Jose Valdivia-Rodriguez v. Jefferson Sessions

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE VALDIVIA-RODRIGUEZ, No. 14-72168

Petitioner, Agency No. A201-147-919

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted May 17, 2017**
San Francisco, California

Before: KLEINFELD and WARDLAW, Circuit Judges, and PETERSON,***
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
 Jose Valdivia-Rodriguez petitions for review of the Board of Immigration

Appeals’s (“BIA”) order ruling that he was ineligible for cancellation of removal

because he was convicted of a crime of domestic violence. We have jurisdiction

under 8 U.S.C. § 1252(a) and deny the petition.

Valdivia-Rodriguez’s assault conviction was for a crime of violence as

defined by 18 U.S.C. § 16(a) under the modified categorical approach. He pleaded

guilty to subsection (A)(1) of the Arizona assault statute, which requires “causing

any physical injury to another person.” Ariz. Rev. Stat. § 13-1203(A)(1). The

Arizona Criminal Code defines “[p]hysical injury” to mean “the impairment of

physical condition.” Id. § 13-105(33). His argument that the assault statute does

not require physical force is therefore without merit. He relies on the hypothetical

from In re Jeremiah T., 126 P.3d 177, 180 (Ariz. Ct. App. 2006), used to explain

the holding that (A)(3) is not a lesser-included offense within (A)(1), but does not

demonstrate “a realistic probability” that the statute is applied in the manner of the

hypothetical (charging someone who withheld medication under (A)(1)), see

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The mens rea requirement

was satisfied, because Valdivia-Rodriguez pleaded guilty to class 1 misdemeanor

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assault, which requires acting intentionally or knowingly. See Leocal v. Ashcroft,

543 U.S. 1, 9 (2004).

The domestic relationship requirement was also met here. In Arizona, the

State may charge the defendant with domestic violence by including the letters

“DV” in the charging document and need not charge the defendant specifically

under section 13-3601, which is Arizona’s domestic violence statute. Ariz. Rev.

Stat. § 13-3601(H). The signed plea states that Valdivia-Rodriguez was charged

with and pleaded guilty to “Assault and Disorderly Conduct DV.” And the

domestic relationships enumerated in section 13-3601(A) are coextensive with

those listed in 8 U.S.C. § 1227(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 466 F.3d

1121, 1125 n.5 (9th Cir. 2006) (en banc).

PETITION FOR REVIEW DENIED.

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