By Sarah M. Saint
Today, in the published civil case of Hernandez-Zavala v. Lynch, the Fourth Circuit denied Hernan Hernandez-Zavala’s petition for review of the Board of Immigration Appeal’s (“BIA’s”) order affirming the Immigration Judge’s (“IJ’s”) pretermission of Hernandez-Zavala’s application for cancellation of removal. The BIA found Hernandez-Zavala had committed a crime of domestic violence and thus statutorily ineligible for cancellation of removal.
Hernandez-Zavala’s underlying conviction
On March 21, 2012, Hernandez-Zavala pleaded guilty to assault with a deadly weapon. The victim of assault was a woman with whom Hernandez-Zavala lives and shares a child.
Procedural history of Hernandez-Zavala’s application for cancellation of removal.
On March 9, 2012, the Department of Homeland Security (“DHS”) charged Hernandez-Zavala with removability because he had been neither admitted nor paroled when he entered the United States. Hernandez-Zavala applied for cancellation of removal. The Attorney General may cancel the removal of a removable alien if he meets certain criteria, including never being convicted of a crime of domestic violence.
On February 4, 2013, DHS moved to pretermit Hernandez-Zavala’s application because he had been convicted of a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i) and thus was ineligible for cancellation of removal. A crime of domestic violence is, in relevant part, “any crime of violence . . . by an individual who is cohabitating with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse.” 8 U.S.C. § 1227(a)(2)(E)(i). Hernandez-Zavala contested this motion, claiming the conviction did not constitute a crime of domestic violence.
On March 18, 2013, the IJ granted DHS’s motion to pretermit Hernandez-Zavala’s application for cancellation of removal because Hernandez-Zavala committed a crime of domestic violence and accordingly ineligible for cancellation of removal.
On April 8, 2013, Hernandez-Zavala appealed the IJ’s decision to the BIA because assault with a deadly weapon is not categorically a disqualifying offense. The BIA used the circumstance-specific approach to conclude that the IJ properly determined that Hernandez-Zavala committed a crime of domestic violence.
Hernandez-Zavala filed a petition for review with the Fourth Circuit bringing one legal issue: whether a conviction under a state law that does not have a domestic relationship as an element of the offense can constitute a “crime of domestic violence.” This is a matter of first impression for the Fourth Circuit.
Standard of Review
Legal issues are reviewed de novo. When both the BIA and IJ issue decisions, the Fourth Circuit reviews both decisions.
What is a crime of domestic violence?
A crime of domestic violence has two elements: (1) a crime of violence (2) that was committed by an individual who was in a domestic relationship with the victim.
Hernandez-Zavala does not dispute that his assault conviction constitutes a crime of violence. Hernandez-Zavala also does not dispute that he was in a domestic relationship with the victim of his assault. “The only question is whether the domestic relationship requirement in the statute must be an element of the underlying offense of conviction, triggering the categorical approach, or if it must merely be an attendant circumstance of the underlying conviction, triggering the circumstance-specific approach.”
Under the categorical approach, the inquiry stops by looking at the elements of the underlying offense; there is no factual inquiry into the particular circumstances of the conviction. The categorical approach is practical for judicial efficiency. Courts use the categorical approach when a state crime fits within the generic federal definition of a corresponding crime.
Under the circumstance-specific approach, the court must consider the underlying evidence of the underlying offense to determine if the victim and Hernandez-Zavala had a domestic relationship. Courts use the circumstance-specific approach when the corresponding federal statute does not describe a generic offense but specific acts in specific occasions.
Hernandez-Zavala argues for the categorical approach to apply while DHS argues for the circumstance-specific approach to apply.
The Fourth Circuit relied on the reasoning in United States v. Hayes as instructive in whether to use the categorical or circumstance-specific approach. 555 U.S. 415 (2009). In Hayes the Court concluded that a domestic relationship did not need to be an element of the underlying offense. Id. at 426. Most states have no domestic violence laws, so crimes of domestic violence are prosecuted under general assault or battery laws. Id. at 427.Therefore, the Court in Hayes held that the circumstance-specific approach should apply because the categorical approach would frustrate the purpose of the law. Id.
Fourth Circuit denied Hernandez-Zavala’s petition for review
The Fourth Circuit concluded that the circumstance-specific approach should apply in Hernandez-Zavala’s case, using the reasoning in Hayes as instructive. Further, the relationship between the noncitizen and the victim is easily discernible. In doing so, the Fourth Circuit denied Hernandez-Zavala’s petition for review and affirmed the BIA’s decision because Hernandez-Zavala’s conviction for assault with a deadly weapon was committed against someone with whom he had a domestic relationship, rendering him ineligible for cancellation of removal.