Morales-Garcia v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MOISES EDUARDO MORALES-GARCIA, 
Petitioner, No. 07-70400
v.
 Agency No.
A077-131-757
ERIC H. HOLDER JR.,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order
of the
Board of Immigration Appeals

Argued and Submitted
June 12, 2008—San Francisco, California

Filed June 3, 2009

Before: A. Wallace Tashima, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Tashima

* Eric H. Holder Jr., is substituted for his predecessor Michael B.
Mukasey, as Attorney General, pursuant to Fed. R. App. P. 43(c)(2).

6657
 MORALES-GARCIA v. HOLDER 6659

COUNSEL

John M. Pope, Stender & Pope, Phoenix, Arizona, for the
petitioner.

Lindsay E. Williams, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
6660 MORALES-GARCIA v. HOLDER
OPINION

TASHIMA, Circuit Judge:

Moises Eduardo Morales-Garcia (“Morales”) petitions for
review of a final order of removal based on the Immigration
Judge’s (“IJ”) and Board of Immigration Appeals’ (“BIA”)
determination that his conviction under California Penal Code
§ 273.5(a) is categorically a crime involving moral turpitude
(“CIMT”), precluding cancellation of removal under
§ 240A(b) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1229b(b). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) (providing for judicial review of a final order of
removal) and 8 U.S.C. § 1252(a)(2)(D) (providing for judicial
review of constitutional and legal questions raised by individ-
uals found removable based on criminal activity). See
Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056-57 (9th
Cir. 2006). Because we hold that § 273.5(a) is not categori-
cally a CIMT, we grant the petition for review and remand the
case to the BIA for further proceedings.

BACKGROUND

Morales, a native and citizen of Mexico, entered the United
States without inspection near San Ysidro, California, in Sep-
tember, 1986. In 2006, the Department of Homeland Security
(“DHS”) served a Notice to Appear (“NTA”) on Morales,
alleging that he was subject to removal on two grounds: first,
for being an alien present in the United States without being
admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and sec-
ond, for having been convicted of a CIMT, see id.
§ 1182(a)(2)(A)(i)(I). The NTA alleged that on April 10,
2003, Morales was convicted in California Superior Court
“for the offense of corporal injury to spouse/
cohabitant/former cohabitant/child’s parent, a Felony, in vio-
lation of Section 273.5(a) of the California Penal Code for
which the term of imprisonment was two . . . years . . . .”
 MORALES-GARCIA v. HOLDER 6661
At his hearing before the IJ, Morales conceded removabil-
ity; however, he denied the fact of his conviction under Cal.
Penal Code § 273.5. The government adduced a certified copy
of an abstract of judgment and prison commitment order,
showing both that Morales was convicted of the offense and
that he was sentenced to two years’ imprisonment. According
to those documents, Morales pleaded guilty to a violation of
§ 273.5(a), and the court imposed a low term of 2 years, dou-
bled to 4 years, under California’s habitual offender statute,
Cal. Penal Code § 667(b)-(i).1 The record also contains a copy
of the criminal complaint, which alleges:

On or about the 23rd day of March, 2003, in the
County of El Dorado, the crime of CORPORAL
INJURY TO SPOUSE/COHABITANT/FORMER
COHABITANT/CHILD’S PARENT, in violation of
PENAL CODE SECTION 273.5(a), a felony, was
committed by MOISES EDUARDO MORALES,
who did willfully and unlawfully inflict corporal
injury resulting in a traumatic condition upon Martha
Adriana Salazar, who was cohabiting with defen-
dant.

The IJ sustained the factual allegations in the NTA and, based
on that determination, the IJ also sustained the charge of
removability on the ground that Morales had been convicted
of a CIMT.

At the hearing, Morales also raised the possibility that he
was eligible for a waiver of inadmissibility under INA
§ 212(h), 8 U.S.C. § 1182(h). Instead of simply requesting a
§ 212(h) waiver, however, Morales’ asserted that the waiver,
if granted, would make him eligible for cancellation of
removal under 8 U.S.C. § 1229b(b). The IJ clarified this argu-
ment for the government in the following exchange:
1
The court also imposed a $500 parole restitution fine under Cal. Penal
Code § 1202.45, a domestic violence fee of $200, and a $100 payment to
the Women’s Shelter.
6662 MORALES-GARCIA v. HOLDER
DHS: Well, I’m not sure where the respondent’s
counsel is going with this in regards to the [convic-
tion under Cal. Penal Code §] 273.5.

IJ: That’s why I assume it was, that’s why I
assumed you would like to brief concurrently. What
he’s saying is he can tender cancellation with a
212(h) waiver . . . .

Following briefing on the issue by both parties, the IJ denied
Morales’ request for cancellation of removal based on a
waiver of inadmissibility. The IJ then entered an order of
removal.

Morales timely appealed to the BIA, which dismissed the
appeal in a per curiam order. On the issue of whether
§ 273.5(a) qualified as a CIMT, the BIA affirmed the IJ’s reli-
ance on Grageda v. INS, 12 F.3d 919 (9th Cir. 1993), in
which we held that spousal abuse under § 273.5(a) was a
CIMT. Although the BIA recognized that Grageda limited its
holding to spousal abuse, it held that Grageda’s reasoning
applied “with equal force to abuse of a cohabitant . . . who is
in a relationship of trust, and may be dependent upon the per-
petrator.” The BIA also affirmed the IJ’s determination that
a waiver of inadmissibility under INA § 212(h) would not
render Morales eligible for cancellation of removal. Morales
filed a timely petition for review of the BIA’s decision.

STANDARD OF REVIEW

“[W]e review de novo the BIA’s determination of questions
of law, except to the extent that deference is owed to its inter-
pretation of the governing statutes and regulations.” Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006);
see also Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 651
(9th Cir. 2004). We recently clarified that the BIA’s determi-
nation that the petitioner has committed a CIMT is comprised
of two separate inquiries. See Marmolejo-Campos v. Holder,
 MORALES-GARCIA v. HOLDER 6663
558 F.3d 903. 907 (9th Cir. 2009) (en banc). “First, the BIA
must determine what offense the petitioner has been convicted
of committing.” Id. Because “[t]he BIA has no special exper-
tise by virtue of its statutory responsibilities in construing
state or federal criminal statutes . . . we review the BIA’s
finding regarding the specific act for which the petitioner was
convicted de novo.” And “[s]econd, once the [BIA] has iden-
tified the petitioner’s offense, it must determine whether such
conduct is a ‘crime involving moral turpitude’ as defined in
the applicable section of the INA . . . requir[ing] the [BIA] to
apply the definition of the term ‘moral turpitude’ and to deter-
mine whether the petitioner’s conduct meets such definition.”
Id. But “[t]he Board’s answer to the second question requires
a different standard of review.” Id. at 908. If the BIA has
determined that the applicable conduct is morally turpitudi-
nous in a precedential decision, “we apply Chevron deference
regardless of whether the order under review is the preceden-
tial decision itself or a subsequent unpublished order that
relies upon it.” Id. at 911. (citation omitted). Where, however,
the BIA resolves an appeal in an unpublished decision, as in
this case, we defer to its interpretations of the INA not
resolved by prior precedential decisions only to the extent of
its thoroughness and overall persuasiveness. Id. at 909. See
also Garcia-Quintero, 455 F.3d at 1014-15 (noting that the
court owes Skidmore deference to a non-precedential BIA
opinion’s interpretation of the INA or its regulations) (citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

DISCUSSION

Morales contends that the BIA erred in affirming the IJ’s
determination that his conviction under Cal. Penal Code
§ 273.5(a) qualifies as a CIMT, both for purposes of deter-
mining his inadmissibility, see 8 U.S.C. § 1182(a)(2)(A)(i)(I),
and his ineligibility for cancellation of removal, see id.
§ 1229b(b)(1)(C). An alien convicted of a CIMT is ineligible
for cancellation of removal by virtue of the conviction itself,
see id. § 1229b(b)(1)(C), and because such a conviction pre-
6664 MORALES-GARCIA v. HOLDER
cludes a finding of good moral character required by
§ 1229b(b)(1)(B). See Galeana-Mendoza, 465 F.3d at 1057
(noting that “[a]n alien cannot establish good moral character
as required by § 1229b(b)(1)(B) if he has, among other things,
been convicted of a ‘crime involving moral turpitude’ ”) (cit-
ing 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I)). A finding of
error in Morales’ favor would therefore remove the statutory
bar to the relief he seeks. “To determine whether a conviction
is for a crime involving moral turpitude, we apply the categor-
ical and modified categorical approaches established by the
Supreme Court in Taylor v. United States . . . .” Navarro-
Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (en
banc) (citing Taylor v. United States, 495 U.S. 575, 599-602
(1990)).

I. Categorical Approach

A. Definition of crimes involving moral turpitude

[1] “Whether a crime involves moral turpitude is deter-
mined by the statutory definition or by the nature of the crime
and not by the specific conduct that resulted in the convic-
tion.” Id. at 1070 (citation and quotation marks omitted). The
categorical approach requires that we “compare the elements
of the statute of conviction to the generic definition [of moral
turpitude], and decide whether the conduct proscribed . . . is
broader than, and so does not categorically fall within, this
generic definition.” Fernandez-Ruiz v. Gonzales, 468 F.3d
1159, 1163 (9th Cir. 2006) (citation and quotation marks
omitted). We have observed that “there are no statutorily
established elements for a crime involving moral turpitude.”
Navarro-Lopez, 503 F.3d at 1068. Its meaning left to the BIA
and courts to develop through case-by-case adjudication. See
Nicanor-Romero v. Mukasey, 523 F.3d 992, 997 (9th Cir.
2008), overruled on other grounds by Marmolejo-Campos,
2009 WL 530950. We have “defined ‘moral turpitude’ as
involving conduct that is inherently base, vile, or depraved,
and contrary to the private and social duties man owes to his
 MORALES-GARCIA v. HOLDER 6665
fellow men or to society in general.” Navarro-Lopez, 503
F.3d at 1068;2 see also In re Sejas, 24 I. & N. Dec. 236, 237
(BIA 2007) (applying a similar definition). The BIA has
added that “[t]he essence of moral turpitude is an evil or mali-
cious intent[,]” and, therefore, “[t]he test to determine if a
crime involves moral turpitude is whether the act is accompa-
nied by a vicious motive or a corrupt mind.” In re Tran, 21
I. & N. Dec. 291, 293 (BIA 1996). Under the categorical
approach, “the question is not whether some of the conduct
prohibited by [the statute] is morally turpitudinous,” but
rather “whether all of the conduct prohibited by [the statute]
is morally turpitudinous.” Nicanor-Romero, 523 F.3d at 999.
With this definition in mind, we now turn to an examination
of the statute in question.

B. Cal. Penal Code § 273.5(a)

When determining the reach of the state criminal statute at
issue, we consider not only the text of the statute, but also
state court interpretations of the statutory language. See
Galeana-Mendoza, 465 F.3d at 1058; Ortega-Mendez v. Gon-
zales, 450 F.3d 1010, 1016 (9th Cir. 2006). Although the Cal-
ifornia Supreme Court has yet to interpret § 273.5(a),
numerous California Court of Appeal decisions inform our anal-
ysis.3
2
Courts have also consistently held that crimes involving fraud are mor-
ally turpitudinous. See Nicanor-Romero, 523 F.3d at 998; Navarro-Lopez,
503 F.3d at 1074 (Reinhardt, J., concurring and writing for the majority).
There is no suggestion here, however, that the crime at issue in this case
involves fraud.
3
We recently held, in the context of determining whether a state convic-
tion was a crime of violence under U.S.S.G. § 4B1.2(a)(1), that courts may
rely on an opinion rendered by an intermediate state appellate court to
determine the reach of the state statute. See United States v. Taylor, 529
F.3d 1232, 1237 (9th Cir. 2008). The logic of Taylor applies with equal
force here: “Where an intermediate appellate state court rests its consid-
ered judgment upon the rule of law which it announces, that is a datum
for ascertaining state law which is not to be disregarded by a federal court
unless it is convinced by other persuasive data that the highest court of the
state would decide otherwise.” Id. (quoting West v. AT & T, 311 U.S. 223,
237 (1940)).
6666 MORALES-GARCIA v. HOLDER
The statute provides, in relevant part:

(a) Any person who willfully inflicts upon a person
who is his or her spouse, former spouse, cohabitant,
former cohabitant, or the mother or father of his or
her child, corporal 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 thousand dollars ($6,000) or by both that
fine and imprisonment.

...

(c) As used in this section, “traumatic condition”
means a condition of the body, such as a wound or
external or internal injury, whether of a minor or
serious nature, caused by physical force.

...

Cal. Penal Code § 273.5. In accord with the California courts’
interpretation of this statute, the standard California jury
instruction lists the following three elements of the offense:

1. A person inflicted bodily injury upon [[his] [her]
[former] spouse] [a [former] cohabitant] [the
[mother] [or] [father] of [his] [her] child];

2. The infliction of bodily injury was willful [and
unlawful]; and

3. The bodily injury resulted in a traumatic condi-
tion.

CALJIC 9.35, Cal. Jury Instructions — Criminal (2008).
 MORALES-GARCIA v. HOLDER 6667
“The term ‘cohabitant’ has been interpreted ‘broadly’ to
refer to those living together in a substantial relationship—
one manifested, minimally, by permanence and sexual or
amorous intimacy.” People v. Taylor, 12 Cal. Rptr. 3d 693,
696 (Ct. App. 2004) (citation and quotation marks omitted).
However, “[t]he element of ‘permanence’ . . . refers only to
the underlying ‘substantial relationship,’ not to the actual liv-
ing arrangement.” Id. (citation and quotation marks omitted).
Thus, a victim who lives with the defendant “in his car ‘for
a while’ after having stayed with her aunt[,]” and during “pe-
riods of time when she was homeless and had no other place
to stay[,]” is a cohabitant. Id. at 697. A defendant may simul-
taneously cohabitate with two different individuals in two dif-
ferent locations at the same time under California law. See
People v. Moore, 52 Cal. Rptr. 2d 256, 264 (Ct. App. 1996).
The term also encompasses a relationship in which the defen-
dant lived with the victim for about half the time during the
three months preceding the assault, but stayed in at least three
other locations, took his belongings with him when he left,
did not have a key to the residence, frequently went out alone
in the evenings, had infrequent sex with the victim, and did
not return the victim’s romantic feelings. See People v. Holi-
field, 252 Cal. Rptr. 729, 730-31, 735 (Ct. App. 1988).

C. Categorical analysis of § 273.5(a)

[2] We now compare the elements of § 273.5(a) to the
generic definition of moral turpitude provided above. We
have previously held that spousal abuse under § 273.5(a) is a
crime involving moral turpitude. See Grageda, 12 F.3d at
922. As we explain below, however, Grageda does not dictate
the result in this case because it limited its holding to a por-
tion of § 273.5(a) rather than employing the categorical
approach. Thus, we must decide the open question whether
§ 273.5(a) is categorically a CIMT.

1. Grageda

First, we explain why we are not bound by the Grageda
decision. We recognize, as a general matter, that “a three-
6668 MORALES-GARCIA v. HOLDER
judge panel may not overrule a prior decision of the court.”
Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en
banc). The term “decision,” however, encompasses only those
issues that are raised or discussed: “[U]nstated assumptions
on non-litigated issues are not precedential holdings binding
future decisions.” Sakamoto v. Duty Free Shoppers, Ltd., 764
F.2d 1285, 1288 (9th Cir. 1985); see also Brecht v. Abraham-
son, 507 U.S. 619, 631 (1993) (declining to follow prior cases
in which the issue at hand had not been “squarely
addressed”); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173
(9th Cir. 2004) (noting that “where a panel confronts an issue
germane to the eventual resolution of the case, and resolves
it after reasoned consideration in a published opinion, that rul-
ing becomes the law of the circuit”) (internal quotation marks
and citation omitted).

[3] Grageda resolved the following issue: “whether spou-
sal abuse is a crime of moral turpitude upon the basis of
which an alien can be deported.” Grageda, 12 F.3d at 920. It
thus discussed only that portion of the statute criminalizing
“the willful infliction of injury upon a spouse . . . .” Id.
Although the opinion specifically noted that “[t]his section
also makes the willful infliction of a corporal injury upon ‘any
person of the opposite sex with whom he or she is cohabiting’
a felony,” id. at 921-22 n.1, it limited the scope of its analysis
to spouses only, explicitly stating, “[w]e do not address the
question of whether cohabiting abuse is a crime of moral tur-
pitude,” id. Under that limited inquiry, Grageda held only that
“spousal abuse under section 273.5(a) is a crime of moral tur-
pitude.” Id. at 922. The narrowness of this holding, intention-
ally restricted to only one of five types of potential victims
covered by the statute, has repeatedly been recognized in our
subsequent decisions. See, e.g., Fernandez-Ruiz, 468 F.3d at
1165 (describing Grageda as a case about “spousal abuse”);
Gonzalez Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994)
(same); see also Nicanor-Romero, 523 F.3d at 1013 (Bybee,
J., dissenting) (same); In re Tran, 21 I. & N. Dec. at 293
(same). Simply put, Grageda does not address whether abuse
 MORALES-GARCIA v. HOLDER 6669
of cohabitants or others covered by the statute qualifies as a
CIMT. Thus, under the categorical approach, we must con-
sider those portions of the statute — the full range of conduct
covered by § 273.5(a) — that Grageda, by its express terms,
declined to reach.

2. Applying the categorical analysis

[4] Section 273.5(a) includes in its list of covered victims
a “former cohabitant.” This factor alone makes the offense
virtually indistinguishable from the run-of-the-mill assault.
Few would argue that former cohabitants — however transi-
tory that cohabitation — are in a special relationship of trust
such as to make an assault by one on the other a CIMT. Our
past decisions make clear that assault and battery, without
more, do not qualify as CIMTs. See Fernandez-Ruiz, 468 F.3d
at 1165 (recognizing that “simple assault” does not involve
moral turpitude); Galeana-Mendoza, 465 F.3d at 1061 (hold-
ing that domestic battery under Cal. Penal Code § 243(e) is
not categorically a CIMT); see also In re Sejas, 24 I. & N.
Dec. at 237 (acknowledging the general rule that “a simple
assault and battery offense does not involve moral turpitude”);
In re Fualaau, 21 I. & N. Dec. 475, 476, 478 (BIA 1996) (en
banc) (holding that conviction under an assault statute involv-
ing bodily harm did not rise to the level of a CIMT without
an “aggravating dimension”). Such offenses, however, may
transform into CIMTs “if they necessarily involved aggravat-
ing factors that significantly increased their culpability[,]”
such as “the intentional infliction of serious bodily injury on
another” or “infliction of bodily harm upon a person whom
society views as deserving special protection . . . .” Galeana-
Mendoza, 465 F.3d at 1061 (emphasis in original) (quoting In
re Sanudo, 23 I. & N. Dec. 968, 973 (BIA 2006)); see also
In re Sejas, 24 I. & N. Dec. at 237 (recognizing identical fac-
tors).

Otherwise non-morally turpitudinous conduct targeted at a
victim with whom the defendant has a special relationship
6670 MORALES-GARCIA v. HOLDER
may transform a crime into one involving moral turpitude. In
Grageda, for example, we held that “when a person willfully
beats his or her spouse severely enough to cause ‘a traumatic
condition,’ he or she has committed an act of baseness or
depravity contrary to accepted moral standards.” Grageda, 12
F.3d at 922. In reaching that result, we cited a case involving
child abuse, Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th
Cir. 1969), for its pronouncement that the infliction of cruel
or inhuman corporal punishment or injury upon a child is “so
offensive to American ethics” that it “ends debate on whether
moral turpitude was involved.” Id. at 1406-07. Drawing a par-
allel between that case and spousal abuse under § 273.5, we
reasoned that “an adult is not as helpless of a victim as a
child; nevertheless, a spouse is committed to a relationship of
trust with, and may be dependent upon, the perpetrator.”
Grageda, 12 F.3d at 922. Accord In re Tran, 21 I. & N. Dec.
at 294 (extending Grageda to the infliction of harm upon the
parent of the perpetrator’s child because the relationship
between perpetrator and victim is one of trust and possible
dependency).

[5] Grageda reasoned that it is particularly morally objec-
tionable to beat a person “[1] committed to a [2] relationship
of trust with, and . . . [3] dependent upon, the perpetrator.”
Grageda, 12 F.3d at 922. In In re Tran, the BIA, building
upon Grageda, held that § 273.5(a) is categorically a CIMT.
It reasoned, in relevant part, that “[a] person who cohabits
with or is the parent of the offender’s child maintains a rela-
tionship of a familial nature with the perpetrator of the harm”
that approximates a spousal relationship. In re Tran, 21 I. &
N. Dec. at 294. Not all of the relationships listed in
§ 273.5(a), however, fit comfortably under the rationale of
Grageda and In re Tran. For example, as discussed above,
California courts have held that one can be a cohabitant even
if one cohabits with several partners at once, see Moore, 52
Cal. Rptr. 2d at 264, or does not have a key to the residence
or leave his belongings there, see Holifield, 252 Cal. Rptr. at
730-31. Certainly, these relationships embody a lesser level of
 MORALES-GARCIA v. HOLDER 6671
commitment, trust, and dependency than marriage, which, for
example, creates community property rights, and subjects for-
mer spouses to dissolution procedures. See, e.g., Cal. Fam.
Code § 751 (creating community property rights in both
spouses); id. § 2010 (creating ongoing jurisdiction for the
court to render judgments concerning, inter alia, custody,
support, and property division). Section 273.5 goes even fur-
ther, to cover acts between former cohabitants. As all that is
required to establish cohabitation is the existence of a sub-
stantial, amorous relationship and, perhaps, a sporadic shared
living arrangement, it stands to reason that many individuals
have many former cohabitants. Not all of these individuals are
committed to, trust, or depend upon, each other. Thus, not all
victims under the statute are particularly “vulnerable,” nor are
they “entitled to . . . care and protection” by the perpetrator.
Galeana-Mendoza, 465 F.3d at 1061. Because some
perpetrator-victim relationships covered by the statute are
more akin to “strangers or acquaintances, which, depending
on the wording of the statute, [does] not necessarily [trigger]
a crime of moral turpitude[,]” Grageda, 12 F.3d at 922, we
hold that this aggravating factor cannot, alone, transform
§ 273.5(a) into a crime categorically involving moral turpitude.4

Because the victims covered by § 273.5(a), as interpreted
by the state courts, is overly-broad, we need not examine peti-
4
We recently clarified that “once the elements of the petitioner’s offense
are established, our review of the BIA’s determination that such offense
constitutes a ‘crime of moral turpitude’ is governed by the same traditional
principles of administrative deference we apply to the Board’s interpreta-
tion of other ambiguous terms in the INA.” Marmolejo-Campos, 2008 WL
530950, at *5 (emphasis added). Relying heavily on Grageda, In re Tran
holds that “infliction of bodily harm upon a person with whom one has
such a familial relationship is an act of depravity which is contrary to
accepted moral standards.” In re Tran, 21 I. & N. Dec. at 294 (emphasis
added). Because In re Tran incorrectly identifies the elements of
§ 273.5(a) in at least one significant respect, we do not defer to the BIA’s
holding in In re Tran.
6672 MORALES-GARCIA v. HOLDER
tioner’s other contentions respecting the statute’s “evil intent”
requirement,5 or extent-of-injury requirement.6

II. Modified Categorical Approach

[6] As we indicated at the outset of our discussion, even if
a statutory offense fails to qualify as a CIMT under the cate-
gorical approach, in most cases, it is still possible that the
crime of conviction at issue can qualify as a CIMT under the
modified categorical approach. See Quintero-Salazar, 506
F.3d at 694 (“Under the modified categorical approach we
examine documentation or judicially noticeable facts that
clearly establish that the conviction is a predicate conviction
for removal purposes.” (citation and quotation marks omit-
ted)). In this case, the BIA, relying on Grageda, concluded
that § 273.5(a) was categorically a CIMT. It thus never made
a determination under the modified categorical approach
whether Morales’ offense qualifies as a CIMT. Rather than
make that determination in the first instance, we remand to
the agency to address the modified categorical approach. See
INS v. Ventura, 537 U.S. 12, 16 (2002).

CONCLUSION

We hold that Morales’ conviction under Cal. Penal Code
§ 273.5(a) for abuse of a cohabitant is not categorically a
CIMT within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I)
and § 1229b(b)(1)(C). We therefore grant Morales’ petition
5
Grageda interpreted the statute to require that the defendant “intended
to cause the harm,” 12 F.3d at 922, although later California cases appear
to require only the general intent to commit the act that results in injury.
See People v. Campbell, 90 Cal. Rptr 2d 315, 318 (Ct. App. 1999).
6
Even in cases involving crimes committed against those in a special
relationship with the perpetrator, we have required that the offending con-
duct result in injury to the victim. Galeana-Mendoza, 465 F.3d at 1061
(holding that California’s domestic battery statute, Cal. Penal Code
§ 243(e), does not categorically qualify as a CIMT because it lacks an
injury requirement).
 MORALES-GARCIA v. HOLDER 6673
for review,7 reverse the decision of the BIA, and remand for
further proceedings consistent with this opinion.8

PETITION GRANTED and REMANDED.

7
We therefore do not reach the issue, briefed and argued by the parties,
of whether a waiver of inadmissibility under 8 U.S.C. § 1182(h) may ren-
der a petitioner convicted of a CIMT eligible for cancellation of removal
under 8 U.S.C. § 1229b(b).
8
We do not resolve the issue raised by the government that Morales’
conviction under Cal. Penal Code § 273.5 would qualify as a crime of
domestic violence under 8 U.S.C. § 1227(a)(2)(E) because that was not a
basis of the BIA’s decision. See SEC v. Chenery Corp., 332 U.S. 194, 196
(1947) (noting that a “court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate and proper
basis” which was not relied on by the agency); cf. Ventura, 537 U.S. at
16 (noting that, “[g]enerally speaking, a court of appeals should remand
a case to an agency for decision of a matter that statutes place primarily
in agency hands”).