quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
The BIA defined a “crime of child abuse” in Matter of Velazquez-Herrera, 24 I&N Dec.
503, 513 (BIA 2008) as follows:
[We] interpret the term “crime of child abuse” broadly to mean any offense involving an
intentional, knowing, reckless, or criminally negligent act or omission that constitutes
maltreatment of a child or that impairs a child’s physical or mental well-being, including
sexual abuse or exploitation. At a minimum, this definition encompasses convictions for
offenses involving the infliction on a child of physical harm, even if slight; mental or
emotional harm, including acts injurious to morals; sexual abuse, including direct acts
of sexual contact, but also including acts that induce (or omissions that permit) a child to
engage in prostitution, pornography, or other sexually explicit conduct; as well as any act
that involves the use or exploitation of a child as an object of sexual gratification or as a
tool in the commission of serious crimes, such as drug trafficking. Moreover, as in the
“sexual abuse of a minor” context, we deem the term “crime of child abuse” to refer to an
offense committed against an individual who had not yet reached the age of 18 years. Cf.
Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). [W]e do not limit the term to those
offenses that were necessarily committed by the child’s parent or by someone acting in
loco parentis.
The BIA held that this definition also includes “most, if not all” crimes of “child
neglect.” It has not yet defined a crime of child abandonment. Id. at 512.
2. Conviction under an Age-Neutral Statute
The Board of Immigration Appeals held that a plea is to an age-neutral offense can be a
crime of child abuse, neglect or abandonment, but only if the fact that the victim was under the
age of 18 is proved in the reviewable record of conviction. Velazquez-Herrera, supra at 516.
The BIA held that the following evidence did not offer sufficient proof that the victim was a
minor: a Washington state no-contact order involving a child (the birth certificate was provided),
which does not necessarily define the victim of the offense of conviction; and a restitution order
to the “child victim,” since restitution in Washington is established by a preponderance of the
evidence and so was not part of the “conviction.” Id. at 516-17.
Counsel should keep the record of a plea to an age-neutral statute clear of evidence of
the age of the victim. (While this is by far the best course, even if the reviewable record
identifies the victim as a minor, immigration counsel will argue that an age-neutral offense never
can qualify as a crime of child abuse. See “sexual abuse of a minor” discussion at § N.10, infra.)
3. Child Abuse, Actual Harm versus Risk of Non-Serious Harm, and P.C. §§ 273a
In Matter of Velazquez, supra, the concurrence noted that the opinion did not make clear
whether child abuse applies to “crimes in which a child is merely placed or allowed to remain in
a dangerous situation, without any element in the statute requiring ensuing harm, such as a
general child endangerment statute, or selling liquor to an underage minor, or failing to secure a
child with a seatbelt.” Id. at 518.
Immigrant Legal Resource Center N-99