Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of First Degree Burglary and Attempted First Degree Kidnapping, in violation of Or. Rev. Stat. 163.225, 163.235, found not to be "crimes of domestic violence," under 8 U.S.C. 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).      In Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), the Ninth Circuit held that the Immigration Judge erred by considering the facts underlying a criminal conviction to determine whether it fell within the domestic violence ground of deportation, 8 U.S.C. 1227(a)(2)(E)(i): We hold that the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), categorical and modified categorical approach is applicable to [INA] section 237(a)(2)(E)(i), and that neither the Board of Immigration Appeals (BIA or Board) nor this court may look beyond the record of conviction to determine whether the crime of which the alien was convicted was a "crime of domestic violence" within the meaning of the statute. Accordingly, we conclude that the Immigration Judge (IJ) erred in relying on testimonial evidence adduced at the immigration proceeding, including the petitioner's own admissions regarding the nature of his relationship with the victim, and in finding him removable under [INA] section 237(a)(2)(E)(i). Tokatly v. Ashcroft, 2004 WL 1276828, at *8. The court therefore granted the petition for review, and vacated the order of removal.      The Immigration Judge in Tokatly had, over objection, considered the testimony of the victim as to the nature of her relationship with the noncitizen in concluding that the crime of violence constituted a "crime of domestic violence" for deportation purposes. At a later hearing to consider relief, the noncitizen himself testified as to the nature of his relationship with the victim. The noncitizen argued that the categorical and modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990), applies to the determination whether the convictions constituted crimes of domestic violence, and that the evidence in the record of conviction that the Immigration Judge was entitled to consider under Taylor -- the judgment, the indictment, and the guilty plea from the state record of conviction -- failed to establish that the Immigration Judge was not permitted to "examine the facts behind the conviction," or to rely on testimonial evidence outside the record of conviction, to determine whether the conviction qualified as a basis for removal under INA 237(a)(2)(E)(i). The Ninth Circuit agreed: The methodology this circuit and others follow in order to determine whether a conviction constitutes a predicate offense for deportation purposes is well-established. When possible, we apply the "categorical" approach, "looking only to the statutory definition[ ] of the prior offense." Taylor, 495 U.S. at 600. However, when it is not clear from the statutory definition of the prior offense whether that offense constitutes a removable offense under section 237(a)(2)(E)(i), we apply a "modified" categorical approach under which we may look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including "the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings." See United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc). We do not, however, look beyond the record of conviction itself to the particular facts underlying the conviction. See Taylor, 495 U.S. at 600. Accordingly, when the documents that we may consult under the "modified" approach are insufficient to establish that the offense the petitioner committed qualifies as a basis for removal under section 237(a)(2)(E)(i), we are compelled to hold that the government has not met its burden of proving that the conduct of which the defendant was convicted constitutes a predicate offense, and the conviction may not be used as a basis for removal. See United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir.2000). Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), at *5. The government argued that the Immigration Judge may go outside the record of conviction in assessing domestic violence cases, but the court responded: For this proposition, the government relied in its brief on Sutherland v. Reno, 228 F.3d 171 (2d Cir.2000). Sutherland, however, contains no suggestion that the IJ may conduct an independent factual hearing to supplement the record of conviction. In Sutherland, the Second Circuit determined only that the petitioner's prior offense was a "crime of domestic violence" because his victim -- his 19-year old step-daughter -- qualified as " 'a person who [wa]s protected from [his] acts under the domestic or family violence laws of ... any State,' " see 237(a)(2)(E)(i), due to the fact that " 'Massachusetts law protects all 'family or household members' from violent crimes and other forms of abuse.' " Id. at 177. Sutherland, unlike Tokatly, raised no contention that the evidence in the record of conviction failed to show that his "crime of violence" was a "domestic" offense within the meaning of the provision. Rather, he raised only the legal argument that the victim did not qualify as a "domestic" relative because she had not filed for a protective order under Massachusetts law. The Second Circuit resolved only that legal issue--i.e. whether the stepdaughter was covered by the pertinent Massachusetts law. Accordingly, the court had no occasion to question the applicability of the Taylor categorical and modified categorical approach to the determination whether petitioner's prior offense was a "crime of domestic violence. Totkaly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), at n.6.      The government also argued that even if the IJ could not consider the victim's testimony, the court should allow consideration of the noncitizen's judicial admissions respecting the nature of his criminal conduct. The court, however, rejected this suggestion, citing In re Pichardo, 21 I & N Dec. 330, 334-335 (BIA 1996) (the Immigration Judge's reliance on the potential deportee's testimony to establish a requisite element of the removable offense was improper), and Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) (factual admissions by noncitizen in appellate brief as to what happened do not establish that the petitioner had actually been convicted of an offense including the elements necessary to bring the offense within the ground of deportation). The court therefore held: "Because the documentation in the record of conviction fails to establish that Tokatly's prior conviction was for acts that fall within the relevant statutory provision, the government has not met its burden of proof, and the conviction may not be used for purposes of removal. See United States v. Franklin, 235 F.3d 1165, 1170 (9th Cir. 2000)." Totkaly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), at *8.      The court adopted this rule to prevent the immigration proceedings from degenerating into a relitigation of the underlying facts of the case, which would be very difficult administratively and potentially present many difficult questions without any bright line way of limiting the factual inquiries. For example, imagine how difficult it would be to determine whether a social event was a "date" or merely a business dinner.      Under Tokatly, the domestic relationship necessary to bring a crime of violence conviction within the domestic-violence ground of deportation must be established within the four corners of the traditional record of conviction used to assess aggravated felonies, crimes of moral turpitude, and all conviction-based grounds of deportation. Therefore, convictions of simple assault or battery, the elements of which do not require the victim to be in a domestic relationship with the defendant, cannot trigger deportation under the domestic-violence deportation ground. The same holds true of all other crimes of violence. This rule governs cases decided within the Ninth Circuit, but it is possible that other circuits may disagree with the Ninth Circuit's decision in Tokatly. It should be remembered that a noncitizen may be at risk if s/he undergoes immigration proceedings in another circuit, which may have adopted a different rule, even though the conviction occurred within the Ninth Circuit.      Under Tokatly, a California conviction of simple assault, in violation of Penal Code 240, or simple battery, in violation of Penal Code 242/243(a), cannot now constitute deportable domestic-violence convictions unless some additional information is provided in the record of conviction that evidences a domestic relationship with the victim. Even if the domestic relationship is shown in the record of conviction, the noncitizen can argue that the facts must be ignored and the conviction is therefore not a domestic violence conviction unless the domestic relationship appears in the essential elements of the offense. Matter of Espinoza, 22 I. & N. Dec. 889, 891 (BIA 1999); Matter of Martin, 23 I. & N. Dec. 491, 506 (BIA 2002). Convictions of spousal cruelty, under Penal Code 273.5(a), or spousal battery, under Penal Code 243(e)(1), will qualify under the protected person standard of the domestic violence deportation ground. However, a conviction under Penal Code 243(e)(1) could be based on the slightest touching, and thus may not constitute a crime of violence even if committed against a person protected under the domestic violence laws. See United States v. Belless, 338 F.3d 1063 (9th Cir. Aug. 11, 2003) (de minimis force insufficient to constitute crime of violence or domestic violence). http://www.criminalandimmigrationlaw.com/CILU_10_9_03.php   Additional Analysis by Kathy Brady:      If a defendant is convicted of spousal abuse under PC 273.5, the relationship automatically is shown by the elements of the statute. But if the defendant is convicted, for example, of battery with injury under PC 243(d), immigration judges have been inconsistent as to whether the government could depart from the fundamental rule that all information showing deportability must be contained in the record of conviction, and be permitted to introduce other evidence of the relationship in immigration proceedings, such as new testimony, a marriage certificate, etc. In Tokatly the Ninth Circuit disallowed the victim's and respondent's testimony in immigration proceedings about the domestic relationship, because that was not in the record of conviction. The court stated:

     "We hold that the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), categorical and modified categorical approach is applicable to [INA] section 237(a)(2)(E)(i), and that neither the Board of Immigration Appeals (BIA or Board) nor this court may look beyond the record of conviction to determine whether the crime of which the alien was convicted was a 'crime of domestic violence' within the meaning of the statute. Accordingly, we conclude that the Immigration Judge (IJ) erred in relying on testimonial evidence adduced at the immigration proceeding, including the petitioner's own admissions regarding the nature of his relationship with the victim, and in finding him removable under [INA] section 237(a)(2)(E)(i)."

     Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), at *8. The court therefore granted the petition for review, and vacated the order of removal.