Sazar Dent v. Jefferson Sessions , 900 F.3d 1075 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAZAR DENT, aka Cesar Augusto No. 17-15662
Jimenez-Mendez,
Petitioner-Appellant, D.C. No.
2:10-cv-02673-
v. GMS
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted July 10, 2018
San Francisco, California
Filed August 17, 2018
Before: Susan P. Graber and Richard C. Tallman, Circuit
Judges, and Ivan L.R. Lemelle,* District Judge.
Opinion by Judge Graber
*
The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
2 DENT V. SESSIONS
SUMMARY**
Immigration
The panel denied a petition for review insofar as it raised
due process claims related to the district court’s rejection of
Sazar Dent’s United States citizenship claim, and granted the
petition and remanded to the Board of Immigration Appeals
insofar as the BIA ruled that Dent’s conviction for third-
degree escape under Arizona Revised Statutes § 13-2502 is a
crime of violence aggravated felony.
Dent was born in Honduras, but was admitted to the
United States on the basis of being adopted by a United States
citizen. His adoptive mother filed an application for
naturalization for Dent, but that application was terminated
after Dent and his mother missed scheduled interviews and
he turned 18. Dent then filed his own naturalization
application, but it was denied for failure to prosecute. After
criminal convictions, Dent was placed in removal
proceedings and the immigration judge and BIA found him
removable for a controlled substance offense, and for having
been convicted of an aggravated felony based on his
conviction for third-degree escape.
Dent petitioned for review with this court, which
transferred the case to the District Court of Arizona for a
hearing on his citizenship claim. The district court
determined that Dent was not a United States citizen and
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DENT V. SESSIONS 3
ultimately granted the government’s motion for summary
judgment.
As a preliminary matter, the panel concluded that Dent
had standing to assert due process and equal protection claims
on behalf of his mother.
Dent claimed that the applicable citizenship statute,
8 U.S.C. § 1433 (1982), violated his mother’s rights under the
Fifth Amendment’s Equal Protection Clause because the
statute required citizen-parents of foreign-born, adopted
children to petition for naturalization of their children, while
biological parents, as well as adoptive parents who
naturalized after adoption, could confer citizenship on their
children automatically, without petitioning.
The panel explained that, under Sessions v. Morales-
Santana, 137 S. Ct. 1678 (2017), Dent’s equal protection
claims do not necessarily receive rational basis review simply
because they are in the immigration context; rather, when a
petitioner presents a claim for citizenship, his or her equal
protection claims are treated the same as they would be in a
non-immigration case.
However, the panel held that rational basis review applied
to Dent’s equal protection claims because he failed to identify
any protected class. The panel further held that, because a
legitimate governmental interest is rationally related to
§ 1433’s requirement that citizen-parents petition to
naturalize their adopted, foreign-born children, § 1433 does
not violate the Fifth Amendment’s Equal Protection Clause.
The panel also rejected Dent’s due process claims. The
panel held that the district court correctly concluded that the
4 DENT V. SESSIONS
former Immigration and Naturalization Service was not
deliberately indifferent to Dent’s mother’s application for his
citizenship, or his own adult application for citizenship. The
panel also concluded that Dent could not establish prejudice.
Finally, the panel held that the BIA erred in concluding
that third-degree escape under Arizona Revised Statutes § 13-
2502 is a crime of violence and, therefore, an aggravated
felony. Comparing the generic federal definition of “crime of
violence” under 18 U.S.C. § 16 to the Arizona statute, the
panel held that Arizona third-degree escape is not crime of
violence because it does not necessarily involve the “physical
force” required by § 16(a). The panel also observed that the
Supreme Court recently declared, in Sessions v. Dimaya, 138
S. Ct. 1204, 1223 (2018), that § 16(b) is unconstitutionally
vague and, therefore, that subsection cannot be the basis for
an aggravated felony.
Noting that Dent is still removable for a controlled
substance offense, the panel remanded the case to the BIA for
a new hearing to address Dent’s request for cancellation of
removal.
COUNSEL
Anne R. Traum (argued), Supervising Attorney; Andrew
Clark, Scott Cardenas, Beatriz Aguirre, and Sabrina Clymer,
Student Attorneys; Thomas & Mack Legal Clinic, William S.
Boyd School of Law, University of Nevada, Las Vegas,
Nevada; for Petitioner-Appellant.
DENT V. SESSIONS 5
Katherine E. Clark (argued) and Russell J.E. Verby, Senior
Litigation Counsel; Papa Sandhu, Assistant Director; Chad A.
Readler, Acting Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent-
Appellee.
OPINION
GRABER, Circuit Judge:
Petitioner Sazar Dent, a native and citizen of Honduras,
appeals the summary judgment entered in favor of
Respondent Attorney General Sessions on the question of
Petitioner’s citizenship. He also challenges the Board of
Immigration Appeals’ (“BIA”) conclusion that Arizona third-
degree escape is an aggravated felony. We deny the petition
insofar as it raises due process and equal protection claims
related to the citizenship determination; but we grant and
remand insofar as the BIA ruled that the escape conviction is
an aggravated felony.
FACTUAL AND PROCEDURAL BACKGROUND1
Petitioner was born in Honduras in 1967. He was
admitted to the United States in early 1981, when he was
13 years old, on the basis of his then-pending adoption by
1
With respect to the facts surrounding the due process claim, which
the district court resolved on summary judgment, we view the facts in the
light most favorable to Petitioner. Citizens for Better Forestry v. U.S.
Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003).
6 DENT V. SESSIONS
Roma Dent, a United States citizen. The adoption was
finalized later in 1981.
In January of 1982, the former Immigration and
Naturalization Service (“INS”) received an application filed
by Petitioner’s adoptive mother seeking to naturalize
Petitioner (who was then 14 years old) as a United States
citizen. Petitioner and his mother lived in Arkansas. The
INS transferred the application to its New Orleans office
because there was no office in Arkansas and because the
Memphis office was overworked. More than 200,000
naturalization petitions were filed with the INS in 1982. At
that time, it typically took about a year and a half, after the
filing of an application for a child’s naturalization petition, to
schedule an interview.2
The INS scheduled an interview on Roma Dent’s
application for August 4, 1983, less than 17 months after it
was filed. The INS arranged for the interview to be held in
Arkansas, near the Dents’ home. But neither Petitioner nor
his mother appeared at the appointed time and place.
Petitioner’s mother then asked for a new interview date,
explaining that Petitioner would be in Honduras “for
6 months probably.” The INS obliged the request, setting a
second interview date of March 13, 1984. There is no
evidence that the INS knew that Petitioner would still be
2
Petitioner contests an INS official’s testimony that, at that time, it
typically took 18 months to schedule an interview. But, as proof, he offers
only data about processing times in 1986, four years later. That evidence
is insufficient to create a genuine issue of material fact. See Brinson v.
Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995) (“If the
evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” (internal quotation marks omitted)).
DENT V. SESSIONS 7
abroad at that time. Again, neither he nor his mother
appeared.
In August of 1984, Petitioner’s mother contacted the INS
about the status of the naturalization application. The INS
responded:
So good to hear from you. Am unable to
locate Sazar[’s] records in our office as I do
not have his Alien card number. Also include
Sazar[’s] complete name and date of birth.
We will do all we can to get him his
citizenship.
Petitioner’s mother wrote the requested information on the
form, adding: “Is 16 will be 17 Nov 15.” That note was
postmarked August 27, 1984.
On June 10, 1985, the INS placed the following note in
Petitioner’s file:
Joan of U.S. Court Clerk’s Office of Fort
Smith, AR called this date to inquire about
Sazar Dent’s status. She advised he had been
in a lot of trouble, had run away from several
boy’s homes, etc. They (the authorities) were
hoping they could “deport” him. Advised her
that he was a legal permanent resident; having
been adopted by a U.S. citizen.
The INS did not schedule any additional interviews on the
application of Petitioner’s mother. When Petitioner turned
18, he aged out of his mother’s application, but he became
8 DENT V. SESSIONS
eligible to naturalize on his own, as an adult. 8 U.S.C.
§§ 1433(a), 1445(b) (1980).
The INS scheduled an interview for Petitioner on
February 25, 1986. He missed that appointment, but the INS
“squeezed” him in the next day. At that interview, the INS
deemed Roma Dent’s application “nonfiled,” thereby
terminating that application. Also on February 26, 1986,
Petitioner filed his own naturalization application and
petition. The INS immediately recommended approval of the
petition. In 1986, when the INS determined that an applicant
was eligible to naturalize, the applicant would file a petition
with the local federal district court and the INS would
recommend its approval. Here, Petitioner filed a petition in
the District Court for the Western District of Arkansas on the
day it was approved by the INS. All that remained for him to
do was to (1) submit to a preliminary examination by the INS,
(2) appear in a district court for a final determination on
naturalization, and (3) take the oath of naturalization.
8 U.S.C. §§ 1445–48 (1986).3
Thereafter, the INS scheduled Petitioner for the
preliminary examination on at least two different dates
between 1986 and 1987. He did not show up for any of the
appointments. Although at least one notice was returned to
sender, Petitioner admitted that he received at least one of the
3
At the time Roma Dent’s petition to naturalize Petitioner was
pending, the naturalization process for adopted children was essentially
the same as for a naturalizing adult. A parent seeking her child’s
naturalization had to appear for a preliminary examination, which would
be followed by a district court’s positive determination and the child’s
taking of the oath of naturalization. 8 U.S.C. §§ 1433(a), (b); 1446 (b),
(d); 1448(a) (1982).
DENT V. SESSIONS 9
notices, and the INS sent all the notices to addresses that
Petitioner had provided.
Because Petitioner had failed to appear for at least two
scheduled interviews on his own petition, the INS scheduled
a final hearing for March 23, 1989, at which it would
recommend denial of the application for failure to prosecute.
The INS sent notice of that hearing to the address at which
Petitioner had received one of the 1986 notices, which also
was Petitioner’s address of record, but the notice was returned
to sender. Petitioner admitted that he had failed to notify the
INS of his changes of address and that he had failed to appear
for the final hearing. The district court denied his
naturalization petition on March 23, 1989, for failure to
prosecute.
In 2003, Petitioner was convicted of two Arizona crimes:
possession or use of narcotics (Ariz. Rev. Stat. §§ 13-3401,
3408), and third-degree escape (Ariz. Rev. Stat. § 13-2502).
Several months later, the Department of Homeland Security
(“DHS”) initiated removal proceedings. DHS charged that
Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii),
on the ground that the escape conviction is a crime of
violence and, therefore, an aggravated felony. Later, DHS
added a charge that Petitioner was removable under 8 U.S.C.
§ 1227(a)(2)(B)(i), on the ground that possession of narcotics
is a controlled substance offense.
After the immigration judge and the BIA concluded that
Petitioner was removable, he petitioned for review with this
court, bringing a citizenship claim, among others. We
transferred the case to the District of Arizona “for a new
hearing on [his] nationality claim.” Dent v. Holder, 627 F.3d
365, 376 (9th Cir. 2010) (alteration in original). The district
10 DENT V. SESSIONS
court determined that Petitioner was not a citizen, Dent v.
Holder, No. 2:10-CV-02673-TMB, 2013 WL 11311230, at *6
(D. Ariz. Sept. 30, 2013), and he appealed to this court. We
vacated the district court’s determination and remanded the
case so that the district court could consider his due process
claim in light of intervening authority. Dent v. Lynch, 606 F.
App’x 405 (9th Cir. 2015) (unpublished). The district court
rejected Petitioner’s due process claim and granted
Respondent’s motion for summary judgment, while denying
Petitioner’s motion for summary judgment. Dent v. Sessions,
243 F. Supp. 3d 1062, 1074 (D. Ariz. 2017). Petitioner
timely appeals.
DISCUSSION4
A. Standing
Petitioner has standing to assert due process and equal
protection claims on his mother’s behalf. An individual has
third-party standing when “[(1)] the party asserting the right
has a close relationship with the person who possesses the
right [and (2)] there is a hindrance to the possessor’s ability
to protect his own interests.” Sessions v. Morales-Santana,
137 S. Ct. 1678, 1689 (2017) (internal quotation marks
omitted). In Morales-Santana, the Supreme Court held that
the petitioner—a non-citizen asserting the equal protection
rights of his late, United States citizen father—had standing
4
We review all issues de novo. See Rendon v. Holder, 764 F.3d
1077, 1082 (9th Cir. 2014) (providing de novo standard for determining
whether a prior conviction is an aggravated felony); Rocky Mountain
Farmers Union v. Corey, 730 F.3d 1070, 1086 (9th Cir. 2013) (providing
de novo standard for summary judgment); Hernandez-Mancilla v. Holder,
633 F.3d 1182, 1184 (9th Cir. 2011) (providing de novo review for equal
protection claims).
DENT V. SESSIONS 11
to vindicate his father’s rights. Id. The Court reasoned that
he “easily satisfie[d] the ‘close relationship’ requirement.”
Id. And, because the petitioner’s father had died years before
the petitioner brought the case, he also satisfied the
“hindrance” requirement. Id.
In this case, Petitioner—as his mother’s adopted
child—satisfies the close relationship requirement. And, like
the petitioner in Morales-Santana, Petitioner’s mother died
years ago, so he also satisfies the hindrance requirement.
B. Equal Protection
Petitioner brings a facial challenge to 8 U.S.C. § 1433
(1982), a citizenship statute that was in effect when he began
the naturalization process. He contends that § 1433 violated
his mother’s rights under the Fifth Amendment’s Equal
Protection Clause. That statute required citizen-parents of
foreign-born, adopted children to petition for their
naturalization. Id. § 1433(c). Because biological parents, as
well as naturalizing parents of adopted children, could confer
citizenship on their children automatically, without
petitioning, Petitioner contends that § 1433 violated his
mother’s equal protection rights.5
1. Level of Scrutiny
Morales-Santana dictates that Petitioner’s equal
protection claims do not necessarily receive rational basis
5
Petitioner further argues that—because § 1433 was
unconstitutional—he is entitled to citizenship as a remedy. Because we
hold that § 1433 was constitutional, we need not consider what remedy
would be appropriate were the statute unconstitutional.
12 DENT V. SESSIONS
review simply because they are in the immigration context.
137 S. Ct. at 1689, 1693–94. Before the Supreme Court
decided Morales-Santana, we would have followed Fiallo v.
Bell, 430 U.S. 787 (1977). In Fiallo, the petitioner
challenged entry requirements for non-citizens, which he
claimed discriminated on the basis of sex and legitimacy.
430 U.S. at 790, 794. Because issues related to admission of
non-citizens “have been recognized as matters solely for the
responsibility of the Congress and wholly outside the power
of [the] Court to control,” the Supreme Court applied a
standard of review similar to rational basis review. Id. at 794,
796 (internal quotation marks omitted). We have applied
Fiallo’s standard and looked for only a “facially legitimate
and bona fide reason” to support a statutory distinction, even
when the relevant statute governs who is and is not a citizen
rather than admission of non-citizens. See, e.g., Wauchope v.
U.S. Dep’t of State, 985 F.2d 1407, 1414 (9th Cir. 1993).
But the Supreme Court clarified in Morales-Santana that,
when the petitioner presents a claim of citizenship, the proper
standard for a gender discrimination claim is heightened
scrutiny, just as it would be in the non-immigration context.
137 S. Ct. at 1689, 1693–94. The Court reasoned that,
because the petitioner “claim[ed] he is, and since birth has
been, a U.S. citizen,” Fiallo’s “minimal scrutiny” standard for
a case involving entry preferences for non-citizens was
distinguishable. Id. at 1693–94. Under Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc), when the
Supreme Court “undercut[s] the theory or reasoning
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable,” the Court’s decision
effectively overrules this circuit’s decision. That is the case
here. Morales-Santana holds that, when a petitioner presents
a claim for citizenship, his or her equal protection claims are
DENT V. SESSIONS 13
treated the same as they would be in a non-immigration case.
A challenged law does not receive minimal scrutiny merely
because it is related to immigration.
But that conclusion does not automatically result in
heightened scrutiny. Instead, Morales-Santana clarifies that
heightened scrutiny is not foreclosed simply because
Petitioner’s claim is in the immigration context. We
therefore examine each category as we would in a non-
immigration equal protection claim.
a. Citizenship Distinction
Petitioner, on his mother’s behalf, claims that § 1433
treated citizens worse than non-citizens because citizens who
adopted children had to petition for their children’s
citizenship, whereas adoptive parents who naturalized after
the adoption could confer citizenship on their children
automatically. But the statute does not distinguish between
citizens and non-citizens. In all cases, a parent must be a
citizen in order to confer citizenship on an adopted child.
Instead, the statute distinguishes between citizens who were
already citizens before adopting children and citizens who
naturalized after adopting children. Neither is a protected
class. Accordingly, rational basis review applies to that
distinction. See United States v. Juvenile Male, 670 F.3d 999,
1009 (9th Cir. 2012) (applying “rational basis review for the
purpose of equal protection analysis” where the defendants
“failed to establish membership in a recognized protected
class”).
14 DENT V. SESSIONS
b. Adoptive-Parent Distinction
Petitioner also claims that § 1433 treated adoptive parents
worse than biological parents because biological parents
could confer citizenship on their children automatically,
whereas adoptive parents had to petition for their children to
become citizens. Adoptive parents are not a protected class
and, therefore, rational basis review applies to that distinction
as well. See id. Petitioner argues that heightened scrutiny
applies because § 1433 interfered with his mother’s
fundamental liberty interest “in the care, custody, and
management of [her] child.” Santosky v. Kramer, 455 U.S.
745, 753 (1982) (considering a statute that permitted “forced
dissolution of . . . parental rights” and thus threatened
parents’ “vital interest in preventing the irretrievable
destruction of their family life”). But to be eligible for the
naturalization process at issue in § 1433, the parent must have
already adopted the child, and the child must already reside
with the parent in the United States. Section 1433, therefore,
did not disrupt parents’ interest in the care, custody, and
management of their children. Accordingly, disparate
treatment of adoptive parents versus biological parents
receives rational basis review. See Aleman v. Glickman,
217 F.3d 1191, 1200 (9th Cir. 2000) (explaining that rational
basis review applies if a classification does not involve a
fundamental right or protected class).
2. Rational Basis Review
To survive rational basis review, a statute must be
“rationally related to a legitimate government purpose.”
Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir.
2011) (internal quotation marks omitted). “Using such
rational-basis review, a statute is presumed constitutional, and
DENT V. SESSIONS 15
the burden is on the one attacking the legislative arrangement
to negative every conceivable basis which might support it.”
Id. (internal quotation marks omitted). We “are compelled
under rational-basis review to accept a legislature’s
generalizations even when there is an imperfect fit between
means and ends.” Heller v. Doe ex rel. Doe, 509 U.S. 312,
321 (1993).
Following the Second Circuit, we conclude that “the
requirement of an affirmative act to secure derivative
citizenship is . . . rationally related to the legitimate aim of
deterring immigration fraud.” Colaianni v. INS, 490 F.3d
185, 189 (2d Cir. 2007) (per curiam). Requiring adoptive
parents to petition for their children’s naturalization helped
ensure that the child had a genuine relationship with the
parent. Biological parents, by definition, need not provide
assurance of a genuine parental relationship. And the
intensive naturalization process gave the government the
opportunity to inquire into naturalizing parents’ relationships
with their previously adopted children, even if the parents did
not list their children on their application. Further, although
citizen parents first had to go through a visa process for their
foreign-born, adopted children, the fact that there were other
safeguards against fraud is irrelevant under rational basis
review. Because a legitimate governmental interest is
rationally related to § 1433’s requirement that citizen parents
petition to naturalize their adopted, foreign-born children, we
conclude that § 1433 does not violate the Fifth Amendment’s
Equal Protection Clause.
C. Due Process
Petitioner also contends that the INS violated his due
process rights by acting with deliberate indifference, both
16 DENT V. SESSIONS
during the processing of his mother’s application on his
behalf, as a child, and during the processing of his own
application, as an adult. A petitioner can succeed on a due
process claim by showing that the INS was “deliberately
indifferent to whether his application was processed,” Brown
v. Holder, 763 F.3d 1141, 1150 (9th Cir. 2014) (“Brown I”),
and that he or she suffered prejudice, “which means that the
outcome of the proceeding may have been affected by the
alleged violation,” Zolotukhin v. Gonzales, 417 F.3d 1073,
1076 (9th Cir. 2005) (internal quotation marks omitted).
Under Brown v. Lynch, 831 F.3d 1146 (9th Cir. 2016)
(“Brown II”), to establish deliberate indifference in the
immigration context, a petitioner must present:
(1) a showing of an objectively substantial
risk of harm; and (2) a showing that the
officials were subjectively aware of facts from
which an inference could be drawn that a
substantial risk of serious harm existed and
(a) the official actually drew that inference or
(b) that a reasonable official would have been
compelled to draw that inference.
Id. at 1150 (internal quotation marks omitted). Even gross
negligence does not amount to deliberate indifference.
Brown I, 763 F.3d at 1150 n.5. Nor does an agency’s failure
to comply with its own regulations amount to deliberate
indifference. Id. at 1148.
Several weeks after we decided Brown II, we decided
Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.
2016) (en banc), cert. denied, 137 S. Ct. 831 (2017). There,
we stated—in the prison context—that, in evaluating due
DENT V. SESSIONS 17
process deliberate indifference claims, we inquire whether “a
reasonable officer in the circumstances [would appreciate] the
high degree of risk involved.” Id. at 1071. That is, we
implemented an objective standard.
Petitioner argues that the current test under Brown II
provides a subjective standard for deliberate indifference in
the immigration context and that we should revise that
standard after Castro. But we need not decide either of those
issues because Petitioner’s due process claims fail under
either a subjective or an objective standard.
1. Childhood Application
a. No Deliberate Indifference
The district court did not err in ruling that the INS was not
deliberately indifferent to whether Petitioner’s mother’s
application for his citizenship was processed. As the district
court noted, the INS took steps to ensure that Petitioner could
complete the naturalization process by scheduling two
interviews when he was 15 and 16 years old—several years
away from the cutoff of 18. Had Petitioner attended either
interview, he would have become a citizen. Nor is there any
evidence that the INS knew, or should have known, that
Petitioner was in Honduras when it scheduled the first
interview. Thus, Petitioner “has not established that it would
have been reasonable for officials to assume that [aging out]
was a necessary or even likely outcome of the decision not to
schedule” an interview earlier. Brown II, 831 F.3d at 1151.
And Petitioner’s mother’s note to the INS that he was 16 and
would be 17 in November does not mean that the INS acted
with deliberate indifference by not expediting the application.
Petitioner introduced no evidence that the INS official with
18 DENT V. SESSIONS
whom his mother corresponded had the authority to expedite
the application. Accordingly, the agency did not act with
deliberate indifference.6
b. No Prejudice
Even if the INS did act with deliberate indifference,
Petitioner’s due process claim fails because he cannot
demonstrate that he suffered prejudice. See Zolotukhin,
417 F.3d at 10767 (requiring prejudice). Once the INS
approved Petitioner’s own application for citizenship (as an
adult) in 1986, his mother’s earlier petition became irrelevant.
Nothing that happened while processing his mother’s petition
caused or contributed to Petitioner’s failure to complete the
adult naturalization process following the rapid approval of
his application for citizenship. Had the adult naturalization
process been more onerous than the child naturalization
process, Petitioner could have suffered prejudice because the
INS’s errors would have resulted in a more burdensome
naturalization process. But the processes were closely similar
and equally burdensome. Petitioner’s due process claim for
the childhood application, therefore, also fails for lack of
prejudice.
6
Petitioner also argues that the note in his file, which stated that
“Joan” from the U.S. Court Clerk’s Office of Fort Smith had called and
said that the “authorities” wanted to deport Petitioner, shows that the INS
acted with an improper motive in failing to process his childhood
application. But the note does not demonstrate that the INS—or even the
court clerk’s office—wanted to deport Petitioner or prevent him from
becoming a citizen. In fact, it reveals that the INS maintained that
Petitioner could not be deported for running away from boys’ homes.
DENT V. SESSIONS 19
2. Adult Application
a. No Deliberate Indifference
The district court correctly concluded that the INS was
not deliberately indifferent to Petitioner’s adult application
for citizenship. The INS attempted to schedule several
hearings for Petitioner, but he failed to update the INS with
changes to his mailing address. Though the INS sent one of
the hearing notices to an outdated address and failed to follow
several of its usual practices when Petitioner was
unreachable, there is, at most, evidence of gross negligence,
which does not meet the test for deliberate indifference.
Brown I, 763 F.3d at 1150 n.5; Brown II, 831 F.3d at 1150.
b. No Prejudice
Petitioner cannot establish prejudice for his adult
application claim either. His own failures to update the INS
with his changes of address and to appear for his hearings
were the cause of his not becoming a citizen. Accordingly,
he cannot establish prejudice, and his due process claim must
fail for that reason as well.
D. Aggravated Felony
Finally, we hold that the BIA erred in concluding that
third-degree escape under Arizona Revised Statutes section
13-2502 is a crime of violence and, therefore, an aggravated
felony that would make Petitioner removable. “To assess
whether a state conviction qualifies as an aggravated felony,
we generally employ the ‘categorical approach’ to determine
whether the state offense matches the ‘generic’ federal
definition of the pertinent offense . . . : here, a crime of
20 DENT V. SESSIONS
violence under 18 U.S.C. § 16(a) or (b).” Ramirez v. Lynch,
810 F.3d 1127, 1130–31 (9th Cir. 2016). Under the
categorical approach, we compare “the elements of the statute
of conviction with a federal definition of the crime to
determine whether conduct proscribed by the statute is
broader than the generic federal definition.” Id. at 1131
(internal quotation marks omitted). “[W]e examine what the
state conviction necessarily involved, not the facts underlying
the case, and so must presume that the conviction rested upon
nothing more than the least of the acts criminalized.” Id.
(internal quotation marks and brackets omitted). “We then
determine whether even those acts are encompassed by the
generic federal offense.” Id. (internal quotation marks
omitted).
Here, the generic federal offense is a “crime of violence”
under 18 U.S.C. § 16, which provides:
The term “crime of violence” means—
(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, or
(b) any other offense that is a felony and
that, by its nature, involves a substantial risk
that physical force against the person or
property of another may be used in the course
of committing the offense.
DENT V. SESSIONS 21
Arizona’s third-degree escape statute provides:
A. A person commits escape in the third
degree if, having been arrested for, charged
with or found guilty of a misdemeanor or
petty offense, such person knowingly escapes
or attempts to escape from custody.
B. Escape in the third degree is a class 6
felony.
Ariz. Rev. Stat. § 13-2502.
Examining the two texts, it is clear that Arizona third-
degree escape does not necessarily involve the “physical
force” required by § 16(a). See Chavez-Solis v. Lynch,
803 F.3d 1004, 1009 (9th Cir. 2015) (noting that, in
determining whether a state crime qualifies as a crime of
violence, we may rely solely on statutory text to establish the
statute as overly inclusive). And the Supreme Court recently
declared, in Sessions v. Dimaya, 138 S. Ct. 1204, 1223
(2018), that § 16(b) is unconstitutionally vague and,
therefore, cannot be the basis for an aggravated felony.
Accordingly, third-degree escape under Arizona Revised
Statutes § 13-2502 is not a crime of violence, nor an
aggravated felony. We grant the petition on that issue.
Because Petitioner has a prior conviction for a controlled
substance offense, he is still removable under 8 U.S.C.
§ 1227(a)(2)(B)(i). We ordered in Dent that, “[i]f the district
court determines that [Petitioner] is not a citizen of the United
States, then the case should be remanded to the BIA for a new
hearing after production of the A-file in full.” 627 F.3d at
376. As Respondent has already produced Petitioner’s A-file,
22 DENT V. SESSIONS
Dent, 2013 WL 11311230, at *6, we remand the case to the
BIA for a new hearing to address Petitioner’s request for
cancellation of removal.
Petition DENIED in part; GRANTED and
REMANDED in part. The parties shall bear their own costs
on appeal.