United States v. Armando Cabrera-Perez

This case requires us to determine whether the crime of aggravated assault, under Arizona Revised Statutes (“A.R.S.”) § 13-1203(A)(2) and § 13-1204(A)(2), constitutes a “crime of violence” under the Immigration and Nationality Act (“I.N.A.”) § 101(a)(43)(F) and 18 U.S.C. § 16 , such that an individual convicted under those Arizona statutes would be ineli gible for voluntary departure under 8 C.F.R. § 1240.26 (b)(1 )(i)(E). Applying the modified categorical approach, we hold that Defendant-Appellant Armando Cabrera-Perez’s conviction for aggravated assault under A.R.S. § 13-1203(A)(2) and § 13-1204(A)(2) constitutes such a “crime of violence.” As a result, Cabrera-Perez was not eligible for voluntary departure at his February 9, 2005 immigration hearing. Accordingly, Cabrera-Perez’s attempt to attack collaterally the deportation order underlying his illegal reentry conviction because he was not adequately advised of the voluntary departure remedy fails.

Background

In 2004, Cabrera-Perez was charged by the state of Arizona’s direct complaint with aggravated assault under A.R.S. § 13-1203 and § 13-1204. Count 3 stated:

Count 4 stated the same but named a different victim.…