Pedro Luis Cisneros-Perez v. Alberto R. Gonzales, Attorney General

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

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)…

dissenting:

I agree with the majority that this case does not concern whether Cisneros-Per-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 determine if…

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 1 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 . 2 With this order, Judges Thompson and Berzon vote to deny the petition for rehearing. Judge Callahan votes to grant the petition. The petition for…