De La Torre-Espinoza v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2023
• Docket: 21-963
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Armando De La Torre-Espinoza, No. 21-963

Petitioner, Agency No. A201-153-992

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted April 21, 2023** Phoenix, Arizona

Before: TALLMAN, OWENS, BADE, Circuit Judges.

Armando De La Torre-Espinoza seeks review of an order of the Board of

Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)

denying his application for cancellation of removal. We have jurisdiction under

8 U.S.C § 1252(a)(1), and we deny the petition.

1. The BIA did not err in finding Petitioner ineligible for cancellation of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removal because he had previously been convicted of a crime of domestic

violence. See 8 U.S.C. § 1229b(b)(1)(C); 8 U.S.C. § 1227(a)(2)(E)(i). Petitioner

pled guilty to domestic violence assault under Ariz. Rev. Stat. §§ 13-3601 and

13-1203(A)(1), resulting in a class one misdemeanor conviction. Under A.R.S.

§ 13-1203(B) a class one misdemeanor involves “intentionally or knowingly”

causing any physical injury to another person. In Cornejo-Villagrana v.

Whitaker, 912 F.3d 479, 486 (9th Cir. 2017), we held that “Arizona’s class one

misdemeanor domestic violence assault is . . . a ‘crime of domestic violence’ for

purposes of 8 U.S.C. § 1227(a)(2)(E).”

Petitioner’s citations to United States v. Orona, 923 F.3d 1197 (9th Cir.

2019), vacated and dismissed by 987 F.3d 892, 893 (9th Cir. 2021), and Borden

v. United States, 141 S. Ct. 1817, 1834 (2021) (concerning only offenses with a

mens rea of recklessness), are inapposite. Finally, Petitioner’s argument that §

13-1203(A)(1) is indivisible is premised upon a fundamentally incorrect

statement of law: that statutorily enumerated mens rea are “not elements” of the

underlying crime. See, e.g., Staples v. United States, 511 U.S. 600, 605-06 (1994)

(discussing the traditional rule that mens rea is a necessary element of every

crime). As such, we reject it.

Petitioner is therefore ineligible for cancellation of removal due to his

misdemeanor domestic violence conviction. See Cornejo-Villagrana, 912 F.3d

at 486.

2. The BIA properly concluded that Petitioner’s due process rights were

2 21-963 not violated when his hearing was moved from April 5, 2021, to May 28, 2019.

Petitioner retracted his objection to the change in date after the IJ admitted his

late submission of 586 pages of evidence. And Petitioner has not demonstrated

he was prejudiced by the timing of his hearing given that his removal proceedings

were initiated in 2011 and he was granted numerous continuances over the

lengthy course of these proceedings.

PETITION DENIED.

3 21-963