BIA Holds That The Risk Of Harm To A Child Required To Obtain A Conviction For Child Neglect In The Second Degree Under §163.54(1) Of the Oregon Revised Statutes Is Sufficiently High That The Offense Is Categorically A “Crime Of Child Abuse, Child Neglect, Or Child Abandonment” Under INA §237(a)(2)(E)(i).
On December 22, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an order by the Immigration Judge (IJ) finding Respondent removable per INA §212(a)(6)(A)(i) as one present in the U.S. without being admitted or paroled, denying his application for cancellation of removal, and ordering him removed; the matter had previously been appealed to the Board and dismissed and was back on remand by the Ninth Circuit Court of Appeals for further consideration of Respondent’s eligibility for cancellation.
As background, Respondent was convicted of two counts of child neglect in the second degree per Oregon Revised Statutes §163.545(1) and placed into removal proceedings. Before the IJ, he conceded removability and requested proceedings. The IJ pretermitted his application, concluding that Respondent was statutorily ineligible because he had been convicted of a disqualifying offense per INA §237 (a)(2)(E)(i), i.e., a “crime of child abuse”. In its first dismissal, the BIA upheld the IJ’s determination and Respondent filed a petition for review with the Ninth Circuit, which granted the Government’s unopposed motion to remand so the Board could further explain its holding that the second-degree neglect conviction is a categorical child abuse crime under §237(a)(2)(E)(i). The motion requested that the BIA specifically consider whether, under Oregon law, a conviction for leaving a child under ten years olds unattended for such a period of time “as may be likely to endanger the health or welfare of such child” meets the sufficiently high risk of harm standard articulated by Board precedent; the motion referenced an intervening decision by the Ninth Circuit which held that a similar Nevada misdemeanor child endangerment statute was overbroad.
The BIA began its analysis by restating the rule that to qualify for cancellation, one must prove that he or she has not been convicted of an offense under INA §§212 (a)(2) or 237(a)(2) and thus agreeing with the IJ that Respondent is statutorily ineligible for cancellation because his conviction under §163.545(1) is categorically for a “crime of child abuse” per INA §237(a)(2)(E)(i). The decision noted that the Board has interpreted the phrase “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.” Similarly, stated the opinion, it has previously held that the “crime of child abuse, child neglect, or child abandonment” is a “unitary concept” such that the BIA’s broad definition of “crime of child abuse” includes crimes of child neglect and abandonment and therefore “endangering a child can reasonably be viewed as either abuse or neglect.”
The Board next concluded that in order for a child endangerment-type offense to constitute a “crime of child abuse”, the statute must require proof of a “likelihood” or “reasonable probability” that a child will be harmed, not a mere possibility or potential for harm. As to the particular Oregon law, the operative phrase, “may be likely to endanger,” is not statutorily defined and the BIA “must look to how it has been interpreted in case law.” It then found that the Oregon Court of Appeals had explained that giving “may be likely to endanger” its common meaning, the phrase refers to the likelihood of exposure to harm, rather than the probability of particular harm actually occurring; the Court of Appeals emphasized that a conviction for child neglect is based on the totality of the circumstances, requiring proof beyond a reasonable doubt 1) that leaving the child unattended was likely to endanger her health or welfare, 2) that the risk of that harm occurring was substantial and unjustifiable, and 3) that the defendant’s lack of awareness of that risk was a gross deviation from the normal standard of care. In sum, the likelihood of danger need not be proved, but the evidence should “permit a finding that the risk of injury to the child’s health and welfare was real and substantial.”
The Board concluded that its review of pertinent Oregon case law convinced it that a conviction under §163.545(1) requires that the risk be sufficiently high so as to bring it within the BIA’s definition of “child abuse, child neglect, or child abandonment” under §237(a)(2)(F)(i) and held that, as the statute “requires criminal negligence and a showing of more than a mere possibility of, or potential for, harm,” Respondent had been convicted of such crime. This “heightened standard,” held the Board, is more consistent with conduct creating a “reasonable probability” of harm to a child than the “reasonable foreseeability” of harm the Ninth Circuit had found was required by the Nevada misdemeanor offense. The appeal was thus dismissed. Matter of Rivera-Mendoza, 28 I&N Dec. 184 (BIA 2020).