Fernandez-Ruiz

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 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly 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 conclude the federal statute does not apply. Accordingly, the petitioner 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 Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) order affirming an immigration judge’s (IJ’s) decision to rescind his lawful permanent resident status, remove him…

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 dissent’s effort to carve out a special rule for domestic violence cases unpersuasive.

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 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004). Under that regime, the…

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…