Fernandez-Ruiz v. Gonzales

                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOSE ROBERTO FERNANDEZ-RUIZ,        
                      Petitioner,          No. 03-74533
               v.
                                           Agency No.
                                           A90-116-400
ALBERTO R. GONZALES, Attorney
General,                                     OPINION
                     Respondent.
                                    
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                 Argued and Submitted
        March 21, 2006—San Francisco, California

                  Filed October 26, 2006

Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,
 Alex Kozinski, John T. Noonan, Diarmuid F. O’Scannlain,
      Michael Daly Hawkins, Kim McLane Wardlaw,
Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, and
                Carlos T. Bea, Circuit Judges.

                  Opinion by Judge Bea;
Partial Concurrence and Partial Dissent by Judge Kozinski;
                Dissent by Judge Wardlaw




                          17851
                 FERNANDEZ-RUIZ v. GONZALES            17855


                        COUNSEL

Erica K. Rocush, Snell & Wilmer L.L.P., Tucson, Arizona,
for the petitioner-appellant.

Peter D. Keisler, Assistant Attorney General; Donald E.
Keener, Deputy Director; John Andre, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, Washington, D.C., for the respon-
dent.

Lynn Marcus, Immigration Law Clinic, Rogers College of
Law, University of Arizona, Tucson, Arizona; Vicky Dobrin
and Hilary Han, Dobrin & Han, PC, Seattle, Washington;
Lory Diana Rosenberg, Immigration Defense & Expert Assis-
tance Consultation and Training, Rockville, Maryland, for the
amici.
17856            FERNANDEZ-RUIZ v. GONZALES
                          OPINION

BEA, Circuit Judge, joined by Chief Judge SCHROEDER,
Judges REINHARDT, NOONAN, HAWKINS, CLIFTON:

   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

 (2004), covers only those
crimes involving intentional conduct. Because the relevant
Arizona statute permits conviction when a defendant reck-
lessly 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 con-
clude the federal statute does not apply. Accordingly, the peti-
tioner 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 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 days in jail, sus-
pended should he properly perform probation for fifteen
months. From this sentence, we infer his offense constituted
a “class three” misdemeanor.1 The offense underlying
Fernandez-Ruiz’s 2003 conviction, by contrast, was a “class
two” misdemeanor.

   On the basis of these convictions, the Department of Home-
land Security (DHS) initiated removal proceedings. As
grounds for removal, the DHS charged that Fernandez-Ruiz
had post-admission convictions for a crime of domestic vio-
lence (the 2003 conviction now at issue), two crimes involv-
ing moral turpitude (the 2002 and 2003 convictions), and an
aggravated felony (the theft by control of property convic-
tion).

   An IJ sustained all three charges of removal, deemed
Fernandez-Ruiz ineligible to apply for a discretionary waiver
of deportation, and denied cancellation of removal. In a two-
page, per curiam opinion, the BIA adopted and affirmed the
decision of the IJ.

  A three-judge panel of our court denied Fernandez-Ruiz’s
petition for review. See Fernandez-Ruiz v. Gonzales, 

410 F.3d 585, 588

 (9th Cir. 2005). As a threshold matter, the panel held
our court had jurisdiction over the case. See 

id. at 587

. The
  1
   Arizona law designates three classes of misdemeanors. See 

Ariz. Rev. Stat. § 13-707

(A). Class three is the least serious, punishable by a maxi-
mum of thirty days’ imprisonment. See 

id.

17858                FERNANDEZ-RUIZ v. GONZALES
panel went on to hold that Fernandez-Ruiz’s class two misde-
meanor domestic violence offense constituted a crime of vio-
lence under 

18 U.S.C. § 16

(a) and rendered him removable
under 

8 U.S.C. § 1227

(a)(2)(E)(i). See Fernandez-Ruiz, 

410 F.3d at 588

.2 Because his conviction occurred in 2003, after
the 1996 repeal of 

8 U.S.C. § 1182

(c), Fernandez-Ruiz was
ineligible to apply for a discretionary waiver of deportation.
Fernandez-Ruiz, 

410 F.3d at 588

. Because his theft by control
of property offense was an aggravated felony, he was ineligi-
ble for cancellation of removal. 

Id.

   We ordered rehearing en banc to resolve an inter- and intra-
circuit conflict as to whether, under Leocal v. Ashcroft, 

543 U.S. 1

 (2004), crimes involving the merely reckless use of
force can be crimes of violence. See Fernandez-Ruiz v. Gon-
zales, 

431 F.3d 1212

, 1212 (9th Cir. 2005).3

                            II. Jurisdiction

   We adopt the portion of the panel’s opinion addressing the
government’s claim that, under 

8 U.S.C. § 1252

(a)(2)(C), we
lack jurisdiction to consider Fernandez-Ruiz’s petition. See
Fernandez-Ruiz, 

410 F.3d at 586-87

. As the panel explained,
under section 106(a)(1)(A)(iii) of the REAL ID Act of 2005,

Pub. L. No. 109-13, 119

 Stat. 231, “we are no longer barred
by § 1252(a)(2)(C) from reviewing Fernandez-Ruiz’s petition
on account of his past convictions.” Fernandez-Ruiz, 

410 F.3d at 587

.
  2
     Holding Fernandez-Ruiz removable on this ground obviated the
panel’s need to address whether he was also removable because his
domestic violence offenses were crimes involving moral turpitude or
because his theft by control of property offense was an aggravated felony.
See Fernandez-Ruiz v. Gonzales, 

410 F.3d 585

, 588 n.2 (9th Cir. 2005).
   3
     The three-judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to the extent
adopted by the en banc court. Fernandez-Ruiz v. Gonzales, 

431 F.3d 1212, 1212

 (9th Cir. 2005).
                   FERNANDEZ-RUIZ v. GONZALES                17859
      III. Crime of Domestic Violence: Categorical Analysis

   [1] The government claims Fernandez-Ruiz’s 2003 misde-
meanor domestic violence conviction subjected him to
removal under 

8 U.S.C. § 1227

(a)(2)(E)(i), which permits the
deportation of “[a]ny alien who at any time after admission is
convicted of a crime of domestic violence.”4 In this context,
a “crime of domestic violence” is “any crime of violence (as
defined in section 16 of Title 18) against a person” who has
one of several enumerated domestic relationships with the
perpetrator. 

Id.

   [2] To determine whether Fernandez-Ruiz’s state law
domestic violence offense meets the Immigration and Nation-
ality Act’s definition of a crime of domestic violence, we
begin by applying the “categorical approach” laid out in Tay-
lor v. United States, 

495 U.S. 575

 (1990). See Ruiz-Morales
v. Ashcroft, 

361 F.3d 1219, 1221-22

 (9th Cir. 2004) (applying
the categorical approach to determine whether mayhem under
California law was a crime of violence under 

18 U.S.C. § 16

).
Under this approach, without regard to the particular facts of
Fernandez-Ruiz’s offense—and looking beyond the Arizona
statutes’ title for the offense—we must ask whether the “full
range of conduct” proscribed by the statutes under which
Fernandez-Ruiz was convicted meets the definition of a crime
of domestic violence. United States v. Baron-Medina, 

187 F.3d 1144, 1146

 (9th Cir. 1999) (quoting United States v.
Lomas, 

30 F.3d 1191, 1193

 (9th Cir. 1994)); see Leocal, 

543 U.S. at 7

 (explaining that the language of 

18 U.S.C. § 16

requires “look[ing] to the elements and the nature of the
offense of conviction, rather than to the particular facts relat-
ing to [a] petitioner’s crime”). Interpreting the definition of a
crime of domestic violence requires us to consider the “ordi-
nary, contemporary, and common meaning of the language
Congress used in defining” a crime of violence. Ruiz-Morales,
  4
   The government does not now argue that Fernandez-Ruiz’s 2002 mis-
demeanor domestic violence conviction met these requirements.
17860                FERNANDEZ-RUIZ v. GONZALES

361 F.3d at 1222

 (quoting United States v. Trinidad-Aquino,

259 F.3d 1140, 1144

 (9th Cir. 2001)); see Leocal, 

543 U.S. at 9

 (“When interpreting a statute, we must give words their
‘ordinary or natural’ meaning.” (quoting Smith v. United
States, 

508 U.S. 223, 228

 (1993))).

   [3] Of the two statutes under which Fernandez-Ruiz was
convicted, only the assault statute requires in-depth analysis.
See 

Ariz. Rev. Stat. § 13-1203.5

 Both parties agree the spe-
cific focus of our analysis must be whether the offense
defined in Arizona Revised Statutes § 13-1203(A)(1) is a
crime of violence under 

18 U.S.C. § 16

(a).6 The state statute
reads: “A person commits assault by . . . [i]ntentionally,
knowingly or recklessly causing any physical injury to
another person.” 

Ariz. Rev. Stat. § 13-1203

(A)(1) (emphasis
  5
     The other statute simply provides that, when the perpetrator of an
assault has one of several domestic relationships with the victim, the
assault constitutes a state law crime of domestic violence. See 

Ariz. Rev. Stat. § 13-3601

(A). All of the relationships covered under the state statute
are covered under the Immigration and Nationality Act. See 

8 U.S.C. § 1227

(a)(2)(E)(i) (“[T]he term ‘crime of domestic violence’ means any
crime of violence . . . by any . . . individual against a person who is pro-
tected from that individual’s acts under the domestic or family violence
laws of the United States or any State . . . .”).
   6
     As a class two misdemeanor, Fernandez-Ruiz’s 2003 domestic vio-
lence conviction could have been under either Arizona Revised Statutes
§ 13-1203(A)(1) or (A)(2). See id. § 13-1203(B). The documents of con-
viction do not reveal whether Fernandez-Ruiz was charged and convicted
under one or both of these provisions. As already explained, however,
Fernandez-Ruiz committed a categorical crime of violence only if the “full
range of conduct” for which he could have been convicted meets the
requirements of 

18 U.S.C. § 16

. United States v. Baron-Medina, 

187 F.3d 1144, 1146

 (9th Cir. 1999) (quoting United States v. Lomas, 

30 F.3d 1191, 1193

 (9th Cir. 1994)). Thus, because we ultimately conclude that not all
of the conduct proscribed by Arizona Revised Statutes § 13-1203(A)(1)
meets the definition of a crime of violence, we do not consider Arizona
Revised Statutes § 13-1203(A)(2). Additionally, we need not consider 

18 U.S.C. § 16

(b) because Fernandez-Ruiz’s assault convictions were both
misdemeanors. See 

id.

 (defining a crime of violence, in relevant part, as
“any other offense that is a felony” (emphasis added)).
                     FERNANDEZ-RUIZ v. GONZALES                      17861
added). The federal statute defines a crime of violence as “an
offense that has 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). Thus, the determinative ques-
tion is whether “recklessly causing . . . physical injury to
another person,” 

Ariz. Rev. Stat. § 13-1203

(A)(1), necessarily
involves the “use of physical force against the person . . . of
another,” 

18 U.S.C. § 16

(a).7

               A. Existing Ninth Circuit Precedent

   [4] Until recently, it was well established in this circuit that
crimes involving the reckless use of force could be crimes of
violence. For example, in United States v. Ceron-Sanchez,

222 F.3d 1169

 (9th Cir. 2000), we interpreted the very statute
at issue here and concluded it satisfied 

18 U.S.C. § 16

(a):

      A conviction under § 13-1203(A)(1) may be based
      on reckless conduct, which Ceron-Sanchez argues
      does not constitute violent conduct. However, in
      order to support a conviction under § 13-1203(A)(1),
      the reckless conduct must have caused actual physi-
      cal injury to another person. Therefore, the use of
      physical force is a required element of § 13-
      1203(A)(1).

Ceron-Sanchez, 

222 F.3d at 1172-73

.

   We held that crimes of recklessness could be crimes of vio-
lence even though we recognized there is an element of voli-
  7
   Our standard of review is de novo. See Singh v. Ashcroft, 

386 F.3d 1228, 1230

 (9th Cir. 2004); see also Oyebanji v. Gonzales, 

418 F.3d 260, 262

 (3d Cir. 2005) (“Because the BIA is not charged with administering

18 U.S.C. § 16

 and has no special expertise regarding the interpretation of
that criminal statute, we do not defer to the BIA’s interpretation of that
provision.”); Singh, 

386 F.3d at 1230

 (“We reject the . . . assertion that we
owe ‘substantial deference’ to the Attorney General’s interpretations of
general state and federal criminal statutes.”).
17862            FERNANDEZ-RUIZ v. GONZALES
tion inherent in 

18 U.S.C. § 16

(a)’s requirement that an
offender “use” physical force “against” another person. See
United States v. Trinidad-Aquino, 

259 F.3d 1140, 1145-46

(9th Cir. 2001). Our reasoning was that recklessness “requires
conscious disregard of a risk of a harm that the defendant is
aware of.” 

Id. at 1146

. On similar grounds, we held that
offenses requiring “criminal negligence” could be crimes of
violence. See Park v. INS, 

252 F.3d 1018, 1024-25

 (9th Cir.
2001). By contrast, we held that crimes of simple negligence
lacked the volitional element necessary for crimes of vio-
lence. Trinidad-Aquino, 

259 F.3d at 1145

.

   Recently, however, we cast doubt on our cases distinguish-
ing recklessness and criminal negligence from simple negli-
gence. In Lara-Cazares v. Gonzales, 

408 F.3d 1217

 (9th Cir.
2005), a Mexican citizen and national had previously been
convicted under California law of gross vehicular manslaugh-
ter while intoxicated. 

Id. at 1219

. Although this conviction
required a minimum culpability of “gross negligence,” an IJ
found the underlying offense to have been a crime of violence
under 

18 U.S.C. § 16

 and ordered the alien’s removal. Lara-
Cazares, 

408 F.3d at 1219

. The BIA affirmed, citing our cases
holding that crimes of criminal negligence and recklessness
could be crimes of violence. 

Id.

   We reversed on the basis of Leocal. 

Id. at 1222

. In Leocal,
the Supreme Court held that driving under the influence of
alcohol (DUI) cannot be a crime of violence if the statute
defining the offense “reach[es] individuals who were negli-
gent or less.” 

543 U.S. at 13

. Rejecting the government’s
argument “that Leocal add[ed] nothing to our analysis in
Trinidad-Aquino and [did] not extend to gross negligence,”
we held that gross negligence “does not constitute the kind of
active employment of force against another that Leocal
requires for a crime of violence.” Lara-Cazares, 

408 F.3d at 1221

. Although the facts of Lara-Cazares did not require us
to discuss in detail the implications of Leocal for crimes of
criminal negligence or recklessness, we concluded that Leocal
                  FERNANDEZ-RUIZ v. GONZALES               17863
abrogated our holdings in Park and Ceron-Sanchez. See 

id. at 1222

 (“To the extent that our decision in Park v. INS, 

252 F.3d 1018

 (9th Cir. 2001), and the cases there cited [including
Ceron-Sanchez] support a contrary result, we conclude that
they are no longer good law in light of Leocal.”).

   Nonetheless, shortly after deciding Lara-Cazares, we relied
on Ceron-Sanchez to hold a crime of recklessness—second-
degree assault under Washington law—a categorical crime of
violence. See United States v. Hermoso-Garcia, 

413 F.3d 1085, 1089

 (9th Cir. 2005) (Bea, J.). In doing so, we failed to
distinguish Lara-Cazares or Leocal. See 

id.

  [5] Because our existing precedent is inconsistent, we must
examine the reasoning of Leocal to decide the present case.

                           B. 

Leocal 1

. Reasoning of Leocal

   [6] In determining that DUI offenses requiring a mens rea
of mere negligence or less cannot be “shoehorn[ed]” into the
federal definition of a crime of violence, Leocal, 

543 U.S. at 13

, the Supreme Court emphasized that 

18 U.S.C. § 16

(a)
requires the “ ‘use . . . of physical force against the person or
property of another,’ ” Leocal, 

543 U.S. at 9

 (quoting 

18 U.S.C. § 16

(a)). Whereas the word “use,” taken alone, could
“in theory” connote the accidental employment of force, it
would be “much less natural to say that a person actively
employs [i.e., uses] physical force against another person by
accident.” 

Id.

 Thus, the Court reasoned, 

18 U.S.C. § 16

(a)’s
requirement that force be used “against” someone or some-
thing suggested that crimes of violence require “a higher
degree of intent than negligent or merely accidental conduct.”
Leocal, 

543 U.S. at 9

 (emphasis added).

  As further support for the conclusion that 

18 U.S.C. § 16

does not reach merely accidental offenses, the Court looked
17864                FERNANDEZ-RUIZ v. GONZALES
to the ordinary meaning of the term “crime of violence.” See
Leocal, 

543 U.S. at 11

. That term, the Court observed, natu-
rally suggests a category of crimes more “violent” and “ac-
tive” than DUI offenses. 

Id.

   The Court also remarked that, because courts must interpret

18 U.S.C. § 16

 consistently in both criminal and noncriminal
cases, the rule of lenity applies. Leocal, 

543 U.S. at 11

 n.8.
Under this rule, to whatever extent 18 U.S.C. § 16’s defini-
tions of a crime of violence lack clarity, courts should con-
strue the ambiguous statutory language against the
government. Leocal, 

543 U.S. at 11

 n.8.

                2. Recent Interpretations of Leocal

   [7] Although the Court in Leocal expressly reserved the
question whether crimes of violence can include offenses
involving the reckless use of force, see id. at 384, two of our
sister circuits have interpreted the reasoning of Leocal to
place such offenses beyond the reach of 

18 U.S.C. § 16.8

   In Bejarano-Urrutia v. Gonzales, 

413 F.3d 444

 (4th Cir.
2005), a native and citizen of Mexico petitioned for review of
an order that he be removed from the United States for having
committed involuntary manslaughter by driving intoxicated.

Id. at 445

. The Virginia statute of conviction required reckless
disregard for human life, but not necessarily reckless disre-
gard for whether force would be used. 

Id. at 447

. Thus, the
court was not required to decide whether offenses requiring
the reckless use of force, or reckless disregard for a risk that
force might be used, can be crimes of violence. See 

id.

 Never-
theless, the court deemed Leocal controlling:
  8
    In so doing, these circuits joined three other circuits that, even before
Leocal, restricted the category of crimes of violence under 

18 U.S.C. § 16

to crimes requiring specific intent to use force against a person or prop-
erty. See Jobson v. Ashcroft, 

326 F.3d 367, 373-74

 (2d Cir. 2003); Bazan-
Reyes v. INS, 

256 F.3d 600, 610-11

 (7th Cir. 2001); United States v.
Chapa-Garza, 

243 F.3d 921, 926-27

 (5th Cir. 2001).
                 FERNANDEZ-RUIZ v. GONZALES               17865
    [T]he conclusion of the Leocal Court that “[i]n no
    ‘ordinary or natural’ sense can it be said that a per-
    son risks having to ‘use’ physical force against
    another person in the course of operating a vehicle
    while intoxicated and causing injury” strongly indi-
    cates that the result in Leocal would have been the
    same even had a violation of the statute there at issue
    required recklessness rather than mere negligence.

Id.

 (citation omitted). Applying this reading of Leocal, the
Fourth Circuit granted the petition for review. 

Id.

   The Third Circuit has on three occasions endorsed a similar
reading of Leocal—beginning with Tran v. Gonzales, 

414 F.3d 464

 (3d Cir. 2005). Tran involved the petition for review
of a Vietnamese citizen ordered removed from the United
States for having been convicted, under Pennsylvania law, of
“conspiracy to commit reckless burning or exploding.” 

Id. at 468

. The Tran court began its assessment of whether reckless
burning or exploding was a crime of violence by citing dictio-
nary definitions of “use.” 

Id. at 470

. An “obvious commonali-
ty” among these definitions was that “the ‘use’ of force means
more than the mere occurrence of force; it requires the inten-
tional employment of that force, generally to obtain some
end.” 

Id.

 (emphasis added).

   In concluding that mere recklessness was insufficient under
such a standard, the Tran court expressly disagreed with our
decision in Trinidad-Aquino. 

Id.

 Trinidad-Aquino, the court
suggested, could not be reconciled with the Supreme Court’s
emphasis in Leocal that “ ‘use’ requires active employment.”

Id.

 (quoting Leocal, 

543 U.S. at 9

 (emphasis added)). Accord-
ingly, the court granted Tran’s petition for review. Id. at 473.

   The Third Circuit reaffirmed its interpretation of Leocal in
another immigration case, Popal v. Gonzales, 

416 F.3d 249

(3d Cir. 2005). In Popal, the offense at issue was Pennsylva-
nia’s misdemeanor simple assault offense. 

Id. at 253

. The stat-
17866                FERNANDEZ-RUIZ v. GONZALES
ute of conviction required a minimum culpability of
recklessness. 

Id. at 254

.9 In granting the petition for review,
the Popal court both reaffirmed the reasoning of Tran and
rejected a contrary argument based on the legislative history
of 

18 U.S.C. § 16

(a). See Popal, 

416 F.3d at 254-55

.

   A Senate Report discussing the crime of violence definition
now codified at 

18 U.S.C. § 16

(a) suggested this definition
“would include a threatened or attempted simple assault or
battery on another person.” S. Rep. No. 98-225, at 307 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3487. In reference to
this suggestion, the Popal court stated:

         We acknowledge that the legislative history of
      § 16(a) provides some support for the government’s
      theory that that section encompasses simple assault.
      Nonetheless, we do not think that this legislative his-
      tory undermines our conclusion [that simple assault
      committed recklessly is not a crime of violence].
      Instead, we think it likely that, when the drafters of
      § 16 mentioned simple assault as an exemplary
      crime of violence, they had in mind traditional
      common-law simple assault, defined as a crime
      “committed by either a willful attempt to inflict
      injury upon the person of another, or by a threat to
      inflict injury upon the person of another which,
      when coupled with an apparent present ability,
      causes a reasonable apprehension of immediate bod-
      ily harm.” The common law thus required ‘wilfull-
      ness,’ i.e., intent, in order to find a defendant guilty
      of simple assault. It is entirely plausible that this def-
      inition might have been Congress’s referent in dis-
      cussing § 16(a).
  9
   The statute was nearly identical to the one at issue here. It provided,
“A person is guilty of assault if he: (1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another . . . .” 

18 Pa. Cons. Stat. § 2701

(a).
                 FERNANDEZ-RUIZ v. GONZALES               17867
Popal, 

416 F.3d at 254

 n.5 (citations omitted).

   Finally, and perhaps most persuasively, the Third Circuit
interpreted the reasoning of Leocal to reach crimes of reck-
lessness in Oyebanji v. Gonzales, 

418 F.3d 260

 (3d Cir.
2005). Oyebanji involved a Nigerian citizen who faced
removal for a New Jersey vehicular homicide conviction. 

Id. at 261-62

. The statute of conviction required proof of
recklessness—defined in part as “consciously disregard[ing]
a substantial and unjustifiable risk that [a] material element
[of an offense] exists or will result from [the actor’s] con-
duct.” 

Id.

 at 263 n.4 (quoting N.J. Stat. Ann. § 2C:2-2(3)).
The court concluded that Leocal controlled primarily because
of Leocal’s repeated emphasis that crimes of violence cannot
be “accidental.” See id. at 263-64.

   The term “accidental,” the court explained, “is most often
used to describe events that did not ‘occur [ ] as a result of
anyone’s purposeful act.’ ” Id. at 264 (quoting Black’s Law
Dictionary 16 (8th ed. 2004)) (alteration in original). As such,
even though New Jersey’s definition of recklessness involved
conscious disregard of a substantial and unjustifiable risk, the
reckless use of force was not sufficiently “intentional” to pre-
vent an offense from being accidental. See id. (“[W]e cannot
overlook the Court’s repeated statement that ‘accidental’ con-
duct (which would seem to include reckless conduct) is not
enough to qualify as a crime of violence.” (emphasis added)).

   As in Popal, the court in Oyebanji acknowledged that “rea-
sonable arguments can be made in support of the proposition
that” crimes of recklessness may be crimes of violence. Id.
Nonetheless, the court interpreted Leocal to foreclose such
arguments—at least at the circuit court level. See id. (“We
recognize that there are plausible grounds for distinguishing
Leocal and that reasonable arguments can be made in support
of the proposition that Oyebanji’s offense of conviction
should be viewed as a crime of violence. But as a lower fed-
17868            FERNANDEZ-RUIZ v. GONZALES
eral court, we are advised to follow the Supreme Court’s
‘considered dicta.’ ”) (citation omitted).

                   3. Teachings of Leocal

   [8] We agree with our sister circuits that the reasoning of
Leocal—which merely holds that using force negligently or
less is not a crime of violence—extends to crimes involving
the reckless use of force.

   [9] Citing with approval our holding in Trinidad-Aquino
that crimes of violence must have a volitional element and so
cannot include crimes of negligence, the Leocal Court went
a step further: the Court not only endorsed the position that
crimes of violence must be volitional but also repeatedly
emphasized that such crimes cannot be “accidental.” See Leo-
cal, 

543 U.S. at 8-10

; see also Lara-Cazares, 

408 F.3d at 1221

 (rejecting the argument that Leocal adds nothing to
Trinidad-Aquino). “Accidental” means “[n]ot having occurred
as a result of anyone’s purposeful act.” Black’s Law Dictio-
nary 16 (8th ed. 2004). “Purposeful” means “[d]one with a
specific purpose in mind; DELIBERATE.” 

Id. at 1272

. Reck-
less conduct, as generally defined, is not purposeful. See 

id. at 1298

 (defining recklessness as “[c]onduct whereby the
actor does not desire harmful consequence but nonetheless
foresees the possibility and consciously takes the risk”
(emphasis added)). Even more clearly, reckless conduct as
defined by Arizona law is not purposeful. See 

Ariz. Rev. Stat. § 13-105

(9)(c) (defining recklessness as “consciously disre-
gard[ing] a substantial and unjustifiable risk that the result
will occur or that the circumstance exists,” and providing that
“[a] person who creates such a risk but is unaware of such
risk solely by reason of voluntary intoxication also acts reck-
lessly” (emphasis added)). Thus, the reckless use of force is
“accidental” and crimes of recklessness cannot be crimes of
violence. See Oyebanji, 

418 F.3d at 264

; Tran, 

414 F.3d at 470-71

.
                 FERNANDEZ-RUIZ v. GONZALES               17869
   [10] Contrary to the dissent, for purposes of 

18 U.S.C. § 16

,
we see no “important differences between negligence and
recklessness.” See Dissent Op. at 17890. To the extent reck-
lessness differs from criminal negligence, “[t]he difference
between them is that criminal negligence requires only a fail-
ure to perceive a risk, as compared to the recklessness
requirement of an awareness and conscious disregard of the
risk.” In re William G., 

963 P.2d 287

, 292 n.1 (Ariz. Ct. App.
1997); accord 1 Charles E. Torcia, Wharton’s Criminal Law
§ 27 (15th ed. 1993). But this subjective awareness of possi-
ble injury is not the same as the intentional use of physical
force against the person of another. Neither gross negligence
in failing to perceive, nor conscious disregard of a substantial
and unjustifiable risk of injury implies that physical force is
instrumental to carrying out the crime, such as the plain
meaning of the word “use” denotes. See Leocal, 

543 U.S. at 10

 (“The reckless disregard in § 16 relates not to the general
conduct or to the possibility that harm will result from a per-
son’s conduct, but to the risk that the use of physical force
might be required in committing a crime.”). Therefore, neither
recklessness nor gross negligence is a sufficient mens rea to
establish that a conviction is for a crime of violence under
§ 16.

   As the Court suggested in Leocal—and as illustrated by
considering the full range of conduct proscribed by Arizona
Revised Statutes § 13-1203(A)(1)—any other conclusion
would “blur the distinction between the ‘violent’
crimes Congress sought to distinguish for heightened punish-
ment and other crimes.” Leocal, 

543 U.S. at 11

. Under the
language of Arizona Revised Statutes § 13-1203(A)(1), a wife
and mother could be convicted of assault and domestic vio-
lence under Arizona law by recklessly running a stop sign and
causing a traffic accident that injured her passenger-husband
and child. Indeed, a person could be convicted of assault
under Arizona Revised Statutes § 13-1203(A)(1) by running
a stop sign “solely by reason of voluntary intoxication” and
causing physical injury to another. 

Ariz. Rev. Stat. § 13

-
17870                FERNANDEZ-RUIZ v. GONZALES
105(9)(c). Such conduct cannot, in the ordinary sense, be cal-
led “active” or “violent.” Leocal, 

543 U.S. at 11

.10
  10
     The dissent calls the above hypotheticals “absurd.” Dissent Op. at
17885. However, our example of running a stop sign is similar to actual
cases where a defendant has been convicted of aggravated assault. See
State v. Miles, 

123 P.3d 669, 671

 (Ariz. Ct. App. 2005) (sustaining convic-
tion for aggravated assault under Arizona Revised Statutes § 13-
1204(A)(1)—which requires a violation of Arizona Revised Statutes § 13-
1203—of a man who ran a stop sign and caused an accident that injured
his passenger); State v. Freeland, 

863 P.2d 263, 265-66

 (Ariz. Ct. App.
1993) (affirming aggravated assault conviction “prosecuted on the theory
that defendant, by driving while intoxicated and causing a collision, reck-
lessly caused serious injury to his victim”). Moreover, the dissent fails to
cite us to, nor are we aware of, any authority suggesting that Arizona
Revised Statutes § 13-1203(A)(1) cannot reach the conduct described in
our hypothetical examples. Accordingly, our categorical analysis must
address such conduct.
    The dissent leads its argument with the trenchant phrase “[m]en do not
beat their wives by accident.” Dissent Op. at 17879. True. But the terms
of Arizona Revised Statutes § 13-3601(A) do not require, and the judi-
cially noticeable documents in the record do not prove, that Fernandez-
Ruiz beat his wife. Rather, whether our record shows a conviction under
such a statute requires a beating, and whether the documents of conviction
show a beating took place, are the precise issues before us. Instead of
looking to the record, the dissent would infer that wife-beating took place
from the “trust and related vulnerability that characterize domestic rela-
tionships.” Dissent Op. at 17883. The dissent does not explain how, within
the confines of Taylor, the perpetrator’s mere domestic relationship to the
victim proves that he intentionally used force against her. The statute’s
title is not enough. See Baron-Medina, 

187 F.3d at 1146

 (“We look solely
to the statutory definition of the crime, not to the name given to the offense
or to the underlying circumstances of the predicate conviction.”) (empha-
sis added).
   Further, it is a commonplace of the criminal law that the confidential
relationship that exists between the perpetrator and the victim cannot sup-
ply the proof of the requisite element of the mens rea with which an act
was done. Were a husband to take his wife’s car without her consent, the
“trust and vulnerability” of the wife would not automatically supply the
proof of the husband’s intent permanently to deprive her of possession of
the car, so as to convert misdemeanor joy-riding into felony car theft.
                      FERNANDEZ-RUIZ v. GONZALES                        17871
   Finally, because the text of 

18 U.S.C. § 16

(a) is sufficiently
clear, we see no need in this case to employ legislative history
as an interpretive aid. See, e.g., United States v. Meek, 

366 F.3d 705, 719

 (9th Cir. 2004) (“We need not factor in legisla-
tive history because the meaning of the statute is clear from
the text.”). The requirement that the offense have “as an ele-
ment, the use . . . of physical force against the person or prop-
erty of another,” 

18 U.S.C. § 16

(a) (emphasis added), implies
the use of force must be a means to an end.11
  11
    The dissent relies on the Senate Judiciary Committee Report accom-
panying the enactment of the Comprehensive Crime Control Act of 1984.
See Dissent Op. at 17891 (citing S. Rep. No. 98-225, at 307 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87). This report cites “bat-
tery” as an example of a crime of violence within the meaning of § 16(a).
See S. Rep. No. 98-225, at 307 & n.12. Since battery as defined by the
Model Penal Code may be accomplished through recklessness, the dissent
asserts that Congress intended § 16 to include reckless conduct. See Dis-
sent Op. at 17892.
   Since the statutory language is clear, we need not look to a report issued
by one chamber of Congress as evidence of the statute’s meaning. See
Intel Corp. v. Advanced Micro Devices, Inc., 

542 U.S. 241, 267

 (2004)
(Scalia, J., concurring) (“[I]t is not only . . . improper but also quite unnec-
essary to seek repeated support in the words of a Senate Committee Report
—which, as far as we know, not even the full committee, much less the
full Senate, much much less the House, and much much much less the
President who signed the bill, agreed with.”).
   Even if we do consider the legislative history, it is far from clear that
Congress intended § 16(a) to reach reckless conduct. The Senate Report
cites 

18 U.S.C. § 113

(d) (1976) in a footnote to the term “battery.” See S.
Rep. No. 98-225, at 307 n.12. Presumably, the Committee had § 113(d) in
mind when it referred to battery. Yet, at least at the time of § 16’s enact-
ment, § 113(d) was a “general intent” crime. See United States v. Knife,

592 F.2d 472

, 481-82 & n.12 (8th Cir. 1979) (“The element of intent in
§ 113(f)”—defined as an assault under § 113(d) that results in serious bod-
ily injury—“is satisfied if the general intent to commit the acts of assault
arose when [defendant] initially approached [the victim].”); United States
v. Martin, 

536 F.2d 535, 535-36

 (2d Cir. 1976) (per curiam) (finding the
mental element of § 113(d) to be adequately proven where “the magistrate
found an intent to strike and to scuffle”). Both these cases involve facts
showing an intent to strike the victim, not merely the creation of such risk.
We therefore doubt that “general intent” under § 113(d) includes reckless
17872                FERNANDEZ-RUIZ v. GONZALES
   [11] For these reasons, we hold that the offense underlying
Fernandez-Ruiz’s 2003 misdemeanor domestic violence con-
viction was not a categorical crime of violence under 

18 U.S.C. § 16

(a) or, by extension, a categorical crime of domes-
tic violence under 

8 U.S.C. § 1227

(a)(2)(E)(i). The bedrock
principle of Leocal is that to constitute a federal crime of vio-
lence an offense must involve the intentional use of force
against the person or property of another. In light of Leocal,
we expressly overrule our cases holding that crimes of vio-
lence under 

18 U.S.C. § 16

 may include offenses committed
through the reckless, or grossly negligent, use of force.

   IV. Crime of Domestic Violence: Modified Categorical
                        Analysis

   [12] When a petitioner’s state statute of conviction does not
define a categorical crime of violence, we apply a “modified
categorical approach.” See Penuliar v. Gonzales, 

435 F.3d 961, 966

 (9th Cir. 2006); Ruiz-Morales, 

361 F.3d at 1222

.
Under this approach, we consider whether any of a limited,
specified set of documents—including “the state charging
document, a signed plea agreement, jury instructions, guilty
pleas, transcripts of a plea proceeding and the judgment”
(sometimes termed “documents of conviction”)—show the
petitioner’s conviction entailed an admission to, or proof of,
the necessary elements of a crime of violence. Hernandez-
Martinez v. Ashcroft, 

343 F.3d 1075, 1076

 (9th Cir. 2003).

   [13] Here, with respect to Fernandez-Ruiz’s 2003 misde-
meanor domestic violence conviction, the record contains
three documents relevant to our modified categorical assess-

conduct, and find the dissent’s argument from legislative history uncon-
vincing. See also Popal, 

416 F.3d at 254

 n.5 (rejecting for a similar reason
the government’s argument that the same legislative history shows an
intent to include reckless conduct in § 16(a)’s definition of a crime of vio-
lence).
                 FERNANDEZ-RUIZ v. GONZALES             17873
ment: the complaint, the judgment, and a pro forma plea
agreement. The government concedes, as it must, that none of
these documents demonstrates that Fernandez-Ruiz’s convic-
tion was based upon an admission, or any other proof, that he
used force “intentionally” or “knowingly,” as opposed to
“recklessly.” 

Ariz. Rev. Stat. § 13-1203

(A)(1). Accordingly,
on the record now before us, we cannot conclude under the
modified categorical approach that Fernandez-Ruiz commit-
ted a crime of violence or, by extension, a crime of domestic
violence as defined by federal law.

   Although the government concedes we cannot now reach
such a conclusion, it asks us to defer applying the modified
categorical approach and instead remand this case to the BIA
for further development of the record. As support for its
request, the government supplies only a cursory citation to
INS v. Ventura, 

537 U.S. 12

 (2002) (per curiam). Ventura,
however, is inapplicable.

   Ventura involved the asylum application of Orlando Ven-
tura, a citizen of Guatemala. 

Id. at 14

. The IJ and the BIA
determined that Ventura was ineligible for asylum because he
had failed objectively to demonstrate past persecution for a
political opinion. 

Id. at 15

. Because Ventura had not made
this required threshold showing, the BIA noted it did not need
to address whether “changed country conditions” rebutted
Ventura’s claim to a well-founded fear of future persecution.

Id.

   We reversed the BIA’s decision. 

Id.

 First, we concluded the
evidence compelled a finding that Ventura had demonstrated
past persecution for a political opinion; he had therefore
established the presumption of a well-founded fear of future
persecution. 

Id.

 Having reached this conclusion, we rejected
requests from both parties that we remand the case to the BIA
for consideration of changed country conditions. 

Id.

 Although
we “recognized that the BIA had not decided the ‘changed
circumstances’ question and that ‘generally’ a court should
17874            FERNANDEZ-RUIZ v. GONZALES
remand to permit that consideration,” we invoked an excep-
tion to the usual rule: A court “need ‘not remand . . . when
it is clear that [it] would be compelled to reverse the BIA’s
decision if the BIA decided the matter against the appli-
cant.’ ” 

Id.

 (quoting Ventura v. INS, 

264 F.3d 1150, 1157

 (9th
Cir. 2001)). This exception applied in Ventura, we concluded,
because a 1997 State Department report about Guatemala
“clearly demonstrate[d] that the presumption of a well-
founded fear of future persecution was not rebutted.” 

Id.

(quoting Ventura v. INS, 

264 F.3d 1150, 1157

 (9th Cir.
2001)).

   The Supreme Court reversed our decision not to remand.
Id. at 18. The Court gave two reasons why the exception we
had invoked to the “ordinary remand” rule did not apply. Id.
at 17. First, “the State Department report [was], at most,
ambiguous” as to whether conditions in Guatemala were suf-
ficiently changed to rebut the presumption of Ventura’s well-
founded fear of future persecution. Id. “Second, remand could
[have led] to the presentation of further evidence of current
circumstances in Guatemala—evidence that [could] well
[have] prove[d] enlightening given the five years that [had]
elapsed since the report was written.” Id. at 18. Under the cir-
cumstances, invoking the exception to the ordinary remand
rule violated several “basic considerations” of administrative
law: that, for “a matter that statutes place primarily in agency
hands,” an agency should be permitted to “bring its expertise
to bear”; that the agency “can evaluate the evidence”; and that
the agency can “make an initial determination.” Id. at 16-17.

   Neither of the Ventura Court’s principal reasons for decid-
ing we should have applied the ordinary remand rule applies
in the present case. First, whereas the State Department report
at issue in Ventura was “ambiguous,” id. at 17, the documents
of conviction in the record here—as the government itself
concedes—cannot possibly be interpreted to establish that
Fernandez-Ruiz used force against his victim intentionally or
knowingly, rather than recklessly. Second, unlike in Ventura,
                 FERNANDEZ-RUIZ v. GONZALES               17875
there is no possibility here that new evidence has developed
in the years since the BIA’s erroneous decision: Fernandez-
Ruiz was convicted in January 2003, and all relevant docu-
ments of conviction became available before the DHS initi-
ated removal proceedings.

   Moreover, the “basic considerations” of administrative law
that favored a remand in Ventura do not apply with equal
force here. Unlike Ventura, the present case does not involve
an issue the law commits to the agency’s expertise. See, e.g.,
Oyebanji, 

418 F.3d at 262

 (“[T]he BIA is not charged with
administering 

18 U.S.C. § 16

 and has no special expertise
regarding the interpretation of that criminal statute . . . .”);
Singh, 

386 F.3d at 1230

 (“We reject the . . . assertion that we
owe ‘substantial deference’ to the Attorney General’s inter-
pretations of general state and federal criminal statutes.”).
Another distinction is that Ventura undeniably involved an
issue the BIA had not considered: whether changed country
conditions rebutted the presumption of the defendant’s well-
founded fear of future persecution. Here, by contrast, whether
the offense underlying Fernandez-Ruiz’s 2003 conviction was
a crime of domestic violence under federal law is an issue the
BIA has already addressed—albeit under the categorical
approach, rather than the modified categorical approach. Ven-
tura, 

537 U.S. at 17

. Finally, the standard of review differs.
In Ventura, had we remanded to the BIA for a finding on
changed country conditions, we would have reviewed any
such finding under the substantial evidence standard. See
Smolniakova v. Gonzales, 

422 F.3d 1037, 1052

 (9th Cir.
2005). Here, we review de novo whether a conviction consti-
tutes an aggravated felony. See, e.g., Penuliar, 

435 F.3d at 966

. After remanding this issue to the BIA, we would not
“later determine whether [the BIA’s] decision exceeds the lee-
way that the law provides.” Ventura, 

537 U.S. at 17

.

  Our conclusion that Ventura does not apply in the present
case is consistent with Notash v. Gonzales, 

427 F.3d 693

 (9th
Cir. 2005). In Notash, the petitioner had a prior conviction for
17876             FERNANDEZ-RUIZ v. GONZALES
“attempted entry of goods by means of a false statement.” 

Id. at 695

. The government contended this offense was a “crime
involving moral turpitude,” such that the petitioner’s convic-
tion rendered him removable. 

Id.

 In proceedings before an IJ,
the petitioner “explained that, when completing his customs
declaration form, he had left a line relating to foreign goods
blank because he was not sure how to declare the items.” 

Id.

He argued that “although crimes involving fraud generally are
considered to involve moral turpitude, crimes involving false
statements are not categorically considered to involve moral
turpitude”; “his offense,” he claimed, “did not involve ‘clear
deceit’ [or] an attempt to obtain a property interest to which
he was not entitled.” 

Id.

 The IJ disagreed, applying the cate-
gorical approach without reaching the modified categorical
approach, and the BIA affirmed without an opinion. See 

id.

We rejected the agency’s assessment that the petitioner had
committed a categorical crime involving moral turpitude. See

id. at 697-98

. We then granted the petition for review, holding
that, because “none of the documents that may be examined
under the modified categorical approach were in the record,”
the government had “failed to meet its burden of proving that
the offense for which [the petitioner] was convicted” consti-
tuted a crime involving moral turpitude. 

Id. at 699-700

. Nota-
bly, we reached this conclusion without first remanding the
case for the government to introduce new evidence or the
agency to apply the modified categorical approach. See 

id.

   Admittedly, Notash is not perfectly analogous to the pres-
ent case. At the time of the agency proceedings in Notash,
there was no Ninth Circuit precedent establishing that the
petitioner’s statute of conviction defined a categorical crime
involving moral turpitude. See 

id. at 698

 (explaining that the
agency had based its decision on Supreme Court and agency
precedent, not Ninth Circuit precedent). By contrast, when
Fernandez-Ruiz’s agency proceedings took place in 2003, it
was a matter of settled law in our circuit that violations of his
statute of conviction, Arizona Revised Statutes § 13-
                 FERNANDEZ-RUIZ v. GONZALES              17877
1203(A)(1), were categorical crimes of violence. See Ceron-
Sanchez, 

222 F.3d at 1172-73

.

   In light of Ceron-Sanchez, we can imagine an argument
that, at the time of Fernandez-Ruiz’s agency proceedings, the
government could not have anticipated the need to build a
record supporting removal under the modified categorical
approach. If the government relied on Ceron-Sanchez when
determining what documents to introduce before the agency,
our decision to overrule Ceron-Sanchez could at least con-
ceivably constitute an unusual, unforeseeable circumstance
justifying remand.

   [14] We need not now decide whether changes in our law
may ever justify remanding a case for further development of
the administrative record because the government has not
argued that, in reliance on Ceron-Sanchez, it failed to antici-
pate the necessity of introducing documents of conviction
demonstrating Fernandez-Ruiz’s offense was a crime of
domestic violence under the modified categorical approach.
We consider the government’s reticence significant, but pre-
dictable: the record includes evidence suggesting the govern-
ment did recognize the need to present documents of
conviction in case it lost under the categorical approach.
Beyond the bare-bones documents needed to show
Fernandez-Ruiz had a prior conviction—the complaint and
the judgment—the government presented the agency with
Fernandez-Ruiz’s plea agreement. On these facts, new devel-
opments in the law do not warrant a remand.

   [15] In sum, even under the modified categorical approach,
Fernandez-Ruiz’s 2003 conviction under Arizona Revised
Statutes §§ 13-1203 and 13-3601 for misdemeanor domestic
violence assault is not a crime of violence as defined by 

18 U.S.C. § 16

(a). Accordingly, taken alone, the subject convic-
tion cannot justify his removal. See 

8 U.S.C. § 1227

(a)(2)
(E)(i).
17878             FERNANDEZ-RUIZ v. GONZALES
                          V. Remedy

   [16] Our decision that Fernandez-Ruiz is not removable
under 

8 U.S.C. § 1227

(a)(2)(E)(i) necessitates consideration
of issues the panel did not decide. See Fernandez-Ruiz, 

410 F.3d at 588

 n.2. Although an en banc court takes a case, not
an issue, en banc, it has the discretion to decide the entire case
or only the parts of the case that formed the basis for the en
banc call. Summerlin v. Stewart, 

309 F.3d 1193, 1193

 (9th
Cir. 2002). It may make that decision either prior to or after
the en banc argument. Here, having resolved the issue that the
panel asked the court to consider in its sua sponte en banc
call, see G.O. 5.4.c.3, we believe it better to return the case
to the panel for resolution of the remaining issues.

  RETURNED TO THE PANEL FOR THE ISSUANCE
OF AN OPINION REGARDING THE REMAINING
ISSUES.



KOZINSKI, Circuit Judge, 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 dis-
sent’s effort to carve out a special rule for domestic violence
cases unpersuasive.
                  FERNANDEZ-RUIZ v. GONZALES                17879
   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

 (2004).
Under that regime, the government had no reason to present
evidence that would sustain its burden under a modified cate-
gorical approach. Now that the law has changed, the govern-
ment is entitled to make its case under the new standard.

   I realize that INS v. Ventura, 

537 U.S. 12, 17

 (2002) (per
curiam), and Gonzales v. Thomas, 

126 S. Ct. 1613, 1615

(2006) (per curiam), are not on all fours because both
involved questions as to which the agency had special exper-
tise. But Ventura also held that, when an opinion changes the
legal landscape, giving the government an opportunity to
“present[ ] . . . further evidence” is an independent ground for
a remand. 

537 U.S. at 18

. I see no reason to do otherwise
here. If the government has no such evidence, a remand will
do no harm. But, if the government does have or can obtain
such evidence, our refusal to remand will mean that someone
Congress meant to have deported may remain at large in the
United States, perhaps to offend again.

   Having twice been summarily reversed for failing to
remand to this very agency, I would tread especially lightly
in this area. Discretion, in this case, is not only the better part
of valor, but the better part of justice as well.



WARDLAW, Circuit Judge, with whom Circuit Judges
O’SCANNLAIN, BYBEE, and CALLAHAN join dissenting:

   Men do not beat their wives by accident. Blind to this truth,
the majority ignores the realities of domestic violence and dis-
regards congressional intent to hold that an Arizona domestic
17880            FERNANDEZ-RUIZ v. GONZALES
violence conviction is not a “crime of domestic violence” for
purposes of a federal immigration law. The majority’s hyper-
technical analysis stretches the Taylor v. United States, 

495 U.S. 575

 (1990), categorical approach to absurdity and mis-
reads Leocal v. Ashcroft, 

543 U.S. 1

 (2004), as barring all
crimes involving the reckless use of force from qualifying as
“crimes of violence” under 

18 U.S.C. § 16

. I respectfully dis-
sent.

                               I

   On January 13, 2003, Jose Roberto Fernandez-Ruiz, a
native and citizen of Mexico and a lawful permanent resident
of the United States, pled guilty in Arizona state court to mis-
demeanor domestic violence/disorderly conduct and misde-
meanor domestic violence/assault. He was sentenced to six
months in jail and three years of probation. Fernandez-Ruiz
had previously been convicted of theft and domestic violence/
assault and had twice violated his probation. His 2003 domes-
tic violence/assault conviction, designated a class two misde-
meanor, establishes that he violated either subsection (1) or
(2) of Arizona Revised Statute (A.R.S.) § 13-1203(A), which
states in relevant part:

    A person commits assault by:

    1. Intentionally, knowingly or recklessly causing
    any physical injury to another person; or

    2. Intentionally placing another person in reason-
    able apprehension of imminent physical injury . . . .

Because the record of conviction states that Fernandez-Ruiz
committed a domestic violence offense, he must have been in
a domestic relationship with his victim, as defined by A.R.S.
§ 13-3601(A):

    “Domestic violence” means any act which is a dan-
    gerous crime against children as defined in § 13-
                 FERNANDEZ-RUIZ v. GONZALES             17881
    604.01 or an offense defined in [any one of twenty
    Arizona statutes, including § 13-1203], if any of the
    following applies:

    1. The relationship between the victim and the
    defendant is one of marriage or former marriage or
    of persons residing or having resided in the same
    household.

    2. The victim and the defendant have a child in
    common.

    3. The victim or the defendant is pregnant by the
    other party.

    4. The victim is related to the defendant or the
    defendant’s spouse by blood or court order as a par-
    ent, grandparent, child, grandchild, brother or sister
    or by marriage as a parent-in-law, grandparent-in-
    law, stepparent, step-grandparent, stepchild, step-
    grandchild, brother-in-law or sister-in-law.

    5. The victim is a child who resides or has resided
    in the same household as the defendant and is related
    by blood to a former spouse of the defendant or to
    a person who resides or who has resided in the same
    household as the defendant.

  In March 2003, the Immigration and Naturalization Service
sought to deport Fernandez-Ruiz for committing a crime of
domestic violence. Under 

8 U.S.C. § 1227

(a)(2)(E)(i),

    Any alien who at any time after admission is con-
    victed of a crime of domestic violence, a crime of
    stalking, or a crime of child abuse, child neglect, or
    child abandonment is deportable. For purposes of
    this clause, the term “crime of domestic violence”
    means any crime of violence (as defined in section
17882            FERNANDEZ-RUIZ v. GONZALES
    16 of Title 18) against a person committed by a cur-
    rent or former spouse of the person, by an individual
    with whom the person shares a child in common, by
    an individual who is cohabiting with or has cohab-
    ited with the person as a spouse, by an individual
    similarly situated to a spouse of the person under the
    domestic or family violence laws of the jurisdiction
    where the offense occurs, or by any other individual
    against a person who is protected from that individu-
    al’s acts under the domestic or family violence laws
    of the United States or any State, Indian tribal gov-
    ernment, or unit of local government.

Eighteen U.S.C. § 16(a) in turn defines a misdemeanor “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.”

   Relying on our decision in United States v. Ceron-Sanchez,

222 F.3d 1169

 (9th Cir. 2000), the BIA concluded that
Fernandez-Ruiz’s 2003 conviction was a “crime of domestic
violence” and affirmed an immigration judge’s decision
ordering Fernandez-Ruiz deported. Fernandez-Ruiz petitions
for relief from his deportation order on the ground that Leocal
overruled Ceron-Sanchez and established that a conviction
such as his, which may have been based on reckless conduct,
is not categorically a crime of domestic violence. See gener-
ally Taylor, 

495 U.S. at 600-02

.

                               II

   Common sense, statutory language, and precedent all com-
pel the conclusion that Fernandez-Ruiz’s domestic violence
conviction necessarily involved the use of physical force
against the person of another and was therefore a crime of
violence under 

18 U.S.C. § 16

(a) and a crime of domestic vio-
lence under 

8 U.S.C. § 1227

(a)(2)(E)(i).
                  FERNANDEZ-RUIZ v. GONZALES               17883
                               A

   Notwithstanding the majority’s attempt to erase the identity
of Fernandez-Ruiz’s victim and treat his crime as a simple
assault, Fernandez-Ruiz was convicted for “domestic
violence/assault,” and the victim was Fernandez-Ruiz’s girl-
friend and the mother of his daughter. The relationship
between Fernandez-Ruiz and his victim cannot be dismissed
as irrelevant; it is an element of his crime, and under Leocal
we are required “to look to the elements and the nature of the
offense of conviction . . . .” 

543 U.S. at 7

. Instead of analyz-
ing the nature of the offense of conviction, here a violation of
A.R.S. § 13-3601(A), the majority analyzes A.R.S. § 13-
1203(A), without addressing how the additional element of
the crime described in § 13-3601(A) impacts the nature of the
crime. The majority justifies this analytical leap by noting that
the perpetrator-victim relationship that is an element of § 13-
3601(A) is included as part of the definition of a crime of
domestic violence under 

8 U.S.C. § 1227

(a)(2)(E)(i). Maj.
Op. at 17860 n.5. However, what the majority does not
explain is why the inclusion of similar language in a federal
immigration law justifies ignoring an element of an Arizona
criminal law under Taylor categorical analysis.

   The majority’s facile elision gives short shrift to Arizona’s
requirement that the victim be related to the perpetrator; the
very existence of a separate statutory species of assault aimed
at domestic violence demonstrates that the additional element
of relationship is significant to the nature of the crime. One
owes a special duty of care toward one’s spouse and child,
arising from the trust and related vulnerability that character-
ize domestic relationships. See Grageda v. INS, 

12 F.3d 919, 922

 (9th Cir. 1993) (“[A] spouse is committed to a relation-
ship of trust with, and may be dependent upon, the perpetra-
tor. This relationship makes the crime of spousal abuse
different from violence between strangers or acquaintances
. . . .”); see also, e.g., Patricia Tjaden & Nancy Thoennes,
Nat’l Inst. of Justice & Ctrs. for Disease Control & Preven-
17884            FERNANDEZ-RUIZ v. GONZALES
tion, Prevalence, Incidence, and Consequences of Violence
Against Women: Findings from the National Violence Against
Women Survey 2 (1998) (“Violence against women is primar-
ily partner violence: 76 percent of women who were raped
and/or physically assaulted since age 18 were assaulted by a
current or former husband, cohabiting partner, or date, com-
pared with 18 percent of the men.”).

   It is precisely the vulnerability of those in domestic rela-
tionships, particularly women and children, that led Congress
to enact 

8 U.S.C. § 1227

(a)(2)(E)(i), which is designed to pro-
tect victims and punish perpetrators of domestic violence. As
Senator Robert Dole stated upon introducing the original ver-
sion of the language that now appears at 

8 U.S.C. § 1227

(a)(2)(E)(i):

    [O]ur society will not tolerate crimes against women
    and children. . . . Nor should we have to wait for that
    last violent act. When someone is an alien and has
    already shown a predisposition toward violence
    against women and children, we should get rid of
    them the first time.

142 Cong. Rec. S4058-02, S4059 (1996) (statement of Sen.
Dole); see also Violence Against Women Act of 1994, 

Pub. L. No. 103-322, §§

 40001-40703, 1994 U.S.C.C.A.N. (108
Stat.) 1796, 1902-55, invalidated in part by United States v.
Morrison, 

529 U.S. 598, 627

 (2000). And it is this vulnerabil-
ity that the majority pretends does not exist when it refuses to
acknowledge the identity of Fernandez-Ruiz’s victim and
instead endeavors to sanitize Fernandez-Ruiz’s crime by rele-
gating to a footnote the fact that this is a crime of domestic
violence. See Maj. Op. at 17860 & n.5. Instead of addressing
Fernandez-Ruiz’s crime of conviction, the majority sets out to
rewrite the law for all crimes that may be committed with a
mens rea of recklessness. See Maj. Op. at 17872 (“[W]e
expressly overrule our cases holding that crimes of violence
                 FERNANDEZ-RUIZ v. GONZALES               17885
under 

18 U.S.C. § 16

 may include offenses committed
through the reckless, or grossly negligent, use of force.”)

   Fernandez-Ruiz did not accidentally cause his girlfriend
and the mother of his daughter physical injury; he did so
“[i]ntentionally, knowingly or recklessly.” A.R.S. § 13-
1203(A)(1). In light of the special duty of care Fernandez-
Ruiz owed his victim, it is difficult to imagine how he could
have committed his crime recklessly, and impossible to con-
clude he could have done so without using force against her.
Cf. Flores v. Ashcroft, 

350 F.3d 666, 672-73

 (7th Cir. 2003)
(Evans, J., concurring) (lamenting the absence of common
sense in courts’ application of the Taylor categorical approach
and noting that “Flores actually beat his wife[;] . . . . [a]
common-sense review here should lead one to conclude that
Flores committed a ‘crime of domestic violence’ ”). Domestic
abusers may be drunk or otherwise incapacitated when they
commit their crimes, and they may plea bargain down from
a felony to a misdemeanor or from a statute that requires a
mens rea of intentionality to one that can be satisfied by reck-
lessness. But this does not alter the nature of domestic vio-
lence as a crime involving the use of force against someone
in a domestic relationship, a crime that is categorically a
“crime of domestic violence.” See 

8 U.S.C. § 1227

(a)(2)
(E)(i).

   The majority seeks refuge from the plain meaning of
domestic violence in hypotheticals suggesting that an Arizona
domestic violence/assault conviction is not necessarily a
crime of domestic violence. For example, the majority asserts
a wife and mother could be convicted of domestic violence
under Arizona law for “recklessly running a stop sign and
causing a traffic accident that injured her passenger-husband
and child.” Maj. Op. 17869. This hypothetical is absurd.
Under the Taylor categorical approach, we examine the full
range of conduct encompassed by the statute at issue, e.g.,
Ceron-Sanchez, 

222 F.3d at 1172

, not the full range of appel-
late judges’ fanciful imaginings. Like all legal doctrines, the
17886                FERNANDEZ-RUIZ v. GONZALES
Taylor categorical approach must be applied with reasoned
judgment. See United States v. Kaplansky, 

42 F.3d 320

, 323-
24 (6th Cir. 1994) (en banc) (employing a commonsense anal-
ysis of “the essence of kidnapping” in holding that a violation
of an Ohio kidnapping statute, which prohibits removing a
person from the place where he is found or restraining his lib-
erty “ ‘by force, threat, or deception,’ ” is categorically a vio-
lent felony); cf. 

id. at 329-30

 (Merritt, C.J., dissenting)
(raising a series of improbable hypotheticals to argue that “it
is possible for Kaplansky to have been convicted of . . . kid-
napping without committing a violent felony”); Flores, 

350 F.3d at 672-73

.

   Running a stop sign and causing a traffic accident with
injury would not be prosecuted under the domestic violence
law. Such conduct would almost certainly result in a traffic
citation for—of all things—reckless driving. See A.R.S. § 28-
693. Unsurprisingly, neither Fernandez-Ruiz nor the majority
cite a single case in which Arizona has prosecuted conduct
remotely like the proffered hypothetical as a domestic vio-
lence offense.1

                                    B

   Even if Fernandez-Ruiz had been convicted of assaulting a
stranger, as the majority would have us believe, he would still
be deportable under 

8 U.S.C. § 1227

(a)(2)(E)(i) because reck-
lessness is a sufficient mens rea for a crime of violence. The
majority argues that Leocal, which explicitly declined to
address whether recklessness is a sufficient mens rea for a
   1
     In lieu of domestic violence prosecutions the majority offers two cases
in which assault convictions were upheld when automobile passengers
were injured. See State v. Miles, 

123 P.3d 669, 675-76

 (Ariz. Ct. App.
2005) (affirming aggravated assault conviction after acquittal of DUI);
State v. Freeland, 

863 P.2d 263, 265-66

 (Ariz. Ct. App. 1993) (affirming
aggravated assault conviction in DUI case). These cases do not even hint
at prosecution for domestic violence.
                     FERNANDEZ-RUIZ v. GONZALES                     17887
crime of violence, overruled our consistent precedent on this
issue. It did not.

   In Ceron-Sanchez, we held that a conviction under A.R.S.
§ 13-1203(A)(1) was categorically a “crime of violence” for
purposes of 

18 U.S.C. § 16

(a), reasoning that reckless conduct
that causes physical injury necessarily involves the use of
physical force. 

222 F.3d at 1172-73

. We expanded on this rea-
soning in United States v. Trinidad-Aquino, where we held
that a negligent drunk driving offense did not qualify as a
crime of violence, but explained “that recklessness is a suffi-
cient mens rea for a ‘crime of violence’ ” because

      recklessness requires conscious disregard of a risk of
      a harm that the defendant is aware of—a volitional
      requirement absent in negligence. A volitional defi-
      nition of “use . . . against” encompasses conscious
      disregard of a potential physical impact on someone
      or something—it does not encompass non-volitional
      negligence as to that impact.

259 F.3d 1140, 1146

 (9th Cir. 2001) (omission in original);
see also United States v. Hermoso-Garcia, 

413 F.3d 1085, 1089

 (9th Cir. 2005) (reckless assault is categorically a crime
of violence); United States v. Grajeda-Ramirez, 

348 F.3d 1123, 1125

 (9th Cir. 2003) (reckless vehicular assault is cate-
gorically a crime of violence).2 This logic remains sound and
forecloses Fernandez-Ruiz’s argument that his conviction is
not categorically a crime of domestic violence.

  Leocal, which addressed a strict liability DUI offense, does
not disturb our consistent precedent on this issue. The peti-
  2
   Lara-Cazares v. Gonzales, in which we held that under Leocal a Cali-
fornia conviction for gross vehicular manslaughter while intoxicated is not
categorically a crime of violence, is inapposite both because it involved a
DUI offense and because the statute at issue required only a mens rea of
gross negligence. 

408 F.3d 1217, 1221

 (9th Cir. 2005).
17888            FERNANDEZ-RUIZ v. GONZALES
tioner in Leocal violated a Florida statute making it a crime
to operate a vehicle while under the influence and, “by reason
of such operation, cause[ ] . . . [s]erious bodily injury to
another.” 

Fla. Stat. § 316.193

(3)(c)(2). In determining that the
conviction was not categorically a crime of violence for pur-
poses of § 16(a), the Court noted that the Florida statute “does
not require proof of any particular mental state” and empha-
sized that the

    critical aspect of § 16(a) is that a crime of violence
    is one involving the “use . . . of physical force
    against the person or property of another.” . . .
    “[U]se” requires active employment. While one may,
    in theory, actively employ something in an acciden-
    tal manner, it is much less natural to say that a per-
    son actively employs physical force against another
    person by accident. Thus, a person would “use . . .
    physical force against” another when pushing him;
    however, we would not ordinarily say a person
    “use[s] . . . physical force against” another by stum-
    bling and falling into him. . . . The key phrase in
    § 16(a) . . . most naturally suggests a higher degree
    of intent than negligent or merely accidental con-
    duct.

Leocal, 

543 U.S. at 7, 9

 (citations omitted) (first, third, and
fourth omissions in original).

   The “bedrock principle” of Leocal is not, as the majority
asserts, that “an offense must involve the intentional use of
force” to be a crime of violence, Maj. Op. at 17872, but rather
that merely accidental or negligent DUI crimes are not crimes
of violence. It is unclear whether Leocal extends beyond DUI
offenses, and, in any event, it explicitly left open “the ques-
tion whether a state or federal offense that requires proof of
the reckless use of force against a person or property of
another qualifies as a crime of violence under 

18 U.S.C. § 16

.” 

543 U.S. at 13

. Leocal informs our analysis insofar as
                 FERNANDEZ-RUIZ v. GONZALES                17889
it emphasizes that the key issue in determining whether a
predicate conviction satisfies § 16(a) is whether the convic-
tion involved an active employment of force. See id. at 11
(emphasizing that § 16 “suggests a category of violent, active
crimes”).

  Fernandez-Ruiz’s conviction necessarily involved an active
employment of force. The minimum mens rea for a violation
of A.R.S. § 13-1203(A)(1) is recklessness, which Arizona
defines as,

    with respect to a result or to a circumstance
    described by a statute defining an offense, that a per-
    son is aware of and consciously disregards a substan-
    tial and unjustifiable risk that the result will occur or
    that the circumstance exists. The risk must be of
    such nature and degree that disregard of such risk
    constitutes a gross deviation from the standard of
    conduct that a reasonable person would observe in
    the situation. A person who creates such a risk but
    is unaware of such risk solely by reason of voluntary
    intoxication also acts recklessly with respect to such
    risk.

A.R.S. § 13-105(9)(c). Fernandez-Ruiz therefore must have at
least “consciously disregarded” the risk of physically injuring
his girlfriend. Conscious disregard includes an element of
volition: One must be aware of a substantial and unjustifiable
risk and affirmatively choose to act notwithstanding that risk.
See Trinidad-Aquino, 

259 F.3d at 1145-46

 (cited approvingly
in Leocal, 

543 U.S. at 9

); see also Vucinich v. Paine, Webber,
Jackson & Curtis, Inc., 

739 F.2d 1434, 1435

 (9th Cir. 1984)
(per curiam) (“Rather than being merely a greater degree of
ordinary negligence, recklessness is closer to a lesser form of
intent.” (internal quotation marks omitted)); People v. Lara,

44 Cal. App. 4th 102, 107-08

 (1996). “Unlike a person who
accidentally injures another person, a person who acts reck-
lessly in bringing about harm to another is aware of the nature
17890             FERNANDEZ-RUIZ v. GONZALES
of his conduct and thus can be said to be ‘actively employ-
[ing]’ the physical force that results in injury ‘against anoth-
er.’ ” Bejarano-Urrutia v. Gonzales, 

413 F.3d 444, 449-50

(4th Cir. 2005) (Niemeyer, J., dissenting) (quoting Leocal,

543 U.S. at 9

, and citing Trinidad-Aquino, 

259 F.3d at 1146

).
Recklessness thus requires a volitional, active decision, which
necessarily involves “a higher degree of intent than negligent
or merely accidental conduct,” Leocal, 

543 U.S. at 9

, and sat-
isfies § 16(a)’s “use . . . of physical force” requirement. Noth-
ing in Leocal requires us to overrule Ceron-Sanchez or re-
interpret Trinidad-Aquino.

   In holding that recklessness is not a sufficient mens rea for
a crime of violence, the majority misreads Leocal. The major-
ity asserts that because (1) Leocal holds that accidental con-
duct cannot be a crime of violence, see Leocal, 

543 U.S. at 9

;
(2) accidental conduct is by definition “ ‘[n]ot . . . purpose-
ful,’ ” Maj. Op. at 17868 (alteration in original) (quoting
Black’s Law Dictionary 16 (8th ed. 2004)); and (3) reckless
conduct is also not purposeful; Leocal compels the conclusion
that “the reckless use of force is ‘accidental’ and crimes of
recklessness cannot be crimes of violence.” Maj. Op. at
17868. This argument defies logic.

   The fact that neither negligence nor recklessness is pur-
poseful does not mean that they are identical, or that reckless-
ness, like negligence, necessarily falls outside the scope of
§ 16(a). Recklessness is a distinct mens rea, which lies closer
to intentionality than to negligence. See Vucinich, 

739 F.2d at 1435

. Leocal’s statement that “negligent or merely accidental
conduct” does not satisfy § 16(a), 

543 U.S. at 9

, in no way
suggests that intentional conduct is required or that reckless-
ness is an insufficient mens rea for a crime of violence. See
Bejarano-Urrutia, 

413 F.3d at 449-500

. Indeed, the Leocal
Court specifically declined to decide that issue. See 

543 U.S. at 13

. The majority, like the opinions from the Third and
Fourth Circuit on which it relies, ignores the important differ-
ences between negligence and recklessness and improperly
                     FERNANDEZ-RUIZ v. GONZALES                      17891
reads an intentionality requirement into Leocal. See Oyebanji
v. Gonzales, 

418 F.3d 260, 264-65

 (3d Cir. 2005) (conviction
for vehicular homicide based on driving under the influence);
Tran v. Gonzales, 

414 F.3d 464, 470-71

 (3d Cir. 2005) (con-
viction for reckless burning or exploding); Bejarano-Urrutia,

413 F.3d at 447

 (majority opinion) (conviction for involuntary
manslaughter based on driving under the influence).3

   Because the plain language of § 16(a) is clear, the rule of
lenity does not apply, see Lisbey v. Gonzales, 

420 F.3d 930, 933

 (9th Cir. 2005); nor need we consult the statute’s legisla-
tive history. Nevertheless, were we to look to legislative his-
tory, it would confirm that Fernandez-Ruiz’s conviction is a
crime of violence. The Senate Report accompanying the
Comprehensive Crime Control Act of 1984, which enacted 

18 U.S.C. § 16

, states that a “crime of violence” under § 16(a)
“would include a threatened or attempted simple assault or
battery on another person.” S. Rep. No. 98-225, at 307 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87 (footnotes
omitted). Congress thus intended to include both simple
assault and battery in the definition of a “crime of violence.”
Battery is traditionally defined as “the unlawful application of
force to the person of another,” committed with a mental state
of at least criminal negligence or recklessness. See Black’s
Law Dictionary 139 (5th ed. 1979); Model Penal Code
§ 211.1(1)(a) (a person is guilty of battery if he “purposely,
knowingly or recklessly causes bodily injury to another”);4
   3
     The majority also incorrectly relies on a discussion of recklessness in
the context of § 16(b) to bolster its argument that force must be instrumen-
tal in the execution of the crime to qualify as “use” under § 16(a). See
Maj. Op. at 17869 (quoting Leocal, 

543 U.S. at 10

). In Oyebanji, the Third
Circuit’s analysis was also only of § 16(b). 

418 F.3d at 264

. Further,
unlike the majority here, the Third Circuit did not make a blanket post-
Leocal announcement about crimes with a recklessness mens rea. In each
case that court examined the actual crime of conviction in reaching its
conclusion.
   4
     Section 211.1 is entitled “Assault” but incorporates the crime of bat-
tery. See 2 Am. Law Inst., Model Penal Code & Commentaries § 211.1
cmt.2, at 183-84 (1980).
17892            FERNANDEZ-RUIZ v. GONZALES
Wayne R. LaFave, Substantive Criminal Law § 16.2 (2d ed.
2003) (similar). A violation of the Arizona statute at issue,
which incorporates the Model Penal Code’s definition of bat-
tery, see A.R.S. § 13-1203(A); State v. Mathews, 

633 P.2d 1039, 1042

 (Ariz. Ct. App. 1981), is therefore categorically a
“crime of violence” as that term is used in § 16(a). To read the
legislative history otherwise, to suggest that Congress
intended simple assault but not battery to be a “crime of vio-
lence,” is both incorrect and leads to an awkward result: An
alien would be removable for attempting or threatening to
harm someone but not for actually injuring his spouse through
reckless conduct. It is unlikely Congress intended such an out-
come.

                               C

   After mistakenly concluding that Fernandez-Ruiz’s convic-
tion was not categorically a crime of violence, the majority
compounds its error by refusing the government’s request that
we remand to the BIA to allow the government to further
develop the record so that the BIA may apply the modified
categorical approach. The BIA never decided whether
Fernandez-Ruiz’s conviction was a crime of violence under
the modified categorical approach because, until the majori-
ty’s decision today, Fernandez-Ruiz’s conviction was categor-
ically a crime of violence. See Ceron-Sanchez, 

222 F.3d 1169

.
For the same reason, the government had no reason to iden-
tify, obtain, or introduce evidence demonstrating that
Fernandez-Ruiz “use[d] . . . physical force against the person
or property of another” and therefore that his 2003 conviction
was a crime of domestic violence under the majority’s highly
restrictive approach.

   In light of the new rule the majority announces, the proper
course is to remand to the BIA so that it may apply the modi-
fied categorical approach in the first instance. See Gonzales
v. Thomas, 

126 S. Ct. 1613, 1614-15

 (2006) (per curiam); INS
v. Ventura, 

537 U.S. 12, 16-17

 (2002) (per curiam). As the
                 FERNANDEZ-RUIZ v. GONZALES              17893
majority concedes, Notash v. Gonzales is inapposite because,
unlike here, there was no intervening change in law that made
the modified categorical approach relevant where it had not
been so before and therefore justified the government’s failure
to introduce evidence relevant to the modified categorical
approach. 

427 F.3d 693

 (9th Cir. 2005). Nor is there any merit
in the majority’s entirely unsupported assertion that the gov-
ernment has waived its right to a Ventura remand because it
has not specifically stated that “it failed to anticipate the
necessity of introducing documents of conviction demonstrat-
ing Fernandez-Ruiz’s offense was a crime of domestic vio-
lence under the modified categorical approach.” Maj. Op. at
17877.

                           ****

   Consistent with the plain language of 

18 U.S.C. § 16

(a),
Congress’s intent, and our precedent, I would hold that a con-
viction under the Arizona statutes at issue here is categori-
cally a crime of domestic violence.