided Morales-Santana, we would have followed Fiallo v.

Bell, 430 U.S. 787 (1977). In Fiallo, the petitioner

challenged entry requirements for non-citizens, which he

claimed discriminated on the basis of sex and legitimacy.

430 U.S. at 790, 794. Because issues related to admission of

non-citizens “have been recognized as matters solely for the

responsibility of the Congress and wholly outside the power

of [the] Court to control,” the Supreme Court applied a

standard of review similar to rational basis review. Id. at 794,

796 (internal quotation marks omitted). We have applied

Fiallo’s standard and looked for only a “facially legitimate

and bona fide reason” to support a statutory distinction, even

when the relevant statute governs who is and is not a citizen

rather than admission of non-citizens. See, e.g., Wauchope v.

U.S. Dep’t of State, 985 F.2d 1407, 1414 (9th Cir. 1993).

But the Supreme Court clarified in Morales-Santana that,

when the petitioner presents a claim of citizenship, the proper

standard for a gender discrimination claim is heightened

scrutiny, just as it would be in the non-immigration context.

137 S. Ct. at 1689, 1693–94. The Court reasoned that,

because the petitioner “claim[ed] he is, and since birth has

been, a U.S. citizen,” Fiallo’s “minimal scrutiny” standard for

a case involving entry preferences for non-citizens was

distinguishable. Id. at 1693–94. Under Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc), when the

Supreme Court “undercut[s] the theory or reasoning

underlying the prior circuit precedent in such a way that the

cases are clearly irreconcilable,” the Court’s decision

effectively overrules this circuit’s decision. That is the case

here. Morales-Santana holds that, when a petitioner presents

a claim for citizenship, his or her equal protection claims are

DENT V. SESSIONS 13

treated the same as they would be in a non-immigration case.

A challenged law does not receive minimal scrutiny merely

because it is related to immigration.

But that conclusion does not automatically result in

heightened scrutiny. Instead, Morales-Santana clarifies that

heightened scrutiny is not foreclosed simply because

Petitioner’s claim is in the immigration context. We

therefore examine each category as we would in a non-

immigration equal protection claim.

a. Citizenship Distinction

Petitioner, on his mother’s behalf, claims that § 1433

treated citizens worse than non-citizens because citizens who

adopted children had to petition for their children’s

citizenship, whereas adoptive parents who naturalized after

the adoption could confer citizenship on their children

automatically. But the statute does not distinguish between

citizens and non-citizens. In all cases, a parent must be a

citizen in order to confer citizenship on an adopted child.

Instead, the statute distinguishes between citizens who were

already citizens before adopting children and citizens who

naturalized after adopting children. Neither is a protected

class. Accordingly, rational basis review applies to that

distinction. See United States v. Juvenile Male, 670 F.3d 999,

1009 (9th Cir. 2012) (applying “rational basis review for the

purpose of equal protection analysis” where the defendants

“failed to establish membership in a recognized protected

class”).

14 DENT V. SESSIONS

b. Adoptive-Parent Distinction

Petitioner also claims that § 1433 treated adoptive parents

worse than biological parents because biological parents

could confer citizenship on their children automatically,

whereas adoptive parents had to petition for their children to

become citizens. Adoptive parents are not a protected class

and, therefore, rational basis review applies to that distinction

as well. See id. Petitioner argues that heightened scrutiny

applies because § 1433 interfered with his mother’s

fundamental liberty interest “in the care, custody, and

management of [her] child.” Santosky v. Kramer, 455 U.S.

745, 753 (1982) (considering a statute that permitted “forced

dissolution of . . . parental rights” and thus threatened

parents’ “vital interest in preventing the irretrievable

destruction of their family life”). But to be eligible for the

naturalization process at issue in § 1433, the parent must have

already adopted the child, and the child must already reside

with the parent in the United States. Section 1433, therefore,

did not disrupt parents’ interest in the care, custody, and

management of their children. Accordingly, disparate

treatment of adoptive parents versus biological parents

receives rational basis review. See Aleman v. Glickman,

217 F.3d 1191, 1200 (9th Cir. 2000) (explaining that rational

basis review applies if a classification does not involve a

fundamental right or protected class).

2. Rational Basis Review

To survive rational basis review, a statute must be

“rationally related to a legitimate government purpose.”

Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir.

2011) (internal quotation marks omitted). “Using such

rational-basis review, a statute is presumed constitutional, and

DENT V. SESSIONS 15

the burden is on the one attacking the legislative arrangement

to negative every conceivable basis which might support it.”

Id. (internal quotation marks omitted). We “are compelled

under rational-basis review to accept a legislature’s

generalizations even when there is an imperfect fit between

means and ends.” Heller v. Doe ex rel. Doe, 509 U.S. 312,

321 (1993).

Following the Second Circuit, we conclude that “the

requirement of an affirmative act to secure derivative

citizenship is . . . rationally related to the legitimate aim of

deterring immigration fraud.” Colaianni v. INS, 490 F.3d

185, 189 (2d Cir. 2007) (per curiam). Requiring adoptive

parents to petition for their children’s naturalization helped

ensure that the child had a genuine relationship with the

parent. Biological parents, by definition, need not provide

assurance of a genuine parental relationship. And the

intensive naturalization process gave the government the

opportunity to inquire into naturalizing parents’ relationships

with their previously adopted children, even if the parents did

not list their children on their application. Further, although

citizen parents first had to go through a visa process for their

foreign-born, adopted children, the fact that there were other

safeguards against fraud is irrelevant under rational basis

review. Because a legitimate governmental interest is

rationally related to § 1433’s requirement that citizen parents

petition to naturalize their adopted, foreign-born children, we

conclude that § 1433 does not violate the Fifth Amendment’s

Equal Protection Clause.

C. Due Process

Petitioner also contends that the INS violated his due

process rights by acting with deliberate indifference, both

16 DENT V. SESSIONS

during the processing of his mother’s application on his

behalf, as a child, and during the processing of his own

application, as an adult. A petitioner can succeed on a due

process claim by showing that the INS was “deliberately

indifferent to whether his application was processed,” Brown

v. Holder, 763 F.3d 1141, 1150 (9th Cir. 2014) (“Brown I”),

and that he or she suffered prejudice, “which means that the

outcome of the proceeding may have been affected by the

alleged violation,” Zolotukhin v. Gonzales, 417 F.3d 1073,

1076 (9th Cir. 2005) (internal quotation marks omitted).

Under Brown v. Lynch, 831 F.3d 1146 (9th Cir. 2016)

(“Brown II”), to establish deliberate indifference in the

immigration context, a petitioner must present:

(1) a showing of an objectively substantial

risk of harm; and (2) a showing that the

officials were subjectively aware of facts from

which an inference could be drawn that a

substantial risk of serious harm existed and

(a) the official actually drew that inference or

(b) that a reasonable official would have been

compelled to draw that inference.

Id. at 1150 (internal quotation marks omitted). Even gross

negligence does not amount to deliberate indifference.

Brown I, 763 F.3d at 1150 n.5. Nor does an agency’s failure

to comply with its own regulations amount to deliberate

indifference. Id. at 1148.

Several weeks after we decided Brown II, we decided

Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.

2016) (en banc), cert. denied, 137 S. Ct. 831 (2017). There,

we stated—in the prison context—that, in evaluating due

DENT V. SESSIONS 17

process deliberate indifference claims, we inquire whether “a

reasonable officer in the circumstances [would appreciate] the

high degree of risk involved.” Id. at 1071. That is, we

implemented an objective standard.

Petitioner argues that the current test under Brown II

provides a subjective standard for deliberate indifference in

the immigration context and that we should revise that

standard after Castro. But we need not decide either of those

issues because Petitioner’s due process claims fail under

either a subjective or an objective standard.

1. Childhood Application

a. No Deliberate Indifference

The district court did not err in ruling that the INS was not

deliberately indifferent to whether Petitioner’s mother’s

application for his citizenship was processed. As the district

court noted, the INS took steps to ensure that Petitioner could

complete the naturalization process by scheduling two

interviews when he was 15 and 16 years old—several years

away from the cutoff of 18. Had Petitioner attended either

interview, he would have become a citizen. Nor is there any

evidence that the INS knew, or should have known, that

Petitioner was in Honduras when it scheduled the first

interview. Thus, Petitioner “has not established that it would

have been reasonable for officials to assume that [aging out]

was a necessary or even likely outcome of the decision not to

schedule” an interview earlier. Brown II, 831 F.3d at 1151.

And Petitioner’s mother’s note to the INS that he was 16 and

would be 17 in November does not mean that the INS acted

with deliberate indifference by not expediting the application.

Petitioner introduced no evidence that the INS official with

18 DENT V. SESSIONS

whom his mother corresponded had the authority to expedite

the application. Accordingly, the agency did not act with

deliberate indifference.6

b. No Prejudice

Even if the INS did act with deliberate indifference,

Petitioner’s due process claim fails because he cannot

demonstrate that he suffered prejudice. See Zolotukhin,

417 F.3d at 10767 (requiring prejudice). Once the INS

approved Petitioner’s own application for citizenship (as an

adult) in 1986, his mother’s earlier petition became irrelevant.

Nothing that happened while processing his mother’s petition

caused or contributed to Petitioner’s failure to complete the

adult naturalization process following the rapid approval of

his application for citizenship. Had the adult naturalization

process been more onerous than the child naturalization

process, Petitioner could have suffered prejudice because the

INS’s errors would have resulted in a more burdensome

naturalization process. But the processes were closely similar

and equally burdensome. Petitioner’s due process claim for

the childhood application, therefore, also fails for lack of

prejudice.

6

Petitioner also argues that the note in his file, which stated that

“Joan” from the U.S. Court Clerk’s Office of Fort Smith had called and

said that the “authorities” wanted to deport Petitioner, shows that the INS

acted with an improper motive in failing to process his childhood

application. But the note does not demonstrate that the INS—or even the

court clerk’s office—wanted to deport Petitioner or prevent him from

becoming a citizen. In fact, it reveals that the INS maintained that

Petitioner could not be deported for running away from boys’ homes.

DENT V. SESSIONS 19

2. Adult Application

a. No Deliberate Indifference

The district court correctly concluded that the INS was

not deliberately indifferent to Petitioner’s adult application

for citizenship. The INS attempted to schedule several

hearings for Petitioner, but he failed to update the INS with

changes to his mailing address. Though the INS sent one of

the hearing notices to an outdated address and failed to follow

several of its usual practices when Petitioner was

unreachable, there is, at most, evidence of gross negligence,

which does not meet the test for deliberate indifference.

Brown I, 763 F.3d at 1150 n.5; Brown II, 831 F.3d at 1150.

b. No Prejudice

Petitioner cannot establish prejudice for his adult

application claim either. His own failures to update the INS

with his changes of address and to appear for his hearings

were the cause of his not becoming a citizen. Accordingly,

he cannot establish prejudice, and his due process claim must

fail for that reason as well.

D. Aggravated Felony

Finally, we hold that the BIA erred in concluding that

third-degree escape under Arizona Revised Statutes section

13-2502 is a crime of violence and, therefore, an aggravated

felony that would make Petitioner removable. “To assess

whether a state conviction qualifies as an aggravated felony,

we generally employ the ‘categorical approach’ to determine

whether the state offense matches the ‘generic’ federal

definition of the pertinent offense . . . : here, a crime of

20 DENT V. SESSIONS

violence under 18 U.S.C. § 16(a) or (b).” Ramirez v. Lynch,

810 F.3d 1127, 1130–31 (9th Cir. 2016). Under the

categorical approach, we compare “the elements of the statute

of conviction with a federal definition of the crime to

determine whether conduct proscribed by the statute is

broader than the generic federal definition.” Id. at 1131

(internal quotation marks omitted). “[W]e examine what the

state conviction necessarily involved, not the facts underlying

the case, and so must presume that the conviction rested upon

nothing more than the least of the acts criminalized.” Id.

(internal quotation marks and brackets omitted). “We then

determine whether even those acts are encompassed by the

generic federal offense.” Id. (internal quotation marks

omitted).

Here, the generic federal offense is a “crime of violence”

under 18 U.S.C. § 16, which provides:

The term “crime of violence” means—

(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, or

(b) any other offense that is a felony and

that, by its nature, involves a substantial risk

that physical force against the person or

property of another may be used in the course

of committing the offense.

DENT V. SESSIONS 21

Arizona’s third-degree escape statute provides:

A. A person commits escape in the third

degree if, having been arrested for, charged

with or found guilty of a misdemeanor or

petty offense, such person knowingly escapes

or attempts to escape from custody.

B. Escape in the third degree is a class 6

felony.

Ariz. Rev. Stat. § 13-2502.

Examining the two texts, it is clear that Arizona third-

degree escape does not necessarily involve the “physical

force” required by § 16(a). See Chavez-Solis v. Lynch,

803 F.3d 1004, 1009 (9th Cir. 2015) (noting that, in

determining whether a state crime qualifies as a crime of

violence, we may rely solely on statutory text to establish the

statute as overly inclusive). And the Supreme Court recently

declared, in Sessions v. Dimaya, 138 S. Ct. 1204, 1223

(2018), that § 16(b) is unconstitutionally vague and,

therefore, cannot be the basis for an aggravated felony.

Accordingly, third-degree escape under Arizona Revised

Statutes § 13-2502 is not a crime of violence, nor an

aggravated felony. We grant the petition on that issue.

Because Petitioner has a prior conviction for a controlled

substance offense, he is still removable under 8 U.S.C.

§ 1227(a)(2)(B)(i). We ordered in Dent that, “[i]f the district

court determines that [Petitioner] is not a citizen of the United

States, then the case should be remanded to the BIA for a new

hearing after production of the A-file in full.” 627 F.3d at

376. As Respondent has already produced Petitioner’s A-file,

22 DENT V. SESSIONS

Dent, 2013 WL 11311230, at *6, we remand the case to the

BIA for a new hearing to address Petitioner’s request for

cancellation of removal.

Petition DENIED in part; GRANTED and

REMANDED in part. The parties shall bear their own costs

on appeal.