Cisneros-Perez v. Gonzales

• Decision Date: 26 June 2006
• Docket Number: No. 04-71717.,04-71717.
• Citation: 465 F.3d 386
• Parties: Pedro Luis CISNEROS-PEREZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.3d 386

Pedro Luis CISNEROS-PEREZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-71717.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2006.

Filed June 26, 2006.

Amended October 4, 2006.

COPYRIGHT MATERIAL OMITTED

Martin Resendez Guajardo, San Francisco, CA, for the petitioner.

Alison R. Drucker, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

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

Before: DAVID R. THOMPSON, BERZON, and CALLAHAN, Circuit Judges.

ORDER

The opinion filed on June 26, 2006, and published at 451 F.3d 1053 (9th Cir.2006), is amended to delete the following sentence: "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." 451 F.3d at 1059-60.

With this order, Judges Thompson and Berzon vote to deny the petition for rehearing. Judge Callahan votes to grant the petition. The petition for rehearing is DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

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 ineligible 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 inspection. He later married Megali Garcia, a lawful permanent resident. 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 sections 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 probation, time served, which was thirty-eight days in jail, and fifty-two weeks of domestic violence counseling as well as substance abuse and parenting counseling. The Government began removal proceedings against him. Cisneros-Perez conceded removability but applied for cancellation of removal.⁵

The IJ held a hearing regarding Cisneros-Perez's application for cancellation of removal. At the hearing, the IJ considered whether Cisneros-Perez's conviction was a "crime of domestic violence,"⁶ rendering him ineligible for cancellation 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 misdemeanor 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 defendant'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 committing 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 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 summarily 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 turpitude. As the petty offense exception applies only to crimes of moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(ii),⁸ it is not relevant 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

Under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. 2143). 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 qualifies as a crime of domestic violence. See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002); see also Penuliar v. Gonzales, 435 F.3d 961, 966 (9th Cir.2006).

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 violence 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).

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 conviction 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 therefore 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

Because Cisneros-Perez's conviction does not categorically qualify as a crime of domestic violence, we consider whether to examine his conviction under the "modified" categorical approach and, if so, whether the government has established under that approach that Cisneros-Perez committed a crime of domestic violence. Under the "modified" categorical approach, when the petitioner has pleaded guilty or no contest, "the sentencing court may consider the charging documents 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, 544 U.S. 13, 125 S.Ct. 1254, 1261, 161 L.Ed.2d 205 (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 sufficient," but may be considered in...