Cisneros-Perez v. Gonzales , 451 F.3d 1053 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO LUIS CISNEROS-PEREZ, 
Petitioner, No. 04-71717
v.
 Agency No.
A79-369-978
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 6, 2006—San Francisco, California
Filed June 26, 2006
Before: David R. Thompson, Marsha S. Berzon, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Callahan
7063
CISNEROS-PEREZ v. GONZALES 7067
COUNSEL
Martin Resendez Guajardo, San Francisco, California, for the
petitioner.
Alison R. Drucker, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
OPINION
BERZON, Circuit Judge:
Pedro Luis Cisneros-Perez, a native and citizen of Mexico,
petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming a decision of an Immigration Judge
(IJ) finding that he was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(b)(1). The IJ determined, under the
“modified” categorical approach, that Cisneros-Perez’s 2001
conviction for battery under California Penal Code section
242 was a “crime of domestic violence” within the meaning
of 8 U.S.C. § 1227(a)(2)(E)(i) and that he was therefore ineli-
gible for cancellation of removal under § 1229b(b)(1)(C). We
hold that there is insufficient documentation to establish that
Cisneros-Perez’s prior conviction necessarily was a crime of
domestic violence. We therefore grant his petition for review
and remand to the agency for further proceedings.
I. Background
Cisneros-Perez entered the United States without inspec-
7068 CISNEROS-PEREZ v. GONZALES
tion. He later married Megali Garcia, a lawful permanent resi-
dent. The couple has two U.S. citizen children. In 2001, a
complaint was filed against Cisneros-Perez, accusing him of,
among other crimes,1 violations of California Penal Code sec-
tions 243(e)(1)2 and 273.5(a).3 Cisneros-Perez pleaded no
contest to simple battery under California Penal Code section
242.4 The three counts with which he was originally charged
were dismissed. He was sentenced to thirty-six months proba-
tion, time served, which was thirty-eight days in jail, and
1
Cisneros-Perez was also charged with violating California Penal Code
section 591, which prohibits, in effect, tampering with telephone lines.
2
California Penal Code section 243(e)(1) provides:
When a battery is committed against a spouse, a person with
whom the defendant is cohabiting, a person who is the parent of
the defendant’s child, former spouse, fiance, or fiancee, or a per-
son with whom the defendant currently has, or has previously
had, a dating or engagement relationship, the battery is punish-
able by a fine not exceeding two thousand dollars ($2,000), or by
imprisonment in a county jail for a period of not more than one
year, or by both that fine and imprisonment. If probation is
granted, or the execution or imposition of the sentence is sus-
pended, it shall be a condition thereof that the defendant partici-
pate in, for no less than one year, and successfully complete, a
batterer’s treatment program, as defined in Section 1203.097, or
if none is available, another appropriate counseling program des-
ignated by the court. However, this provision shall not be con-
strued as requiring a city, a county, or a city and county to
provide a new program or higher level of service as contemplated
by Section 6 of Article XIII B of the California Constitution.
3
California Penal Code section 273.5(a) provides:
Any person who willfully inflicts upon a person who is his or her
spouse, former spouse, cohabitant, former cohabitant, or the
mother or father of his or her child, corporal injury resulting in
a traumatic condition, is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one
year, or by a fine of up to six thousand dollars ($6,000) or by
both that fine and imprisonment.
4
California Penal Code section 242 provides: “A battery is any willful
and unlawful use of force or violence upon the person of another.”
CISNEROS-PEREZ v. GONZALES 7069
fifty-two weeks of domestic violence counseling as well as
substance abuse and parenting counseling. The Government
began removal proceedings against him. Cisneros-Perez con-
ceded removability but applied for cancellation of removal.5
The IJ held a hearing regarding Cisneros-Perez’s applica-
tion for cancellation of removal. At the hearing, the IJ consid-
ered whether Cisneros-Perez’s conviction was a “crime of
domestic violence,”6 rendering him ineligible for cancellation
5
A removable alien can apply for cancellation of removal under 8
U.S.C. § 1229b (Immigration and Nationality Act section 240A):
The Attorney General may cancel removal of, and adjust to the
status of an alien lawfully admitted for permanent residence, an
alien who is inadmissible or deportable from the United States if
the alien—(A) has been physically present in the United States
for a continuous period of not less than 10 years immediately pre-
ceding the date of such application; (B) has been a person of
good moral character during such period; (C) has not been con-
victed of an offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to paragraph (5); and (D) estab-
lishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for per-
manent residence.
8 U.S.C. § 1229b(b)(1) (providing the procedure for nonpermanent resi-
dents).
6
8 U.S.C. § 1227(a)(2)(E)(i) renders deportable:
Any alien who at any time after admission is convicted of a crime
of domestic violence, a crime of stalking, or a crime of child
abuse, child neglect, or child abandonment is deportable. For pur-
poses of this clause, the term “crime of domestic violence” means
any crime of violence (as defined in section 16 of Title 18)
against a person committed by a current or former spouse of the
person, by an individual with whom the person shares a child in
common, by an individual who is cohabiting with or has cohab-
ited with the person as a spouse, by an individual similarly situ-
ated to a spouse of the person under the domestic or family
violence laws of the jurisdiction where the offense occurs, or by
any other individual against a person who is protected from that
individual’s acts under the domestic or family violence laws of
the United States or any State, Indian tribal government, or unit
of local government.
7070 CISNEROS-PEREZ v. GONZALES
of removal under 8 U.S.C. § 1229b(b)(1)(C). In support of
finding that Cisneros-Perez’s conviction was a crime of
domestic violence, the government submitted the criminal
complaint and the misdemeanor docket sheet (the “judgment
record”). The complaint accuses Cisneros-Perez of misdemea-
nor domestic violence against his wife, Megali Garcia. Count
I alleges that Cisneros-Perez, “on or about the 20th day of
July, 2001,” violated section 273.5(a) of the California Penal
Code by “willfully and unlawfully inflict[ing] a corporal
injury resulting in a traumatic condition upon MAGALI
GARCIA who was then and there the spouse/cohabitant of
said defendant.” Count II alleges that Cisneros-Perez, “on or
about the 20th day of July, 2001,” violated section 243(e)(1)
of the California Penal Code by
wilfully and unlawfully us[ing] force and violence
upon MAGALI GARCIA who was a spouse of said
defendant, a person with whom the defendant is
cohabitating, a person who is the parent of the defen-
dant’s child, a non-cohabitating former spouse,
fiance, fiancee, and person with whom the defendant
has, or has had, a dating relationship.
Count III alleges that Cisneros-Perez, “on or about the 20th
day of July, 2001,” violated section 591 of the California
Penal Code by “wilfully, unlawfully and maliciously tak[ing]
down, remov[ing], injur[ing], obstruct[ing] and/or sever[ing]
a telephone cord, line, appurtenance or apparatus.”
The judgment record states that Cisneros-Perez pleaded no
contest under California Penal Code section 242 to commit-
ting simple battery, and charges for violations of sections
243(e)(1), 273.5(a), and 591 were dismissed. The judgment
record also notes that Cisneros-Perez was ordered to enroll in
fifty-two weeks of domestic violence counseling and to stay
away from Megali Garcia.
CISNEROS-PEREZ v. GONZALES 7071
Cisneros-Perez argued to the IJ that simple battery was not
a “crime of moral turpitude” under § 1182(a)(2)(A)(i).7 The IJ
responded that the issue was not whether a simple battery is
a crime of moral turpitude, but rather “whether or not the
crime is a crime of domestic violence within the meaning of
Section 237(a)(2)(E)(i) [8 U.S.C. § 1227(a)(2)(E)(i)].” The IJ
determined Cisneros-Perez had been convicted of a crime of
domestic violence and found him ineligible for cancellation of
removal. Cisneros-Perez appealed to the BIA, which summa-
rily affirmed without opinion the decision of the IJ.
Cisneros-Perez petitions for review on the grounds that his
conviction for simple battery does not render him ineligible
for cancellation of removal because it is not a crime of moral
turpitude, it is a petty offense, and the IJ improperly looked
behind Cisneros-Perez’s conviction to determine that it was a
crime of domestic violence.
II. Crime of Moral Turpitude
Cisneros-Perez first argues that simple battery is not a
crime of moral turpitude. The IJ determined, however, that
Cisneros-Perez was ineligible for cancellation of removal
because of a conviction falling under § 1227(a)(2) as a crime
of domestic violence, not because of a conviction falling
under § 1182(a)(2)(A)(i) as a crime of moral turpitude. The IJ
explicitly determined that it was the nature of the conviction
as one of domestic violence, not moral turpitude, that rendered
Cisneros-Perez ineligible for cancellation of removal. It is,
therefore, simply not relevant at this juncture whether
Cisneros-Perez’s conviction was for a crime of moral turpi-
tude. As the petty offense exception applies only to crimes of
7
8 U.S.C. § 1182(a)(2)(A)(i) generally renders inadmissible: “any alien
convicted of, or who admits having committed, or who admits committing
acts which constitute the essential elements of—(I) a crime involving
moral turpitude (other than a purely political offense) or an attempt or con-
spiracy to commit such a crime.”
7072 CISNEROS-PEREZ v. GONZALES
moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(ii),8 it is not rele-
vant either.
III. Crime of Domestic Violence
Cisneros-Perez next argues that his conviction for simple
battery does not qualify as a crime of domestic violence under
either the categorical or modified categorical approaches.
A. Categorical Approach
[1] Under Taylor v. United States, 495 U.S. 575 (1990), to
determine whether a conviction qualifies as a particular type
of crime, “federal courts do not examine the facts underlying
the prior offense, but ‘look only to the fact of conviction and
the statutory definition of the prior offense.’ ” United States
v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en
banc) (quoting Taylor, 495 U.S. at 602). If the full range of
conduct covered by the statute of conviction (here, battery)
falls within the meaning of the term in the immigration laws
(here, domestic violence), then the offense categorically qual-
ifies as a crime of domestic violence. See Chang v. INS, 307
F.3d 1185, 1189 (9th Cir. 2002); see also Penuliar v. Gon-
zales, 435 F.3d 961, 966 (9th Cir. 2006).
[2] Battery is defined as “any willful and unlawful use of
force or violence upon the person of another.” CAL. PENAL
CODE § 242. A “crime of domestic violence” is a crime of vio-
8
8 U.S.C. § 1182(a)(2)(A)(ii) provides:
Clause (i)(I) shall not apply to an alien who committed only one
crime if— . . . (II) the maximum penalty possible for the crime
of which the alien was convicted (or which the alien admits hav-
ing committed or of which the acts that the alien admits having
committed constituted the essential elements) did not exceed
imprisonment for one year and, if the alien was convicted of such
crime, the alien was not sentenced to a term of imprisonment in
excess of 6 months (regardless of the extent to which the sen-
tence was ultimately executed).
CISNEROS-PEREZ v. GONZALES 7073
lence committed against a protected person, such as a spouse.
8 U.S.C. § 1227(a)(2)(E)(i). A “crime of violence” is defined
by reference to 18 U.S.C. § 16. See 8 U.S.C. § 1227(a)(2)
(E)(i).
[3] Cisneros-Perez does not argue that battery is not a crime
of violence, under 18 U.S.C. § 16. He has therefore waived
that argument. Battery can, however, include both domestic
violence and violence against strangers. The statute of convic-
tion here therefore criminalizes conduct that falls within the
definition of domestic activity as well as conduct that does
not. Battery under California Penal Code section 242 is there-
fore not categorically a crime of domestic violence. Whether
it is a crime of violence, either categorically or by use of a
modified categorical approach, is something we need not and
do not decide here.
B. Modified Categorical Approach
[4] Because Cisneros-Perez’s conviction does not categori-
cally qualify as a crime of domestic violence, we consider
whether to examine his conviction under the “modified” cate-
gorical approach and, if so, whether the government has
established under that approach that Cisneros-Perez commit-
ted a crime of domestic violence. Under the “modified” cate-
gorical approach, when the petitioner has pleaded guilty or no
contest, “the sentencing court may consider the charging doc-
uments in conjunction with a plea agreement, the transcript of
the plea proceeding, or the judgment to determine whether the
defendant pled guilty to the elements of the generic crime.”
Corona-Sanchez, 291 F.3d at 1211; see also Shepard v.
United States, 125 S. Ct. 1254, 1261 (2005) (“[R]espect for
congressional intent and avoidance of collateral trials require
that evidence of generic conviction be confined to records of
the convicting court approaching the certainty of the record of
conviction . . . .”). “Charging papers alone are never suffi-
cient,” but may be considered in conjunction with other docu-
ments. Corona-Sanchez, 291 F.3d at 1211.
7074 CISNEROS-PEREZ v. GONZALES
We have, in the past, expressed skepticism about the scope
of the modified categorical approach and whether, for certain
prior offenses the inquiry should end if there is no categorical
match. See United States v. Parker, 5 F.3d 1322, 1326 (9th
Cir. 1993). After Parker, however, we unequivocally
endorsed application of the modified categorical approach for
ascertaining whether a prior conviction constituted a crime of
domestic violence. See Tokatly v. Ashcroft, 371 F.3d 613, 623
(9th Cir. 2004) (“[B]oth the BIA and this court must analyze
the ‘domestic’ requirement of the conviction in the same man-
ner as the rest of the offense—namely, by applying the cate-
gorical and modified categorical approach.”). We must
therefore look to the conviction record to determine whether
Cisneros-Perez’s conviction for simple battery qualifies as a
crime of domestic violence.
The government relies upon United States v. Belless, 338
F.3d 1063, 1065-67 (9th Cir. 2003), as support for the oppo-
site conclusion. The issue in Belless was whether to employ
the modified categorical approach in a subsequent criminal
prosecution for possession of a firearm by one who has a prior
conviction for domestic violence. Although Tokatly does not
cite Belless, we are required to reconcile prior precedents if
we can do so. See Waits v. Frito-Lay, Inc., 978 F.2d 1093,
1108 (9th Cir. 1992); see also United States v. Lewis, 349
F.3d 1116, 1121 n.5 (9th Cir. 2003).
[5] Here, the contexts of the two decisions involve different
statutory provisions, as to which the pertinent considerations
are quite different: In Belless, the government was required to
prove a second, distinct crime in the second prosecution. We
concluded that the “domestic” aspect of a prior domestic vio-
lence conviction can be proven as an element of the second
crime whether or not established by the conviction documents
in the prior proceeding. Tokatly, on the other hand, involved
the application of the modified categorical approach in an
immigration case, such as this one, in which the inquiry is
confined only to determining the nature of the prior crime. As
CISNEROS-PEREZ v. GONZALES 7075
Tokatly indicated, citing statutory language in the immigration
statutes, “when Congress wants to make conduct the basis for
removal [rather than ‘conviction’] it does so specifically.”
Tokatly, 371 F.3d at 622.
[6] We conclude that Belless does not apply in the immi-
gration context. Instead, the clear and direct holding of
Tokatly—that the modified categorical approach applies to
prior crimes of domestic violence in the immigration context
—is controlling.
[7] Under the modified categorical approach, the IJ could
look only to the record of conviction to determine whether
Cisneros-Perez’s prior conviction was for a crime of domestic
violence, not to the underlying facts. Id. at 615 The record of
conviction in this case was insufficient so to determine.
The only documents of conviction in the administrative
record are the complaint and the judgment record. The com-
plaint accuses Cisneros-Perez of violations of sections
243(e)(1) and 273.5(a) against Megali Garcia. The judgment
record states that Cisneros-Perez pleaded no contest to simple
battery under California Penal Code section 242 and that the
charges under sections 243(e)(1), 273.5(a) and 591 were dis-
missed.
[8] An inference can perhaps be made that the battery to
which Cisneros-Perez pleaded no contest involved Megali
Garcia, alleged in the complaint to be his spouse, cohabitant,
fiancee, former spouse, coparent, or person with whom he has
or had a dating relationship. He was, after all, charged with
violence against Megali Garcia under sections 243(e)(1) and
273.5(a). Subsequently, he pleaded no contest to battery on an
unnamed person; he was sentenced to domestic violence
counseling; and there is an order to stay away from Megali
Garcia.
[9] Inferences, however, are insufficient under the modified
categorical approach. Shepard, which affirmed and clarified
7076 CISNEROS-PEREZ v. GONZALES
Taylor, stated that the documents that a court could look to
under the modified categorical approach are documents from
which “a later court could generally tell whether the plea had
‘necessarily’ rested on the fact identifying” the crime of con-
viction as the generically defined crime. 125 S. Ct. at 1260(emphasis added) (citing Taylor, 495 U.S. at 602); see also
Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 (9th Cir.
2005) (quoting Shepard); Corona-Sanchez, 291 F.3d at 1211(noting that the record must “unequivocally establish[ ] that
the defendant was convicted of the generically defined
crime”). Martinez-Perez stated that the court could not
determine whether Martinez necessarily pled guilty
to all of the elements of a theft offense as generically
defined. Martinez pled guilty to an offense different
from the one charged in the information. The infor-
mation therefore is not the sort of “generically lim-
ited charging document” indicating that the plea
necessarily rested on the fact identifying the burglary
as a generic theft offense.
Martinez-Perez, 417 F.3d at 1029.
[10] The same is true here. The judgment record does not
establish that Cisneros-Perez necessarily pleaded no contest to
the allegations in the original complaint. That record estab-
lished neither the name of the victim of the simple battery nor
the relationship of that person to Cisneros-Perez. Instead, the
originally charged crimes were dismissed and replaced by a
lesser crime. It is not stated in any of the cognizable docu-
ments that the conviction for violating section 242 stems from
the same incident as the charges in the criminal complaint.
Where, as here, there are statutes directly addressing domestic
violence, such as California Penal Code sections 243(e)(1)
and 273.5, only the most convincing proof of the nature of a
conviction for a more general crime will suffice to establish
a crime of domestic violence. We therefore may not rely on
the complaint for the conclusion that the crime of which
CISNEROS-PEREZ v. GONZALES 7077
Cisneros-Perez was convicted was battery of a person with
the requisite domestic relationship to Cisneros-Perez.
[11] The fact that the administrative record contains an
admission that Megali Garcia is Cisneros-Perez’s wife does
not supply the missing element either. The IJ was not entitled
to go beyond the conviction record for purposes of ascertain-
ing the crime of which Cisneros-Perez was convicted. We
once again “decline to modify this court’s—and the Board’s
—strict rules against extra-record of conviction evidence in
order to authorize use of an alien’s admissions in determin-
ing” whether he has been convicted of a crime of domestic
violence. Tokatly, 371 F.3d at 623.
[12] The government argues, finally, that the nature of the
sentence, which includes domestic violence counseling and a
stay-away order regarding Megali Garcia, supplies the miss-
ing domestic element. Although California mandates domes-
tic violence counseling for those convicted of domestic
battery who are sentenced to probation, it does not forbid
domestic violence counseling for those convicted of other
crimes. See CAL. PENAL CODE § 1203.097(a) (“If a person is
granted probation for a crime in which the victim is a person
defined in Section 6211 of the Family Code, the terms of pro-
bation shall include all of the following: . . . (6) Successful
completion of a batterer’s program . . . .”). California law, like
federal law, lodges broad discretion in sentencing judges with
regard to probation conditions and does not require that the
conditions be directly connected to the crime of conviction.9
See People v. Carbajal, 10 Cal. 4th 1114, 1120 (1995) (“The
sentencing court has broad discretion [under state law] to
determine whether an eligible defendant is suitable for proba-
tion and, if so, under what conditions.”); see also Burns v.
9
Supporting the conclusion that Cisneros-Perez did not necessarily com-
mit a crime of domestic violence simply because he was sentenced to
domestic violence counseling is the fact that he was also sentenced to sub-
stance abuse counseling.
7078 CISNEROS-PEREZ v. GONZALES
United States, 287 U.S. 216 (1932) (describing discretion
under federal law); United States v. Koenig, 813 F.2d 1044,
1047 (9th Cir 1987) (same). The two aspects of the judgment
that concern Cisneros-Perez’s domestic situation therefore do
not supply the missing data concerning the nature of the con-
viction.
In sum, there was not sufficient documentation before the
IJ to permit the conclusion that Cisneros-Perez’s conviction
was necessarily for a crime of domestic violence.
IV. Conclusion
[13] The IJ improperly determined that Cisneros-Perez’s
prior conviction for simple battery qualifies as a crime of
domestic violence such as to render him ineligible for cancel-
lation of removal. We hold that there was insufficient docu-
mentation in the cognizable documents for such a finding.
Because the agency did not determine whether Cisneros-Perez
was otherwise eligible for cancellation of removal, we remand
to the BIA for it to determine whether Cisneros-Perez is eligi-
ble for cancellation of removal and, if so, to exercise its dis-
cretion to determine whether to grant the requested relief. See
INS v. Ventura, 537 U.S. 12 (2002).
PETITION FOR REVIEW GRANTED; REMANDED.
CALLAHAN, Circuit Judge, dissenting:
I agree with the majority that this case does not concern
whether Cisneros-Perez’s conviction was a crime of moral
turpitude, and that he has waived the argument that battery is
not a crime of violence. I also agree with my colleagues that
in order to determine whether Cisneros-Perez’s prior convic-
tion constitutes a crime of domestic violence we use the cate-
gorical and modified categorical approach set forth in Taylor
CISNEROS-PEREZ v. GONZALES 7079
v. United States, 495 U.S. 575 (1990). See Tokatly v. Ashcroft,
371 F.3d 613, 623 (9th Cir. 2004).
We are also in accord that the limited documents that may
be considered under the modified categorical approach must
allow a reviewing court to determine that the plea “necessari-
ly” rested on the facts identifying the crime of conviction as
generic. Shepard v. United States, 544 U.S. 13, 21 (2005) (cit-
ing Taylor, 495 U.S. at 602); see also Martinez-Perez v. Gon-
zales, 417 F.3d 1022, 1028 (reiterating our statement in
United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th
Cir. 2002) (en banc)), that “[t]he idea of the modified categor-
ical approach is to determine if the record unequivocally
establishes that the defendant was convicted of the generically
defined crime, even if the statute defining the crime is overly
inclusive”).
In this case, the fact that must be obvious from the record
is that Cisneros-Perez’s conviction was for the battery of
Megali Garcia, who was his wife when he committed the bat-
tery. The first two counts of the complaint accused Cisneros-
Perez of violating California Penal Code §§ 273.5(a) and
243(e)(1) by inflicting corporal punishment upon, and using
force and violence upon, Megali Garcia, his wife. No other
individual was identified as the victim of any of the charges
against Cisneros-Perez. Cisneros-Perez then pled guilty to a
violation of simple battery under California Penal Code § 242.
While §§ 243(e)(1) and 273.5(a) require that the victim be a
spouse or cohabitant of the perpetrator, § 242 does not require
that the victim have any relationship to the perpetrator. Sec-
tion 242, however, does require “willful and unlawful use of
force or violence upon the person of another.” Where, as here,
a defendant has pled guilty to what is in essence a lesser
included offense1 and there is absolutely nothing that suggests
1
The difference between simple battery under California Penal Code
§ 242 and spousal battery under California Penal Code § 243(e)(1) is that
the latter requires the additional showing that the battery was committed
against a spouse or similar person. Compare Cal. Penal Code § 242 with
§ 243(e)(1).
7080 CISNEROS-PEREZ v. GONZALES
that the victim of the criminal behavior was not the single vic-
tim identified in the charging document, I would find that the
record “necessarily” identified Megali Garcia as the victim of
Cisneros-Perez’s battery and hence established beyond a rea-
sonable doubt that his conviction was for a crime of domestic
violence.
Even if the charges and the no contest plea to a lesser
included offense were not sufficient in themselves to show the
domestic nature of Cisneros-Perez’s conviction, any remote
possibility of a different victim is shut out by a review of the
state court’s docket sheet which shows, first, that Cisneros-
Perez was initially ordered to stay away from Megali Garcia,
and second, that he was ordered to undertake domestic vio-
lence counseling as part of his sentence.
The majority’s contrary conclusion strays from the origins
of the Supreme Court’s limitation on the documents that may
be considered under the modified categorical approach. In
Shepard, the Supreme Court explained:
Taylor is clear that any enquiry beyond statute and
charging document must be narrowly restricted to
implement the object of the statute and avoid eviden-
tiary disputes. In the case before it, the court drew
the line after allowing courts to review documents
showing “that the jury necessarily had to find an
entry of a building to convict.”
544 U.S. at 23 n.4 (quoting Taylor, 495 U.S. at 602). Simi-
larly, in this case, the pertinent documents show that there
necessarily had to be a victim to Cisneros-Perez’s battery and
that the victim was Cisneros-Perez’s wife, Megeli Garcia.
There is no evidentiary dispute because Megali Garcia was
the only person identified in the documents as the possible
victim of Cisneros-Perez’s battery.
CISNEROS-PEREZ v. GONZALES 7081
The majority notes that statutes such as California Penal
Code §§ 243(e)(1) and 273.5 directly address domestic vio-
lence. This is true. Nonetheless, as the majority seems to con-
cede, a conviction under § 242, which does not require the
state to prove the victim’s relationship to the perpetrator,
remains a crime of domestic violence under 8 U.S.C.
§ 1227(a)(2)(E)(i) when, as is the case here, the victim was
the perpetrator’s wife.2
Finally, any conceivable doubt that the victim of Cisneros-
Perez’s battery was his wife, Megali Garcia, was quashed by
Cisneros-Perez’s representations to the IJ, both in writing and
orally, that Megali Garcia was his wife. Cisneros-Perez’s
application for cancellation of removal alleges that his
removal would result in exceptional and extremely unusual
hardship to his wife and child. It states that he married Megali
Garcia on February 23, 2001. Cisneros-Perez supported his
representation with a copy of a license and certificate of mar-
riage issued by the City and County of San Francisco, stating
that Pedro Cisneros-Perez and Megali Garcia were married on
February 23, 2001. The criminal complaint against Cisneros-
Perez charges him with domestic violence against Megali
Garcia in July 2001.
I recognize that there is language in Tokatly, which pur-
ports to prohibit the IJ from looking at evidence outside the
record of the state court conviction. 371 F.3d at 619-24. Our
opinion expressed concern that a crime should not be divided
into segments, requiring “one part to be proven by the record
of conviction and the other by evidence adduced at the admin-
istrative hearing.” Id. at 622. We also approved the BIA’s
concern that if it “were to make an exception here and accept
the respondent’s testimony as proof of his deportability under
[the removal provision], there would be no clear stopping
2
Pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), once it is determined that the
offense is a “crime of violence,” as defined by 18 U.S.C. § 16, it is also
a “crime of domestic violence” if it was committed against a spouse.
7082 CISNEROS-PEREZ v. GONZALES
point where this Board could limit the scope of seemingly dis-
positive but extrinsic evidence bearing on the respondent’s
deportability.” Id. at 624 (quoting In re Pichardo, 21 I. & N.
Dec. 330, 335-36 (BIA 1996)).
This case, however, presents a clear stopping point: where
the alien’s request for relief is premised on his factual asser-
tion of a relationship that renders his state conviction a crime
of domestic violence.3 As noted, Cisneros-Perez’s request for
relief asserted that Megali Garcia was, and is, his wife. If we
do not recognize such an exception, we drift toward creating
legal determinations that are divorced from reality. Therefore,
I do not agree with the majority’s holding that because the
transcript from the plea proceeding does not specifically name
the victim of Cisneros-Perez’s battery, the BIA cannot find
that the victim was his wife.
For the foregoing reasons, I respectfully dissent from the
majority’s determination that the BIA erred in concluding that
Cisneros-Perez’s 2001 conviction was for a crime of domestic
violence.
3
Tokatly presented a very different factual situation. At the initial hear-
ing before the IJ in 1999, Tokatly contested removability under the “crime
of domestic violence” provision on the ground that the evidence in the
record did not establish that the crime was “domestic.” 371 F.3d at 616.
Over his counsel’s objection, the IJ allowed the government to present tes-
timony of the crime victim as to the nature of her prior relationship with
Tokatly. Id. Testimony was also admitted at a second hearing, and the IJ
extracted a purported waiver of the lack of a showing that the prior crime
was domestic. Id. at 617. On appeal, we first noted that Tokatly was only
seeking review of the first ruling, id. at 618, and then held that counsel’s
purported concession had no binding effect. Id. at 619.