FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ANTONIO CORNEJOVILLAGRANA,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent.

No. 13-72185

Agency No.

A079-648-998

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

Before: Andrew J. Kleinfeld and Kim McLane Wardlaw, 

Circuit Judges, and Rosanna Malouf Peterson,*

District Judge.

Opinion by Judge Peterson

 * The Honorable Rosanna Malouf Peterson, United States District 

Judge for the Eastern District of Washington, sitting by designation.
2 CORNEJO-VILLAGRANA V. SESSIONS

SUMMARY**

Immigration

The panel denied Jose Antonio Cornejo-Villagrana’s

petition for review of a Board of Immigration Appeals 

decision concluding that his conviction for 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-Villagrana was convicted of a class 1 misdemeanor 

under Arizona Revised Statutes § 13-1203(A)(1), which 

requires intentionally or knowingly causing any physical 

injury to another person. 

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). Accordingly, the panel concluded that 

Cornejo-Villagrana’s conviction was a “crime of domestic 

violence” under 8 U.S.C. § 1227(a)(2)(E).

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CORNEJO-VILLAGRANA V. SESSIONS 3

COUNSEL

Benjamin Wiesinger (argued) and John M. Pope, Pope & 

Associates P.C., Phoenix, Arizona, for Petitioner.

Corey L. Farrell (argued), Attorney; Terri J. Scadron, 

Assistant Director; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

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 

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.
4 CORNEJO-VILLAGRANA V. SESSIONS

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 admitted 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. 

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 
 CORNEJO-VILLAGRANA V. SESSIONS 5 

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 

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. 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 
6 CORNEJO-VILLAGRANA V. SESSIONS

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.” Opening 

Brief of Petitioner at 10 (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. 

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 
CORNEJO-VILLAGRANA V. SESSIONS 7

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:

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.
8 CORNEJO-VILLAGRANA V. SESSIONS

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. Ariz. Rev. Stat. § 13-1203(B). 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.

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.
CORNEJO-VILLAGRANA V. SESSIONS 9

The categorical approach does not apply here because 

the elements of the state offense are broader than the 

elements for the federal generic crime of domestic violence. 

A defendant may be convicted under Ariz. Rev. Stat. § 13-

1203(A)(1) for “recklessly causing any physical injury to 

another person.” We, however, have previously found that 

recklessly or negligently causing physical injury to another 

person under paragraph one of the Arizona statute was not a 

categorical crime of violence under 18 U.S.C. § 16(a), or by 

extension, a categorical crime of domestic violence under 8 

U.S.C. § 1227(a)(2)(E)(I). Fernandez-Ruiz v. Gonzales, 

466 F.3d 1121, 1130–32 (9th Cir. 2006) (en banc); but see 

Voisine v. United States, 136 S. Ct. 2272, 2280 (2016) 

(concluding that “a person who assaults another recklessly 

‘uses’ force no less than one who carries out that same action 

intentionally.”).

To determine whether a modified categorical approach 

is appropriate, we must decide whether the relevant statute 

is divisible. 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).
10 CORNEJO-VILLAGRANA V. SESSIONS

Even where a statute is divisible, a modified categorical 

analysis is not appropriate unless at least one of the offenses 

contained within the statute defines a crime of violence, 

while at least one does not.1 Recklessly causing physical 

injury to another person under paragraph one of the Arizona 

statute is not a categorical crime of violence under 18 U.S.C. 

§ 16(a). Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130–

32 (9th Cir. 2006) (en banc). But a person who has been 

convicted under subsection (A)(2) of Ariz. Rev. Stat. § 13-

1203 of intentional conduct has committed a crime of 

violence. Cabrera-Perez, 751 F.3d at 1007. Therefore, a 

modified categorical analysis is required to determine 

whether Petitioner’s conviction is a crime of violence. 2

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 

 1 When a statute lists alternative offenses rather than means of 

commission, so that the structure of the statute “renders opaque which 

element played a part in the defendant’s conviction,” we proceed to the 

modified categorical approach to determine what part of the divisible 

statute formed the basis of conviction. Descamps v. United States, 133 S. 

Ct. 2276, 2283 (2013).

2 Petitioner argues that the Arizona assault statute also is overbroad 

because one could commit a class one misdemeanor assault without 

violent physical force. Given that we have found the statute divisible 

and appropriate for a modified categorical analysis, we do not address 

that issue.
CORNEJO-VILLAGRANA V. SESSIONS 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. These admissions form a 

sufficient factual basis to support that Cornejo “intentionally 

[or] knowingly . . . caus[ed] any physical injury” to his 

spouse. See Ariz. Rev. Stat. § 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). He 

misunderstands the intentionally element of the statute. The 

statute requires that he intentionally use violent force, which 

he did. He punched or pushed her in the back of the head. 
12 CORNEJO-VILLAGRANA V. SESSIONS

It is irrelevant whether he used violent force because he 

wanted to insult or provoke her. The BIA, in a published 

opinion, explained, “The key inquiry is not the alien’s intent 

for purposes of assault,” but instead whether the statute of

conviction “requires the intentional use of ‘violent force.’” 

Matter of Julio E. Velasquez, 25 I&N Dec. 278, 283 (BIA 

2010). This published BIA opinion is entitled to Chevron

deference. Renteria-Morales v. Mukasey, 551 F.3d 1076, 

1081 (9th Cir. 2008).

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 

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 1 

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, 
CORNEJO-VILLAGRANA V. SESSIONS 13

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)).

Turning to federal law, the Supreme Court explicitly 

rejected the notion that a statute that prohibits intentionally 

or knowingly causing bodily injury may be committed 

without employing force, for instance by poisoning a 

victim’s drink. United States v. Castleman, 134 S. Ct. 1405, 

1415 (2014) (“That the harm occurs indirectly, rather than 

directly (as with a kick or punch), does not matter.”). 

Castleman held that the common-law meaning of force, 

requiring only “offensive touching” rather than “violent 

force,” “fits perfectly” within the definition of 

“misdemeanor crime of domestic violence” used for 

18 U.S.C. § 922(g)(9), restricting individuals convicted of a 

“misdemeanor crime of domestic violence” from possessing 

a firearm, “because perpetrators of domestic violence are 

routinely prosecuted under generally applicable assault or 

battery laws . . . .” Id. at 1410–11 (internal quotation marks 

omitted). The Court further reasoned that the term 

“domestic violence” is a “term of art encompassing acts that 

one might not characterize as ‘violent’ in a nondomestic 

context.” Id. at 1410–11.

In Castleman, the Court departed from its decision in 

Johnson v. United States, 559 U.S. 133 (2010), where the 

Court 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 
14 CORNEJO-VILLAGRANA V. SESSIONS

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; 

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). 

Therefore, “violent force” is present when there is “physical 

injury” for purposes of a “crime of violence.” See id.

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. (quoting United 

States v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009) 

(internal quotation marks omitted)). Cases subsequent to

Juvenile Female are in accord. See Cabrera-Perez, 751 F.3d 

at 1007; Arellano Hernandez, 831 F.3d at 1130–32. 

Therefore, the “use of physical force” 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.