Case o' The Week: AZ. D.V. not § 16 D.V.

When is an Arizona Domestic Violence conviction not an Immigration Domestic Violence conviction? When the conviction's elements include "recklessness," and when the case goes en banc in the Ninth. See Fernandez-Ruiz v. Gonzalez, __ F.3d __, 06 Cal. Daily Op. Serv. 17851 (9th Cir. Oct. 26, 2006) (decision available here).

Players: 6-4 decision, with Kozinski concurring. Bea (left) authors the decision (!?!), Clifton (!?!) in the majority with Shroeder, Reinhardt, Noonan and Hawkins.

Facts: Fernandez-Ruiz was a L.P.R. (lawful permanent resident) who was ordered removed after committing several crimes. Id. The conviction of interest in this appeal was an Arizona misdemeanor domestic violence prior. Id. at 17857. The Immigration Judge (I.J) treated that conviction to be a “crime of domestic violence” as defined (ultimately) in 18 USC § 16, and ordered removal. Id. A three-judge panel upheld that order, and the case then went en banc to resolve an “inter- and intra- circuit conflict as to whether, under Leocal . . . crimes involving the merely reckless use of force can be crimes of violence.” Id. (emphasis added).

Issue(s): “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.” Id. at 17856.

Held: “The federal statute [18 U.S.C. § 16], as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (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.” Id. (emphasis added).

Of Note: Judges Bea and Clifton have both been profiled in these Case o' The Week memos; Clifton, just last week as the author of the good Nguyen “nolo” decision. Both judges, W. Bush appointments, broke with Wardlaw, O’Scannlain, Bybee and Callahan to make the six-judge majority in this case.

The majority is correct here as a matter of law – as Kozinski observes, the Ninth joins five other circuits that have considered the issue. Id. at 17878. Nonetheless, aliens who commit domestic violence are not the most sympathetic of appellants – it is noteworthy and commendable that Clifton joined the majority, and that Bea felt strongly enough to author the decision.

How to Use: The narrowest use of Fernandez-Ruiz is in illegal reentry cases involving domestic violence priors – obviously, check to see if the state statute permitted a conviction for merely reckless conduct. The decision could have a much broader impact, however. The reasoning of the opinion, and its interpretation of Leocal, could apply to any state prior that could be accomplished through merely reckless conduct. This may narrow the field of “crimes of violence” under 18 USC § 16, meaning that some aliens were improperly removed, and that some illegal reentry defendants should not face the draconian sixteen-level specific offense adjustment of USSG § 2L1.2(b)(1)(A)(ii).

The Ninth itself has been in internal conflict on this issue since the 2001 decision in Trinidad-Aquino and the 2005 decision in Lara-Cazares. See id. at 17862. If the Circuit has been confused for this long, be on guard for erroneous decisions by the I.J.s and by referring ICE agents regarding priors that could encompass “reckless” conduct.

For Further Reading: Don’t let the title of a previous conviction discourage you in an illegal reentry case: in the Ninth, a “crime of violence” is defined narrowly by the statutory terms. In this opinion, the removal statute at issue was 8 USC § 1227(a)(2)(E)(i), which in turn looks to the definition of crime of violence in 18 USC § 16. Id. at 17859. The Ninth has been increasingly careful (and narrow) in its interpretation of Section 16. For example, in Ortega-Mendez v. Gonzalez, __ F.3d. __, No. 03-74711, 06 Cal. Daily Opinion Serv. at 6623 (9th Cir. June 15, 2006), Judge Berzon held that a simple battery in California wasn’t a “crime of violence.” See blog here.

There have been some proposals to broaden the definitions of Section 16. These proposals have drawn the opposition of, among others, the Heritage Foundation. See Heritage Foundation post here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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