26 I. & N. Dec. 703
BIA2016Background
- Respondent (Ecuadorian LPR) convicted Dec. 10, 2013 of endangering the welfare of a child, N.Y. Penal Law § 260.10(1).
- DHS charged removability under INA § 237(a)(2)(E)(i) as an alien convicted of a “crime of child abuse, child neglect, or child abandonment.”
- IJ found respondent removable; respondent appealed solely contesting categorical fit of the NY statute within the INA phrase.
- NY § 260.10(1) is disjunctive: (1) knowingly acting in a manner likely to be injurious to a child’s physical, mental, or moral welfare; or (2) directing/authorizing a child to engage in a dangerous occupation.
- BIA applies the categorical approach and the “realistic probability” test from Moncrieffe/Gonzales to assess whether the state statute criminalizes conduct outside the federal definition of child abuse used by the BIA in Matter of Velazquez-Herrera and Matter of Soram.
- The BIA concluded the first prong requires knowledge and a likelihood of harm, and that reported NY cases show convictions required facts establishing a sufficiently high risk of harm; therefore § 260.10(1) is categorically a crime of child abuse/neglect/abandonment under the INA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.Y. Penal Law § 260.10(1) is categorically a “crime of child abuse, child neglect, or child abandonment” under INA § 237(a)(2)(E)(i) | DHS: statute defines an offense that fits BIA’s broad definition of child abuse (knowledge + likely harm) | Mendoza: statute is overbroad and could criminalize conduct that falls outside BIA’s definition (e.g., brief unattended children, incidental acts) | Held: § 260.10(1) (at least the first prong) is categorically within INA § 237(a)(2)(E)(i); respondent failed to show a realistic probability of prosecutions for nongeneric conduct |
Key Cases Cited
- Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) (upheld BIA’s broad interpretation of “crime of child abuse” and recognized need for sufficient risk element in state endangerment statutes)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (articulated ‘‘realistic probability’’ test for categorical analysis)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (U.S. 2007) (same realistic-probability principle limiting legal imagination in categorical inquiries)
- Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009) (California child-endangerment statute rejected as categorically a crime of child abuse because it required only a bare potential for harm)
- People v. Hitchcock, 780 N.E.2d 181 (N.Y. 2002) (explains ‘‘knowingly’’ and ‘‘likely to be injurious’’ elements for N.Y. § 260.10(1) and contrasts sufficient vs. insufficient facts for conviction)