*1 386
Finally, Kesser faults the court
appeal
not exercise
peremptory
challenge “on
failing
the district court for
to conduct
account of’
racially-based
race or
assump-
comparative juror analysis,
argues
qualifications
tions
serve, Batson,
about
that either we or the district court should
86,
at
1712, or,
U.S.
106 S.Ct.
put
However,
so.
he did
press
do
a com- differently, that he would have exercised
parative analysis at trial
developed
no
challenge
even without
non-racially
support
factual basis to
one.
neutral
Therefore,
reason.
I
say
cannot
2254(e)(2).
quite
This is
from
different
that the California Court of Appeal’s appli-
Miller-El,
Supreme
where the
Court en-
cation of mixed-motive principles resulted
comparative analysis
dorsed
on
based
tes-
to,
in a
contrary
decision
or unreasonably
timony, arguments, and findings, 537 applying, federal law as
determined
331-34,
1029,
Burks,
123 S.Ct.
Supreme Court of the United States.
where “the Batson issue
clearly
Accordingly, I
affirm.
would
fought along
comparative lines
the trial
court,”
record comparing for challenged jurors to jurors,
unchallenged I say cannot
Kesser has adduced clear and convincing
evidence that the challenge was purpose-
fully discriminatory. Nor do I believe we
should comparative conduct a analysis de novo. Pedro Luis CISNEROS- PEREZ, Petitioner,
V sum, In v. as a federal habeas court our review of the California Appeal Court of GONZALES, Alberto R. Attorney determination upholding a peremptory General, Respondent. challenge that was based on prose- mixed No. 04-71717. cutorial motives is limited to whether it to, was contrary anor appli- unreasonable United States Court Appeals, of, cation federal law as articulated Ninth Circuit. Supreme United States Court. The Court has never addressed mixed motives Argued April Submitted 2006. context, Batson so the California court’s Filed June 2006. decision proceed past step two of the Batson analysis to determine Amended Oct. whether the prosecutor’s race-neutral reasons were
pretextual is not contrary to clearly estab-
lished federal law. It not necessary
tous embrace the specifics of the approach as correct— n
the California employed court I
and would hold, not—in order to Ias
would, that its decision objec- an
tively application unreasonable of Batson.
It follows from finding that rea- non-racial
sons were the primary motivation for
striking Rindels prosecutor did *2 Guajardo,
Martin Resendez San Fran- OPINION cisco, CA, petitioner. for the BERZON, Judge: Circuit Drucker, R. Alison Office of Immigra- Cisneros-Perez, Pedro Luis a native and Division, tion Litigation, Civil Depart- Mexico, citizen of petitions for review of a Justice, ment of Washington, D.C., for the *3 decision of the Board Immigration of Ap- respondent. (BIA) peals affirming a decision of an Im- (IJ)
migration Judge finding that he was ineligible for cancellation of removal under 1229b(b)(l). § The IJ deter- mined, under the “modified” Before: THOMPSON, DAVID R. approach, that Cisneros-Perez’s 2001 con- BERZON, CALLAHAN, and Circuit battery viction for under California Penal Judges. Code section 242 was a “crime of domestic
violence” within the meaning of 8 U.S.C. ORDER 1227(a)(2)(E)(i) and that he was there- fore ineligible for cancellation of removal opinion The 26, filed on June and 1229b(b)(l)(C). We hold that (9th published at 451 Cir.2006), F.3d 1053 there is insufficient documentation to es- is to amended delete the following sen- tablish that Cisneros-Perez’s prior convic- ‘Where, here, tence: as there are statutes tion necessarily awas crime of domestic directly addressing violence, domestic violence. We grant therefore petition his 243(e)(1) California Penal Code sections for review and remand to agency for 273.5, only the proof most convincing further proceedings. of the nature of a conviction for a more general crime will suffice to a establish Background I. of domestic violence.” 451 F.3d at
1059-60. Cisneros-Perez entered the United order,
With this Judges Thompson and States without inspection. He later mar- Berzon vote deny petition for re- ried Megali Garcia, a lawful permanent hearing. Judge Callahan votes grant resident. couple The has two U.S. citizen petition. petition The for rehearing is In children. a complaint was filed DENIED. No petitions further against for re- Cisneros-Perez, accusing of, him hearing or for rehearing en banc may be among crimes,1 other of violations Califor- filed. nia 243(e)(1)2 Penal Code sections 1. charged had, Cisneros-Perez was also with vio- dating a engagement relationship, or lating California Code Penal section battery punishable is by a fine not ex- effect, which prohibits, tampering with ceeding two ($2,000), thousand dollars or telephone lines. by imprisonment county jail in a peri- for a year, od not more than one or both 243(e)(1) California Penal Code pro- section that fine and imprisonment. probation If vides: granted, or the imposition execution or When a against is committed suspended, the sentence is shall it be a spouse, person with whom the defendant condition partici- thereof the defendant is cohabiting, person parent in, who is the pate for year, less no than one child, spouse, defendant’s former fian- successfully complete, a batterer’s treat- ce, fiancee, or or a with program, whom ment as defined in Section has, currently defendant 1203.097, previously available, or if none is another the IJ consid- hearing, At the removal. no con- 273.5(a).3 pleaded conviction whether Pe- ered California battery under test violence,”6 ren- “crime of domestic counts three was 242.4 The section Code nal cancellation for ineligible him charged dering were originally was which he 1229b(b)(l)(C). thirty-six under 8 U.S.C. was sentenced removal He dismissed. served, that Cisneros-Per- finding which support time In probation, months fifty-two jail, a crime of days conviction thirty-eight ez’s counseling as violence, violence submitted weeks parenting abuse and the misdemeanor complaint as substance well criminal record”). re- began (the Government counseling. “judgment docket sheet Cisneros- against him. proceedings moval accuses complaint applied removability but conceded Perez misdemeanor of removal.5 cancellation alleges I Count wife, Garcia. Megali *4 day Cisneros-Perez, the 20th or about “on regarding Cisne- hearing held a The IJ 273.5(a) of 2001,” section July, violated of of for cancellation application ros-Perez’s (B) person a of has been application; such designated counseling program appropriate during period; good However, moral character provision shall this by the court. offense (C) of an has not been city, a a coun- requiring be construed 1227(a)(2), 1182(a)(2), or section under county provide a new city and ty, aor title, 1227(a)(3) subject paragraph this of con- service as higher level of program or (D) would (5); establishes removal and B of Article XIII by 6 of templated Section extremely unusual exceptional and in result Constitution. California the parent, or spouse, hardship to the alien’s 273.5(a) pro- Code section Penal California 3. child, States United of the is a who citizen vides: permanent lawfully admitted for alien or an upon a willfully inflicts who Any person residence. spouse, former or her 1229b(b)(l) proce- is his person (providing who the 8 U.S.C. cohabitant, cohabitant, or residents). former spouse, nonpermanent dure for child, her his or father of or the mother resulting a traumatic 1227(a)(2)(E)(i) deporta- in injury corporal renders U.S.C. 6.8 condition, felony, upon and guilty of a is ble: by im- punished shall be conviction thereof admission any time after Any alien who two, prison for the state in prisonment vio- crime of a is convicted jail three, county for a years, or in or four of lence, stalking, a crime or a crime of up by fine year, a of one or more than abuse, aban- neglect, child or child child ($6,000) by or both dollars thousand to six purposes of For deportable. is donment imprisonment. that fine and clause, domestic “crime of term this (as any of violence provides: means Code section violence” Penal California 4. 18) against a Title 16 of use of section unlawful in battery any willful and defined is "A by or former a current person of committed upon person anoth- or violence force with by an person, individual spouse of er.” com- a shares child person whom cohabiting cancella- for apply mon, can alien who A removable is by an individual (Im- § 1229b as a person under with the tion of removal has cohabited or with 240A): Nationality similarly section Act situated migration by spouse, an individual the domes- person under spouse of the to a may removal cancel Attorney General jurisdic- laws of family violence tic or of, of an alien to the status adjust occurs, any by or residence, where offense tion permanent lawfully for admitted is who person a individual other deportable or inadmissible is an alien who acts individual’s (A) protected from that if the States from United alien— family violence laws or States the United present physically been State, tribal Indian States or United than period not less a for continuous government. local or unit government, preceding the date immediately years the California Penal Code “willfully and moral turpitude, but rather “whether or unlawfully infliet[ing] corporal injury re- not the crime is a crime of domestic vio- sulting ain traumatic upon condition within MA- lence the meaning of Section 237(a)(2)(E)© GALI who GARCIA was then there [8 1227(a)(2)(E)©].” spouse/cohabitant of said defendant.” The IJ determined Count II alleges Cisneros-Perez, Cisneros-Perez had “on been convicted of a crime of day 2001,” about the 20th July, violence and violat- found him 243(e)(1) ineligible for ed cancellation section of the removal. California Penal appealed BIA, Code to the which summarily affirmed without opinion wilfully unlawfully us[ing] force and the decision of the IJ. upon MAGALI GARCIA who was a spouse defendant, of said a person petitions for review on with grounds whom the defendant cohabitat- his conviction for simple ing, person who does not parent is the render him ineligible child, cancellation of defendant’s removal non-cohabitating for- because it is not a crime of fiance, mer moral fiancee, turpitude, spouse, it is a petty offense, and the IJ has, whom the improperly defendant looked be- or has had, hind Cisneros-Perez’s dating conviction to deter- relationship. mine that it was a crime of domestic vio- Count alleges III that Cisneros-Perez, “on *5 lence. or about 2001,” the 20th day July, violat- ed section 591 of the California Penal Code II. Crime of Turpitude Moral by “wilfully, unlawfully and maliciously Cisneros-Perez first argues that simple tak[ing] down, removpng], injurpng], ob- battery is not a crime of turpitude. moral struct[ing] severpng] a telephone and/or determined, The IJ however, that Cisne- cord, line, appurtenance apparatus.” or ros-Perez was ineligible for cancellation of The judgment record states that removal because of a conviction un- falling pleaded Cisneros-Perez no contest under 1227(a)(2) § der as a crime of domestic California Penal Code section 242 to violence, not because a conviction falling committing simple battery, and charges 1182(a)(2)(A)® § under as a crime of mor- for violations 243(e)(1), sections al turpitude. explicitly The IJ determined 273.5(a), and 591 were dismissed. The that it was the nature of the conviction as judgment record also notes that Cisne- one violence, of domestic turpi- moral ros-Perez was to enroll fifty- ordered tude, that rendered Cisneros-Perez ineligi- two weeks of domestic violence counsel- ble for cancellation of is, removal. It ing and to stay away from Megali Gar- therefore, simply not junc- relevant at this cia. ture whether Cisneros-Perez’s conviction
Cisneros-Perez argued to the IJ that was for a crime of moral turpitude. As simple battery was a “crime of moral the petty exception offense applies only to turpitude” 1182(a)(2)(A)(i).7 under crimes of turpitude, moral IJ responded that the issue was not 1182(a)(2)(A)(ii),8it is not relevant ei- whether simple a battery is a crime of ther.
7. 8 § 1182(a)(2)(A)(i) U.S.C. generally (other pitude renders purely political offense) than a of, "any inadmissible: alien or who attempt or an or conspiracy to commit such a committed, admits having or who admits crime.” committing acts which constitute the essential (I) elements involving crime tur- 1182(a)(2)(A)(ii) moral of— U.S.C. provides: argue does not that bat- of Domestic Violence
III. Crime
violence,
tery is not a crime of
under 18
argues that his
next
§ 16. He has therefore waived
battery does not
conviction
Battery can, however, in-
argument.
that
of domestic violence
as
crime
qualify
clude
and violence
both domestic violence
or
categorical
modified
either
under
against strangers.
statute of convic-
approaches.
categorical
tion here therefore criminalizes conduct
the definition of domestic
falls within
activity
as
not.
as well
conduct
does
Categorical Approach
A.
Battery
sec-
under California Penal Code
States,
Taylor
Under
v. United
categorically
tion 242
therefore not
is
2143,
States v. Because Cisneros-Perez’s convic banc) (9th Cir.2002) (en (quoting Tay categorically qualify tion as a does not 2143). lor, If violence, 495 U.S. 110 S.Ct. consider we range covered under the full conduct whether to examine conviction and, (here, if battery) approach falls the “modified” of conviction statute so, whether has estab meaning of the term in the within approach lished that Cisneros- (here, violence), laws immigration *6 Perez a crime vio committed qualifies categorically the offense as then categorical lence. the Under “modified” Chang of domestic violence. See v. crime approach, petitioner pleaded when the (9th Cir.2002); INS, 1185, F.3d 1189 307 contest, sentencing “the court guilty or no Gonzales, Penuliar v. 435 F.3d see also in may charging the documents consider Cir.2006). (9th 961, 966 the
conjunction plea agreement, awith “any willful and Battery is defined as or the plea proceeding, of the transcript upon of the unlawful use force defen judgment determine whether the to PENAL of another.” CAL. CODE pled dant to the elements guilty is a § 242. A “crime of domestic violence” Corona-Sanchez, 291 generic crime.” pro- crime of violence committed 1211; also v. United Shepard F.3d see 8 person, spouse. States, 1254, 1261, such as a 13, tected 125 544 U.S. S.Ct. 1227(a)(2)(E)(i). (2005) A of “crime violence” for con (“[Rjespect 161 205 L.Ed.2d to 18 U.S.C. of collater gressional reference intent avoidance defined 1227(a)(2)(E)®. generic al require trials evidence See (i)(I) imprisonment year one apply to an did exceed Clause shall not alien who (II) only and, crime if—... the committed one alien was of such if the penalty possible maximum for the crime of crime, the alien not sentenced (or which the alien was convicted which the imprisonment 6 months in excess of term of having or which alien admits committed (regardless the sen- of the extent to which having acts that admits com- the the alien executed). ultimately tence was elements) the essential mitted constituted Belless, conviction be confined to records of the quite different: In government the convicting approaching certainty court required prove second, distinct ”). “Charg of the record of conviction.... in prosecution. crime the second We con- sufficient,” ing papers alone are never but cluded that aspect “domestic” of a may conjunction considered in with oth be prior domestic violence conviction can be Corona-Sanchez, er documents. 291 F.3d proven as an element of the second crime at 1211. whether or not established the convic- tion in prior documents proceeding. have, past, expressed
We in the skepti- hand, Tokatly, on the other involved the scope cism about the of the modified cate- application of the modified categorical ap- whether, gorical approach and for certain proach case, in an immigration such as this prior inquiry offenses the if should end one, in inquiry which the categorical only there is no is confined match. See United Parker, (9th determining v. the nature of the prior States 5 F.3d Cir.1993). Parker, however, Tokatly indicated, crime. As citing After we un- statu- equivocally tory language statutes, application immigration endorsed “when categorical approach Congress modified for ascer- wants to make conduct taining prior whether a the basis for conviction consti- removal than [rather ‘convic- tuted a domestic violence. it does so specifically.” tion’] See Tokatly, 371 (9th Ashcroft, v. Tokatly 371 F.3d F.3d at 622.
Cir.2004) (“[B]oth the BIA and this court analyze requirement must We ‘domestic’ conclude that Belless does not apply the conviction in immigration Instead, the same manner as context. rest of offense—namely, by applying clear and direct holding of Tokatly— the categorical categorical and modified that the modified categorical approach ap approach.”). We must plies therefore look to prior crimes domestic violence the conviction record to determine wheth- in the immigration context—is controlling. er Cisneros-Perez’s conviction for
battery qualifies as a crime of domestic Under the modified ap violence. proach, the IJ could look only to the rec ord of conviction to determine whether upon relies United conviction was for a Belless, States v. 338 F.3d 1065-67 violence, crime of domestic not to un (9th Cir.2003), support opposite for the derlying facts. Id. at 615 The record of *7 conclusion. The in issue Belless was wheth conviction in this case was insufficient so er to employ the categorical ap modified to determine. proach in a subsequent criminal prosecu tion for possession of a firearm one who only The documents of conviction in the prior has a conviction for domestic vio administrative record are the complaint lence. Although Tokatly does not cite Bel judgment and the record. complaint less, we are required to reconcile accuses Cisneros-Perez of violations of precedents if we can do so. See v. Waits 243(e)(1) 273.5(a) sections against Me- Inc., (9th Frito-Lay, 978 F.2d 1108 gali judgment Garcia. The record states Cir.1992); Lewis, see also United States v. that pleaded no contest to (9th Cir.2003). 349 F.3d 1121 n. 5 simple battery under California Penal
Here, the contexts of the two decisions Code section 242 and that charges the involve different statutory provisions, 273.5(a) 243(e)(1), as to under sections and 591 which pertinent the considerations are were dismissed.
393 contest to the necessarily pleaded no that Perez made perhaps be can An inference complaint. That original in the allegations which Cisneros-Perez battery the the name of the Garcia, neither record established Megali involved no contest pleaded battery nor the rela- the victim of spouse, to be complaint in the alleged tionship person of that Cisneros-Perez. copar- cohabitant, fiancee, spouse, former Instead, charged crimes originally the has or had whom he ent, person by a lesser all, replaced was, were dismissed after relationship. He dating the It is not stated crime. Megali Gar- violence charged with 273.5(a). that the conviction 243(e)(1) documents cognizable sections cia under 242 stems from violating section to for no contest pleaded he Subsequently, in the crimi- charges incident as the he was same person; an unnamed battery on may rely therefore complaint. nal We counseling; to domestic violence sentenced that the conclusion complaint for away from on stay an order to there is was crime of which Megali Garcia. with the was however, un Inferences, insufficient are relationship to Cisne- requisite domestic approach. modified der ros-Perez. Tay clarified which affirmed Shepard, record administrative The fact that a court lor, that the documents stated Megali Garcia an categori contains admission to under the modified could look supply wife does “a is Cisneros-Perez’s from which documents approach are cal The IJ was either. missing element tell whether generally could later court the conviction beyond go entitled to the fact not ‘necessarily’ on rested plea had ascertaining the purposes as the record conviction the crime of identifying” con- of which Cisneros-Perez 125 S.Ct. crime. defined generieally modify “decline to added) again once 495 victed. We (citing Taylor, (emphasis Board’s—strict rules 2143); this court’s—and 602, 110 also Mar see S.Ct. U.S. at conviction evidence Gonzales, against extra-record 417 F.3d v. tinez-Perez of an alien’s Cir.2005) use (9th in order authorize Shepard); (quoting determining” whether he (noting admissions Corona-Sanchez, at 1211 291 F.3d vio- crime of domestic convicted of a been estab “unequivocally must that the record at 623. Tokatly, F.3d convicted of lence. that the defendant ] lish! crime”). Mar defined generieally finally, argues, court could not that the stated tinez-Perez sentence, which the nature necessarily whether Martinez determine counseling and includes domestic aof all of the elements guilty to pled Megali Gar regarding order stay-away defined. generieally theft offense element. cia, missing domestic supplies an offense differ- guilty to pled Martinez vi mandates Although California informa- charged in the from the one ent those convicted counseling for olence is not therefore The information tion. are sentenced battery who *8 charging limited “generieally the sort vio not forbid domestic it does probation, plea nec- indicating that document” counseling for those lence identifying fact essarily rested on PENAL CODE CAL. other crimes. See offense. generic theft burglary as 1203.097(a)(“If granted pro person is Martinez-Perez, 417 at 1029. F.3d is a the victim a crime in which bation 6211 of the defined in Section judgment The true same is here. shall Code, probation Family the terms that Cisneros- does not establish record 394 (6) following: all of the ...
include Suc its discretion to determine whether of a completion pro cessful batterer’s grant requested relief. See INS v. ”). law, .... gram Ventura, California like federal 12, 353, 537 U.S. 123 S.Ct. 154 law, lodges sentencing (2002). broad discretion L.Ed.2d 272 judges regard probation with conditions PETITION FOR REVIEW GRANT- require and does not that the conditions ED; REMANDED. directly be connected to the crime of conv People
iction.9
v. Carbajal,
See
10
CALLAHAN,
Judge, dissenting:
Circuit
1114, 1120,
681,
Cal.Rptr.2d
Cal.4th
43
899
agree
I
majority
with the
(1995) (“The
that this case
sentencing
P.2d 67
court has
does not concern whether Cisneros-Per-
broad discretion
state
[under
law]
de
ez’s conviction was a crime of moral turpi-
termine
eligible
whether an
defendant is
tude, and that he has
argument
waived the
and,
so,
probation
suitable for
if
that battery is not a crime of violence.
I
conditions.”);
what
see also
v.
Burns
agree
my
also
States,
colleagues that in
216,
order
154,
United
287 U.S.
53 S.Ct.
(1932)
determine whether Cisneros-Perez’s
In there was not sufficient docu- We are also in accord that the limited mentation permit before the IJ to the con- may documents that be considered under clusion that Cisneros-Perez’s conviction the modified categorical approach must al necessarily for a reviewing low a court to determine that violence. plea “necessarily” rested on the facts identifying crime of ge conviction as
IV. Conclusion
States,
neric. Shepard v. United
544 U.S.
improperly
13, 21,
IJ
determined that
1254,
125 S.Ct.
9. Supporting the conclusion that Cisneros- tenced counseling to domestic violence is the Perez necessarily did not commit a crime of fact that he was also sentenced to substance simply *9 because he counseling. was sen- abuse Garcia, Megali and stay away to from sec- obvi- must be case, the fact that
In this ond, to undertake that he was ordered is that Cisneros-Per- the record ous from battery of Me- for the of his counseling part was as conviction domestic violence ez’s when he Garcia, was his wife who gali sentence. first two battery. The committed contrary majority’s conclusion Cisneros- complaint accused counts of the Supreme origins from the of the strays Penal Code violating California of
Perez
that
the documents
limitation on
Court’s
243(e)(1)
273.5(a)
inflicting cor-
and
§§
under the modified cat-
may be considered
using
and
force
upon,
punishment
poral
Shepard,
In
the Su-
approach.
egorical
Garcia, his wife.
Megali
upon,
violence
and
preme
explained:
Court
as the
was identified
individual
No other
against Cisne-
any
charges
of the
of
victim
beyond
any enquiry
Taylor is clear that
pled
then
ros-Perez.
be
document must
charging
statute
un-
battery
simple
of
to a violation
guilty
the ob-
implement
narrowly restricted
§ 242. While
Penal Code
der California
evidentiary
ject
the statute and avoid
273.5(a)
243(e)(1)
that the
require
§§
it,
In
case before
disputes.
of the
spouse
cohabitant
victim be
allowing courts
the line after
court drew
that
require
§ 242
not
does
perpetrator,
“that the
showing
to review documents
any relationship to the
have
the victim
entry
necessarily
to find an
jury
had
however,
does
Section
perpetrator.
building to convict.”
of force
use
and unlawful
require “willful
of another.”
upon
or violence
(quoting
n.
by the record of conviction and the other
by evidence adduced at the administrative
hearing.” Id. at 622. also approved We
the BIA’s concern that if it “were to make
an exception and accept here the respon- testimony proof
dent’s deportabil- of his 1227(a)(2)(E)(i), 2. tion, Pursuant to 8 U.S.C. the IJ present allowed the once it is determined that the offense is a testimony of the crime victim as to the nature violence,” "crime as defined prior relationship her Tokatly. Id. it is also a "crime of domestic violence” Testimony was also admitted at a second spouse. if it was committed hearing, and the IJ purported extracted a waiver showing of the lack of a that the Tokatly presented very different factual crime was domestic. Id. appeal, at 617. On hearing situation. At the initial before the IJ we Tokatly first noted only seeking 1999, Tokatly removability contested ruling, review of the first id. at and then provision "crime of domestic violence” on held purported that counsel's concession had ground that the evidence in the record did binding no effect. Id. at 619. not establish that the crime was "domestic.” 371 F.3d at objec- 616. Over his counsel's