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Decided: November 20, 2015  

The Fourth Circuit denied 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.

On March 8, 2012, Hernandez-Zavala, a citizen of Mexico, was charged with several misdemeanors under North Carolina law. Additionally, on March 21, 2012, he pleaded guilty to the offense of assault with a deadly weapon in violation of North Carolina law. General assault and battery is covered by this offense; it does not specifically cover incidents of domestic violence or require proof of a domestic relationship. The victim of this incident was a woman Hernandez-Zavala referred to as his “partner,” with whom he resides and shares a child.

On March 9, 2012, the Department of Homeland Security (DHS) served Hernandez-Zavala with a Notice to Appear. DHS charged him with removability under the Immigration and Nationality Act (INA), and Hernandez-Zavala conceded removability and applied for cancellation of removal. In February of 2013, DHS moved to pretermit his application noting that he had been convicted of a crime of domestic violence. Under the INA, “any alien who at the time after admission is convicted of a crime of domestic violence…is deportable.” Claiming that Hernandez-Zavala had committed such a crime, DHS argued that he was thus ineligible for cancellation of removal. Hernandez-Zavala contested this assertion, arguing his assault conviction did not constitute as a “crime of domestic violence.” The IJ granted DHS’s motion to pretermit Hernandez-Zavala’s application for cancellation of removal because the IJ determined he was statutorily ineligible for cancellation of removal due to his conviction of a crime of domestic violence. Hernandez-Zavala timely appealed.

The Fourth Circuit analyzed 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. In order to be a crime of domestic violence, the crime must be: (1) a crime of violence and (2) the crime must have been committed by an individual who was in a domestic relationship with the victim. There is no question that this case constituted a crime of domestic violence or that Hernandez-Zavala was in a domestic relationship with the victim. The relevant 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.

Hernandez-Zavala argues that the categorical approach would apply, only looking at the statutory definition of the North Carolina offense to see if it contains the necessary elements of a crime of domestic violence under the INA. Conversely, the government argues that the circumstance-specific approach would apply, and the court may also consider underlying evidence of the conviction to determine if a domestic relationship existed between Hernandez-Zavala and his victim.

The Fourth Circuit determined that when assessing whether an underlying state conviction qualifies as a crime of domestic violence under the INA, the use of the circumstance-specific approach is proper in determining whether the requisite domestic relationship existed. Therefore, the Fourth Circuit concluded that Hernandez-Zavala’s conviction for assault with a deadly weapon against a woman that he had a relationship with was a domestic relationship and constituted a crime of domestic violence causing his cancellation of removal inapplicable. Ultimately, the Fourth Circuit affirmed the decision of the BIA and denied Hernandez-Zavala’s petition for review.

Full Opinion

Austin T. Reed