Jose Antonio Cornejo - Villagrana v. MATTHEW G. WHITAKER , Acting Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J OSE ANTONIO C ORNEJO -
V ILLAGRANA ,
Petitioner,
v.
M ATTHEW G. W HITAKER , Acting
Attorney General,
Respondent.
No. 13-72185
Agency No.
A079-648-998
ORDER AND
AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 17, 2017
San Francisco, California
Filed September 14, 2017
Amended December 27, 2018
Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,
Circuit Judges, and Rosanna Malouf Peterson,*
District Judge.
* The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by designation.

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2 C ORNEJO -V ILLAGRANA V . S ESSIONS
Order;
Opinion by Judge Peterson
SUMMARY**
Immigration
The panel filed: 1) an order granting a petition for panel
rehearing, amending the opinion filed on September 14,
2017, which was previously withdrawn, and denying a
petition for rehearing en banc; and 2) an amended opinion
denying Jose Antonio Cornejo-Villagrana’s petition for
review of a decision of the Board of Immigration Appeals.
In the amended opinion, the panel concluded that
Cornejo’s conviction for class one misdemeanor domestic
violence assault under Arizona Revised Statutes §§ 13-1203
and 13-3601 was a crime of domestic violence under
8 U.S.C. § 1227(a)(2)(E) that rendered him removable.
The panel concluded that the Arizona assault statute,
Arizona Revised Statutes § 13-1203, is divisible and that,
under the modified categorical approach, the record
provided a sufficient factual basis to support a finding that
Cornejo was convicted of a class one misdemeanor under
Arizona Revised Statutes § 13-1203(A)(1), which requires
intentionally or knowingly causing any physical injury to
another person.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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The panel further held that Arizona Revised Statutes
§ 13-1203(A)(1) is a crime of violence under 18 U.S.C.
§ 16(a), and that the domestic relationships enumerated
under Arizona’s domestic violence provision, Arizona
Revised Statutes § 13-3601(A), are coextensive with the
domestic relationships described in 8 U.S.C.
§ 1227(a)(2)(E)(i). Accordingly, the panel concluded that
Cornejo’s conviction was a “crime of domestic violence”
under 8 U.S.C. § 1227(a)(2)(E).
COUNSEL
Benjamin Wiesinger (argued) and John M. Pope, Pope &
Associates P.C., Phoenix, Arizona, for Petitioner.
Corey L. Farrell (argued), Attorney; Aimee J. Carmichael,
Senior Litigation Counsel; Terri J. Scadron and John W.
Blakeley, Assistant Directors; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Kara Hartzler, Federal Defenders of San Diego Inc., San
Diego, California, for Amici Curiae Ninth Circuit Federal
Public and Community Defenders, Florence Immigrant and
Refugee Rights Project, National Immigration Project of the
National Lawyers Guild, Immigrant Defense Project,
Washington Defender Association Immigration Project, and
U.C. Davis School of Law Immigration Law Clinic.

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ORDER
The panel has granted the petition for panel rehearing.
The opinion filed on September 14, 2017, and previously
withdrawn, is amended, and the amended opinion is filed.
With these amendments, Judge Wardlaw votes to deny
the petition for rehearing en banc, and Judges Kleinfeld and
Peterson so recommend. The full court has been advised of
the petition for rehearing en banc, and no judge has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED.
IT IS SO ORDERED.
OPINION
PETERSON, District Judge:
Petitioner Jose Antonio Cornejo-Villagrana (“Cornejo”)
disputes that he is removable as a resident alien who
committed a crime of domestic violence under the
Immigration and Nationality Act (“INA”) § 237(a)(2)(E),
8 U.S.C. § 1227(a)(2)(E).
Cornejo was convicted of misdemeanor domestic
violence assault against his spouse under Arizona Revised
Statutes (“Ariz. Rev. Stat.”) §§ 13-1203 and
13-3601. The Board of Immigration Appeals (“BIA”)
adopted the Immigration Judge’s (“IJ”) reasoning that
Petitioner was removable, finding that although
categorically not a crime of violence, Cornejo’s offense fit

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the federal generic definition of “crime of domestic
violence” under the modified categorical approach.
We agree that Petitioner is removable on the basis of his
class one misdemeanor domestic violence assault conviction
under Arizona law.
FACTS AND PROCEDURAL HISTORY
Cornejo, a native and citizen of Mexico, entered the
United States without inspection in 1994. On January 30,
2008, he adjusted his status to lawful permanent resident.
On October 3, 2008, Cornejo pleaded guilty to “Assault—
Domestic Violence Offense,” a “Class 1 Misdemeanor”
under Arizona law.
Cornejo had been charged with Aggravated Assault, a
“Class 6 Felony and a Domestic Violence Offense,”
committed by knowingly touching his spouse “with the
intent to injure, insult, or provoke” while “in violation of an
order of protection. . . .” However, Petitioner entered a
guilty plea to “Count 2 (Amended) Assault, a Domestic
Violence Offense Class 1 misdemeanor.” There is no
amended complaint in the administrative record.
In the plea transcript, Cornejo’s defense attorney on his
behalf stated as the factual basis for the plea that he and his
wife were fighting, and that as she was “going down the
hallway,” he “either punched or pushed her in the back of
the head . . . with the intention to insult or provoke her . . . .”
The superior court judge found that the factual basis
supported Cornejo’s admission to the class one
misdemeanor domestic violence charge and accepted the
plea. The superior court imposed a 12-month term of
probation.

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In December 2008, the Department of Homeland
Security (“DHS”) served Petitioner with a Notice to Appear,
Form I-862 (“NTA”), in the Immigration Court in Eloy,
Arizona. DHS alleged that Petitioner was removable under
the INA as an alien who had committed a crime of domestic
violence. 8 U.S.C. § 1227(a)(2)(E)(i). The NTA alleged
that Cornejo was convicted of “a class 1 misdemeanor”
domestic violence assault against his spouse, making him
removable under INA § 237(a)(2)(E)(i), 8 U.S.C.
§ 1227(a)(2)(E)(i).
The IJ initially terminated Petitioner’s removal
proceedings. DHS moved the BIA to remand the matter to
the IJ, seeking an opportunity to provide the plea transcript
that the agency had secured after the initial proceedings were
terminated. The BIA granted the motion and remanded to
the IJ in December 2010. In August 2012, the IJ determined
that Cornejo’s conviction qualified as a crime of domestic
violence under the modified categorical approach and
sustained the charge of removability.
On appeal, the BIA affirmed the IJ’s determination that
Cornejo was removable based on a crime of domestic
violence and ineligible because of insufficient continuous
presence for cancellation of removal pursuant to INA
§ 240A(a), 8 U.S.C. § 1229b(a). Cornejo timely petitioned
for review. See 8 U.S.C. § 1252(b)(1).
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252. We
review questions of law de novo. See, e.g., Ortega v. Holder,
747 F.3d 1133, 1134 (9th Cir. 2014). The IJ’s or BIA’s
factual findings are reviewed for substantial evidence. See,
e.g., Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th
Cir. 2015). With respect to the issue of removability, the

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BIA cited to Matter of Burbano, 20 I. & N. Dec. 872 (BIA
1994), and adopted and affirmed the IJ’s decision in its
entirety, so we review the IJ’s decision directly. See Tamang
v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). Because the
BIA did not cite Burbano in affirming the IJ’s
determinations regarding any other issues, we review the
BIA’s decision with respect to Cornejo’s eligibility for
voluntary departure. See Mutuku v. Holder, 600 F.3d 1210,
1212 (9th Cir. 2010).
ANALYSIS
“Any alien who at any time after admission is convicted
of a crime of domestic violence” may be deported. 8 U.S.C.
§ 1227(a)(2)(E)(i). For purposes of that ground of
deportability, a “crime of domestic violence” is “any crime
of violence (as defined in section 16 of title 18, United States
Code) against a person” who has one or more of the
enumerated domestic relationships with the perpetrator,
including being the perpetrator’s spouse. Id. For a
misdemeanor to qualify as a crime of violence under
18 U.S.C. § 16, the offense must have “as an element the
use, attempted use, or threatened use of physical force
against the person or property of another . . . .” 18 U.S.C.
§ 16(a).
a. Categorical Analysis and Divisibility
Cornejo argues that his misdemeanor assault conviction
does not support removability as a crime of domestic
violence because it was not “violent in nature,” citing Ye v.
INS, 214 F.3d 1128 (9th Cir. 2000) (holding that the force
necessary to constitute a crime of violence under 18 U.S.C.
§ 16(b) must be violent in nature). Moreover, Cornejo
argues that his crime of conviction is overbroad as to 18
U.S.C. § 16.

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Under the categorical approach prescribed by Taylor v.
United States, 495 U.S. 575 (1990), we must determine
whether Ariz. Rev. Stat. § 13-1203 necessarily requires as
an element “the use, attempted use, or the threatened use of
physical force against the person or property of another.”
18 U.S.C. § 16(a). We must consider whether the elements
of the state offense align with, are narrower than, or are
broader than the federal generic crime of domestic violence.
See Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2012).
To accomplish that task, we look to the text of the state
statute and to interpretations of the statute’s terms by the
state’s courts. United States v. Strickland, 860 F.3d 1224,
1226–27 (9th Cir. 2017).
In Arizona, a person may commit misdemeanor assault
by:
1. Intentionally, knowingly or recklessly
causing any physical injury to another
person; or
2. Intentionally placing another person in
reasonable apprehension of imminent
physical injury; or
3. Knowingly touching another person with
the intent to injure, insult or provoke such
person.
Ariz. Rev. Stat. § 13-1203(A). Subsection (A) must be read
in conjunction with subsection (B), which says:

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C ORNEJO -V ILLAGRANA V . S ESSIONS 9
Assault committed intentionally or
knowingly pursuant to subsection A,
paragraph 1 is a class 1 misdemeanor.
Assault committed recklessly pursuant to
subsection A, paragraph 1 or assault pursuant
to subsection A, paragraph 2 is a class 2
misdemeanor. Assault committed pursuant
to subsection A, paragraph 3 is a class 3
misdemeanor.
Id. at § 13-1203(B).
Paragraph one contains two classes of misdemeanors:
(1) a class one misdemeanor committed intentionally or
knowingly; and (2) a class two misdemeanor committed
recklessly. Id. Paragraph two defines only a class two
misdemeanor. Id. Paragraph three contains only a class
three misdemeanor. Id.
Arizona law defines “intentionally” and “knowingly” as
follows:
(a) “Intentionally” or “with the intent to”
means, with respect to a result or to conduct
described by a statute defining an offense,
that a person’s objective is to cause that result
or to engage in that conduct.
(b) “Knowingly” means, with respect to
conduct or to a circumstance described by a
statute defining an offense, that a person is
aware or believes that the person’s conduct is
of that nature or that the circumstance exists.
It does not require any knowledge of the
unlawfulness of the act or omission.

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Id. at § 13-105(10)(a), (b). Arizona law defines “physical
injury” as “impairment of physical condition.” Id. at § 13-
105(33).
Petitioner was convicted of an assault in a domestic
violence context because the victim was his spouse. The
domestic relationships enumerated under Arizona’s
domestic violence provision, Ariz. Rev. Stat. § 13-3601(A),
are coextensive with the domestic relationships described in
8 U.S.C. § 1227(a)(2)(E)(i), the removal statute at issue.
Arizona state courts view § 13-1203 as containing
distinct offenses. See State v. Freeney, 223 Ariz. 110, 113
(2006) (en banc) (finding that the elements of an offense
under subsection (A)(2) materially differ from those of an
offense under subsection (A)(1), resulting in separate crimes
within the same statute); State v. Waller, 235 Ariz. 479, 488
(App. 2014) (“The three types of assault are distinct offenses
with different elements, not merely different manners of
committing the same offense.”); In re Jeremiah T., 212 Ariz.
30, 34 (App. 2006) (holding that assault under subsection
(A)(3) is not a lesser-included offense of assault under
subsection (A)(1)). Therefore, as we previously have
concluded, Ariz. Rev. Stat. § 13-1203 is divisible. See
United States v. Cabrera-Perez, 751 F.3d 1000, 1004–05
(9th Cir. 2014).
b. Modified Categorical Analysis
Throughout the administrative proceedings in this
matter, Cornejo conceded that his crime of conviction was a
class one misdemeanor. Only one offense constitutes a class
one misdemeanor under § 13-1203, intentionally or
knowingly “causing any physical injury to another person.”
Ariz. Rev. Stat. § 13-1203(A)(1). However, Cornejo now

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C ORNEJO -V ILLAGRANA V . S ESSIONS 11
argues that his record of conviction is inconclusive, and so
we proceed under a modified categorical approach.
Under the modified categorical approach, we confine our
inquiry to “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 544 U.S. 13,
16 (2005). The plea colloquy, the order accepting the plea
agreement, and the sentencing order unambiguously state
that Cornejo pleaded guilty to a class one misdemeanor
domestic violence assault.
We acknowledge that the superior court judge and
Cornejo’s defense counsel used the phrase, “with the
intention to insult or provoke” that tracks the offense set
forth in paragraph three of Ariz. Rev. Stat. § 13-1203(A).
However, Cornejo pleaded guilty to a class one
misdemeanor. The only class one misdemeanor in that
statute is in paragraph one and requires that a person
intentionally or knowingly cause physical injury to another
person. Ariz. Rev. Stat. § 13-1203(A)(1). Moreover,
Cornejo admitted that he acted “with the intention to insult
or provoke” his wife, and that he “either punched or pushed”
his wife in the back of the head. See also id. at
§ 13-1203(A)(3), (B) (defining the class 3 misdemeanor as
“[k]nowingly touching another person with the intent to
injure, insult or provoke such person”). These admissions
form a sufficient factual basis to support that Cornejo
“intentionally [or] knowingly . . . caus[ed] any physical
injury” to his spouse. See id. at § 13-1203(A)(1).
Cornejo argues that the factual basis of the plea shows
that he did not intend to use violent force because his
intention was to insult or provoke his wife, which follows
the language of Ariz. Rev. Stat. § 13-1203(A)(3).

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Subsection (B) of the Arizona statute requires us to reject
this argument. That subsection says in relevant part:
“Assault committed intentionally or knowingly pursuant to
subsection A, paragraph 1 is a class 1 misdemeanor. Assault
committed recklessly pursuant to subsection A, paragraph 1
. . . is a class 2 misdemeanor” not a class 1 misdemeanor.
Thus Cornejo’s plea to a class 1 misdemeanor, as well as his
admission at his plea colloquy, establishes that he committed
the assault intentionally, not recklessly. We therefore need
not address any putative tension between Fernandez-Ruiz v.
Gonzales and Voisine v. United States, regarding the
sufficiency of recklessness in this statutory context for a
crime of violence. And he necessarily admitted “causing
physical injury,” because subsection (A)(1), to which he
pleaded requires physical injury as an element. Since
Cornejo does not dispute that the crime was domestic, that
he assaulted his wife intentionally, and that she was injured
by his assault, the misdemeanor was a crime of domestic
violence. The statute is plainly divisible on its face, and the
Arizona courts have so held,1 so application of this modified
categorical analysis is appropriate, even though other
assaults under section 1203 would not be crimes of violence.
Moreover, Cornejo’s attempt to have us review the
underlying facts for his conviction goes beyond the scope of
the modified categorical approach. In Descamps, the
Supreme Court admonished courts for using the modified
categorical approach to “try to discern what a trial showed,
or a plea proceeding revealed, about the defendant’s
underlying conduct.” 133 S. Ct. at 2288. The Court
explained, “Our modified categorical approach merely
1 See State v. Freeney, 223 Ariz. 110, 113 (2006) (en banc); State v.
Waller, 235 Ariz. 479, 488 (App. 2014); In re Jeremiah T., 212 Ariz. 30,
34 (App. 2006).

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C ORNEJO -V ILLAGRANA V . S ESSIONS 13
assists the sentencing court in identifying the defendant’s
crime of conviction.” Id.
Based on the Shepard documents, we know that Cornejo
was convicted of a class one misdemeanor for assault, which
means he intentionally or knowingly caused physical injury
to his wife. If Cornejo wanted to argue that the sentencing
court had erred in finding a factual basis for his plea, he
could have done so on direct appeal in state court.
c. Comparison of Crime of Conviction with Federal
Generic Offense
To determine whether a state court conviction is
coextensive with the federal generic “crime of domestic
violence,” we look to state law to determine the nature of a
prior state conviction and to federal law to interpret the
federal statute. United States v. Flores-Cordero, 723 F.3d
1085, 1087 (9th Cir. 2013) (citing Johnson v. United States,
559 U.S. 133, 138 (2010)). The Arizona statute refers to
“physical injury,” but does not include the word “force.”
Ariz. Rev. Stat. § 13-1203(A)(1). But the Arizona Supreme
Court has determined that “physical injury” may be used
interchangeably with “physical force.” State v. Gordon,
120 Ariz. 172, 174 (1978) (en banc) (citing State v. Dillon,
26 Ariz. App. 220, 222 (1976)).
Petitioner relies upon dicta in a state intermediate
appellate court decision to argue that Arizona law does not
require force at all. In that case the court used a hypothetical
to illustrate its point that Ariz. Rev. Stat. § 13-1203(A)(1)
“can be accomplished without any touching at all—as, for
example, by withholding needed medication from a
dependent or incapacitated victim.” In re Jeremiah T,
212 Ariz. at 33. However, the reference to a hypothetical
means of committing assault under section (A)(1) does not

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negate that physical injury and physical force are
synonymous in relation to assaults under Arizona law.
Gordon, 120 Ariz. at 174.
Turning to federal law, the Supreme Court in Johnson,
559 U.S. 133, interpreted language in the Armed Career
Criminal Act very similar to that found in the crime of
violence statute. See 18 U.S.C. § § 924(e)(2)(B)(i) (ACCA);
18 U.S.C. § 16(a) (crime of violence definition). The Court
determined that “physical force” should be understood to
mean “violent force—that is, force capable of causing
physical pain or injury to another person.” 559 U.S. at 140;
accord Sessions v. Dimaya, 138 S.Ct. 1204, 1220 (2018);
Leocal v. Ashcroft, 543 U.S. 1, 10–11 (2004); see also
Arellano Hernandez v. Lynch, 831 F.3d 1127, 1131 (9th Cir.
2016) (relying on the Johnson, 559 U.S. at 140, definition of
physical force in the § 16(a) context).
We have held repeatedly “that threat and assault statutes
necessarily involve the use of violent, physical force,” so
long as they are in the context of knowing and intentional
behavior. United States v. Calvillo-Palacios, 860 F.3d 1285,
1290 (9th Cir. 2017). A defendant charged with “assault
resulting in bodily injury, necessarily must have committed
an act of force in causing the injury.” Id. (internal quotation
marks omitted) (quoting United States v. Juvenile Female,
566 F.3d 943, 948 (9th Cir. 2009)). Cases subsequent to
Juvenile Female are in accord. See Cabrera-Perez, 751 F.3d
at 1007; Arellano Hernandez, 831 F.3d at 1130–32; Calvillo-
Palacios, 860 F.3d at 1291.2 The “use of physical force”
2 We disagree with the amicus contention that the Calvillo-Palacios
panel held that the defendant’s conviction was a crime of violence “only”
because he was convicted of aggravated, rather than simple, assault
under Texas law. Rather, the Calvillo-Palacios panel recognized that

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may not be dissociated from intentionally or knowingly
causing physical injury under Ariz. Rev. Stat. § 13-1203(A).
Arizona’s class one misdemeanor domestic violence
assault is a crime of violence under 18 U.S.C. § 16(a) and,
with the additional element of a domestic relationship, a
“crime of domestic violence” for purposes of 8 U.S.C.
§ 1227(a)(2)(E). Therefore, Petitioner is removable due to
his misdemeanor domestic violence conviction under the
modified categorical approach.
PETITIONER’S PETITION FOR REVIEW IS
DENIED.
numerous Ninth Circuit opinions support that “bodily injury entails the
use of violent, physical force” in the context of assault crimes in general.
See 860 F.3d at 1291–92.

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