Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (applying modified categorical analysis to determine California conviction of battery, in violation of Penal Code 242 (any willful and unlawful use of force or violence upon the person of another) is not a crime of domestic violence).

The court in this case appears to have misread Tokatly v. Aschcroft, 371 F.3d 613 (9th Cir. Jun. 10, 2004), in which the Ninth Circuit held that a noncitizen convicted in Oregon of Burglary in the First Degree and Kidnapping in the First Degree could not be found deportable as a noncitizen convicted of a crime of domestic violence because neither the burglary, nor the kidnapping statutes, required the jury to find, or the defendant to admit, a domestic relationship with the victim in order to sustain a conviction. Rather than determining that California Penal Code 242 (simple battery), likewise does not require a domestic relationship to sustain a conviction, and that the record of conviction should therefore not be examined, the court in Cisneros-Perez read Tokatly to require an examination of the record. The section of Tokatly the court quotes stated that facts outside the record of conviction could not be used to establish that an offense involved domestic violence, rather than mandating the record be examined in all cases.