These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
crime of child abuse
The Board of Immigration Appeals has determined that attempt crimes can render a non-citizen deportable under section 237(a)(2)(E) of the INA, even though the statute makes no mention of attempted crimes of child abuse.
The full text of Matter of D. Rodriguez can be found here:
The Fourth Circuit has determined that a conviction in the District of Columbia for attempted second degree child sexual abuse is a crime of child abuse. The Court declined to find that a conviction must include as an element knowledge of the victim’s age in order to qualify as a crime of child abuse.
The full text of Marquez Cruz v. Garland can be found here:
The Fifth Circuit has affirmed that a Texas conviction for injury to a child in the third degree is a crime of child abuse, rejecting the petitioner’s contention that the definition of harm in the statute is broader than the generic definition of a crime of child abuse.
The full text of Ponce v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/21/21-60530-CV0.pdf
The Ninth Circuit, sitting en banc has determined that that the terms “child abuse” and “child neglect” are ambiguous. The Court deferred to the e Board of Immigration Appeals’ (BIA) interpretation that the phrase “crime of child abuse, child neglect, or child abandonment” can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing an actual injury to the child. The Court also deferred to the BIA’s treatment of this phrase as a unitary category of crimes against children.
The court then proceeded to analyze the elements of Penal Code 273a(a). The least of the acts criminalized by the fourth branch of the statute requires proof that a defendant (1) had care of custody of a child, whether or not a parent or legal guardian; and (2) with criminal negligence, meaning in a manner that a reasonable person would have known creates a high risk of death or great bodily injury; (3) purposely put the child into an abusive situation in which the probability of serious injury was great.
The BIA defines the generic federal offense of “child abuse, child neglect, or child abandonment” to include the element of a mens rea of criminal negligence (a match to the second element of a section 273a(a) conviction), and the element of allowing a child to be placed in a situation that create a substantial risk of harm to a child’s health or welfare (a match to the third element of a section 273a(a) conviction).
The full text of Diaz Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/08/13-73719.pdf
The Eighth Circuit has determined that a Nebraska conviction for negligent child abuse is a deportable crime of child abuse because the statute requires a mens rea of at least criminal negligence.
The full text of Al-Masaudi v. Garland can be found here:
The Eleventh Circuit has deferred to the agency’s definition of a crime of child abuse as including criminally negligent, noninjurious conduct. Thus, a Florida conviction for culpably negligent child neglect is a deportable offense.
The full text of Bastias v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202111416.pdf
The Fifth Circuit has determined that a Texas conviction for felony injury to a child is a crime of child abuse. The court recognized that the statute is overbroad because it criminalizes injury to the elderly and injury to the disabled, but also determined that the statute is divisible between between victim classes.
The full text of Monsonyem v. Attorney General can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60952-CV0.pdf
The Third Circuit has concluded that a New Jersey conviction for “engaging in sexual conduct which would impair or debauch the morals of a child” is a crime of child abuse, noting that the use of the word “would” indicates a probability (rather than a mere capacity) to cause harm to the child. The court also analyzed state case law which indicated that the conduct must have a tendency to cause harm to the child.
The full text of Nunez v. Attorney General can be found here:
The Ninth Circuit has determined that a California conviction for child endangerment in violation of Penal Code 273A(a) is not a crime of child abuse.
The full text of Diaz-Rodriguez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/13-73719.pdf
The Second Circuit has determined that Matter of Soram can be applied retroactively to pre-2010 child endangerment convictions. The court further held that it held no jurisdiction to review the agency’s reliance on uncorroborated arrest reports in its discretionary denial of cancellation of removal.
The full text of Marquez v. Garland can be found here:
The Board of Immigration Appeals has determined that a Tennessee statutory rape conviction is a crime of child abuse, even though it includes victims over age 16. The Board concluded t that section 237(a)(2)(E)(i) covers a broader range of criminal conduct than the “sexual abuse of a minor” aggravated felony provision. “Thus, we conclude that the minimum criminal conduct proscribed by the respondent’s statute of conviction—sexual penetration between a victim who is 17 years old and a perpetrator who is at least 27 years old, committed with a mens rea of recklessness—necessarily involves maltreatment or impairment of a child’s physical or mental well-being and falls within the generic definition of a crime of child abuse.”
The full text of Matter of Aguilar-Barajas can be found here:
The Fifth Circuit has determined that a Texas conviction for online solicitation of a minor is a crime of child abuse because it requires the knowing solicitation of a minor with the intention that the minor engage in a sex act. The court did not directly address the petitioner’s argument that the statute is overbroad because it defines a minor to include a person the defendant believes is under age 17.
The full text of Adeeko v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60703-CV0.pdf
The Board of Immigration Appeals has determined that an Oregon conviction for second degree child neglect is a crime of child abuse even though the statute only requires “the likelihood of exposure to harm, rather than the probability of a particular harm actually occurring.” “The language ‘may be likely to endanger’ has been interpreted to require circumstances that are ‘likely to make probable a state of being exposed to harm,’ and the risk of that harm occurring must be ‘substantial and unjustifiable.’ Because the statute requires criminal negligence and a showing of more than a mere possibility of, or potential for, harm, we conclude that respondent was convicted of a ‘crime of child abuse, child neglect, or child abandonment’ under section 237(a)(2)(E)(i) of the Act.”
The full text of Matter of Rivera-Mendoza can be found here:
The Fifth Circuit has determined that a Texas conviction for sexual assault of a child is a crime of child abuse. In so doing, the court deferred to the Board of Immigrations’ (Board) interpretation of this ground of deportability, articulated in its decisions in Matter of Velazquez-Herrera and Matter of Soram. The court noted that the statute at issue requires intentionally or knowingly engaging in acts involving direct sexual contact with a child, which falls squarely within the Board’s definition.
The full text of Garcia v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/19/19-60097-CV0.pdf
The Second Circuit has determined that a New York child endangerment conviction is a deportable child abuse offense. In so doing, the court reaffirmed its decision to defer to the Board of Immigration Appeals’ definition of a crime of child abuse, which does not require actual harm to a child. The New York statute at issue criminalizes knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old. he New York Court of Appeals has interpreted the as requiring both that the defendant acted with an awareness of the potential for harm and that the harm was likely to occur, and not merely possible.
The full text of Matthew v. Barr can be found here:
The Ninth Circuit has dismissed the appeal in Martinez-Cedillo v. Barr as moot. The original panel decision in this case found that a conviction under Ca. Penal Code 273a(A) (felony child endangerment) is a crime of child abuse. The court subsequently withdrew that opinion and granted a petition for rehearing en banc. As the case has now been mooted out, this issue will remain open for future litigation.
The order dismissing the case can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/16/14-71742.pdf
My blog post on the order granting en banc hearing can be found here:
http://www.sabrinadamast.com/journal/2019/3/24/ninth-circuit-takes-up-ca-felony-child-abuse-en-banc
My blog post on the original panel decision can be found here: http://www.sabrinadamast.com/journal/2018/8/12/ninth-circuit-finds-that-ca-felony-child-endangerment-conviction-is-crime-of-child-abuse
The Ninth Circuit has granted a petition for en banc rehearing in Martinez-Cedillo v. Barr, a decision finding that a conviction for felony child endangerment in California is a crime of child abuse.
The original decision in Martinez-Cedillo v. Session can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/14-71742.pdf
The order granting en banc review can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/18/14-71742.pdf
The Third Circuit has determined that a New Jersey conviction for possession of child pornography is a crime of child abuse but not an aggravated felony relating to child pornography.
With respect to the aggravated felony charge, the court noted that “among the conduct that the state statute criminalizes, by means of its definition of ‘sexual contact,’ is the knowing possession of a visual depiction of an intentional touching, ‘either directly or through clothing,’ of the inner thigh, breasts, or buttocks by either the minor victim or adult actor for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.’ By contrast, in terms of conduct other than sexual acts and sadistic or masochist abuse, the federal offense prohibits the ‘lascivious exhibition’ of only the ‘genitals or pubic area of any person.’” In addition, there are depictions of nudity criminalized by the New Jersey statute that would not fall within the ambit of the federal statute.
With respect to the crime of child abuse charge of removability, the court noted that “[t]he conviction at issue here categorically matches the part of the BIA’s definition of child abuse that includes ‘any act that involves the use or exploitation of a child as an object of sexual gratification.’ Although Salmoran argues that possession of child pornography does not entail exploitation of the child, this position is untenable. “
The full text of Salmoran v. Attorney General can be found here:
The Third Circuit has determined that a Pennsylvania conviction for endangering the welfare of a child does not match the definition of a crime of child abuse. “To qualify as a crime of child abuse under the INA, a state child endangerment offense must require that the actor’s conduct create a particular likelihood of harm to the child that rises above conduct that creates only the bare potential for nonserious harm. As a result, where a state child endangerment statute fails to require any particular likelihood of harm to a child, it falls outside the ambit of the INA’s child abuse offense.”
Pennsylvania’s child endangerment statute has been construed to impose a duty on parents and other caretakers to not risk any kind of harm, not just bodily injury, to a minor child in his or her care. Thus, a conviction for endangering the welfare of children only requires proof of circumstances that could threaten the child’s physical or psychological welfare.
The Third Circuit determined that “the Pennsylvania statute lacks an element requiring proof of a sufficiently high risk of harm.” “Because child abuse under the INA requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm, and the Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not, the elements of the two statutes do not match. As a result, under the categorical approach, Pennsylvania’s child endangerment statute under which Liao was convicted does not fit within the definition of child abuse under § 1227(a)(2)(E)(i), and the BIA erred in concluding otherwise.“
The full text of Liao v. Attorney General can be found here:
The Ninth Circuit has determined that a conviction under California Penal Code 288(c)(1) (lewd and lascivious acts on a child who is 14 or 15 years old when the defendant is at least 10 years old than the the child) is neither a crime involving moral turpitude nor categorically a crime of child abuse. A crime under § 288(c)(1) contains five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.
The “lewd or lascivious” element of the crime focuses on the defendant’s sexual intent, rather than the act performed. If the defendant has the required intent, then any touching violates § 288, even if the touching is outwardly innocuous and inoffensive. Physical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288. Even constructive touching can violate § 288(c)(1). If the minor touches himself, that act is imputable to the defendant as if the touching had been actually done by his own hands. A person may violate § 288(c)(1) by making sexual requests over the telephone, or through text messages.
The mens rea requirement of § 288(c)(1) has also been expansively construed. Section 288(c)(1) requires that the defendant act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or of the minor. But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape, but it is not a defense to a charge under § 288(c)(1).
Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Section 288(c)(1) thus lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Nor does § 288(c)(1) require intent to injury or actual injury. Any touching, even if consensual, outwardly innocuous and inoffensive, and innocently and warmly received, can violate § 288(c)(1). Section 288(c)(1) does involve a protected class of persons—minors aged 14 or 15. But not all criminal statutes intended to protect minors establish crimes involving moral turpitude, if the conduct at issue is relatively minor.
“We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.”
The BIA defines crime of child abuse, child neglect, or child abandonment as a “unitary concept” that encompasses “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.” The “maltreatment” element requires either proof of actual injury or proof of a “sufficiently high risk of harm to a child.”
Section 288(c)(1) is broader than the generic definition of a “crime of child abuse” in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence. Section 288(c)(1) has no such requirement. It requires a defendant to have acted “willfully,” but this requirement applies only to the defendant’s commission of the act. Section 288(c)(1) requires only that a defendant did not act accidentally; it does not “require any intent to violate law, or to injure another, or to acquire any advantage.”
Second, § 288(c)(1) does not require proof of actual injury, or a “sufficiently high risk of harm,” as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i).”
The full text of Menendez v. Whitaker can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/14-72730.pdf
