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Welcome to the final blog of the year. We get to end 2018 with a doozy of a crimmigration case. This week only one immigration case came down from the Ninth Circuit; but, it’s a fun one for those of us who practice crimmigration. And, let’s face it, crimmigration is the most fun that you can have in immigration law. Sadly, it is not a great case for our clients; but it is an interesting one to analyze. Nothing came down from the Board of Immigration Appeals (BIA) and I did not see any interesting district court decisions. Let’s get to the Ninth Circuit decision.
NINTH CIRCUIT
A Conviction for Misdemeanor Domestic Violence Under Arizona Law is Categorically a Crime of Domestic Violence Under the Immigration and Nationality Act
I spend more time than I like to admit thinking about how best to represent a noncitizen who has been convicted of a crime of domestic violence. This week the Ninth Circuit amended a decision and denied a motion for rehearing en banc in a domestic violence case. The Ninth Circuit found that an Arizona conviction for misdemeanor domestic violence was categorically a crime of domestic violence as defined by INA § 237(a)(2)(E).
The INA domestic violence statute has always fascinated me. When I first read it, I thought it meant that if you were convicted of a domestic violence offense that was it – you were deportable. A few years ago, I re-read the statute and I was pretty surprised. Here is what the statute actually says:
“Any alien who at any time after admission is convicted 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 16 of Title 18) against a person committed by a current 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 cohabited 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 individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.”
INA § 237(a)(2)(E) (emphasis added).
Let’s get down to the basics. Under the statute, a domestic violence offense is only a crime of domestic violence if it is a crime of violence under 18 U.S.C. § 16(a). (Section 16 consists of two subsections (a) and (b); but the Supreme Court has ruled that Section 16(b) is unconstitutionally vague, so we are only concerned with Section 16(a). Sessions v. Dimaya, 138 S. Ct. 1204 (2018)). Section 16(a) of 18 U.S.C. defines a crime of violence as follows:
“The term “crime of violence” means— an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.*.*.*. *”
That definition leads us to the question of what does physical force mean in the context of a crime of violence? If one toddler pushes another toddler and the second toddler falls down, is that a crime of violence? The toddler is using physical force, so is it a crime of violence? The Supreme Court decided to protect toddlers from federal prosecution for crimes of violence and held that “physical force” means “violent force – that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 140 (2010); accord Dimaya, 138 S. Ct. at 1220. The Board of Immigration Appeals (BIA) has incorporated this definition into immigration law. Matter of Guzman-Polanco, 26 I. & N. Dec. 806 (BIA 2016). The only way the government can remove a noncitizen with a domestic violence conviction is if elements of the domestic violence crime require violent force; that is, force capable of causing physical pain or injury to another person. The question in this case is whether the Arizona misdemeanor statute for domestic violence requires violent force. The Ninth Circuit amended it’s 2017 decision, said “yes,” and denied a petition for rehearing en banc.
Jose Antonio Cornejo-Villagrana is a native and citizen of Mexico. In 1994, he entered the United States without inspection. On January 30, 2008, he adjusted status. On December 3, 2008, he pleaded guilty to “assault – domestic violence offense” a “class 1 misdemeanor.” Arizona Revised Statute § 13-1203(A)(1). He also pleaded to Ariz. Rev. Stat. § 13-3601 (the statute that lists all the relationships that fall under the domestic violence statute). Simply put, he pleaded to misdemeanor domestic violence assault. The Arizona court sentenced Mr. Cornejo to twelve-months of probation. In December 2008, ICE placed Mr. Cornejo in removal proceedings charging that he was removable under INA § 237(a)(2)(E)(i) (person convicted of a crime of domestic violence at any time after admission). The Immigration Judge (IJ) terminated removal proceedings. I assume that the IJ found that the Arizona misdemeanor domestic violence statute was not categorically a crime of violence. Then, some time after the IJ terminated the case, ICE got its hands on the plea transcript. In the plea transcript Mr. Cornejo’s criminal attorney stated that the factual basis for the plea was that Mr. Cornejo and his wife were fighting and that as she was going down the hallway, he either punched or pushed her in the back of the head with the intention to insult or provoke her. Cornejo-Villagrana v. Sessions, No. 13-72185, slip op. at *5 (9th Cir. Dec. 27, 2018).
Here’s the part of the case that infuriates me. Rant Alert!!! After the IJ terminated the case, ICE filed a motion with the BIA to “remand” the case to the IJ. They wanted to reopen the case in light of the evidence that came to light once the government obtained a copy of the plea transcript. A motion to “remand” can either be a “motion to reconsider” or a “motion to reopen” 8 C.F.R § 1003.2. A motion to reconsider means that the moving party believes that the adjudicator made an error of law. ICE was seeking to put new evidence into the record, so it could not have been a motion to reconsider. It had to have been a motion to reopen. Here’s the regulatory language regarding a motion to reopen:
“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing….”
8 C.F.R. § 1003.2(c)(1). We all know that ICE had months if not years to get the plea transcript; but they did not get it until after the BIA had decided the case. While there is a valid argument that the document was material, it is very clear that it was available and could have been discovered or presented at the hearing. It drives me crazy that the government with its legions of highly educated attorneys gets every benefit of the doubt while the immigrants, many of whom only have a fourth-grade education get none. But, that’s not part of the case. Rant over.
In December 2010, the BIA reopened and remanded the case and in August 2012, the IJ found that Mr. Cornejo had been convicted of a crime of domestic violence. The BIA affirmed the IJ’s decision and the case went to the Ninth. On September 14, 2017, the Ninth Circuit issued its decision affirming the BIA’s decision finding that under the modified categorical approach, Mr. Cornejo had been convicted of a crime of domestic violence. Cornejo-Villagrana v. Sessions, 870 F.3d 1099 (9th Cir. 2017). On May 30, 2018, the Ninth Circuit withdrew its decision and granted Mr. Cornejo’s motion for panel rehearing. Cornejo-Villagrana v. Sessions, 891 F.3d 761, 762 (9th Cir. 2018). On December 27, 2018, the Ninth Circuit issued its amended opinion finding that under the modified categorical approach Mr. Cornejo had been convicted of a crime of domestic violence.
First, the Ninth Circuit found that the statute was divisible. Here’s the statute in its entirety:
13-1203. Assault; classification
A. A person commits assault by:
1. Intentionally, knowingly or recklessly causing any physical injury to another person; or
2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
B. Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1 misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A, paragraph 3 is a class 3 misdemeanor.
The Ninth gets very deep into the weeds, but the bottom line is that based on Arizona law they found that the statute is divisible as it contains distinct offenses. Mr. Cornejo was convicted of “intentionally or knowingly “causing any physical injury to another person.”” Cornejo-Villagrana, slip op. at *10. Mr. Cornejo argued that the factual basis of his plea shows that he did not intend to use violent force because his intention was to insult or provoke his wife. And, his language in the plea transcript tracks this argument. But, the Ninth Circuit held that Mr. Cornejo pleaded to a class 1 misdemeanor under Ariz. Rev. Stat. § 13-1203 and under subsection B of that statute, Mr. Cornejo pleaded to “intentionally or knowingly committing an assault.” And under subsection A of the statute, he admitted to causing physical injury.
“Since Cornejo does not dispute that the crime was domestic, that he assaulted his wife intentionally, and that she was injured by his assault, the misdemeanor was a crime of domestic violence. The statute is plainly divisible on its face, and the Arizona courts have so held, so application of this modified categorical analysis is appropriate, even though other assaults under section 1203 would not be crimes of violence.”
Cornejo-Villagrana, slip op. at *12 (emphasis added). The Ninth noted that Mr. Cornejo’s actual conduct was completely irrelevant to the analysis.
Next, the Ninth compared the crime of conviction with the federal generic offense for a crime of violence. The Ninth looked to state law to see if the crime required violent force. They noted that the Arizona statute refers to “physical injury” but does not include the word “force.” “But the Arizona Supreme Court has determined that “physical injury” may be used interchangeably with “physical force.” State v. Gordon, 120 Ariz. 172, 178 (en banc) (citing State v. Dillon, 26 Ariz. App. 220, 222 ( 1976)).” Cornejo-Villagrana, slip op. at *13. The Ninth concludes that “[t]he “use of physical force” may not be dissociated from intentionally or knowingly causing physical injury under Ariz. Rev. Stat. § 13-1203(A).” Cornejo-Villagrana, slip op. at *14-15. Because Mr. Cornejo had been convicted of a crime of domestic violence that required violent force, he is deportable under INA § 237(a)(2)(E).
Cornejo-Villagrana v. Whitaker, No. 13-72185 (9th Cir. Dec. 27, 2018).
From the Top of the Ninth, we wish everyone a happy, healthy, and prosperous 2019. And maybe, just maybe, life will get just a little bit easier for our clients in the new year. Happy 2019!