(B)  Factual Basis.  The Ninth Circuit recently allowed a court to look to a factual description of the offense, as stipulated by the prosecution and the defendant’s attorney as the factual basis for the plea, in order to determine whether the noncitizen had pleaded guilty to a crime of violence upon conviction for false imprisonment committed by means of violence, menace, fraud or deceit.[219]  This and other cases allowing examination of the factual basis of the plea and other admissions by the defendant during criminal proceedings are discussed at § 4.23, infra.

[219] United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005).

Second Circuit

CONVICTION " MODIFIED CATEGORICAL ANALYSIS " FACTS VS ELEMENTS
Flores v. Holder, ___ F.3d ___, ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (BIA erred by consulting the record of conviction to determine that Flores's underlying conduct"the touching of his hand to the genital area of th[e] victim"satisfied the generic definition of sexual abuse of a minor under 18 U.S.C. 3509(a). . . . The agency was instead required to consider whether the minimum conduct necessary to violate N.Y. Penal Law 130.65(3) was encompassed within 18 U.S.C. 3509(a)'s definition of sexual abuse.); see Ming Lam Sui v. INS, 250 F.3d 105, 117"18 (2d Cir. 2001) (noting that reviewing court cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount to one of the enumerated crimes (internal quotation marks omitted)). The court noted: This error was not harmless because N.Y. Penal Law 130.65 criminalizes sexual contact, and we have observed that it is by no means clear that admitting to sexual contact with a minor under New York law would be enough to establish sexual abuse of a minor under the INA. James, 522 F.3d at 258 (emphasis in original). Accordingly, we vacate the agency's aggravated felony determination and remand for proper application of the modified categorical approach. See Gonzales v. Thomas, 547 U.S. 183, 186"87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (observing that agency should be given opportunity, in first instance, to make legal determinations entrusted to it by Congress). (Id. at ___.)

Ninth Circuit

CONVICTION " NATURE OF CONVICTION
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (in using the modified categorical analysis to determine whether a state conviction falls within a generic federal definition of a conviction, the court cannot consider a post-conviction, independent examination of the facts forming the basis of a prior conviction; Taylor requires the avoidance of subsequent evidentiary enquiries into the factual basis for the earlier conviction.).

RECORD OF CONVICTION - FACTS VS. ELEMENTS
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) (where California Penal Code 459 does not require proof beyond a reasonable doubt that the burglary arose from an "unlawful" entry into a building, the "unlawful" language in the charging document is not an element of the offense, but rather a fact that the defendant has admitted to in taking the plea; because this fact was specifically admitted by the defendant at plea, it may be used as part of the record of conviction under the modified categorical analysis to determine that the defendant admitted committing a "generic" burglary offense by making an "unlawful" entry).

RECORD OF CONVICTION - EVIDENCE OF DOMESTIC RELATIONSHIP
Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (California conviction of battery, in violation of Penal Code 242 (any willful and unlawful use of force or violence upon the person of another), not shown on this record under modified categorical analysis to be a crime of domestic violence, within the meaning of 8 U.S.C. 1227(a)(2)(E)(i), because there was insufficient documentation to establish a domestic relationship; dismissed counts naming spouse as victim, sentence to domestic violence counseling, and order to stay away from spouse cannot be used to establish that conviction for battery of unnamed victim was a crime of domestic violence).

DOMESTIC VIOLENCE - DOMESTIC BATTERY - CALIFORNIA CONVICTION OF SIMPLE BATTERY DID NOT QUALIFY AS DOMESTIC VIOLENCE CONVICTION WHERE RECORD OF CONVICTION DID NOT ESTABLISH NECESSARY DOMESTIC RELATIONSHIP
Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (California conviction of simple battery, in violation of Penal Code 242, did not qualify as deportable domestic violence conviction, under INA 237(a)(2)(E)(i, 8 U.S.C. 1227(a)(2)(E)(i), where record of conviction did not establish necessary domestic relationship), opinion amended on denial of rehearing, ___ F.3d ___, 2006 WL 2819961 (9th Cir. Oct. 4, 2006) (amendment deleted the following sentence: "Where, as here, there are statutes directly addressing domestic violence, such as California Penal Code sections 243(e)(1) and 273.5, only the most convincing proof of the nature of a conviction for a more general crime will suffice to establish a crime of domestic violence." 451 F.3d at 1059-60 [emphasis in original]).
http://caselaw.lp.findlaw.com/data2/circs/9th/0471717p.pdf

Lower Courts of Ninth Circuit

CONVICTION " NATURE OF CONVICTION -- MODIFIED CATEGORICAL ANALYSIS " RECORD OF CONVICTION " FACTUAL BASIS FOR PLEA
United States v. Sahagun-Gallegos, ___ F.3d ___, ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (When conducting the modified categorical approach, we may not examine a transcript to try to discern what ... a plea proceeding revealed[ ] about the defendant's underlying conduct. Descamps, 133 S.Ct. at 2288. Rather, we are limited to assessing whether the defendant necessarily admitted the elements of the particular statutory alternative that is a categorical match to the generic federal offense. See id. at 2284 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254).).