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BIA Holds A Conviction For Endangering The Welfare Of a Child Under Section 260.10(1) Of The New York Penal Law, Which Requires Knowingly Acting In A Manner Likely To Be Injurious To The Physical, Mental Or Moral Welfare Of A Child, Categorically Qualifies As A ‘Crime Of Child Abuse, Child Neglect, Or Child Abandonment” Per INA § 237(a)(2)(E)(i).

February 18, 2016 Philip Levin

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).

Learn more about the immigration services provided by Philip Levin & Associates.

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. 

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Filed Under: BIA, Child Abuse, Minor Child

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R-1
TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.