Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (California conviction of corporal injury of a person with a present or former listed domestic relationship, in violation of Penal Code 273.5 is not categorically a crime of moral turpitude, because the listed relationships can cover persons such as former dates, who are not protected by domestic violence laws).

NOTE: The DHS may argue that the domestic relationship is a "circumstance-specific" fact that can be proven by evidence extrinsic to the elements of the offense and extrinsic to the record of conviction, by analogy to United States v. Hayes, 555 US 415, 129 SCt 1079 (2009). Although the Ninth Circuit decision in Tokatly has not been overruled, it may be in the future. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir 2004). See also, Nijhawan v Holder (2009) 129 SCt 2294 (loss to victim is circumstance-specific factor that need not be element of offense and may be proven by evidence outside record of conviction). Therefore, the best practice to avoid a deportable crime of domestic violence is to either plead to an offense that is not a crime of violence, or to a victim who does not have a protected relationship. However, under present law, counsel can file a motion to terminate removal proceedings if the complaint and plea colloquy do not establish that the victim is someone protected by domestic violence laws.

Also, if the Service does argue Hayes, counsel can reply that while in Hayes the evidence of the relationship could be extrinisic to the original offense, it still had to be proved beyond a reasonable doubt in a criminal proceeding. The 9th Circuit addressed the difference between the two situations in Cisneros-Perez:

[T]he contexts of the two decisions involve different statutory provisions, as to which the pertinent considerations are quite different: In Belless [338 F.3d 1063],the government was required to prove a second, distinct crime in the second prosecution. We concluded that the domestic aspect of a prior domestic violence conviction can be proven as an element of the second crime whether or not established by the conviction documents in the prior proceeding. Tokatly, on the other hand, involved the application of the modified categorical approach in an immigration case, such as this one, in which the inquiry is confined only to determining the nature of the prior crime.

Cisneros-Perez v. Gonzales, 465 F.3d 386, 392 (9th Cir. 2006).