Cisneros-Perez

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)(l). 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)® and that he was therefore ineligible for cancellation of removal *1055 under § 1229b(b)(l)(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…

dissenting.

I agree with the majority that this case does not concern whether Cisneros-Per- *1061 ez’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 conviction constitutes a crime of domestic violence we use the categorical and modified categorical approach set forth in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (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 “necessarily” rested on the facts identifying the crime of conviction as generic. Shepard v. United States, 544 U.S. 13, 21 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005) (citing Taylor, 495 U.S. at 602 , 110 S.Ct. 2143 ); see also Martinez-Perez v. Gonzales, 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 categorical approach is to…

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…