Galeana-Mendoza

As has been observed, “[t]ime has only confirmed Justice Jackson’s powerful dissent in the De George case, in which he called ‘moral turpitude’ an ‘undefined and undefinable standard.’ ” Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir.2004) (quoting Jordan v. De George, 341 U.S. 223, 235 , 71 S.Ct. 703 , 95 L.Ed. 886 (1951) (Jackson, J. dissenting)). Nevertheless, we are once more called upon to determine whether a particular state crime qualifies as one “involving moral turpitude” under the Immigration and Nationality Act. As did the Board of Immigration Appeals (“BIA”) in In re Sanudo, 23 I. & N. Dec. 968, 973 (2006), decided after submission of this petition for decision, we conclude that conviction for domestic battery under California Penal Code section 243(e) does not categorically qualify as a “crime involving moral turpitude.”

I.

Anicefaro Galeana-Mendoza, a native and citizen of Mexico, entered the United States without inspection on or around June 1, 1988. 1 Roughly eleven years later, California filed a single-count misdemean- or complaint against Galeana-Mendoza, alleging that on July 19, 1999, he committed the crime of battery by “willfully and unlawfully us[ing] force…

concurring.

I concur in Judge Berzon’s opinion, but write separately to note what we have not held. We hold, as did the Board of Immigration Appeals (“BIA”) in In re Sanudo, 23 I. & N. Dee. 968, that a violation of California Penal Code 243(e) is not inherently a “crime involving moral turpitude.” We are particularly influenced by the California court’s determinations that a conviction under this statute does not require either a showing of bodily harm or pain, or that the perpetrator intended to injure; he “only needs to intend to commit the act.” People v. Mansfield, 200 Cal.App.3d 82, 88 , 245 Cal.Rptr. 800 (1988).

We also conclude that a violation of California Penal Code 243(e) is not a “crime involving moral turpitude” under the categorical approach, and determine that, on this record, the government has not shown that the application of the modified categorical approach produces a different result. See Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990) (enunciating the categorical and modified categorical approaches), see also Tokatly v. Ashcroft, 371 F.3d 613, 620-24 (9th Cir.2004) (applying the categorical and modified categorical…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANICEFARO GALEANA-MENDOZA, 

Petitioner, No. 04-73100 v.  Agency No.

A77-125-684

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 October 6, 2006

Before: David R. Thompson, Marsha S. Berzon, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Callahan

17413 17416 GALEANA-MENDOZA v. GONZALES

COUNSEL

Alan Diamante, Law Office of Alan R. Diamante, Los Ange- les, California, for the petitioner.

Andrew C. Maclachlan (on the brief) and Margaret K. Taylor, U.S. Office Dept. of Justice, Civil Division, Office of Immi- gration Litigation, Washington, D.C., for the respondent.

OPINION

BERZON, Circuit Judge:

As has been observed, “[t]ime has only confirmed Justice Jackson’s powerful dissent in the De George case, in which he called ‘moral turpitude’ an ‘undefined and undefinable standard.’ ” Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir. 2004) (quoting Jordan…