Under INA, State Assault Removable As "Domestic Violence"

A foreign citizen's conviction of assault under state law can qualify as removable under the INA even though the state offense had no "domestic relationship" element.

 

Hernandez-Zavala v. Lynch, 2015 BLL 382973, 4th Cir., No. 14-1878, 11/20/15

 

Removing Domestic Violence 

 

    Even though the state offense of assault did not include a "domestic relationship element" it can qualify as a removable "crime of domestic violence" under the Immigration and Nationality Act.

    The U.S. Court of Appeals for the Fourth Circuit answered a question that was "a purely legal one: whether a conviction under a state law that does not have a domestic violence relationship as an element of the offense can constitute a 'crime of domestic violence."

 

    In this case, the original conviction was of assault with a deadly weapon under N.C. Gen. Stat. §14-33(c)(1). There was no dispute that the defendant had a domestic relationship with the woman that he was convicted of assaulting. The defendant argued that that fact did not disqualify him for having his removal cancelled, because the state statute did not require or mention domestic relationship as part of the crime.

 

    The court held that it was proper to apply a circumstance-specific approach rather than a narrower categorical approach to determine if the state offense qualified as a crime of domestic violence. This ruling creates a circuit split with the Ninth Circuit which rejected the circumstance-specific approach. Tokatly v. Ashcroft, F.3d 613 (9th Cir. 2004).

  

    The court indicated that, under the Immigration and Nationality Act, 8 U.S.C. §1227(a)(2)(E)(i), an "alien convicted of a crime of domestic violence" can be deported. Therefore, the immigrant in question is ineligible for cancellation of removal under §1229(b)(1)(C).

 

The Other Approach

 

    The other approach that the court considered was the categorical approach. This approach is based on seeing if the state offense fits the generic definition of the corresponding federal crime.

 

    Under this approach a state offense will fit if it involves "facts equating to" the federal offense. However, the court said that, if the federal statute describes specific acts rather than a generic offense, the "circumstance-specific approach is appropriate," because it allows courts to "consider other evidence to see if the necessary attendant circumstances existed."

 

    The U.S. Supreme Court, in United States v. Hayes, 555 U.S. 415 (2009), determined that the circumstance-specific approach was proper when considering "a criminal statute with nearly identical statutory text" to the INA provision here. In that situation, the Supreme Court found that applying the categorical approach would frustrate Congress's intent because two-thirds of states did not have laws specifically prohibiting domestic violence, in essence rendering the law moot.