                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 05 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ILANGOVAN GOVINDARAJAN,                          No. 11-71533

              Petitioner,                        Agency No. A075-650-897

  v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted August 3, 2015**
                             San Francisco, California

Before: NOONAN and CLIFTON, Circuit Judges and ADELMAN,*** District
Judge.

       Petitioner Ilangovan Govindarajan petitions for review of the decision of the

Board of Immigration Appeals that he is removable because his convictions for six

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
counts of aggravated assault under Arizona Revised Statutes §§ 13-1203(A)(3) and

13-1204(A)(8)(e) were for crimes involving moral turpitude (“CIMTs”) under 8

U.S.C. § 1227(a)(2)(A)(i)–(ii). Because Govindarajan’s convictions are not

CIMTs, we grant the petition and remand.

      The BIA concluded that Govindarajan’s convictions were not categorically

CIMTs, and we agree. See Ceron v. Holder, 747 F.3d 773, 783 (9th Cir. 2014) (en

banc); Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1060-62 (9th Cir. 2006).

Applying the modified categorical approach, the BIA concluded that

Govindarajan’s convictions qualified as CIMTs. A conviction under A.R.S. § 13-

1203(A)(3) is not properly subject to review under the modified categorical

approach, however, because that subsection of the statute is not divisible. See

Rendon v. Holder, 764 F.3d 1077, 1084-88 (9th Cir. 2014).

      Arizona law indicates that the intent predicates in § 13-1203(A)(3) constitute

only means of committing the crime of assault, not separate elements. Arizona

courts have held that “[i]n general, statutes that prohibit one act committed with

different mental states are construed as defining a single offense[;]” therefore, a

jury need not unanimously decide which subset mental state the defendant had

while committing the crime. State v. Valentini, 231 Ariz. 579, 582-83 (Ct. App.

2013), see State v. Herrera, 176 Ariz. 9, 16 (1993). That analysis applies to


                                           2
§ 13-1203(A)(3), which does not provide for separate offenses based on the level

of intent that has been proven. Because a jury need not agree as to which intent

predicate applies, the intent predicates are not elements, and § 13-1203(A)(3) is

therefore indivisible. Rendon, 764 F.3d at 1086-88. Accordingly, Govindarajan’s

convictions cannot be treated as CIMTs.

      We deny the government’s motion to remand Govindarajan’s case to the

BIA. The BIA already addressed the issue of whether or not Govindarajan’s

convictions were categorically CIMTs, concluding that they were not. See

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133-34 (9th Cir. 2006). The

determination of whether or not a state statute is divisible, warranting the

application of the modified categorical approach, is an issue involving the

interpretation of state law. The BIA has no expertise in interpreting state law, so

remand is not necessary. See Fernandez-Ruiz, 466 F.3d at 1133-34; Latu v.

Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008).1

      Petition GRANTED.




      1
        We also deny the government’s request for additional time to submit a
supplemental brief discussing Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014).
The government was ordered to file such a brief and elected instead to file its
motion to remand. We decline to provide a further opportunity.

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