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