Opinion
Argued April 13, 2001.
Submitted August 8, 2001
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Alien petitioned for review of an order of the Board of Immigration Appeals (BIA) finding him removable as an aggravated felon. The Court of Appeals held that Arizona conviction for aggravated driving under the influence while his license was suspended, revoked, or in violation of a restriction was not for a "crime of violence."
Petition granted. Petition to Review a Decision of the Board of Immigration Appeals.
Before SCHROEDER, Chief Judge, D.W. NELSON and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Marcos Contreras-Sanchez petitions for review of an order of the Board of Immigration Appeals finding him removable as an aggravated felon under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner was convicted on May 14, 1998 of aggravated driving under the influence while one's license is suspended, revoked, or in violation of a restriction, in violation of Arizona Revised Statutes §§ 28-692 and 28-697.
In United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001), we held that driving under the influence of alcohol and causing bodily injury, in violation of California Vehicle Code § 23153, is not a "crime of violence" as defined in 18 U.S.C. § 16. We reasoned that § 23153 can be violated through negligence, whereas a "crime of violence" can be committed only with a mental state of at least recklessness. See Trinidad-Aquino, 259 F.3d at 1144-1146.
Arizona Revised Statutes § 28-692 is similar to § 23153, but lacks the element of bodily injury. Like § 23153, it can be violated through negligence, as can § 28-697, which defines aggravated driving or actual physical control while under the influence as, inter alia, committing a violation of § 28-692 while one's driver's license is suspended, cancelled, revoked, or restricted. We therefore hold that Contreras-Sanchez was not convicted of a "crime of violence," and accordingly was
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not convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F).
PETITION GRANTED.