FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO CAMACHO-CRUZ,
Petitioner, No. 08-74483
v.
Agency No.
A017-256-460
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 12, 2010*
San Francisco, California
Filed September 2, 2010
Before: Susan P. Graber, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
13369
CAMACHO-CRUZ v. HOLDER 13371
COUNSEL
Xavier Gonzales, Las Vegas, Nevada, for the petitioner.
Charles E. Canter, U.S. Department of Justice, Office of
Immigration Litigation, Washington, D.C., for the respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Rogelio Camacho-Cruz, a Mexican national,
appeals the Board of Immigration Appeals’ (“BIA”) denial of
cancellation of removal because of his conviction for assault
with a deadly weapon under Nevada state law. Petitioner
argues that his conviction is not a “crime of violence” within
the meaning of 18 U.S.C. § 16 and, therefore, that he remains
eligible for cancellation of removal. We are not persuaded.
We hold that Petitioner’s conviction is categorically a crime
of violence and, as a result, we dismiss the petition.
Petitioner is a native and citizen of Mexico who was admit-
ted to the United States in 1966. About 40 years later, he
pleaded guilty in a Nevada state court to one count of assault
with a deadly weapon in violation of Nevada Revised Statutes
section 200.471 (2006). The state court sentenced Petitioner
to 24 to 60 months in prison. The state court then suspended
his prison sentence and placed him on probation for an inde-
terminate period not to exceed three years.
13372 CAMACHO-CRUZ v. HOLDER
The Department of Homeland Security (“DHS”) then com-
menced removal proceedings against Petitioner. DHS charged
Petitioner with removability as an aggravated felon under 8
U.S.C. § 1227(a)(2)(A)(iii) because, it alleged, assault with a
deadly weapon is a “crime of violence” under 18 U.S.C. § 16.
Petitioner, through counsel, admitted all the factual allega-
tions against him but denied removability. He also filed a
motion to terminate the proceedings, arguing that assault with
a deadly weapon under Nevada state law is not a crime of vio-
lence.
An immigration judge (“IJ”) denied Petitioner’s motion to
terminate and ordered Petitioner removed to Mexico because
the Nevada conviction constituted a crime of violence. Peti-
tioner appealed to the BIA, which adopted and affirmed the
IJ’s decision and dismissed Petitioner’s appeal. Petitioner
timely petitions for review.1
To be eligible for cancellation of removal, a nonpermanent
resident alien must establish that he or she: (1) has been phys-
ically present in the United States for a continuous period of
not less than 10 years immediately preceding the date of
application; (2) has been a person of good moral character
during such period; (3) has not been convicted of certain
criminal offenses, including “crimes of violence” as defined
by 18 U.S.C. § 16; and (4) establishes that removal would
result in exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1). A failure to satisfy any one of those
four requirements is fatal to a cancellation application. Matus-
Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). The
issue joined here is whether the third criterion is met.
1
We review de novo legal determinations regarding an alien’s eligibility
for cancellation of removal, Montero-Martinez v. Ashcroft, 277 F.3d 1137,
1145 (9th Cir. 2002), as well as decisions that a conviction is a crime of
violence, Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003).
CAMACHO-CRUZ v. HOLDER 13373
[1] To determine whether a state law conviction is categor-
ically a “crime of violence,” we compare the elements of the
state law crime to the elements of a “crime of violence,” as
defined in 18 U.S.C. § 16. See Rosales-Rosales v. Ashcroft,
347 F.3d 714, 717-18 (9th Cir. 2003). Title 18 U.S.C. § 16
defines a crime of violence as:
(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.
Nevada Revised Statutes section 200.471 provides, in perti-
nent part:
1. As used in this section:
(a) “Assault” means intentionally placing another
person in reasonable apprehension of immediate
bodily harm.
....
2. A person convicted of an assault shall be pun-
ished:
....
(b) If the assault is made with the use of a deadly
weapon, or the present ability to use a deadly a
weapon, . . . by imprisonment in the state prison for
a minimum term of not less than 1 year and a maxi-
mum term of not more than 6 years . . . .
13374 CAMACHO-CRUZ v. HOLDER
Petitioner argues that he was not convicted of a crime of
violence because, he asserts, the Nevada state law under
which he was convicted does not necessarily involve conduct
covered by 18 U.S.C. § 16(a). Specifically, Petitioner claims
that the Nevada state law does not require actual harm or
injury to the victim and, therefore, is not a crime of violence.
We disagree.
[2] Petitioner was convicted of assault with use of a deadly
weapon under Nevada state law, which defines assault as “in-
tentionally placing another person in reasonable apprehension
of immediate bodily harm.” Nev. Rev. Stat. § 200.471. Our
court has already concluded that a nearly identical crime,
assault with a deadly weapon under Arizona Revised Statutes
section 13-1204(A)(2), is a crime of violence under 18 U.S.C.
§ 16. United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-
73 (9th Cir. 2000), overruled on other grounds by Fernandez-
Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc).
The Arizona law prohibited “[i]ntentionally placing another
person in reasonable apprehension of imminent physical inju-
ry.” Id. at 1172. We held that, because the statute “requires
. . . [the] threatened use of force against the person of anoth-
er,” the crime was a crime of violence. Id. at 1173. We also
held that assault with a deadly weapon under Arizona state
law was a crime of violence because there was “a high risk
of violence against the person of another” in the course of the
commission of the crime. Id.
Similarly, in Rosales-Rosales, we held that California Penal
Code section 422 constituted a crime of violence because it
prohibited willful threats to commit a crime that would result
in death or great bodily injury, even if there was no intent to
carry out the threat. 347 F.3d at 717. We reasoned that “[o]n
its face § 422 is an offense ‘that has as an element the threat-
ened use of physical force against the person or property of
another’ ” and, therefore, held that “§ 422 meets the definition
of a ‘crime of violence’ as set forth in § 16(a).” Id.; see also
Ortiz-Magana v. Mukasey, 542 F.3d 653, 661 (9th Cir. 2008)
CAMACHO-CRUZ v. HOLDER 13375
(holding that assault with a deadly weapon under California
state law is a crime of violence).
[3] Just as with the Arizona and California statutes, the
Nevada statute constitutes a crime of violence because the
statute requires that the defendant, by using a deadly weapon,
intentionally create in another person a reasonable fear of
immediate bodily harm. Contrary to Petitioner’s assertions,
whether the defendant actually intends to harm the victim or
whether any harm does, in fact, result is irrelevant. Section
16(a) does not require an actual application of force or an
injury to the victim. Rather, the threatened use of force is suf-
ficient for a crime to constitute a crime of violence.
[4] Assault with a deadly weapon under Nevada Revised
Statutes section 200.471 necessarily entails the threatened use
of force against the person of another. Because the defendant
must create a reasonable fear of harm in the victim and
because that fear is accomplished by means of a deadly
weapon, the crime, by its nature, involves a substantial risk of
force. See Ceron-Sanchez, 222 F.3d at 1173. Therefore, Peti-
tioner’s conviction constitutes a crime of violence.
Petition DISMISSED.