Hernandez-Zavala v. Lynch

• Decision Date: 20 November 2015
• Docket Number: No. 14–1878.,14–1878.
• Citation: 806 F.3d 259
• Parties: Hernan HERNANDEZ–ZAVALA, a/k/a Herman Hernandez, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

806 F.3d 259

Hernan HERNANDEZ–ZAVALA, a/k/a Herman Hernandez, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 14–1878.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 15, 2015.

Decided: Nov. 20, 2015.

ARGUED:William Robinson Heroy, Goodman, Carr PLLC, Charlotte, North Carolina, for Petitioner. Briena Lorraine Strippoli, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Joyce R. Branda, Acting Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, Edward C. Durant, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Opinion

Petition for review denied by published opinion. Judge DUNCANwrote the opinion, in which Judge FLOYDand Senior Judge Hamiltonjoined.

DUNCAN, Circuit Judge:

Hernan Hernandez–Zavala petitions 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 concluded that substantial evidence in the record indicated that Hernandez–Zavala had committed a “crime of domestic violence” as defined under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i). Given this, the BIA found that Hernandez–Zavala was statutorily ineligible for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b). For the reasons set forth below, we deny Hernandez–Zavala's petition.

I.

On March 8, 2012, Hernandez–Zavala, a native and citizen of Mexico, was charged with several misdemeanor offenses under North Carolina law. On March 21, 2012, he pleaded guilty in the District Court of Mecklenburg County, North Carolina, to the offense of assault with a deadly weapon in violation of N.C. Gen.Stat. § 14–33(c)(1). That statute provides as follows:

Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: (1) Inflicts serious injury upon another person or uses a deadly weapon....

N.C. Gen.Stat. § 14–33(c)(1). This offense covers general assault and battery; it does not specifically cover incidents of domestic violence or require proof of a domestic relationship. In this case, it is undisputed that the victim of the assault was a woman Hernandez–Zavala described in his brief as his “partner,” with whom he resides and shares a child. Petitioner's Br. at 4.

On March 9, 2012, the Department of Homeland Security (“DHS”) served Hernandez–Zavala with a Notice to Appear. Because Hernandez–Zavala had been neither admitted nor paroled when he entered the United States, DHS charged him with removability under INA § 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i).

Hernandez–Zavala conceded removability and applied for cancellation of removal.¹

On February 4, 2013, DHS moved to pretermit Hernandez–Zavala's application, asserting that he had been convicted of a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i). Under this provision, “[a]ny alien who at any time after admission is convicted of a crime of domestic violence ... is deportable.” 8 U.S.C. § 1227(a)(2)(E)(i). The same provision defines a “crime of domestic violence” as

any crime of violence (as defined in section 16 of title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

Id.Asserting that Hernandez–Zavala had committed such a crime, DHS argued that he was therefore ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). Hernandez–Zavala contested this assertion, claiming that his assault conviction does 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. Applying 8 U.S.C. § 1227(a)(2)(E)(i), the IJ first determined that the offense for which Hernandez–Zavala was convicted was categorically a “crime of violence” under 18 U.S.C. § 16, a finding that Hernandez–Zavala does not challenge on appeal.

Next, the IJ considered whether the North Carolina conviction was a “crime of domestic violence” under the INA. The IJ considered the offense of conviction as well as the underlying evidence and found that Hernandez–Zavala's conviction constituted a “crime of domestic violence” under both a modified categorical approach and a circumstance-specific approach. The IJ thus concluded that Hernandez–Zavala was statutorily ineligible for cancellation of removal.

On April 8, 2013, Hernandez–Zavala appealed the IJ's decision to the BIA, arguing that the IJ should not have considered any underlying evidence and that his conviction was not categorically a disqualifying offense under § 1227(a)(2)(E)(i). He did not contest the IJ's finding with respect to his domestic relationship with his victim. The BIA, adopting the circumstance-specific approach, concluded that the IJ properly found that Hernandez–Zavala's conviction constituted a “crime of domestic violence,” rendering him statutorily ineligible for cancellation of removal. Hernandez–Zavala subsequently filed a petition for review with this court.

II.

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

On appeal from the BIA, this court reviews legal questions de novo. Salem v. Holder,647 F.3d 111, 115 (4th Cir.2011). Where, as here, “the BIA and the immigration judge both issue decisions in a case, we review both decisions upon appeal.” Kourouma v. Holder,588 F.3d 234, 239–40 (4th Cir.2009). This court has jurisdiction over this petition for review pursuant to INA § 242(a), 8 U.S.C. § 1252(a).

A.

Under 8 U.S.C. § 1227(a)(2)(E)(i), a “crime of domestic violence” has two requirements: it 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.

There is no dispute in this case that Hernandez–Zavala's North Carolina assault conviction constitutes a “crime of violence” under 18 U.S.C. § 16²or that Hernandez–Zavala was in a domestic relationship with his 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.

Hernandez–Zavala argues that the categorical approach should apply, while DHS argues that the circumstance-specific approach should apply. Under the categorical approach, one need only look to 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. If the elements do not correspond, the inquiry stops there. Under the “circumstance-specific” approach, the court may also consider underlying evidence of the conviction to determine if a domestic relationship existed between Hernandez–Zavala and his victim.

B.

To determine which approach should apply, we first consider the previous uses of, and the rationales behind, the categorical approach and the circumstance-specific approach. We then address the specific “crime of domestic violence” provision at issue in this petition. We conclude 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. Accordingly, we find that Hernandez–Zavala'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.

1.

Although the categorical approach had its beginnings in the criminal context, it has “a long pedigree” in immigration law. Moncrieffe v. Holder,––– U.S. ––––, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013). It is “[r]ooted in Congress' specification of conviction, not conduct, as the trigger for immigration consequences.” Mellouli v. Lynch,––– U.S. ––––, 135 S.Ct. 1980, 1986, 192 L.Ed.2d 60 (2015).

Under the categorical approach, “we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the ‘generic’ federal definition of a corresponding” crime. Moncrieffe,133 S.Ct. at 1684(quoting Gonzales v. Duenas–Alvarez,549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007))(quotation marks omitted). The Court clarified that “[b]y ‘generic,’ we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.” Id.

A generic federal offense and a state offense categorically match “only if a conviction of the state offense ‘necessarily’ involved ... facts equating to [the] generic [federal offense].” Id.(quoting Shepard v. United States,544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)) (quotation marks omitted)(...