dissenting:
I agree with the majority that this case does not concern whether Cisneros-Per-ez’s conviction was a crime of moral turpitude, and that he has waived the argument that battery is not a crime of violence. I also agree with my colleagues that in order to determine whether Cisneros-Perez’s prior conviction constitutes a crime of domestic violence we use the categorical and modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Tokatly v. Ashcroft, 371 F.3d 613, 623 (9th Cir.2004).
We are also in accord that the limited documents that may be considered under the modified categorical approach must allow a reviewing court to determine that the plea “necessarily” rested on the facts identifying the crime of conviction as generic. Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143); see also Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 (reiterating our statement in United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc)), (that “[t]he idea of the modified 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”).
*395In this case, the fact that must be obvious from the record is that Cisneros-Per-ez’s conviction was for the battery of Me-gali Garcia, who was his wife when he committed the battery. The first two counts of the complaint accused Cisneros-Perez of violating California Penal Code §§ 273.5(a) and 243(e)(1) by inflicting corporal punishment upon, and using force and violence upon, Megali Garcia, his wife. No other individual was identified as the victim of any of the charges against Cisne-ros-Perez. Cisneros-Perez then pled guilty to a violation of simple battery under California Penal Code § 242. While §§ 243(e)(1) and 273.5(a) require that the victim be a spouse or cohabitant of the perpetrator, § 242 does not require that the victim have any relationship to the perpetrator. Section 242, however, does require “willful and unlawful use of force or violence upon the person of another.” Where, as here, a defendant has pled guilty to what is in essence a lesser included offense1 and there is absolutely nothing that suggests that the victim of the criminal behavior was not the single victim identified in the charging document, I would find that the record “necessarily” identified Megali Garcia as the victim of Cisneros-Perez’s battery and hence established beyond a reasonable doubt that his conviction was for a crime of domestic violence.
Even if the charges and the no contest plea to a lesser included offense were not sufficient in themselves to show the domestic nature of Cisneros-Perez’s conviction, any remote possibility of a different victim is shut out by a review of the state court’s docket sheet which shows, first, that Cisneros-Perez was initially ordered to stay away from Megali Garcia, and second, that he was ordered to undertake domestic violence counseling as part of his sentence.
The majority’s contrary conclusion strays from the origins of the Supreme Court’s limitation on the documents that may be considered under the modified categorical approach. In Shepard, the Supreme Court explained:
Taylor is clear that any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes. In the case before it, the court drew the line after allowing courts to review documents showing “that the jury necessarily had to find an entry of a building to convict.”
544 U.S. at 23 n. 4, 125 S.Ct. 1254 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Similarly, in this case, the pertinent documents show that there necessarily had to be a victim to Cisneros-Perez’s battery and that the victim was Cisneros-Perez’s wife, Megeli Garcia. There is no eviden-tiary dispute because Megali Garcia was the only person identified in the documents as the possible victim of Cisneros-Perez’s battery.
The majority notes that statutes such as California Penal Code §§ 243(e)(1) and 273.5 directly address domestic violence. This is true. Nonetheless, as the majority seems to concede, a conviction under § 242, which does not require the state to prove the victim’s relationship to the perpetrator, remains a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)© *396when, as is the case here, the victim was the perpetrator’s wife.2
Finally, any conceivable doubt that the victim of Cisneros-Perez’s battery was his wife, Megali Garcia, was quashed by Cisneros-Perez’s representations to the IJ, both in writing and orally, that Megali Garcia was his wife. Cisneros-Perez’s application for cancellation of removal alleges that his removal would result in exceptional and extremely unusual hardship to his wife and child. It states that he married Megali Garcia on February 23, 2001. Cisneros-Perez supported his representation with a copy of a license and certificate of marriage issued by the City and County of San Francisco, stating that Pedro Cisneros-Perez and Megali Garcia were married on February 23, 2001. The criminal complaint against Cisneros-Perez charges him with domestic violence against Megali Garcia in July 2001.
I recognize that there is language in Tokatly, which purports to prohibit the IJ from looking at evidence outside the record of the state court conviction. 371 F.3d at 619-24. Our opinion expressed concern that a crime should not be divided into segments, requiring “one part to be proven by the record of conviction and the other by evidence adduced at the administrative hearing.” Id. at 622. We also approved the BIA’s concern that if it “were to make an exception here and accept the respondent’s testimony as proof of his deportability under [the removal provision], there would be no clear stopping point where this Board could limit the scope of seemingly dispositive but extrinsic evidence bearing on the respondent’s deportability.” Id. at 624 (quoting In re Pichardo, 21 I. & N. Dec. 330, 335-36, 1996 WL 230227 (BIA 1996)).
This case, however, presents a clear stopping point: where the alien’s request for relief is premised on his factual assertion of a relationship that renders his state conviction a crime of domestic violence.3 As noted, Cisneros-Perez’s request for relief asserted that Megali Garcia was, and is, his wife. If we do not recognize such an exception, we drift toward creating legal determinations that are divorced from reality. Therefore, I do not agree with the majority’s holding that because the transcript from the plea proceeding does not specifically name the victim of Cisneros-Perez’s battery, the BIA cannot find that the victim was his wife.
For the foregoing reasons, I respectfully dissent from the majority’s determination that the BIA erred in concluding that Cisneros-Perez’s 2001 conviction was for a crime of domestic violence.
. The difference between simple battery under California Penal Code § 242 and spousal battery under California Penal Code § 243(e)(1) is that the latter requires the additional showing that the battery was committed against a spouse or similar person. Compare Cal.Penal Code § 242 with § 243(e)(1).
. Pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), once it is determined that the offense is a "crime of violence,” as defined by 18 U.S.C. § 16, it is also a "crime of domestic violence” if it was committed against a spouse.
. Tokatly presented a very different factual situation. At the initial hearing before the IJ in 1999, Tokatly contested removability under the "crime of domestic violence” provision on the ground that the evidence in the record did not establish that the crime was "domestic.” 371 F.3d at 616. Over his counsel's objection, the IJ allowed the government to present testimony of the crime victim as to the nature of her prior relationship with Tokatly. Id. Testimony was also admitted at a second hearing, and the IJ extracted a purported waiver of the lack of a showing that the prior crime was domestic. Id. at 617. On appeal, we first noted that Tokatly was only seeking review of the first ruling, id. at 618, and then held that counsel's purported concession had no binding effect. Id. at 619.