Ortega-Mendez v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO ORTEGA-MENDEZ, 

Petitioner, No. 03-74711

v.

 Agency No.

A76-345-757

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 June 15, 2006

Before: David R. Thompson, Marsha S. Berzon, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Berzon

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Federal Rule of

Appellate Procedure 43(c)(2).

6623

6626 ORTEGA-MENDEZ v. GONZALES

COUNSEL

James F. Smith, Davis, California, and Christopher J. Todd,

Mill Valley, California, for the petitioner.

Alison R. Drucker and Margaret J. Perry, Office of Immigra-

tion Litigation, Civil Division, U.S. Department of Justice,

Washington, D.C., for the respondent.

ORTEGA-MENDEZ v. GONZALES 6627

OPINION

BERZON, Circuit Judge:

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)(i). As a result, the IJ

declared Ortega-Mendez ineligible for cancellation of

removal under 8 U.S.C. § 1229b(b)(1) as an alien who has

“been convicted of an offense under section . . . 1227(a)(2).”

8 U.S.C. § 1229b(b)(1)(C). Ortega-Mendez, a native and citi-

zen 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)(i), 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)(i). 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 dif-

ferent result regarding whether Ortega-Mendez’s 1998

offense is a “crime of violence” under the modified categori-

cal approach. We therefore conclude that Ortega-Mendez’s

1998 offense is not a “crime of violence” within the meaning

of 18 U.S.C. § 16 and so is not a “crime of domestic violence”

within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

I.

Ortega-Mendez entered the United States without inspec-

tion around 1986. In 1998, he pleaded nolo contendere to bat-

tery under California Penal Code section 242.1 Shortly

1

The documents of conviction establish that Ortega-Mendez was con-

victed of battery under California Penal Code section 242. Simple battery

— battery committed without any aggravating circumstances — is pun-

6628 ORTEGA-MENDEZ v. GONZALES

thereafter the Immigration and Naturalization Service (INS)

filed a Notice to Appear, charging Ortega-Mendez with

removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for

being present in the United States without having been admit-

ted or paroled. Ortega-Mendez conceded removability but

applied for cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(1), or, in the alternative, voluntary departure.

The INS subsequently moved to pretermit the application

for cancellation of removal, arguing that Ortega-Mendez’s

1998 battery conviction was a “crime of domestic violence”

within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). An alien

is ineligible for cancellation of removal under § 1229b(b)

(1)(C) if he has been “convicted of an offense under section

. . . 1227(a)(2).” 8 U.S.C. § 1229b(b)(1)(C).

The IJ granted the INS’s motion. The IJ found, first, that

Ortega-Mendez’s 1998 battery offense was a “crime of vio-

lence” within the meaning of 18 U.S.C. § 16(a), reasoning:

Subparagraph A of [18 U.S.C. § 16] defines a crime

of violence as an offense that has as an element the

use, attempted use, or threatened use of physical

force against the person or property of another.

Turning to California Penal Code Section 242, under

which the respondent was convicted, that section

defines battery as any willful and unlawful use of

force or violence upon the person of another.

Having compared Subparagraph A of 18 U.S.C.

Section 16 and battery as it is defined in Section 242

ished pursuant to California Penal Code section 243(a). The government

disputes whether Ortega-Mendez’s conviction was for simple battery, pun-

ishable under section 243(a), or for “domestic” battery, punishable under

section 243(e). Whether Ortega-Mendez’s conviction was for simple bat-

tery or for domestic battery is not, however, relevant to the issue we

decide. Section 243(e) adds only the “domestic” feature, not pertinent to

our conclusion.

ORTEGA-MENDEZ v. GONZALES 6629

of the California Penal Code, the Court concludes

that the respondent’s conviction meets the definition

of a crime of violence as it is defined in the U.S.

Code.

The IJ then found that the documents of conviction estab-

lished that the 1998 offense was “domestic” in nature. She

concluded that Ortega-Mendez’s 1998 offense was a “crime

of domestic violence” within the meaning of § 1227(a)(2)

(E)(i), and thus that Ortega-Mendez was ineligible for cancel-

lation of removal under § 1229b(b)(1). She did, however,

grant Ortega-Mendez voluntary departure.

The BIA affirmed in a streamlined decision. Ortega-

Mendez timely petitions for review of that decision. He

argues that his 1998 battery conviction was not a “crime of

violence” within the meaning of 18 U.S.C. § 16 and therefore

was not a “crime of domestic violence” within the meaning of

8 U.S.C. § 1227(a)(2)(E)(i). We agree with Ortega-Mendez

and therefore grant the petition.2

II.

Our jurisdiction is governed by 8 U.S.C. § 1252. Section

1252(a)(2)(B)(i) states that “except as provided in subpara-

graph (D), . . . no court shall have jurisdiction to review

. . . any judgment regarding the granting of relief under sec-

tion . . . 1229b . . . of this title.” Section 1252(a)(2)(D) pro-

vides that “[n]othing in subparagraph (B) . . . shall be

construed as precluding review of . . . questions of law raised

upon a petition for review filed with an appropriate court of

appeals.”3 Whether Ortega-Mendez’s 1998 offense is a “crime

2

In view of our holding, we do not reach Ortega-Mendez’s claim that

his 1998 offense was not a “crime of domestic violence” because it was

not “domestic” in nature.

3

Section 1252(a)(2)(D) was added by the REAL ID Act of 2005, div.

B, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310, and applies

6630 ORTEGA-MENDEZ v. GONZALES

of violence” within the meaning of 18 U.S.C. § 16 and hence

can be a “crime of domestic violence” within the meaning of

8 U.S.C. § 1227(a)(2)(E)(i) is a question of law. See United

States v. Trinidad-Aquino, 259 F.3d 1140, 1142 (9th Cir.

2001). We therefore have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(2)(D) to decide that question. See Lisbey v.

Gonzales, 420 F.3d 930, 932 (9th Cir. 2005).

Because the BIA streamlined the case, we review the IJ’s

opinion as the final agency decision. See Falcon Carriche v.

Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). We do not defer

to BIA interpretations of state law or of provisions of the fed-

eral criminal code referenced within, but not part of, the

Immigration and Nationality Act. See Parrilla v. Gonzales,

414 F.3d 1038, 1041 (9th Cir. 2005); Singh v. Ashcroft, 386

F.3d 1228, 1230-31 (9th Cir. 2004).

III.

A.

[1] Under 8 U.S.C. § 1229b(b)(1)(C), an alien who is not

a legal permanent resident is ineligible for cancellation of

removal if he has been “convicted of an offense under section

. . . 1227(a)(2) . . . of this title, subject to paragraph (5).”4 Sec-

tion 1227(a)(2)(E)(i), the subsection of § 1227(a)(2) pertinent

here, provides as follows:

to the present case, see id. § 106(b), 119 Stat. at 311 (stating that the

amendments made by § 106(a), which include the addition of § 1252(a)

(2)(D), “shall take effect upon the date of the enactment of this division

and shall apply to cases in which the final administrative order of removal,

deportation, or exclusion was issued before, on, or after the date of the

enactment of this division”).

4

The exception in paragraph (5) is not applicable in the present case, as

it applies only to victims of domestic violence. See 8 U.S.C.

§§ 1229b(b)(5), 1227(a)(7).

ORTEGA-MENDEZ v. GONZALES 6631

Any alien who at any time after admission is con-

victed of a crime of domestic violence . . . is deport-

able. For purposes of this clause, the term “crime of

domestic violence” means any crime of violence (as

defined in section 16 of Title 18) against a person

committed by a current or former spouse of the per-

son, by an individual with whom the person shares

a child in common, by an individual who is cohabit-

ing with or has cohabited with the person as a

spouse, by an individual similarly situated to a

spouse of the person under the domestic or family

violence laws of the jurisdiction where the offense

occurs, or by any other individual against a person

who is protected from that individual’s acts under

the domestic or family violence laws of the United

States or any State, Indian tribal government, or unit

of local government.

8 U.S.C. § 1227(a)(2)(E)(i). An individual convicted of a

“crime of domestic violence” within the meaning of § 1227(a)

(2)(E)(i) is ineligible for cancellation of removal pursuant to

§ 1229b(b)(1)(C) whether or not he was admitted to the

United States at the time of his predicate offense. See

Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 653 (9th Cir.

2004).

[2] In Tokatly v. Ashcroft, we observed that to determine

whether an individual was convicted of a “crime of domestic

violence” within the meaning of § 1227(a)(2)(E)(i), we must

conclude (1) “that [the] crime was . . . one of ‘violence,’ ” and

(2) “that the violence was ‘domestic’ within the meaning of

that section.” 371 F.3d 613, 619 (9th Cir. 2004). For the for-

mer inquiry, § 1227(a)(2)(E)(i) directs us to determine

whether the offense at issue is a “crime of violence” within

the meaning of 18 U.S.C. § 16. See 8 U.S.C. § 1227(a)(2)

(E)(i) (stating that to qualify as a “crime of domestic vio-

lence,” a crime must be, inter alia, a “crime of violence (as

defined in section 16 of Title 18)”).

6632 ORTEGA-MENDEZ v. GONZALES

The government argues that Ortega-Mendez’s 1998 battery

offense is a “crime of violence” because battery under Cali-

fornia Penal Code section 242 is categorically a “crime of vio-

lence” within the meaning of 18 U.S.C. § 16. Applying the

categorical approach as established in Taylor v. United States,

495 U.S. 575 (1990), we disagree.

[3] Under 18 U.S.C. § 16, a “crime of violence” is

(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.

18 U.S.C. § 16.

When the predicate offense at issue is an offense under

state law, our prior cases have been less than clear about how

the word “felony” in § 16(b) is defined. On the one hand,

“Congress has a longstanding practice of equating the term

‘felony’ with offenses punishable by more than one year’s

imprisonment.” United States v. Robles-Rodriguez, 281 F.3d

900, 904 (9th Cir. 2002); see also 18 U.S.C. § 3559(a) (pro-

viding that unless otherwise indicated, a federal offense is a

felony if and only if it is punishable by a term of imprison-

ment exceeding one year); United States v. Olvera-Cervantes,

960 F.2d 101, 103-04 (9th Cir. 1992) (interpreting the word

“felony” as used in a prior version of U.S.S.G. § 2L1.2, which

did not expressly define that term, to be “a conviction under

a statute, state or federal, with a statutory maximum penalty

in excess of one year”); cf. United States v. Alvarez-Gutierrez,

394 F.3d 1241, 1244-45 (9th Cir. 2005) (holding that an “ag-

gravated felony” need not be punishable by imprisonment

exceeding one year because the relevant statute provided a

ORTEGA-MENDEZ v. GONZALES 6633

definition of “aggravated felony” that did not include such a

requirement). On the other hand, many of our cases justify

their holdings regarding the applicability of § 16(b) by citing

state statutes that indicate how the relevant predicate offense

is classified under state law, suggesting that an offense is a

“felony” for purposes of § 16(b) if it is so designated by state

law. See, e.g., Singh, 386 F.3d at 1231 n.3 (observing that

Oregon law designates harassment a misdemeanor and con-

cluding that § 16(b) was inapplicable); see also, e.g., Lisbey,

420 F.3d at 932; United States v. Campos-Fuerte, 357 F.3d

956, 959 (9th Cir. 2004), amended by 366 F.3d 691 (9th Cir.

2004).5

[4] We need not decide which of these competing defini-

tions is correct. Under either definition, Ortega-Mendez’s

offense is not a “felony.” The offense is not a felony under the

residual federal definition because the maximum term of

imprisonment authorized for simple battery under section 242

is six months. See CAL. PENAL CODE § 243(a). It is also not a

felony under California law. See CAL. PENAL CODE § 17(a)

(classifying an offense as a felony if it is “punishable with

death or by imprisonment in the state prison”); id. § 243(a)

(stating that simple battery is punishable by a fine, by impris-

onment in county jail not exceeding six months, or by both).6

5

One of our sister circuits has held that a state-law offense is not a “felo-

ny” within the meaning of § 16(b) if it is not so designated under state law.

See Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir. 2001). Also, in Doe

v. Hartz, the Eighth Circuit addressed the meaning of the word “felony”

in the definition of “crime of violence” under the Violence Against

Women Act. See 134 F.3d 1339, 1342-43 (8th Cir. 1998). Doe postulated

a hybrid approach, defining “felony” with reference to federal law if the

underlying crime was punishable under federal law and with reference to

state law if the underlying crime was not punishable under federal law.

See id. at 1343. This complicated approach has no support in our case law.

6

In People v. Benavides, the California Supreme Court stated that “[a]

battery is deemed to be a felony unless specifically designated as a misde-

meanor by either the prosecution or the court.” 35 Cal. 4th 69, 103 (2005).

Although the court did not spell out what it meant in this regard, we note

that there are statutory sections allowing for punishment of certain kinds

of battery as felonies. See, e.g., CAL. PENAL CODE § 243(c)-(d). When, as

here, simple battery is at issue, the prosecution and court have effectively

“designated” the battery charge to be a misdemeanor.

6634 ORTEGA-MENDEZ v. GONZALES

Thus, under either definition of “felony,” Ortega-Mendez’s

offense was not a felony, and § 16(b) does not apply.7

B.

[5] The relevant question is therefore whether Ortega-

Mendez’s 1998 battery offense was “an offense that has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another,” within the

meaning of § 16(a). In Leocal v. Ashcroft, the Supreme Court

emphasized that “[i]n construing both parts of § 16, we cannot

forget that we ultimately are determining the meaning of the

term ‘crime of violence’ ” and noted that “[t]he ordinary

meaning of this term, combined with § 16’s emphasis on the

use of physical force against another person (or the risk of

having to use such force in committing a crime), suggests a

category of violent, active crimes.” 543 U.S. 1, 11 (2004)

(emphasis added). Consistent with Leocal, we have “squarely

held that the force necessary to constitute a crime of violence

[under 18 U.S.C. § 16(a)] must actually be violent in nature.”

Singh, 386 F.3d at 1233 (internal quotation marks omitted)).

[6] The statutory definition of battery under California

Penal Code section 242 is “any willful and unlawful use of

force or violence upon the person of another.” At first blush,

section 242 may appear to have as an element the “use . . . of

physical force,” 18 U.S.C. § 16(a), and to describe a crime

“violent in nature,” Singh, 386 F.3d at 1233 (internal quota-

tion marks omitted), given that it requires “use of force or vio-

lence,” CAL. PENAL CODE § 242. One could also view that

language, standing alone, otherwise. “[F]orce or violence,” id.

(emphasis added), indicates that nonviolent force suffices;

otherwise the “or” has no function.

7

The same result obtains even if Ortega-Mendez’s conviction was for

domestic battery under sections 242 and 243(e). See CAL. PENAL CODE

§ 243(e) (stating that domestic battery is punishable by a fine, by impris-

onment in county jail for a period of not more than one year, or by both).

ORTEGA-MENDEZ v. GONZALES 6635

[7] In any event, in determining the categorical reach of a

state crime, we consider not only the language of the state

statute, but also the interpretation of that language in judicial

opinions. See United States v. Bonat, 106 F.3d 1472, 1475-76

(9th Cir. 1997) (holding that notwithstanding the fact that a

state statute “on its face” met the definition of generic bur-

glary, the state statute was not categorically a “generic burgla-

ry,” because “the courts ha[d] expanded the statute beyond

generic burglary”). Looking at how California courts have

interpreted the phrase “use of force or violence” in section

242, it becomes evident that the phrase is a term of art, requir-

ing neither a force capable of hurting or causing injury nor

violence in the usual sense of the term.

In People v. Page, a California court recently noted, “even

though the statutory definition of battery requires ‘force or

violence’ (Pen. Code, § 242), this has the special legal mean-

ing of a harmful or offensive touching.” 123 Cal. App. 4th

1466, 1473 n.1 (2004). That interpretation of section 242 has

a considerable pedigree. The California Supreme Court

explained in People v. Colantuono:

It has long been established, both in tort and criminal

law, that the least touching may constitute battery. In

other words, force against the person is enough, it

need not be violent or severe, it need not cause bod-

ily harm or even pain, and it need not leave any

mark.

7 Cal. 4th 206, 214 n.4 (1994) (internal quotation marks omit-

ted) (quoting People v. Rocha, 3 Cal. 3d 893, 899 n.12

(1971)); see also People v. Ausbie, 123 Cal. App. 4th 855,

860 n.2 (2004) (observing that “[o]nly a slight unprivileged

touching is needed to satisfy the force requirement of a crimi-

nal battery”). Because the “least touching” may constitute bat-

tery, People v. Mansfield observed that in section 242, “[t]he

word ‘violence’ has no real significance.” 200 Cal. App. 3d

82, 87-88 (1988). Consonant with these general statements,

6636 ORTEGA-MENDEZ v. GONZALES

California courts have held that conduct such as “throwing a

cup of urine in a person’s face,” People v. Pinholster, 1 Cal.

4th 865, 961 (1992), and making unwanted sexual advances

involving touching, County of Santa Clara v. Willis, 179 Cal.

App. 3d 1240, 1251 (1986), constitutes battery.8

[8] We have held that conduct involving mere offensive

touching does not rise to the level of a “crime of violence”

within the meaning of 18 U.S.C. § 16(a). Singh held that

harassment under an Oregon statute was not a “crime of vio-

lence” within the meaning of § 16(a) because the statute

encompassed nonviolent acts such as “spitting on another”

and “[i]ndirect physical contacts such as ‘hitting another with

a thrown missile, poking another with a stick or . . . striking

the clothing rather than the flesh of the victim.’ ” 386 F.3d at

1232 (internal quotation marks omitted). In so holding, Singh

noted that “the Oregon harassment offense, harkening back to

the ancient common law of battery, can be made out based on

an ephemeral touching, so long as it is offensive.” Id. at 1233

(footnote omitted).

8

The relevant California jury instruction comports with this case law.

The jury instruction defining “force or violence” in section 242 states:

As used in the foregoing instruction, the words “force” and

“violence” are synonymous and mean any [unlawful] application

of physical force against the person of another, even though it

causes no pain or bodily harm or leaves no mark and even though

only the feelings of such person are injured by the act. The sligh-

test [unlawful] touching, if done in an insolent, rude, or an angry

manner, is sufficient.

It is not necessary that the touching be done in actual anger or

with actual malice; it is sufficient if it was unwarranted and

unjustifiable.

The touching essential to a battery may be a touching of the

person, of the person’s clothing, or of something attached to or

closely connected with the person.

California Jury Instructions - Criminal 16.141.

ORTEGA-MENDEZ v. GONZALES 6637

[9] In Lisbey, we determined that sexual battery under Cali-

fornia Penal Code section 243.4(a) is not categorically a

“crime of violence” within the meaning of § 16(a). 420 F.3d

at 932. Section 243.4(a) provides that

[a]ny person who touches an intimate part of another

person while that person is unlawfully restrained by

the accused or an accomplice, and if the touching is

against the will of the person touched and is for the

purpose of sexual arousal, sexual gratification, or

sexual abuse, is guilty of sexual battery.

CAL. PENAL CODE § 243.4(a). We noted that section 243.4(a)

“has no requirement of actual or threatened physical force and

is therefore not a ‘crime of violence’ within the meaning of

§ 16(a).” Lisbey, 420 F.3d at 932.

[10] Lisbey is significant not only because it addresses the

level of violence necessary to qualify as a “crime of vio-

lence,” but also because its specific holding concerns section

243.4(a). Battery under section 242 is a lesser included

offense of sexual battery under section 243.4(a). See In re

Keith T., 156 Cal. App. 3d 983, 988 (1984) (holding that bat-

tery under section 242 is a lesser included offense of sexual

battery under an earlier version of section 243.4, which

included the language of what is now section 243.4(a)).

Because battery under section 242 is a lesser included offense

of sexual battery under section 243.4(a), and because under

Lisbey, sexual battery under section 243.4(a) is not categori-

cally a “crime of violence” within the meaning of § 16(a), it

follows that battery under section 242 is not categorically a

“crime of violence” within the meaning of § 16(a).

The result we reach is consonant with this and other courts’

holdings regarding whether materially similar battery offenses

under other statutes are “crimes of violence” within the mean-

ing of § 16(a) and other similar statutory provisions. See

United States v. Lopez-Montanez, 421 F.3d 926, 930-31 (9th

6638 ORTEGA-MENDEZ v. GONZALES

Cir. 2005) (holding that sexual battery under California Penal

Code section 243.4(a) is not categorically a “crime of vio-

lence” under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)(I) (2002),

which is identical to § 16(a) in all material respects); Flores

v. Ashcroft, 350 F.3d 666, 669-70 (7th Cir. 2003) (holding

that battery under Indiana law is not a “crime of violence”

within the meaning of 18 U.S.C. § 16); United States v.

Belless, 338 F.3d 1063, 1067-68 (9th Cir. 2003) (holding that

a Wyoming statute criminalizing, inter alia, “unlawfully

touch[ing] another in a rude, insolent or angry manner” “em-

braces conduct that does not involve ‘use or attempted use of

physical force’ ” within the meaning of 18 U.S.C. § 921(a)

(33)(A)(ii), where “physical force” under § 921(a)(33)(A)(ii)

has been interpreted to mean “the violent use of force against

the body of another individual”).

C.

The government argues that under United States v. Robin-

son, 967 F.2d 287 (9th Cir. 1992), we are constrained to hold,

contrary to the reasoning we have just developed, that battery

under section 242 is a “crime of violence” within the meaning

of § 16(a). We do not agree.

Robinson addressed whether battery under California Penal

Code section 242 was a “crime of violence” within the mean-

ing of U.S.S.G. § 4B1.1 (1989).9 See id. at 292-94. Section

4B1.1 referred to § 4B1.2 for a definition of “crime of vio-

lence,” which defined that term as

any offense under federal or state law punishable by

imprisonment for a term exceeding one year that —

(i) has an element the use, attempted use, or

9

Unless otherwise indicated, all citations to §§ 4B1.1 and 4B1.2 are to

the 1989 edition of the Guidelines, published in November 1989.

ORTEGA-MENDEZ v. GONZALES 6639

threatened use of physical force against the person of

another, or

(ii) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of phys-

ical injury to another.

U.S.S.G. § 4B1.2(1). Robinson held that battery under section

242 was a “crime of violence” within the meaning of

§§ 4B1.1 and 4B1.2, reasoning, in full, as follows:

In this case, battery includes as an element “the will-

ful and unlawful use of force or violence upon the

person of another.” CAL. PENAL CODE § 242 (West

1988). We therefore conclude that battery on a peace

officer, the crime for which Robinson was convicted,

is a crime of violence for the purposes of determin-

ing Robinson’s career offender status under U.S.S.G.

§ 4B1.1.

967 F.2d at 293-94. As is apparent, Robinson did not consider

the line of cases regarding the reach of section 242 that culmi-

nated, two years after Robinson, in the California Supreme

Court’s Colantuono decision, which observed:

It has long been established, both in tort and criminal

law, that the least touching may constitute battery. In

other words, force against the person is enough, it

need not be violent or severe, it need not cause bod-

ily harm or even pain, and it need not leave any

mark.

7 Cal. 4th at 214 n.4 (internal quotation marks omitted).

Although the government is correct that Robinson held that

battery under section 242 is a “crime of violence” within the

meaning of §§ 4B1.1 and 4B1.2 and appeared to reach that

6640 ORTEGA-MENDEZ v. GONZALES

conclusion by applying § 4B1.2(1)(i), which is identical in all

material respects to § 16(a),10 we are not bound by Robinson

in the present case. As Miller v. Gammie, 335 F.3d 889 (9th

Cir. 2003) (en banc), explained, a three-judge panel may not

itself overrule a prior decision of the court, id. at 899, but

“where the reasoning or theory of our prior circuit authority

is clearly irreconcilable with the reasoning or theory of inter-

vening higher authority,” id. at 893, three-judge panels

“should consider themselves bound by the intervening higher

authority and reject the prior opinion of this court as having

been effectively overruled,” id. at 900. We are “ ‘bound not

only by the holdings of [such intervening] decisions but also

by their ‘mode of analysis.’ ” Gill v. Stern (In re Stern), 345

F.3d 1036, 1043 (9th Cir. 2003) (quoting Miller, 335 F.3d at

900)). “Intervening higher authority” includes intervening

decisions of the Supreme Court, Miller, 335 F.3d at 900, and

of this court sitting en banc, Overstreet v. United Bhd. of Car-

penters & Joiners of Am., Local Union No. 1506, 409 F.3d

1199, 1205 n.8 (9th Cir. 2005).

Because Robinson’s discussion of battery as a “crime of

violence” is brief, it is difficult to discern the reasoning under-

lying its holding. That the Robinson court cited no case law

suggests that that court assumed that only statutory language

— not case law — is relevant to determining whether battery

is a “crime of violence.” Furthermore, regardless of whether

the Robinson court so assumed, that court certainly assumed

that “crimes of violence” need not be violent in nature under

§ 16(a). After all, if the Robinson court did look to California

case law, it could not have held that battery is a “crime of vio-

lence” without making this assumption, given that pre-

10

The only difference between U.S.S.G. § 4B1.2(1)(i) and 18 U.S.C.

§ 16(a) is that the latter provision includes “physical force against the per-

son or property of another,” § 16(a) (emphasis added), whereas the former

provision includes only “physical force against the person of another,”

§ 4B1.2(1)(i) (emphasis added). See United States v. Charles, 301 F.3d

309, 311-12 (5th Cir. 2002) (describing all of the differences between

§ 4B1.2 and § 16).

ORTEGA-MENDEZ v. GONZALES 6641

Robinson case law clearly established that battery encom-

passed mere offensive touching, see, e.g., Rocha, 3 Cal. 3d at

899 n.12. And, if the Robinson court looked to the statutory

text alone, it still could not have held that battery is a “crime

of violence” without making this assumption, as section 242

defines battery as “any willful and unlawful use of force or

violence upon the person of another,” CAL. PENAL CODE § 242

(emphasis added), suggesting that battery encompasses use of

force that is not violent. Thus, the Robinson court may have

assumed that it need not examine case law in conducting the

“crime of violence” inquiry, and it certainly assumed that

“crimes of violence” need not be violent in nature. Both

assumptions are, however, clearly irreconcilable with inter-

vening higher authority.

The first assumption — that a court may conclude that sec-

tion 242 is a “crime of violence” on the basis of an examina-

tion of the statutory language alone — is clearly

irreconcilable with United States v. Corona-Sanchez, 291

F.3d 1201, 1203 (9th Cir. 2002) (en banc), and United States

v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en

banc), both of which were decided by this court sitting en

banc after Robinson. In those cases, we stated that under the

Taylor categorical approach, our inquiry must focus on

whether the statute of conviction proscribed any conduct not

included in the relevant federal definition. See Corona-

Sanchez, 291 F.3d at 1203 (“If the statute criminalizes con-

duct that would not constitute an aggravated felony under fed-

eral sentencing law, then the conviction may not be used for

sentence enhancement unless the record includes documenta-

tion or judicially noticeable facts that clearly establish that the

conviction is a predicate conviction for enhancement pur-

poses.” (internal quotation marks omitted)); Rivera-Sanchez,

247 F.3d at 908 (“[I]f the statute and the judicially noticeable

facts would allow the defendant to be convicted of an offense

other than that defined as a qualifying offense by the guide-

lines, then the conviction does not qualify as a predicate

offense.” (internal quotation marks omitted)).

6642 ORTEGA-MENDEZ v. GONZALES

We cannot conclude that all conduct proscribed by a statute

falls within the purview of a federal definition — the inquiry

Corona-Sanchez and Rivera-Sanchez require — without con-

sidering the case law interpreting the statute. Indeed, in

Corona-Sanchez and Rivera-Sanchez, we looked not just to

the text of the relevant statutes of conviction, but also to case

law interpreting those statutes to determine whether all con-

duct proscribed by the statutes was within the ambit of the rel-

evant federal definition. See Corona-Sanchez, 291 F.3d at

1207-08 (concluding that an offense under a California statute

was not categorically an offense meeting the relevant federal

definition and relying, in part, on California case law inter-

preting the California statute); Rivera-Sanchez, 247 F.3d at

908-09 (same). Thus, to the extent that Robinson assumed it

appropriate to declare an offense a “crime of violence” by

examining the statutory text alone, its assumption has been

rejected by our en banc decisions in Corona-Sanchez and

Rivera-Sanchez.

The second assumption — that a “crime of violence” need

not actually be “violent” in nature — is clearly irreconcilable

with Leocal, decided by the Supreme Court after Robinson.

Leocal emphasized that “crimes of violence” must actually be

“violent” in nature, stating that “§ 16’s emphasis on the use

of physical force against another person (or the risk of having

to use such force in committing a crime), suggests a category

of violent, active crimes.” 543 U.S. at 11 (emphasis added).

Thus, Robinson’s assumption that “crimes of violence” need

not be violent in nature is clearly irreconcilable with the rea-

soning and theory in Leocal.

In sum, we cannot follow Robinson because that opinion

necessarily rested on at least one assumption that is clearly

irreconcilable with intervening higher authority. We therefore

hold that battery under section 242 is not categorically a

“crime of violence” within the meaning of 18 U.S.C. § 16(a).

ORTEGA-MENDEZ v. GONZALES 6643

IV.

[11] Ortega-Mendez contends that if we conclude that bat-

tery is not categorically a “crime of violence,” our inquiry is

over, and we should not consider whether the documents of

conviction establish that his 1998 battery offense was a

“crime of violence” under the modified categorical approach

outlined in Taylor. Ortega-Mendez suggested that such a

result follows from our decision in Singh, which held that

harassment under Oregon law was not a “crime of violence”

without engaging in analysis under the modified categorical

approach. See 386 F.3d at 1231-34.

[12] Singh did not reject the modified categorical approach

with respect to crimes of violence. Rather, Singh simply did

not mention that approach. This silence indicates that, as here,

the government did not argue that a different result would

have obtained under the modified categorical approach, pre-

sumably because there were no record documents that could

have established that the conviction was for a crime of vio-

lence.

This understanding of Singh is confirmed by Tokatly. We

stated in Tokatly “that the Taylor v. United States categorical

and modified categorical approach is applicable to

[§ 1227(a)(2)(E)(i)] in its entirety,” explaining that in

“[a]pplying Taylor, a court may not look beyond the record

of conviction to determine whether an alien’s crime was one

of ‘violence,’ or whether the violence was ‘domestic’ within

the meaning of the provision.” See 371 F.3d at 624 (emphasis

added) (citation omitted).11

[13] We have no occasion to address how the modified cat-

11

In Tokatly, the parties did not dispute that the offense at issue was in

fact a crime of “violence,” so we did not have occasion to apply the modi-

fied categorical principles to the “violence” prong in that case. See 371

F.3d at 619.

6644 ORTEGA-MENDEZ v. GONZALES

egorical approach might apply in the present case, as the gov-

ernment’s sole argument for why Ortega-Mendez’s 1998

battery offense was a “crime of violence” is that battery under

section 242 is categorically a “crime of violence.” The gov-

ernment does not contend that any documents of conviction

establish additional facts relevant to the inquiry. Nor could it,

as the only documents of conviction are (1) the information

charging Ortega-Mendez with offenses under California Penal

Code sections 273.5(a) and 262, (2) a minute order stating

that Ortega-Mendez “entered a plea of . . . nolo contendere

. . . to the charges of: 242 pc — misd,” and (3) a minute order

describing Ortega-Mendez’s sentence. These documents will

not support a determination that Ortega-Mendez’s underlying

criminal act was “necessarily” violent, as required by Shepard

v. United States, 544 U.S. 13, 21 (2005).

V.

[14] For the foregoing reasons, we hold that Ortega-

Mendez’s 1998 battery offense is not a “crime of violence”

within the meaning of 18 U.S.C. § 16(a) and thus not a “crime

of domestic violence” within the meaning of 8 U.S.C.

§ 1227(a)(2)(E)(i). The BIA therefore erred in determining

that Ortega-Mendez was ineligible for cancellation of removal

under 8 U.S.C. § 1229b(b)(1)(C) on the ground that his 1998

offense was a “crime of domestic violence” within the mean-

ing of § 1227(a)(2)(E)(i).

We grant Ortega-Mendez’s petition. Because the agency

did not determine whether Ortega-Mendez was otherwise sta-

tutorily eligible for cancellation of removal, we remand for a

determination of that question, and, if he is eligible, for a

determination of whether the agency should, as a matter of

discretion, grant him relief. See INS v. Ventura, 537 U.S. 12,

16-18 (2002).

PETITION GRANTED; REMANDED.