                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           APR 28 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

CARLOS GARNICA-RAMIREZ,                          No. 09-70200

              Petitioner,                        Agency No. A090-828-217

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted April 9, 2010
                               Pasadena, California

Before: PREGERSON and BEEZER, Circuit Judges, and CONLON, District
Judge.**

       Carlos Garnica-Ramirez (“Garnica”) is a native and citizen of Mexico. He

became a lawful permanent resident of the United States in 1989. In 1994, Garnica

was convicted of violating California Penal Code § 273.5(a). In 2001, Garnica was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Suzanne B. Conlon, US District Judge for the
Northern District of Illinois, sitting by designation.
convicted of violating Cal. Penal Code § 245(a)(1). In 2007, the government

initiated removal proceedings by filing a Notice to Appear alleging that Garnica

was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for two prior convictions of

crimes involving moral turpitude. Garnica appeals the BIA’s decision affirming

the IJ’s finding that Garnica was removable under § 1227(a)(2)(A)(ii) for two prior

convictions of crimes involving moral turpitude.

      We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), (a)(2)(D). We

review de novo the BIA’s decision finding Garnica removable based on his two

California Penal Code convictions. See Sinotes-Cruz v. Gonzales, 468 F.3d 1190,

1194 (9th Cir. 2006).

                        I. Garnica’s § 273.5(a) Conviction

      Cal. Penal Code § 273.5(a) provides that any person who willfully inflicts

corporal injury resulting in a traumatic condition upon a spouse, former spouse,

cohabitant, former cohabitant, or co-parent is guilty of a felony.

      In Grageda v. INS, this court determined that willful infliction of injury on a

spouse under § 273.5(a) was an “act of baseness or depravity contrary to accepted

moral standards” because “a spouse is committed to a relationship of trust with,

and may be dependent upon, the perpetrator.” 12 F.3d 919, 922 (9th Cir. 1993).

The Grageda court noted that the trust and dependency involved in a spousal


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relationship “makes the crime of spousal abuse different from violence between

strangers or acquaintances, which, depending on wording of the statute, is not

necessarily a crime of moral turpitude.” Id.

      In 2009, in Morales-Garcia v. Holder, 567 F.3d 1058, 1064-66 (9th Cir.

2009), the court limited Grageda to § 273.5(a) convictions involving abuse of a

spouse. The Morales-Garcia court held that § 273.5(a) convictions are not

categorically crimes involving moral turpitude because § 273.5 is “overly-broad”

because it includes victims who would not necessarily have a relationship of trust

with the perpetrator, such as cohabitants. Id. at 1065-66. Thus, Garnica’s

§ 273.5(a) conviction was not a categorical crime involving moral turpitude.

      Where a conviction under a statute is not a categorical crime involving

moral turpitude, the modified categorical approach may be appropriate to

determine if the specific conduct at issue involves moral turpitude. Fernandez-

Ruiz v. Gonzales, 468 F.3d 1159, 1163-64 (9th Cir. 2006). The modified

categorical approach is appropriate here because the Morales-Garcia court

determined that § 273.5(a) included both morally turpitudinous and non-morally

turpitudinous conduct. Morales-Garcia, 567 F.3d at 1065.

      Under the modified categorical approach, “we consider whether

documentation or other judicially noticeable facts in the record indicate that [the


                                          3
petitioner] was convicted of the elements of the generically defined crime.”

Huerta-Guevera, 321 F.3d 883, 887 (9th Cir. 2003). In applying the modified

categorical approach, we may consider documents that are part of the record of

conviction, but may not look beyond the record of conviction to the particular facts

underlying the conviction. Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004).

      The government bears the burden to prove “clearly and unequivocally [that]

the conviction was based on all of the elements of a qualifying predicate offense,”

in this case the generic definition of moral turpitude. Quintero-Salazar v. Keisler,

506 F.3d 688, 694 (9th Cir. 2007) (quotation omitted). Accordingly, if the

documents from the record of conviction included in the administrative record are

insufficient to establish that the offense was a crime involving moral turpitude, the

conviction cannot be used as a basis for removal. Tokatly, 371 F.3d at 620. If the

government fails to meet its burden, the court will not ordinarily remand for the

government to submit further documentation. See Fernandez-Ruiz, 466 F.3d 1121,

1132-35 (9th Cir. 2006) (en banc); see also Ruiz-Vidal v. Gonzales, 473 F.3d 1072,

1079-80 (9th Cir. 2007).

      Here, the only evidence in the Administrative Record from Garnica’s record

of conviction was the Los Angeles Superior Court’s electronic docket, which does

not indicate any details about the conviction beyond the disposition. The docket


                                          4
does not state the relationship between Garnica and the victim. The docket states

only that Garnica was charged and convicted of one count of “273.5(A) PC MISD

- INFLICT CORPORAL INJURY ON SPOUSE.” This appears to be nothing

more than an abbreviated reference to the title of the statute of conviction. Thus,

the docket sheet lists only the Cal. Penal Code section under which Garnica was

convicted, and it does not elaborate on the specifics of Garnica’s conduct

underlying his conviction. Consequently, the government failed to meet its burden

to prove “clearly and unequivocally” that Garnica’s § 273.5(a) conviction was a

crime involving moral turpitude because the government failed to submit evidence

from the record of Garnica’s § 273.5(a) conviction showing that Garnica had a

special relationship with his victim.1 We conclude, therefore, that Garnica’s

§ 273.5(a) conviction was not a crime of moral turpitude under the modified

categorical approach.


      1
          The government argues that the Administrative Record includes testimony
that the victim of Garnica’s § 273.5(a) conviction was the mother of his children.
We have not previously decided whether this would qualify as a relationship of
trust to constitute a crime involving moral turpitude. Moreover, Garnica testified
that the altercation was actually between his sister and brother-in-law. However,
we need not resolve these questions because we have clearly indicated in Cheuk
Fung S-Yong v. Holder, that “we have strictly prohibited immigration judges from
looking behind the documentary record of conviction to the underlying facts of a
prior offense,” including “an alien’s admissions to the immigration judge regarding
the nature of his criminal conduct.” 578 F.3d 1169, 1175 (9th Cir. 2009) (citing
Tokatly, 371 F.3d at 622-23).

                                          5
                      II. Garnica’s § 245(a)(1) Conviction

      The sole ground for removability with which Garnica was charged,

§ 1227(a)(2)(A)(ii), requires two or more morally turpitudinous convictions.

Because Garnica’s § 273.5(a)conviction was not a crime involving moral turpitude,

we need not reach the question of whether Garnica’s § 245(a)(1) conviction was a

crime involving moral turpitude.

                                   III. Conclusion

      Garnica’s § 273.5(a) conviction was not a categorical crime involving moral

turpitude. The government failed to meet its burden to show, under the modified

categorical approach, that Garnica’s crime involved moral turpitude. Garnica is

not, therefore, removable as an alien convicted of two or more crimes involving

moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii). Accordingly, we grant the

petition for review, vacate the BIA’s decision finding Garnica removable, and

remand to the BIA with instructions to terminate proceedings.

PETITION FOR REVIEW GRANTED, VACATED, AND REMANDED.




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