On February 9, 2016, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent found removable under INA § 237(a)(2)(E)(i) as one convicted of a “crime of child abuse, child neglect, or child abandonment”, finding no weight to his argument that his violation of the offense of endangering the welfare of a child per section 260.10(1) of the New York Penal Law was for a crime broader than that defined as “child abuse” in previous BIA decisions.
Initially citing to Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), the Board noted its interpretation of the term “crime of child abuse” 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. This definition, the BIA stated, was later clarified in Matter of Soram, 25 I&N Dec. 378 (BIA 2010) as specifically not limited to offenses that require proof of actual harm to a child such that crimes of neglect and abandonment are included in the Board’s understanding of “child abuse”.
As to the crime at bar, the applicable section of 260.10(1) involved “taking action that is likely to be harmful to a child’s welfare”. Respondent argued that his New York conviction was not categorically a child abuse crime because the state statute was overbroad, encompassing conduct falling outside of the sphere of that contemplated by Velazquez-Herrera and Soram. Utilizing the categorical approach of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Board looked to whether the state crime categorically fit within the federal definition of the corresponding offense, holding that the respondent must do more than just invoke the statute’s breadth; he must show there is a “realistic probability” that the statute is applied to punish conduct that does not qualify as child abuse under the INA. As the appellant failed to cite any case where the New York statute criminalized conduct outside the BIA’s child abuse definition and none of the cases he did cite resulted in a successful prosecution, the Board found that section 260.10(1) only criminalized conduct a defendant knew would pose a substantial risk of harm to a child under the totality of the circumstances, requiring as an element of the crime a sufficiently high risk of harm to a child. Thus, held the BIA, while there are some child endangerment statutes that do not meet its definition, section 260.10(1) is not one of them. Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016).
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