The BIA reviews de novo the IJ’s determination on a question of law.
The term “crime of domestic violence” means “any crime of violence (as defined in 18 U.S.C. § 16) against a person” committed by, inter alia, a current or former spouse of the person. The term “crime of violence” is defined in 18 U.S.C. § 16 (2006) as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Thus, an offense cannot qualify as a “crime of domestic violence” unless it is also a “crime of violence” as defined by 18 U.S.C. § 16.
Section 243(e)(1) of the California Penal Code punishes a battery 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, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship.” “Battery” is defined by section 242 of the California Penal Code as “any willful and unlawful use of force or violence upon the person of another.” Under the case law of the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, battery under section 242 requires neither a force capable of hurting or causing injury nor violence in the usual sense of the term, so it does not qualify categorically as a crime of violence under 18 U.S.C. § 16. Thus, the respondent’s offense is not categorically a crime of domestic violence. This court must therefore employ the modified categorical approach described in Taylor v. United States, 495 U.S. 575 (1990), to determine whether the respondent’s conviction is for a crime of domestic violence.
In the Ninth Circuit, the modified categorical approach only applies when the particular elements of the crime of conviction are broader than the generic crime, and it cannot be applied when the crime of conviction is missing an element of the generic crime altogether. Since “battery” is an element of section 243(e)(1) of the California Penal
Code, the statute under which the respondent was convicted, and it is defined by section 242 of the California Penal Code as “any willful and unlawful use of force or violence,” it is encompassed within the generic crime of domestic violence and is therefore not missing any element of the generic offense.
In applying the modified categorical approach to assess an alien’s conviction, the Immigration Judge and the BIA may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings. It is also proper to consider a comparable judicial record, including the clerk’s minute order prepared by a neutral officer of the court, provided the defendant had the right to examine and challenge its accuracy during the criminal proceedings. The use of such judicially noticeable documents is permitted because they are considered sufficiently conclusive and reliable to establish the facts to which the alien actually pleaded guilty.
While a police report, standing alone, is not part of the record of conviction, the respondent’s decision to incorporate the police report into the guilty plea made the report an explicit statement in which the factual basis for the plea was confirmed by the respondent.
The respondent’s argument that the police report should not be considered because it was never admitted into the record of his criminal proceedings or incorporated into the criminal complaint is without merit. Where the plea agreement references the police report as the “factual basis” for the respondent’s plea, and where the plea form contains the handwritten statement “stip to police report as factual basis” and the respondent initialed the statement, it serves as the findings of fact adopted by the defendant upon entering the plea, which is part of the judicial record on which the courts may rely. It was not necessary for the respondent to acknowledge the truth of every statement in the police report or for the judge in the criminal case to have specifically reviewed or referenced the report during the plea proceedings. Also, contrary to the respondent’s argument, it is not necessary that the copy of the police report relied on in the immigration proceedings be obtained from the files of the criminal case. The only requirement is that the police report or reports relied on in the immigration proceedings be incorporated by reference as at least part of the factual basis for the guilty plea. Thus, the Immigration Judge erred in failing to view the police report as part of the record of conviction and to consider its contents in applying the modified categorical analysis. Accordingly, the BIA finds it necessary to remand the record to the IJ for further proceedings. On remand, the IJ should consult the police report to determine whether the DHS has demonstrated that the respondent’s offense is a crime of domestic violence that renders him removable as charged. The DHS’s appeal will be sustained, and the record will be remanded.
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