A Real Immigration Debate

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

This past election cycle saturated Americans with immigration rhetoric from both political parties. Amongst this contentious political debate, the American judicial system is engulfed in legal debates about how to interpret federal immigration law. One section of the Immigration and Nationality Act (INA) allows the United States government to remove an alien convicted of a crime of domestic violence, stalking, or child abuse.[1] However, the Ninth and Fourth Circuits have encountered cases where an alien is convicted of a violent crime other than domestic violence, but many of the facts suggest a crime of domestic violence. It is not clear from the facts of these cases whether the prosecutors in the state proceedings utilized prosecutorial discretion to not charge a defendant under a criminal domestic violence statute or if the state did not possess a criminal domestic violence statute at all. These scenarios raise the question of whether the alien can be deported under this provision of the INA. The Ninth Circuit argued that a categorical approach, “looking only to the statutory definition [] of the prior offense”[2] or a modified categorical approach, looking “beyond the language of the statue to a narrow, specified set of documents that are part of the record of conviction,”[3] should be applied. Utilizing these two approaches, a court cannot look at the facts supporting the conviction when making the determination of whether the offense was an act of domestic violence. [4] In contrast, the Fourth Circuit applied a circumstantial approach. Under the circumstantial approach, “while the congruence of elements of the underlying offense and the offense described in the federal statute, must be assessed using the categorical approach, courts may consider other evidence to see if the necessary attendant circumstances exist.”[5] Ultimately, the Fourth Circuit’s approach is the best approach because it is more compatible with Supreme Court precedent even though the Fourth Circuit’s approach presents separation of powers and federalism issues.

The Ninth’s Circuit’s Categorical and Modified Categorical Approach

In Ashcroft, the defendant was convicted on charges of burglary and attempted kidnapping.[6] The federal government attempted to remove the defendant under domestic violence provision of the INA arguing the defendant committed a crime of domestic violence.[7] The defendant countered his conviction did not imply he committed an act of domestic violence.[8] The Immigration Judge held—based solely on the testimony of the victim—the defendant was removable under the applicable statute because there was a domestic relationship between the victim and defendant.[9] The Ninth Circuit held the use of the testimonial evidence was wrongly used to determine the domestic state of the relationship between the victim of the crime and the defendant.[10] The Ninth Circuit utilized the categorical and modified categorical approaches in this case.[11] The Ninth Circuit stated if the evidence from the record of conviction could not establish a domestic relationship then the conviction could not be used to remove the defendant.[12] The rationale behind using these approaches was utilizing outside evidence would essentially create mini-trials that are inappropriate for a deportation hearing.[13] The Court also argued this section of statue centers deportations on the nature of the defendant’s conduct not the actual conduct.[14] A Court’s use of specific conduct in a trial is inappropriate, and Congress is the body that can create statutes to emphasize the use of specific conduct at trial if necessary.[15]

The Fourth Circuit’s Circumstantial Approach

In Hernandez-Zavala, the defendant pleaded guilty to a charge of assault with a deadly weapon but the state statute under which he was convicted did not include domestic violence or of a domestic relationship between the victim and the defendant as an element of the crime.[16] However, the Department of Homeland Security sought to deport the defendant for committing an act of domestic violence.[17] The question to be resolved in the appeal was whether the domestic relationship component of the federal 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.”[18] The Fourth Circuit cited U.S. v.  Haynes, where the Supreme Court ruled the word “element” in a “nearly identical statute” only follows the manner in which the defendant acts in because it is the singular form of the word.[19] If Congress meant to require two elements of the offense, it would have used “elements” to describe this relationship.[20] Therefore, the domestic relationship “element” of the statute was not a required component.[21]The Fourth Circuit followed this precedent when it ruled “element” in the INA statute referred to a crime of violence and did not include the relationship of the victim and the defendant.[22] Additionally, the provision in Nijawan triggered the circumstance approach in part because applying the categorical approach would leave the provision with little teeth since only eight state statutes possessed the relevant standard.[23]  The Fourth Circuit noted only about thirty-three percent of the states specifically protected against domestic violence making the federal statue essentially toothless.[24] Thus, the circumstantial approach was appropriate in this context.

Is the Categorical or Circumstance Approach Correct?

The circumstantial approach, which allows courts to determine what Congress meant when it created the statute in question, creates a separation of powers questions. For example, in Nijawan and Haynes, the Supreme Court determined that it was appropriate for courts to analyze where the law would be applicable based on the statutory construction of the federal law. Federal courts could then reach a decision on statutory construction in part based on whether the law would apply in the majority of states. This approach disregards the separation of powers between the legislative and judicial branches for two reasons. First, federal judges will substitute their own policy preferences for what Congress meant when passing the statute. The other concern is federal courts will simply misread what Congress intended to pass. In many circumstances, it may seem obvious what Congress intended to do and some may argue in the interest of justice and efficiency federal courts should apply the obvious interpretation. Congress can always change the law if the court gets the interpretation of the statute wrong. This attitude would allow federal courts to essentially rewrite federal law when the law makes little sense—giving courts an impermissible grab of power. It is not the duty of federal courts to rewrite ineffective federal law. It is duty of Congress to rewrite effective immigration policy

The circumstantial approach also generates federalism questions. According to the Fourth Circuit, two thirds of the states did not have a specific criminal statute for domestic violence. The Court further notes that many domestic violence crimes in states that do have domestic violence statues are instead prosecuted under assault or battery statutes.[25] Allowing the federal government to deport felons by looking at evidence outside the trial usurps the critical role of state government in dispensing criminal justice. States have the discretion to determine justice for domestic violence crimes is adequately addressed by assault and battery statues. Further, prosecutors in states with domestic violence statutes may utilize prosecutorial discretion because they feel the facts of the case warrant different charges then a domestic violence charge. The circumstantial approach allows the federal government to supersede state tribunals by essentially conducting its own mini trial and deciding its own judgement is better than state government actors. This approach could lead to the federal government essentially overriding state criminal law by creating its own standards of enforcement.

While not argued by the Fourth or Ninth Circuits, some may argue the circumstantial approach is the better approach for protecting women and society in general. After all, it seems absurd to allow violent felons to potentially stay in this country based on a technicality in federal law. The categorical approach is too formulaic to ensure the protection of women from these predators. The issue of domestic violence and the protection of women should be of paramount importance in our country. Despite the gravity of this issue, this concern should not play a role in federal judges’ decision making in how to interpret this federal statute. Judges determining what the most effective or appropriate policy our laws should take would usurp the role of the legislative branch. Issues as complex and demanding as domestic violence and immigration policy should be resolved by elected representatives as opposed to federal judges who are insulated in the court room. Elected representatives will almost certainly hear from their constituents about the impact laws will have in their districts.

Despite the separation of powers and federalism concerns of the circumstantial approach, the Fourth Circuit reached the correct decision. The Supreme Court has decided to utilize this approach in immigration and criminal contexts in interpreting federal statutes similar to the domestic violence provision of the INA. The Fourth Circuit is correct that if a categorical approach is applied then the domestic violence provision would be ineffective in many states. The Supreme Court decided this analysis should play a crucial role in the statutory analysis and the Fourth Circuit was justified in doing so. Based on the precedent in Nijawan and Haynes, it also appears the Fourth Circuit was correct in interpreting the manner of the crime was the only required element of the domestic violence statute. The Ninth Circuit appropriately applied the analysis that existed in 2005 and did not have the benefit of the Supreme Court decision the Fourth Circuit would have ten years later. The Fourth Circuit was correct in ignoring the Ashcroft opinion because the Supreme Court decisions seem to overrule Ashcroft. The Fourth Circuit ruling was also consistent with the reasoning of the Fifth Circuit where it was also decided the domestic relationship component “did not need to be an element of the underlying offense.”[26]


The Fourth Circuit’s opinion was the correct one because it correctly applied Supreme Court precedent despite the separation of powers and federalism issues in the circumstantial approach. A circuit court must not challenge Supreme Court precedent at every opportunity. If circuit courts ignored or challenged every Supreme Court ruling it disagreed with, the results would lead to an unstable legal system. The Supreme Court itself must overrule or clarify its own precedent to maintain the stability of the federal legal system. Congress also has the power to remedy the situation by amending the law to alleviate confusion regarding the interpretation of this statutory provision of the INA. What this circuit split does show is the debate on how to interpret legislative statutes such as this INA provision will rage on long after the immigration rhetoric of the past election cycle dies down.


[1] 8 U.S.C. § 1227(a)(2)(E)(i).

[2] Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) citing Taylor v. United States, 495 U.S. 575, 600 (1990).

[3] Id.

[4] Id.

[5] Hernandez-Zavala v. Lynch, 806 F.3d 259, 264 (4th Cir. 2015).

[6] Ashcroft, 371 F.3d at 615-616.

[7] Ashcroft, 371 F.3d at 616.

[8] Id.

[9] See id.

[10] See id. at 624-625.

[11] Id. at 620.

[12] See Ashcroft, 371 F.3d at 620-621.

[13] Id. at 621.

[14] Id at 622.

[15] Id.

[16] Hernandez-Zavala, 806 F. 3d. at 261.

[17] Id. at 262.

[18] Id. at 263.

[19] Id. at 266. See United States v. Haynes, 555 U.S. 415 (2009).

[20] Hernandez-Zavala, 806 F. 3d. at 266.

[21] See id.

[22] Id.

[23] Hernandez-Zavala, 806 F.3d at 266-267.

[24] Id.

[25] Hernandez-Zavala, 806 F.3d at 266.

[26] Hernandez-Zavala, 806 F.3d at 267.

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