Roberto Ortega-Mendez v. Alberto R. Gonzales, Attorney General

An Immigration Judge (IJ) determined that Roberto Ortega-Mendez’s 1998 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)®. As a result, the IJ declared Ortega-Mendez ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(l) as an alien who has “been convicted of an offense under section ... 1227(a)(2).” 8 U.S.C. § 1229b(b)(l)(C). Ortega-Mendez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the IJ’s decision.

For an offense to be a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227 (a)(2)(E)®, it must, inter alia, be a “crime of violence” within the meaning of 18 U.S.C. § 16 . See 8 U.S.C. § 1227 (a)(2)(E)®. We hold that battery under California Penal Code section 242 is not categorically a “crime of violence” within the meaning of 18 U.S.C. § 16 . The government does not contend that we should reach a different result regarding whether Ortega-Mendez’s 1998 offense is a “crime of violence” under the modified categorical approach. We therefore conclude that Ortega-Mendez’s 1998 offense is…