(C)  Application of the Record of Conviction Limitation.  Generally speaking, the immigration and federal courts are limited to the record of conviction in determining whether a given conviction triggers a conviction-based ground of deportation.  The government sometimes claims that this limit has no application to the domestic violence deportation ground; in particular, it claims that it can go outside the record of conviction to establish that the victim had a protected relationship with the defendant.  Some circuits seem to be adopting this position.

 

            The Ninth Circuit has not adopted this view.  It has held unequivocally that the government may not introduce evidence outside the record of conviction, even by testimony during a removal hearing, to establish that the victim was the defendant’s spouse, for purposes of establishing a domestic violence conviction ground of deportation.  See § 7.154, infra.

Ninth Circuit

DOMESTIC VIOLENCE - DIVISIBLE STATUTE ANALYSIS
Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (California conviction of battery, in violation of Penal Code 242 (any willful and unlawful use of force or violence upon the person of another), not shown on this record under modified categorical analysis to be a crime of domestic violence, within the meaning of 8 U.S.C. 1227(a)(2)(E)(i), because there was insufficient documentation to establish a domestic relationship; dismissed counts naming spouse as victim, sentence to domestic violence counseling, and order to stay away from spouse cannot be used to establish that conviction for battery of unnamed victim was a crime of domestic violence).

SENTENCING V. IMMIGRATION CONTEXT - DOMESTIC VIOLENCE
Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (distinguishing between INA 237(a)(2)(E)(i), and 8 U.S.C. 921(a)(33)(A)(i) [sentence enhancement for person with prior domestic violence conviction found in possession of a firearm], in that the former requires that the domestic relationship be an element of the offense, where the latter merely requires that the offense was in fact committed against someone with a domestic relationship), distinguishing United States v. Belless, 338 F.3d 1063, 1065-1067 (9th Cir. 2003).

DOMESTIC VIOLENCE - DOMESTIC BATTERY - CALIFORNIA CONVICTION OF SIMPLE BATTERY DID NOT QUALIFY AS DOMESTIC VIOLENCE CONVICTION WHERE RECORD OF CONVICTION DID NOT ESTABLISH NECESSARY DOMESTIC RELATIONSHIP
Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (California conviction of simple battery, in violation of Penal Code 242, did not qualify as deportable domestic violence conviction, under INA 237(a)(2)(E)(i, 8 U.S.C. 1227(a)(2)(E)(i), where record of conviction did not establish necessary domestic relationship), opinion amended on denial of rehearing, ___ F.3d ___, 2006 WL 2819961 (9th Cir. Oct. 4, 2006) (amendment deleted the following sentence: "Where, as here, there are statutes directly addressing domestic violence, such as California Penal Code sections 243(e)(1) and 273.5, only the most convincing proof of the nature of a conviction for a more general crime will suffice to establish a crime of domestic violence." 451 F.3d at 1059-60 [emphasis in original]).
http://caselaw.lp.findlaw.com/data2/circs/9th/0471717p.pdf