Morales-Garcia v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOISES EDUARDO MORALES-GARCIA, 

Petitioner, No. 07-70400

v.

 Agency No.

A077-131-757

ERIC H. HOLDER JR.,* Attorney

General, OPINION

Respondent.



On Petition for Review of an Order

of the

Board of Immigration Appeals

Argued and Submitted

June 12, 2008—San Francisco, California

Filed June 3, 2009

Before: A. Wallace Tashima, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Tashima

* Eric H. Holder Jr., is substituted for his predecessor Michael B.

Mukasey, as Attorney General, pursuant to Fed. R. App. P. 43(c)(2).

6657

MORALES-GARCIA v. HOLDER 6659

COUNSEL

John M. Pope, Stender & Pope, Phoenix, Arizona, for the

petitioner.

Lindsay E. Williams, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, D.C., for

the respondent.

6660 MORALES-GARCIA v. HOLDER

OPINION

TASHIMA, Circuit Judge:

Moises Eduardo Morales-Garcia (“Morales”) petitions for

review of a final order of removal based on the Immigration

Judge’s (“IJ”) and Board of Immigration Appeals’ (“BIA”)

determination that his conviction under California Penal Code

§ 273.5(a) is categorically a crime involving moral turpitude

(“CIMT”), precluding cancellation of removal under

§ 240A(b) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1229b(b). We have jurisdiction under 8 U.S.C.

§ 1252(a)(1) (providing for judicial review of a final order of

removal) and 8 U.S.C. § 1252(a)(2)(D) (providing for judicial

review of constitutional and legal questions raised by individ-

uals found removable based on criminal activity). See

Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056-57 (9th

Cir. 2006). Because we hold that § 273.5(a) is not categori-

cally a CIMT, we grant the petition for review and remand the

case to the BIA for further proceedings.

BACKGROUND

Morales, a native and citizen of Mexico, entered the United

States without inspection near San Ysidro, California, in Sep-

tember, 1986. In 2006, the Department of Homeland Security

(“DHS”) served a Notice to Appear (“NTA”) on Morales,

alleging that he was subject to removal on two grounds: first,

for being an alien present in the United States without being

admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and sec-

ond, for having been convicted of a CIMT, see id.

§ 1182(a)(2)(A)(i)(I). The NTA alleged that on April 10,

2003, Morales was convicted in California Superior Court

“for the offense of corporal injury to spouse/

cohabitant/former cohabitant/child’s parent, a Felony, in vio-

lation of Section 273.5(a) of the California Penal Code for

which the term of imprisonment was two . . . years . . . .”

MORALES-GARCIA v. HOLDER 6661

At his hearing before the IJ, Morales conceded removabil-

ity; however, he denied the fact of his conviction under Cal.

Penal Code § 273.5. The government adduced a certified copy

of an abstract of judgment and prison commitment order,

showing both that Morales was convicted of the offense and

that he was sentenced to two years’ imprisonment. According

to those documents, Morales pleaded guilty to a violation of

§ 273.5(a), and the court imposed a low term of 2 years, dou-

bled to 4 years, under California’s habitual offender statute,

Cal. Penal Code § 667(b)-(i).1 The record also contains a copy

of the criminal complaint, which alleges:

On or about the 23rd day of March, 2003, in the

County of El Dorado, the crime of CORPORAL

INJURY TO SPOUSE/COHABITANT/FORMER

COHABITANT/CHILD’S PARENT, in violation of

PENAL CODE SECTION 273.5(a), a felony, was

committed by MOISES EDUARDO MORALES,

who did willfully and unlawfully inflict corporal

injury resulting in a traumatic condition upon Martha

Adriana Salazar, who was cohabiting with defen-

dant.

The IJ sustained the factual allegations in the NTA and, based

on that determination, the IJ also sustained the charge of

removability on the ground that Morales had been convicted

of a CIMT.

At the hearing, Morales also raised the possibility that he

was eligible for a waiver of inadmissibility under INA

§ 212(h), 8 U.S.C. § 1182(h). Instead of simply requesting a

§ 212(h) waiver, however, Morales’ asserted that the waiver,

if granted, would make him eligible for cancellation of

removal under 8 U.S.C. § 1229b(b). The IJ clarified this argu-

ment for the government in the following exchange:

1

The court also imposed a $500 parole restitution fine under Cal. Penal

Code § 1202.45, a domestic violence fee of $200, and a $100 payment to

the Women’s Shelter.

6662 MORALES-GARCIA v. HOLDER

DHS: Well, I’m not sure where the respondent’s

counsel is going with this in regards to the [convic-

tion under Cal. Penal Code §] 273.5.

IJ: That’s why I assume it was, that’s why I

assumed you would like to brief concurrently. What

he’s saying is he can tender cancellation with a

212(h) waiver . . . .

Following briefing on the issue by both parties, the IJ denied

Morales’ request for cancellation of removal based on a

waiver of inadmissibility. The IJ then entered an order of

removal.

Morales timely appealed to the BIA, which dismissed the

appeal in a per curiam order. On the issue of whether

§ 273.5(a) qualified as a CIMT, the BIA affirmed the IJ’s reli-

ance on Grageda v. INS, 12 F.3d 919 (9th Cir. 1993), in

which we held that spousal abuse under § 273.5(a) was a

CIMT. Although the BIA recognized that Grageda limited its

holding to spousal abuse, it held that Grageda’s reasoning

applied “with equal force to abuse of a cohabitant . . . who is

in a relationship of trust, and may be dependent upon the per-

petrator.” The BIA also affirmed the IJ’s determination that

a waiver of inadmissibility under INA § 212(h) would not

render Morales eligible for cancellation of removal. Morales

filed a timely petition for review of the BIA’s decision.

STANDARD OF REVIEW

“[W]e review de novo the BIA’s determination of questions

of law, except to the extent that deference is owed to its inter-

pretation of the governing statutes and regulations.” Garcia-

Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006);

see also Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 651

(9th Cir. 2004). We recently clarified that the BIA’s determi-

nation that the petitioner has committed a CIMT is comprised

of two separate inquiries. See Marmolejo-Campos v. Holder,

MORALES-GARCIA v. HOLDER 6663

558 F.3d 903. 907 (9th Cir. 2009) (en banc). “First, the BIA

must determine what offense the petitioner has been convicted

of committing.” Id. Because “[t]he BIA has no special exper-

tise by virtue of its statutory responsibilities in construing

state or federal criminal statutes . . . we review the BIA’s

finding regarding the specific act for which the petitioner was

convicted de novo.” And “[s]econd, once the [BIA] has iden-

tified the petitioner’s offense, it must determine whether such

conduct is a ‘crime involving moral turpitude’ as defined in

the applicable section of the INA . . . requir[ing] the [BIA] to

apply the definition of the term ‘moral turpitude’ and to deter-

mine whether the petitioner’s conduct meets such definition.”

Id. But “[t]he Board’s answer to the second question requires

a different standard of review.” Id. at 908. If the BIA has

determined that the applicable conduct is morally turpitudi-

nous in a precedential decision, “we apply Chevron deference

regardless of whether the order under review is the preceden-

tial decision itself or a subsequent unpublished order that

relies upon it.” Id. at 911. (citation omitted). Where, however,

the BIA resolves an appeal in an unpublished decision, as in

this case, we defer to its interpretations of the INA not

resolved by prior precedential decisions only to the extent of

its thoroughness and overall persuasiveness. Id. at 909. See

also Garcia-Quintero, 455 F.3d at 1014-15 (noting that the

court owes Skidmore deference to a non-precedential BIA

opinion’s interpretation of the INA or its regulations) (citing

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

DISCUSSION

Morales contends that the BIA erred in affirming the IJ’s

determination that his conviction under Cal. Penal Code

§ 273.5(a) qualifies as a CIMT, both for purposes of deter-

mining his inadmissibility, see 8 U.S.C. § 1182(a)(2)(A)(i)(I),

and his ineligibility for cancellation of removal, see id.

§ 1229b(b)(1)(C). An alien convicted of a CIMT is ineligible

for cancellation of removal by virtue of the conviction itself,

see id. § 1229b(b)(1)(C), and because such a conviction pre-

6664 MORALES-GARCIA v. HOLDER

cludes a finding of good moral character required by

§ 1229b(b)(1)(B). See Galeana-Mendoza, 465 F.3d at 1057

(noting that “[a]n alien cannot establish good moral character

as required by § 1229b(b)(1)(B) if he has, among other things,

been convicted of a ‘crime involving moral turpitude’ ”) (cit-

ing 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I)). A finding of

error in Morales’ favor would therefore remove the statutory

bar to the relief he seeks. “To determine whether a conviction

is for a crime involving moral turpitude, we apply the categor-

ical and modified categorical approaches established by the

Supreme Court in Taylor v. United States . . . .” Navarro-

Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (en

banc) (citing Taylor v. United States, 495 U.S. 575, 599-602

(1990)).

I. Categorical Approach

A. Definition of crimes involving moral turpitude

[1] “Whether a crime involves moral turpitude is deter-

mined by the statutory definition or by the nature of the crime

and not by the specific conduct that resulted in the convic-

tion.” Id. at 1070 (citation and quotation marks omitted). The

categorical approach requires that we “compare the elements

of the statute of conviction to the generic definition [of moral

turpitude], and decide whether the conduct proscribed . . . is

broader than, and so does not categorically fall within, this

generic definition.” Fernandez-Ruiz v. Gonzales, 468 F.3d

1159, 1163 (9th Cir. 2006) (citation and quotation marks

omitted). We have observed that “there are no statutorily

established elements for a crime involving moral turpitude.”

Navarro-Lopez, 503 F.3d at 1068. Its meaning left to the BIA

and courts to develop through case-by-case adjudication. See

Nicanor-Romero v. Mukasey, 523 F.3d 992, 997 (9th Cir.

2008), overruled on other grounds by Marmolejo-Campos,

2009 WL 530950. We have “defined ‘moral turpitude’ as

involving conduct that is inherently base, vile, or depraved,

and contrary to the private and social duties man owes to his

MORALES-GARCIA v. HOLDER 6665

fellow men or to society in general.” Navarro-Lopez, 503

F.3d at 1068;2 see also In re Sejas, 24 I. & N. Dec. 236, 237

(BIA 2007) (applying a similar definition). The BIA has

added that “[t]he essence of moral turpitude is an evil or mali-

cious intent[,]” and, therefore, “[t]he test to determine if a

crime involves moral turpitude is whether the act is accompa-

nied by a vicious motive or a corrupt mind.” In re Tran, 21

I. & N. Dec. 291, 293 (BIA 1996). Under the categorical

approach, “the question is not whether some of the conduct

prohibited by [the statute] is morally turpitudinous,” but

rather “whether all of the conduct prohibited by [the statute]

is morally turpitudinous.” Nicanor-Romero, 523 F.3d at 999.

With this definition in mind, we now turn to an examination

of the statute in question.

B. Cal. Penal Code § 273.5(a)

When determining the reach of the state criminal statute at

issue, we consider not only the text of the statute, but also

state court interpretations of the statutory language. See

Galeana-Mendoza, 465 F.3d at 1058; Ortega-Mendez v. Gon-

zales, 450 F.3d 1010, 1016 (9th Cir. 2006). Although the Cal-

ifornia Supreme Court has yet to interpret § 273.5(a),

numerous California Court of Appeal decisions inform our anal-

ysis.3

2

Courts have also consistently held that crimes involving fraud are mor-

ally turpitudinous. See Nicanor-Romero, 523 F.3d at 998; Navarro-Lopez,

503 F.3d at 1074 (Reinhardt, J., concurring and writing for the majority).

There is no suggestion here, however, that the crime at issue in this case

involves fraud.

3

We recently held, in the context of determining whether a state convic-

tion was a crime of violence under U.S.S.G. § 4B1.2(a)(1), that courts may

rely on an opinion rendered by an intermediate state appellate court to

determine the reach of the state statute. See United States v. Taylor, 529

F.3d 1232, 1237 (9th Cir. 2008). The logic of Taylor applies with equal

force here: “Where an intermediate appellate state court rests its consid-

ered judgment upon the rule of law which it announces, that is a datum

for ascertaining state law which is not to be disregarded by a federal court

unless it is convinced by other persuasive data that the highest court of the

state would decide otherwise.” Id. (quoting West v. AT & T, 311 U.S. 223,

237 (1940)).

6666 MORALES-GARCIA v. HOLDER

The statute provides, in relevant part:

(a) Any person who willfully inflicts upon a person

who is his or her spouse, former spouse, cohabitant,

former cohabitant, or the mother or father of his or

her child, corporal injury resulting in a traumatic

condition, is guilty of a felony, and upon conviction

thereof shall be punished by imprisonment in the

state prison for two, three, or four years, or in a

county jail for not more than one year, or by a fine

of up to six thousand dollars ($6,000) or by both that

fine and imprisonment.

...

(c) As used in this section, “traumatic condition”

means a condition of the body, such as a wound or

external or internal injury, whether of a minor or

serious nature, caused by physical force.

...

Cal. Penal Code § 273.5. In accord with the California courts’

interpretation of this statute, the standard California jury

instruction lists the following three elements of the offense:

1. A person inflicted bodily injury upon [[his] [her]

[former] spouse] [a [former] cohabitant] [the

[mother] [or] [father] of [his] [her] child];

2. The infliction of bodily injury was willful [and

unlawful]; and

3. The bodily injury resulted in a traumatic condi-

tion.

CALJIC 9.35, Cal. Jury Instructions — Criminal (2008).

MORALES-GARCIA v. HOLDER 6667

“The term ‘cohabitant’ has been interpreted ‘broadly’ to

refer to those living together in a substantial relationship—

one manifested, minimally, by permanence and sexual or

amorous intimacy.” People v. Taylor, 12 Cal. Rptr. 3d 693,

696 (Ct. App. 2004) (citation and quotation marks omitted).

However, “[t]he element of ‘permanence’ . . . refers only to

the underlying ‘substantial relationship,’ not to the actual liv-

ing arrangement.” Id. (citation and quotation marks omitted).

Thus, a victim who lives with the defendant “in his car ‘for

a while’ after having stayed with her aunt[,]” and during “pe-

riods of time when she was homeless and had no other place

to stay[,]” is a cohabitant. Id. at 697. A defendant may simul-

taneously cohabitate with two different individuals in two dif-

ferent locations at the same time under California law. See

People v. Moore, 52 Cal. Rptr. 2d 256, 264 (Ct. App. 1996).

The term also encompasses a relationship in which the defen-

dant lived with the victim for about half the time during the

three months preceding the assault, but stayed in at least three

other locations, took his belongings with him when he left,

did not have a key to the residence, frequently went out alone

in the evenings, had infrequent sex with the victim, and did

not return the victim’s romantic feelings. See People v. Holi-

field, 252 Cal. Rptr. 729, 730-31, 735 (Ct. App. 1988).

C. Categorical analysis of § 273.5(a)

[2] We now compare the elements of § 273.5(a) to the

generic definition of moral turpitude provided above. We

have previously held that spousal abuse under § 273.5(a) is a

crime involving moral turpitude. See Grageda, 12 F.3d at

922. As we explain below, however, Grageda does not dictate

the result in this case because it limited its holding to a por-

tion of § 273.5(a) rather than employing the categorical

approach. Thus, we must decide the open question whether

§ 273.5(a) is categorically a CIMT.

1. Grageda

First, we explain why we are not bound by the Grageda

decision. We recognize, as a general matter, that “a three-

6668 MORALES-GARCIA v. HOLDER

judge panel may not overrule a prior decision of the court.”

Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en

banc). The term “decision,” however, encompasses only those

issues that are raised or discussed: “[U]nstated assumptions

on non-litigated issues are not precedential holdings binding

future decisions.” Sakamoto v. Duty Free Shoppers, Ltd., 764

F.2d 1285, 1288 (9th Cir. 1985); see also Brecht v. Abraham-

son, 507 U.S. 619, 631 (1993) (declining to follow prior cases

in which the issue at hand had not been “squarely

addressed”); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173

(9th Cir. 2004) (noting that “where a panel confronts an issue

germane to the eventual resolution of the case, and resolves

it after reasoned consideration in a published opinion, that rul-

ing becomes the law of the circuit”) (internal quotation marks

and citation omitted).

[3] Grageda resolved the following issue: “whether spou-

sal abuse is a crime of moral turpitude upon the basis of

which an alien can be deported.” Grageda, 12 F.3d at 920. It

thus discussed only that portion of the statute criminalizing

“the willful infliction of injury upon a spouse . . . .” Id.

Although the opinion specifically noted that “[t]his section

also makes the willful infliction of a corporal injury upon ‘any

person of the opposite sex with whom he or she is cohabiting’

a felony,” id. at 921-22 n.1, it limited the scope of its analysis

to spouses only, explicitly stating, “[w]e do not address the

question of whether cohabiting abuse is a crime of moral tur-

pitude,” id. Under that limited inquiry, Grageda held only that

“spousal abuse under section 273.5(a) is a crime of moral tur-

pitude.” Id. at 922. The narrowness of this holding, intention-

ally restricted to only one of five types of potential victims

covered by the statute, has repeatedly been recognized in our

subsequent decisions. See, e.g., Fernandez-Ruiz, 468 F.3d at

1165 (describing Grageda as a case about “spousal abuse”);

Gonzalez Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994)

(same); see also Nicanor-Romero, 523 F.3d at 1013 (Bybee,

J., dissenting) (same); In re Tran, 21 I. & N. Dec. at 293

(same). Simply put, Grageda does not address whether abuse

MORALES-GARCIA v. HOLDER 6669

of cohabitants or others covered by the statute qualifies as a

CIMT. Thus, under the categorical approach, we must con-

sider those portions of the statute — the full range of conduct

covered by § 273.5(a) — that Grageda, by its express terms,

declined to reach.

2. Applying the categorical analysis

[4] Section 273.5(a) includes in its list of covered victims

a “former cohabitant.” This factor alone makes the offense

virtually indistinguishable from the run-of-the-mill assault.

Few would argue that former cohabitants — however transi-

tory that cohabitation — are in a special relationship of trust

such as to make an assault by one on the other a CIMT. Our

past decisions make clear that assault and battery, without

more, do not qualify as CIMTs. See Fernandez-Ruiz, 468 F.3d

at 1165 (recognizing that “simple assault” does not involve

moral turpitude); Galeana-Mendoza, 465 F.3d at 1061 (hold-

ing that domestic battery under Cal. Penal Code § 243(e) is

not categorically a CIMT); see also In re Sejas, 24 I. & N.

Dec. at 237 (acknowledging the general rule that “a simple

assault and battery offense does not involve moral turpitude”);

In re Fualaau, 21 I. & N. Dec. 475, 476, 478 (BIA 1996) (en

banc) (holding that conviction under an assault statute involv-

ing bodily harm did not rise to the level of a CIMT without

an “aggravating dimension”). Such offenses, however, may

transform into CIMTs “if they necessarily involved aggravat-

ing factors that significantly increased their culpability[,]”

such as “the intentional infliction of serious bodily injury on

another” or “infliction of bodily harm upon a person whom

society views as deserving special protection . . . .” Galeana-

Mendoza, 465 F.3d at 1061 (emphasis in original) (quoting In

re Sanudo, 23 I. & N. Dec. 968, 973 (BIA 2006)); see also

In re Sejas, 24 I. & N. Dec. at 237 (recognizing identical fac-

tors).

Otherwise non-morally turpitudinous conduct targeted at a

victim with whom the defendant has a special relationship

6670 MORALES-GARCIA v. HOLDER

may transform a crime into one involving moral turpitude. In

Grageda, for example, we held that “when a person willfully

beats his or her spouse severely enough to cause ‘a traumatic

condition,’ he or she has committed an act of baseness or

depravity contrary to accepted moral standards.” Grageda, 12

F.3d at 922. In reaching that result, we cited a case involving

child abuse, Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th

Cir. 1969), for its pronouncement that the infliction of cruel

or inhuman corporal punishment or injury upon a child is “so

offensive to American ethics” that it “ends debate on whether

moral turpitude was involved.” Id. at 1406-07. Drawing a par-

allel between that case and spousal abuse under § 273.5, we

reasoned that “an adult is not as helpless of a victim as a

child; nevertheless, a spouse is committed to a relationship of

trust with, and may be dependent upon, the perpetrator.”

Grageda, 12 F.3d at 922. Accord In re Tran, 21 I. & N. Dec.

at 294 (extending Grageda to the infliction of harm upon the

parent of the perpetrator’s child because the relationship

between perpetrator and victim is one of trust and possible

dependency).

[5] Grageda reasoned that it is particularly morally objec-

tionable to beat a person “[1] committed to a [2] relationship

of trust with, and . . . [3] dependent upon, the perpetrator.”

Grageda, 12 F.3d at 922. In In re Tran, the BIA, building

upon Grageda, held that § 273.5(a) is categorically a CIMT.

It reasoned, in relevant part, that “[a] person who cohabits

with or is the parent of the offender’s child maintains a rela-

tionship of a familial nature with the perpetrator of the harm”

that approximates a spousal relationship. In re Tran, 21 I. &

N. Dec. at 294. Not all of the relationships listed in

§ 273.5(a), however, fit comfortably under the rationale of

Grageda and In re Tran. For example, as discussed above,

California courts have held that one can be a cohabitant even

if one cohabits with several partners at once, see Moore, 52

Cal. Rptr. 2d at 264, or does not have a key to the residence

or leave his belongings there, see Holifield, 252 Cal. Rptr. at

730-31. Certainly, these relationships embody a lesser level of

MORALES-GARCIA v. HOLDER 6671

commitment, trust, and dependency than marriage, which, for

example, creates community property rights, and subjects for-

mer spouses to dissolution procedures. See, e.g., Cal. Fam.

Code § 751 (creating community property rights in both

spouses); id. § 2010 (creating ongoing jurisdiction for the

court to render judgments concerning, inter alia, custody,

support, and property division). Section 273.5 goes even fur-

ther, to cover acts between former cohabitants. As all that is

required to establish cohabitation is the existence of a sub-

stantial, amorous relationship and, perhaps, a sporadic shared

living arrangement, it stands to reason that many individuals

have many former cohabitants. Not all of these individuals are

committed to, trust, or depend upon, each other. Thus, not all

victims under the statute are particularly “vulnerable,” nor are

they “entitled to . . . care and protection” by the perpetrator.

Galeana-Mendoza, 465 F.3d at 1061. Because some

perpetrator-victim relationships covered by the statute are

more akin to “strangers or acquaintances, which, depending

on the wording of the statute, [does] not necessarily [trigger]

a crime of moral turpitude[,]” Grageda, 12 F.3d at 922, we

hold that this aggravating factor cannot, alone, transform

§ 273.5(a) into a crime categorically involving moral turpitude.4

Because the victims covered by § 273.5(a), as interpreted

by the state courts, is overly-broad, we need not examine peti-

4

We recently clarified that “once the elements of the petitioner’s offense

are established, our review of the BIA’s determination that such offense

constitutes a ‘crime of moral turpitude’ is governed by the same traditional

principles of administrative deference we apply to the Board’s interpreta-

tion of other ambiguous terms in the INA.” Marmolejo-Campos, 2008 WL

530950, at *5 (emphasis added). Relying heavily on Grageda, In re Tran

holds that “infliction of bodily harm upon a person with whom one has

such a familial relationship is an act of depravity which is contrary to

accepted moral standards.” In re Tran, 21 I. & N. Dec. at 294 (emphasis

added). Because In re Tran incorrectly identifies the elements of

§ 273.5(a) in at least one significant respect, we do not defer to the BIA’s

holding in In re Tran.

6672 MORALES-GARCIA v. HOLDER

tioner’s other contentions respecting the statute’s “evil intent”

requirement,5 or extent-of-injury requirement.6

II. Modified Categorical Approach

[6] As we indicated at the outset of our discussion, even if

a statutory offense fails to qualify as a CIMT under the cate-

gorical approach, in most cases, it is still possible that the

crime of conviction at issue can qualify as a CIMT under the

modified categorical approach. See Quintero-Salazar, 506

F.3d at 694 (“Under the modified categorical approach we

examine documentation or judicially noticeable facts that

clearly establish that the conviction is a predicate conviction

for removal purposes.” (citation and quotation marks omit-

ted)). In this case, the BIA, relying on Grageda, concluded

that § 273.5(a) was categorically a CIMT. It thus never made

a determination under the modified categorical approach

whether Morales’ offense qualifies as a CIMT. Rather than

make that determination in the first instance, we remand to

the agency to address the modified categorical approach. See

INS v. Ventura, 537 U.S. 12, 16 (2002).

CONCLUSION

We hold that Morales’ conviction under Cal. Penal Code

§ 273.5(a) for abuse of a cohabitant is not categorically a

CIMT within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I)

and § 1229b(b)(1)(C). We therefore grant Morales’ petition

5

Grageda interpreted the statute to require that the defendant “intended

to cause the harm,” 12 F.3d at 922, although later California cases appear

to require only the general intent to commit the act that results in injury.

See People v. Campbell, 90 Cal. Rptr 2d 315, 318 (Ct. App. 1999).

6

Even in cases involving crimes committed against those in a special

relationship with the perpetrator, we have required that the offending con-

duct result in injury to the victim. Galeana-Mendoza, 465 F.3d at 1061

(holding that California’s domestic battery statute, Cal. Penal Code

§ 243(e), does not categorically qualify as a CIMT because it lacks an

injury requirement).

MORALES-GARCIA v. HOLDER 6673

for review,7 reverse the decision of the BIA, and remand for

further proceedings consistent with this opinion.8

PETITION GRANTED and REMANDED.

7

We therefore do not reach the issue, briefed and argued by the parties,

of whether a waiver of inadmissibility under 8 U.S.C. § 1182(h) may ren-

der a petitioner convicted of a CIMT eligible for cancellation of removal

under 8 U.S.C. § 1229b(b).

8

We do not resolve the issue raised by the government that Morales’

conviction under Cal. Penal Code § 273.5 would qualify as a crime of

domestic violence under 8 U.S.C. § 1227(a)(2)(E) because that was not a

basis of the BIA’s decision. See SEC v. Chenery Corp., 332 U.S. 194, 196

(1947) (noting that a “court is powerless to affirm the administrative

action by substituting what it considers to be a more adequate and proper

basis” which was not relied on by the agency); cf. Ventura, 537 U.S. at

16 (noting that, “[g]enerally speaking, a court of appeals should remand

a case to an agency for decision of a matter that statutes place primarily

in agency hands”).