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Immigration – Alien Removable for ‘Domestic Violence’ Crime

Hernandez-Zavala v. Lynch (Lawyers Weekly No. 15-01-1075, 19 pp.) (Duncan, J.) No. 14-1878, Nov. 20, 2015; On Petition for Review; 4th Cir.

Holding: The 4th Circuit upholds a Board of Immigration Appeals decision that substantial record evidence indicated petitioner committed a “crime of domestic violence” under federal immigration laws, and he therefore is statutorily ineligible for cancellation of removal under the Immigration and Nationality Act.

The question presented here is a purely legal one: 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 violence” under 8 U.S.C. § 1227(a)(2)(E)(i). This is a matter of first impression in this circuit.

Under § 1227(a)(2)(E)(i), a domestic violence crime must be a “crime of violence” as defined by 18 U.S.C. § 16 and the crime must have been committed by an individual who was in a domestic relationship with the victim. Here, there is no dispute that petitioner’s North Carolina assault conviction constitutes a “crime of violence” under § 16 or that he was in a domestic relationship with the victim. 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.

This court will apply the circumstance-specific approach and also consider underlying evidence of the conviction to determine if a domestic relationship existed between petitioner and his victim. We find that petitioner’s conviction for assault with a deadly weapon against a woman with whom he was in a domestic relationship indeed constitutes a “crime of domestic violence,” rendering him ineligible for cancellation of removal.

Petition for review denied.

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