quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 The Ninth Circuit held that a misdemeanor conviction under Calif. P.C. § 273a(b) is divisible as a crime of child abuse, because the BIA definition requires actual harm, while § 273a(b) covers both causing actual harm as well as placing a child in a situation that merely carries the risk of non-serious harm to a child. A § 273a(b) conviction could be a crime of child abuse if the record of conviction establishes actual harm to the child. The Court implied that a felony conviction under P.C. § 273a(a) could be held to be a categorical crime of child abuse. Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009). Unfortunately, it is possible that the Ninth Circuit will change the Fregozo rule if the BIA, in a published, precedent decision, amends or “clarifies” its definition of child abuse to be inconsistent with the requirement of harm set out in Fregozo. The Court stated that it was deferring to and interpreting the BIA’s own definition. (However, it also is possible that the Court would find that a definition that does not require harm as inconsistent with the statutory term child “abuse.”) Because of this possibility, a better plea than P.C. § 273(b) is to an ageneutral statute that in which the record does not reveal the age of the victim. 4. Conviction that includes sexual intent or injury to morals The definition includes “sexual abuse” and “mental or emotional harm, including acts injurious to morals.” Sexual abuse includes “direct acts of sexual contact, 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.” Thus an omission that induces a child to engage in sexually explicit conduct, as well as an act that involves the use of a child as an object of sexual gratification is a crime of child abuse. At this time, ICE appears to be liberally charging almost any offense that involves a child as a deportable crime of child abuse, including offenses that involve lewd or sexual intent in any way. The best plea is to an age-neutral offense in which the record of conviction does not identify the victim. The BIA acknowledged that the evidentiary rules of the categorical approach apply to determining the age of the victim in a potential “crime of child abuse.” (Compare this to the possibility that this evidentiary standard will be relaxed in proving the “domestic relationship” required for a crime of domestic violence.) Where possible to obtain, a plea to an offense such as P.C. § 314, indecent exposure appears to be a safer plea (with any named victim not identified on the record as a minor). In addition, the Ninth Circuit recently held that this offense is not categorically a crime involving moral turpitude (Ocegueda-Nunez v. Holder (9th Cir. February 10, 2010)), although an immigration judge might decide to make a fact-based inquiry for moral turpitude purposes, under Silva-Trevino. It appears that ICE will charge P.C. § 261.5 and other direct, consensual acts with a minor as “child abuse.” The Ninth Circuit might rule against this, based on past findings that this is not necessarily “sexual abuse” because consensual sexual activity with an older teenager does not automatically constitute harm. See further discussion in § N.10 Sex Offenses. N-100 Immigrant Legal Resource Center
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