FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE BANUELOS-AYON,
Petitioner, No. 07-71667
v.
Agency No.
A039-719-895
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 14, 2010—San Francisco, California
Filed July 14, 2010
Before: Alex Kozinski, Chief Judge, Consuelo M. Callahan,
Circuit Judge, and Ricardo S. Martinez, District Judge.*
Opinion by Judge Callahan
*The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
10219
BANUELOS-AYON v. HOLDER 10221
COUNSEL
Richard H. Frankel (argued), and Steven H. Goldblatt, Super-
vising Attorneys, and Susan Gardinier, and Katherine Swan,
Student Counsel, of Georgetown University Law Center’s
Appellate Litigation Program of Washington, D.C., for the
petitioner.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, David
V. Bernal, Tiffany Kleinert (argued), and Jesse M. Bless, of
Washington, D.C., for the respondent.
OPINION
CALLAHAN, Circuit Judge:
Jose Banuelos-Ayon (“Banuelos-Ayon” or “petitioner”) is
a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident on July 3, 1985.
Following his 2000 conviction for a domestic violence
offense, Banuelos-Ayon was charged with removability for
committing a crime of violence pursuant to 8 U.S.C.
§ 1227(a)(2)(E)(i). On October 26, 2006, Banuelos-Ayon con-
ceded removability and submitted an application for cancella-
tion of removal. The BIA denied his application, holding that
his conviction under California Penal Code § 273.5(a) is cate-
gorically a crime of domestic violence. We agree and deny his
petition for review.
10222 BANUELOS-AYON v. HOLDER
I.
In Spring 2000, Banuelos-Ayon and his girlfriend — the
mother of his children — were engaged in a heated argument.
At some point during the argument petitioner’s girlfriend
drove away because “she never wanted to see [Banuelos-
Ayon] again.” Banuelos-Ayon chased after her in his car. He
tried to block her car in at a stop sign “simply so [they] could
talk.” As a result, the two vehicles collided, and his girlfriend
was injured. Banuelos-Ayon left the scene of the accident and
was later arrested at his place of work.
On April 5, 2000, he pleaded guilty to “Corporal Injury to
a Spouse/Cohabitant” in violation of California Penal Code
§ 273.5(a) and to a sentencing enhancement under California
Penal Code § 12022(b) for use of a deadly weapon in the
commission of the offense. On September 12, 2006, the
Department of Homeland Security (“DHS”) issued a Notice
to Appear charging Banuelos-Ayon with being removable
pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). Banuelos-Ayon con-
ceded the charge of removability and on October 26, 2006,
submitted an application for cancellation of removal.
On December 20, 2006, the Immigration Judge (“IJ”)
issued a written decision and two separate orders. In the first
order, the IJ held that Banuelos-Ayon was not removable
because DHS failed to establish by clear and convincing evi-
dence that he had been convicted of a crime of domestic vio-
lence within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). In
the second order, the IJ concluded that if the BIA determined
Banuelos-Ayon was removable because his conviction quali-
fied as a crime of domestic violence, his application for can-
cellation of removal would be denied as a matter of
discretion.
Both parties appealed the IJ’s rulings to the BIA. On April
23, 2007, the BIA reversed the IJ’s holding terminating the
removal proceedings and affirmed the IJ’s alternative holding
BANUELOS-AYON v. HOLDER 10223
denying cancellation of removal. With respect to removabil-
ity, the BIA held that § 273.5(a) categorically qualified as a
crime of domestic violence under 18 U.S.C. § 16(a) and (b).
It reasoned that “[i]n light of the fact that a person cannot be
convicted under section 273.5(a) without willfully using
direct physical force of such violence as to cause a traumatic
condition to the victim, we are satisfied that the offense has
the use of physical force against the person of another as an
element.” The BIA confined its analysis to the categorical
approach and did not address the IJ’s findings regarding the
modified categorical approach.
II.
Whether a state criminal conviction is a removable offense
is reviewed de novo. Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1126 n.7 (9th Cir. 2006) (en banc). The BIA’s interpre-
tation of whether California Penal Code § 273.5(a) is a crime
of violence within the meaning of 18 U.S.C. § 16 is not enti-
tled to deference because the BIA is not charged with admin-
istering that statute. Id.
III.
[1] A legally admitted alien is removable if he has been
convicted of a crime of domestic violence. 8 U.S.C.
§ 1227(a)(2)(E)(i) (any alien who at any time after admission
is convicted of a crime of domestic violence . . . is deport-
able”). 8 U.S.C. § 1227(a)(2)(E)(i) defines a crime of domes-
tic violence as including any “crime of violence (as defined
in section 16 of Title 18) against a person committed . . . by
an individual with whom the person shares a child in com-
mon.” A crime of violence is defined by 18 U.S.C. § 16 as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
10224 BANUELOS-AYON v. HOLDER
(b) any other offense that is a felony and that, by its
nature, involves substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
The Supreme Court stated in Leocal v. Ashcroft, that the “use,
attempted use or threatened use of force” under 18 U.S.C.
§ 16(a) requires “a higher degree of intent than negligent or
merely accidental conduct.” 543 U.S. 1, 9 (2004). In
Fernandez-Ruiz, we held that the “bedrock principle of Leo-
cal is that to constitute a federal crime of violence, an offense
must involve the intentional use of force against the person or
property of another.” 466 F.3d at 1132.
[2] Banuelos-Ayon pled guilty to California Penal Code
§ 273.5(a), which provides:
Any person who willfully inflicts upon a person who
is . . . the mother or father of his or her child . . . cor-
poral 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 thou-
sand dollars ($6,000) or by both that fine and impris-
onment.
(emphasis added).
In determining whether petitioner’s conviction under Cali-
fornia Penal Code § 273.5(a) constitutes a crime of violence,
we apply the standard set forth in Taylor v. United States, 495
U.S. 575 (1990); see Huerta-Guevara v. Ashcroft, 321 F.3d
883, 886-88 (9th Cir. 2003). Under this test, the court makes
a categorical comparison of the elements of the state statute
of conviction to the generic federal definition of a crime of
domestic violence in order to determine whether the full range
BANUELOS-AYON v. HOLDER 10225
of conduct proscribed by the statute of conviction is broader
than the generic definition. Taylor, 495 U.S. at 598-99.
If the statute of conviction reaches both conduct that does
and does not constitute the generic definition of a crime of
domestic violence, the court must conduct a modified categor-
ical analysis. See United States v. Pallares-Galan, 359 F.3d
1088, 1099-1103 (9th Cir. 2004). Under this approach, the
court considers “whether documentation or other judicially
noticeable facts in the record indicate that [the petitioner] was
convicted of the elements of the generically defined crime.”
Huerta-Guevara, 321 F.3d at 887. The purpose of the modi-
fied categorical approach is “to determine if the record
unequivocally establishes that the defendant was convicted of
the generically defined crime, even if the statute defining the
crime is overly inclusive.” United States v. Corona-Sanchez,
291 F.3d 1201, 1211 (9th Cir. 2002) (en banc).1
IV.
We conclude that Banuelos-Ayon’s conviction under Cali-
fornia Penal Code § 273.5(a) is categorically a crime of vio-
1
We, like the BIA, confine our analysis to the categorical approach. We
note, however, that the government admitted at oral argument that because
California Penal Code § 273.5 is a “wobbler” — that is because a convic-
tion under the section can be either a misdemeanor or a felony depending
on the sentence imposed — a conviction under § 273.5(a) is not a categor-
ical crime of violence under 18 U.S.C. § 16(b). See Garcia-Lopez v. Ash-
croft, 334 F.3d 840, 844 (9th Cir. 2003). Accordingly, a modified
categorical analysis is necessary if § 16(b) is invoked, because in deter-
mining whether the conviction is a felony, it is necessary to look beyond
the statute. See Fernandez-Ruiz, 466 F.3d at 1132 (noting that under the
modified categorical approach, “we consider whether any of a limited,
specified set of documents — including ‘the state charging document, a
signed plea agreement, jury instructions, guilty pleas, transcripts of a plea
proceeding and the judgment’ (sometimes termed ‘documents of convic-
tion’) — show the petitioner’s conviction entailed an admission to, or
proof of, the necessary elements of a crime of violence.”) (internal citation
omitted).
10226 BANUELOS-AYON v. HOLDER
lence under 18 U.S.C. § 16(a), despite his arguments to the
contrary.
Banuelos-Ayon first asserts that like simple battery,
§ 273.5(a) can be violated by any unwanted touching, whether
violent or non-violent. In support of his argument, he cites
Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).
In Ortega-Mendez, we held that a misdemeanor battery under
California Penal Code § 242 is not a categorical crime of vio-
lence because the statute did not require the use of violent
force. Section 242 defines misdemeanor battery as “any will-
ful and unlawful use of force or violence upon the person of
another.” We noted that the phrase “force or violence” indi-
cates that the statute covers non-violent force; otherwise the
word “or” would be surplusage. Id. at 1016. We then
explained that the phrase “use of force or violence” in § 242
was a “term of art, requiring neither a force capable of hurting
or causing injury nor violence in the usual sense of the term.”
Id. at 1016-17 (citation omitted). Accordingly we concluded
that because misdemeanor battery could be violated through
the “least touching,” the statute did not require the use of vio-
lent force and thus was not a crime of violence under the fed-
eral generic statute. Id.
[3] Ortega-Mendez, however, is readily distinguishable
because a conviction under § 273.5(a) requires more than a
simple battery. Unlike § 242, which criminalizes the use of
“force or violence,” § 273.5(a) contains no differentiating pro-
vision. California Penal Code § 273.5(a) requires that the
defendant “willfully inflict . . . corporal injury resulting in a
traumatic condition.” (emphasis added). The commonsense
reading of this language is that § 273.5(a) requires the use of
violence. See United States v. Jimenez, 258 F.3d 1120, 1125
(9th Cir. 2001) (holding that a defendant could not “reason-
ably[ ] dispute that inflicting corporal injury on his spouse
involved the use of violence”). Unlike simple battery, which
requires “neither a force capable of hurting or causing injury
nor violence in the usual sense of the term,” § 273.5(a)
BANUELOS-AYON v. HOLDER 10227
requires both physical force and a resulting injury. In sum, a
conviction under § 273.5(a) is a crime of violence because it
requires “the intentional use of force against [a] person.”
Fernandez-Ruiz, 466 F.3d at 1132. Moreover, because the ele-
ments of California Penal Code § 273.5(a) differ from simple
battery under California Penal Code § 242, Ortega-Mendez is
not controlling.
Although we look to federal law to define “crime of domes-
tic violence,” we look to the California courts to determine
the elements of California Penal Code § 273.5(a). See John-
son v. United States, 130 S. Ct. 1265, 1269 (2010) (“We are,
however, bound by the Florida Supreme Court’s interpretation
of state law.”). A leading California court case on the ele-
ments of § 273.5(a) is People v. Jackson, 77 Cal. App. 4th
574 (Cal. Ct. App. 2000). This case arose out of an incident
in which Jackson and his girlfriend were fighting outside their
apartment. Id. at 575. Jackson pushed his girlfriend against his
car, and when she turned to leave, she tripped over a curb and
suffered injury. Id. at 576. Jackson was found guilty of violat-
ing § 273.5(a) and appealed. Id. The California Court of
Appeal modified the judgment to reflect a conviction of the
lesser included offense of simple battery, holding that there
was insufficient evidence that defendant inflicted corporal
injury on his girlfriend. Id. at 580. The court noted:
[I]f the Legislature had defined Penal Code section
273.5 in broader terms, rather than “willfully
inflicts,” we would conclude that it intended to
extend criminal liability to the direct, natural and
probable consequences of [ ] battery. Since it
appears that the Legislature intended section 273.5 to
define a very particular battery, we conclude the sec-
tion is not violated unless the corporal injury results
from a direct application of force on the victim by
the defendant.
Id. (emphasis added).
10228 BANUELOS-AYON v. HOLDER
[4] Jackson confirms that California courts define the ele-
ments of § 273.5(a) as requiring the direct use of force against
a person. The “direct application of force” that Jackson, 77
Cal. App. 4th at 580, held is required by § 273.5(a) is the
equivalent of the “intentional use of force” contemplated by
this court in Fernandez-Ruiz and distinct from the “least
offensive touching” required for simple battery. Thus, follow-
ing the interpretation of the elements of § 273.5(a) set forth in
Jackson, we conclude that § 273.5(a) is categorically a crime
of violence under 18 U.S.C. § 16(a).
Banuelos-Ayon contends that despite Jackson, California
courts have interpreted § 273.5(a) to require only the “least
offensive touching” — to require only simple battery. He cites
three unpublished California Court of Appeal decisions: Peo-
ple v. Stearns, No. B183521, 2006 WL 946671 (Cal. Ct. App.
Apr. 13, 2006), People v. Guster, No. C043276, 2004 WL
397060 (Cal. Ct. App. Mar. 4, 2004), and People v.
McCombs, No. F036894, 2002 WL 31097693 (Cal. Ct. App.
Sept. 20, 2002). These unpublished opinions are not binding
authority, but they might present non-hypothetical examples
of situations where § 273.5(a) was used to punish conduct that
falls outside the scope of the generic definition of a crime of
violence. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007) (noting that “to find that a state statute creates a crime
outside the generic definition of a listed crime in a federal
statute requires more than the application of legal imagination
to a state statute’s language. It requires a realistic probability,
not a theoretical possibility, that the State would apply its stat-
ute to conduct that falls outside the generic definition of a
crime.”).
On review, none of the cited unpublished cases concern
conduct punished under § 273.5(a) that might be character-
ized as “the least offensive touching.” In Stearns, 2006 WL
946671, at *1, the defendant broke the victim’s cell phone,
beat her over the head with it, slammed her head into a car
dashboard, and told her she was going to die. In McCombs,
BANUELOS-AYON v. HOLDER 10229
2002 WL 31097693, at *1, the defendant repeatedly hit the
victim in the head, kicked her twice in the head with his boot,
and hit her across the back with the buckle end of a belt. The
defendants’ actions in both of these cases clearly involved the
use of violent force against persons.
The third case, Guster, also provides little support for
Banuelos-Ayon’s position. In Guster, 2004 WL 397060, at
*2, the issue was whether the defendant’s prior conviction in
1988 under § 273.5(a) for domestic abuse was a crime of
moral turpitude and could be used to impeach him. There is
no description of the facts or allegations of the 1988 convic-
tion, and accordingly, Guster does not even intimate that
§ 273.5(a) might apply to simple battery. None of the unpub-
lished state cases cited by Banuelos-Ayon contradict the Cali-
fornia Court of Appeal’s published opinion in Jackson that
§ 273.5(a) requires that “corporal injury results from a direct
application of force on the victim by the defendant.” Jackson,
77 Cal. App. 4th at 580.2
Thus, viewing the cases cited by Banuelos-Ayon in a light
most favorable to his position, they either do not contradict,
or they affirm, that for a conviction under § 273.5(a) there
must be a strong enough use of direct force to result in an
injury. Accordingly, they do not support a departure from the
California Court of Appeal’s published decision in Jackson,
which supports the conclusion that § 273.5(a) is a categorical
crime of violence.
Even if we were not inclined to find that a conviction under
California Penal Code § 273.5(a) is a categorical crime of vio-
lence, we would be bound by our recent precedent to that
2
Banuelos-Ayon also cites our unpublished opinion in Estrada v.
County of Los Angeles, 91 F. App’x 28 (9th Cir. 2004). But unpublished
dispositions of our circuit have no precedential force. 9th Cir. R. 36-3.
Moreover, the terse memorandum disposition is not contrary to our read-
ing of § 273.5.
10230 BANUELOS-AYON v. HOLDER
effect. In United States v. Laurico-Yeno, 590 F.3d 818 (9th
Cir. 2010), we held that § 273.5 is a categorical crime of vio-
lence in the criminal context. We reasoned:
The plain terms of the statute require a person will-
fully to inflict upon another person a traumatic con-
dition, where willfully is a synonym for
intentionally. The statute defines a traumatic condi-
tion as one that is “caused by physical force.” Under
California law, this willful infliction requires “a
direct application of force on the victim by the
defendant.” This means a defendant can be convicted
under § 273.5 only if he or she intentionally uses
“physical force against the person of another.”
Because a person cannot be convicted without the
intentional use of physical force, § 273.5 categori-
cally falls within the scope of a “crime of violence.”
Id. at 821 (internal citations omitted). Laurico-Yeno, like
Banuelos-Ayon, argued that § 273.5 includes non-violent con-
duct outside the scope of the term “crime of violence.” We,
however, found that his argument lacked merit because
§ 273.5 penalizes the intentional use of force that results in a
traumatic condition, and not minimal, non-violent touchings.
Id.
Banuelos-Ayon contends that Laurico-Yeno is distinguish-
able from the present case because Johnson is an intervening
opinion by a higher authority that undermines Laurico-Yeno.
This contention misreads Johnson. Johnson concerned a con-
viction for simple battery under Florida law. 130 S. Ct. at
1269. The Florida statute was more akin to California’s sim-
ple battery statute, California Penal Code § 242, than to
§ 273.5(a).3 Accordingly, nothing in Johnson is contrary to
3
Justice Alito in his dissent in Johnson, cites California Penal Code
§ 242, but not California Penal Code § 273.5(a), as a statute that reaches
“both the use of violent force and force that is not violent but is unlawful
and offensive.” 130 S. Ct. at 1277.
BANUELOS-AYON v. HOLDER 10231
our approach to determining the elements of a conviction
under California Penal Code § 273.5(a), nor our conclusion
that a conviction under that statute is a categorical crime of
violence under 18 U.S.C. § 16(a).
V.
We conclude that a conviction under California Penal Code
§ 273.5(a) is a categorical crime of violence under 8 U.S.C.
§ 16(a). The petition for review is DENIED.
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