Ibarra v. Holder, Jr. , 736 F.3d 903 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
July 12, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ELIA IBARRA,
Petitioner,
v.
No. 11-9539
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER
Before HOLMES, SEYMOUR, and MURPHY, Circuit Judges.
This matter is before the court on Respondent’s “Motion to Amend
Published Decision” filed July 1, 2013. The motion is granted. The amended
opinion, filed nunc pro tunc to the original filing date, is attached.
Entered for the Court
Elisabeth A. Shumaker, Clerk
FILED
United States Court of Appeals
Tenth Circuit
July 1, 2013
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ELIA IBARRA,
Petitioner,
v.
No. 11-9539
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
On Petition for Review from the
Board of Immigration Appeals
Mari Matsumoto (Mark R. Barr and Laura L. Lichter on the briefs) of Lichter
Immigration, Denver, Colorado, for Petitioner.
Lisa Morinelli, Trial Attorney, U.S. Department of Justice, Civil Division, Office
of Immigration Litigation, Washington, D.C. (Tony West, Assistant Attorney
General, Civil Division; and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, U.S. Department of Justice, Washington, D.C., with her
on the brief), for Respondent.
Before HOLMES, SEYMOUR, and MURPHY, Circuit Judges.
SEYMOUR, Circuit Judge.
Elia Ibarra Rivas petitions for review of a Board of Immigration Appeals
decision that found her Colorado conviction for “child abuse – negligence – no
injury” to categorically constitute a “crime of child abuse, child neglect, or child
abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality
Act (INA), codified at 8 U.S.C. § 1227(a)(2)(E)(i). 1 Because we conclude that
Ms. Ibarra’s Colorado conviction is not a “crime of child abuse, child neglect, or
child abandonment” within the meaning of the INA, we GRANT her petition for
review, REVERSE the decision of the BIA, and REMAND to the Immigration
Court to reconsider Ms. Ibarra’s application for discretionary cancellation of
removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).
I.
Elia Ibarra Rivas was brought to this country from Mexico in 1985 at the
age of four. She has lived here for twenty-eight years, has paid federal income
taxes, and is the mother of seven children, all U.S. citizens. Although her father
was a lawful permanent resident, Ms. Ibarra was never naturalized while he was
alive. At the time of the proceedings before the Immigration Judge (IJ), she had
worked for the same employer for ten years.
In 2004, Ms. Ibarra pled guilty to one count of “child abuse – negligence –
1
We will hereinafter refer to sections of the INA by their U.S.C. section
numbers, after an initial citation to both.
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no injury,” a class three misdemeanor, in violation of C OLO . R EV . S TAT .
§§ 18-6-401(1)(a), (7)(b)(II). 2 The events leading up to that conviction are not
entirely clear, but it appears undisputed that Ms. Ibarra’s children were
unintentionally left home alone one evening while she was at work. 3 The oldest
child was ten at the time, and no child was injured.
In 2008, the Department of Homeland Security (DHS) initiated removal
proceedings against Ms. Ibarra. She conceded removability under INA
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), which makes non-citizens living in
the U.S. without being admitted or paroled removable, but she asked the
Immigration Court for discretionary cancellation of removal under 8 U.S.C.
2
The record produced for the IJ contains a one-page judgment showing Ms.
Ibarra’s plea to the charge of “child abuse – negligence – no injury,” C OLO . R EV .
S TAT . §§ 18-6-401(1) and (7)(b)(II). No other facts are recited in that judgment.
3
Ms. Ibarra testified at her bond hearing before the IJ that she had left her
children with her mother, who had gotten drunk and left the apartment. Admin.
Rec. at 88. The IJ referred to “the actual [criminal] act she did, she left her
children with a 10-year-old.” Id. at 117. The IJ went on to comment: “She made
a mistake in judgment, but I’ve often wondered. You know, I have two, I’ve
raised up two kids and you wonder at what point can you leave your kids alone. I
mean, when we lived on the second floor of a co-op for a long, long time, and the
laundry was in the basement, so I’d have to leave them in the apartment and run
down to the basement to move the clothes over from the dryer to the, or from the
washer to the dryer. So, how long do you leave the kids and at what age can you
do that, and every once in a while I’d need to go to the corner store to get
something and so I would actually leave the house and go down the street a little
ways. And, you know, I don’t believe there’s any real clear guidelines at what
age you can leave children and what age you can leave them with their older
siblings. So, I don’t think this was a crime involving moral turpitude and I don’t
think it was a particularly, you know, reprehensible mistake that she made.” Id.
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§ 1229b(b)(1). That section provides for discretionary relief from removal when
the applicant:
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding
the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2);
1227(a)(2), or 1227(a)(3) of this title . . . ; and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child,
who is a citizen of the United States or . . . lawfully admitted for
permanent residence.
8 U.S.C. § 1229b(b)(1). The IJ said he would be “inclined to think that the
discretionary factors would tilt in her favor and that the hardship factors would be
satisfied on the record,” Admin. Rec. at 118, but because he also decided that Ms.
Ibarra’s Colorado conviction categorically constituted a “crime of child abuse”
under 8 U.S.C. §1227(a)(2)(E)(i), he found Ms. Ibarra ineligible for discretionary
cancellation of removal. The Board of Immigration Appeals (BIA) affirmed,
holding that a conviction for “criminally negligent child endangerment” that does
not result in harm or injury “categorically” qualifies as a “crime of child abuse,
neglect, or abandonment” under the federal statute. Admin. Rec. at 8.
On appeal, Ms. Ibarra contends the BIA’s current interpretation of “crime
of child abuse, neglect, and abandonment” to extend to the full range of conduct
criminalized by C OLO . R EV . S TAT . §§ 18-6-401(1)(a), (7)(b)(II) is an
impermissible and overbroad construction of 8 U.S.C. § 1227(a)(2)(E)(i). For the
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reasons set out below, we agree. It follows that Ms. Ibarra’s conviction is not a
“crime of child abuse, child neglect, or child abandonment” that would render her
ineligible for discretionary cancellation of removal under 8 U.S.C. §
1229b(b)(1)(C).
II.
A. The Immigration Statute
The INA in 8 U.S.C. § 1229b(b)(1)(C) pretermits the possibility of
discretionary cancellation of removal if a noncitizen has been convicted of one of
the crimes listed in 8 U.S.C. § 1227(a)(2). In cases like Ms. Ibarra’s, the crimes
listed pretermit eligibility for discretionary relief. Notably, however, a conviction
for one of the listed crimes is also grounds for deportation of lawful permanent
residents. 8 U.S.C. § 1227(a); see Judulang v. Holder, 132 S. Ct. 476, 483 (2011).
The crimes listed in § 1227(a)(2) as meriting these serious immigration
consequences are crimes of moral turpitude; aggravated felonies; high speed
flight from an immigration checkpoint; failure to register as a sex offender;
controlled substance offenses; some firearm offenses; espionage, treason,
threatening the president, and similar political crimes; human trafficking; and,
relevant here, “[c]rimes of domestic violence, stalking, or violation of protection
order, crimes against children. . . .” § 1227(a)(2)(A)-(F). The “crimes against
children” provision was placed into § 1227(a)(2) in 1996, pursuant to the Illegal
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Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Pub. L. No.
104-208, 110 Stat. 3009-546, 3009-640. The provision states in relevant part:
(E)(i) Domestic violence, stalking, and child abuse. Any alien who
at any time after admission is convicted of a crime of domestic
violence, a crime of stalking, or a crime of child abuse, child neglect,
or child abandonment is deportable.
8 U.S.C. § 1227(a)(2)(E)(i). What Congress meant when it said “crime of child
abuse, child neglect, or child abandonment” is the question we are asked to
decide. Its answer determines not just whether removable immigrants like Ms.
Ibarra are ineligible for discretionary relief, but also which lawful permanent
residents may be deported. 8 U.S.C. § 1227(a).
The BIA has interpreted “crime of child abuse, child neglect, or child
abandonment” broadly to include criminally negligent omissions which endanger
children by creating a reasonable probability of harm but which do not lead to
injury. Matter of Velasquez-Herrera, 24 I & N. Dec. 503 (2008); Matter of
Soram, 25 I. & N. Dec. 378, 384-85 (2010). We agree with Ms. Ibarra that this
definition is an impermissible interpretation of the federal statute and that her
conviction is not a “crime of child abuse, neglect, or abandonment” under any
permissible interpretation of § 1227(a)(2)(E)(i).
B. The Categorical Approach and the Colorado Crime of Conviction
Before we discuss why we reject the BIA’s current definition of “crime of
child abuse, child neglect, and child abandonment,” we pause to explain briefly
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the “categorical approach” used to decide whether state convictions qualify as
removable crimes under the INA. The categorical approach first requires ignoring
a petitioner’s actual conduct and examining only the minimum conduct needed for
a conviction under the relevant state law. Efagene v. Holder, 642 F.3d 918, 921
(10th Cir. 2011) (citing Taylor v. United States, 495 U.S. 575 (1990)). If every
conviction under a given state statute requires all the elements of the generic
federal crime, then the state conviction is categorically a removable offense.
Montcrieffe v. Holder, 569 U.S. ___ (2013) (Slip Op. at 5). If some conduct that
would be criminal under the state statute fits within the definition of the federal
predicate crime but some does not, a conviction under that state statute merits the
modified categorical approach to determine whether the petitioner’s actual
conduct involved “all the elements of [the] generic” crime. Taylor, 495 U.S. at
602; see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 (2007). Thus,
“[w]hen the underlying statute reaches a broad range of conduct, some of which
would constitute [the generic crime] and some of which would not, courts resolve
the ambiguity by consulting reliable judicial records, such as the charging
document, plea agreement, or plea colloquy.” Vargas v. Dep’t of Homeland Sec.,
451 F.3d 1105, 1109 (10th Cir. 2006) (internal quotation marks omitted).
The statute under which Ms. Ibarra pled guilty is C OLO . R EV . S TAT .
§§ 18-6-401(1)(a), (7)(b)(II). Subsection (1)(a) first provides:
A person commits child abuse if such person causes an injury to a
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child’s life or health, or permits a child to be unreasonably placed in
a situation that poses a threat of injury to the child’s life or health, or
engages in a continued pattern of conduct that results in
malnourishment, lack of proper medical care, cruel punishment,
mistreatment, or an accumulation of injuries that ultimately results in
the death of a child or serious bodily injury to a child.
§ 18-6-401(1)(a). This is a disjunctive list, containing three types of prohibited
conduct:
 Causing injury to a child’s life or health;
 Permitting a child to be unreasonably placed in a situation that
poses a threat of injury to a child’s life or health; or
 Engaging in a continued pattern of conduct that results in the
child’s death or serious bodily injury.
But one cannot be convicted under § 18-6-401(1)(a) alone because section
(7) of the statute requires that the conduct listed in section (1)(a) be undertaken
with a mens rea of at least criminal negligence, and then categorizes the crime
according to both the seriousness of the mens rea and the seriousness of the
result. Thus, § 18-401(7)(b) provides:
(b) Where no death or injury results, the following shall apply:
(I) An act of child abuse when a person acts knowingly or
recklessly is a class 2 misdemeanor; except that, if it is committed
under the circumstances described in paragraph (e) of this subsection
(7), then it is a class 5 felony.
(II) An act of child abuse when a person acts with criminal
negligence is a class 3 misdemeanor except that, if it is committed
under the circumstances described in paragraph (e) of this subsection
(7), then it is a class 5 felony.
Ms. Ibarra’s crime of conviction under subsection (7)(b)(II) fell into the
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lowest level in both the mens rea and result categories: “Where no death or injury
results . . . [and] when a person acts with criminal negligence[, child abuse] is a
class 3 misdemeanor.” C OLO . R EV . S TAT . §§ 18-6-401(1)(a), (7)(b)(II). 4 The
government does not dispute this characterization of Ms. Ibarra’s conviction. A
class 3 misdemeanor is the least serious type of misdemeanor in Colorado and
carries a minimum penalty of a fifty dollar fine. C OLO . R EV . S TAT . § 18-1.3-501.
In contrast, where the conduct is knowing or reckless and the child is seriously
injured, the crime is a class 3 felony, which carries a minimum penalty of four
years in prison. C OLO . R EV . S TAT .§ 18-1.3-401.
Applying the categorical approach, we must now compare the elements of
Ms. Ibarra’s state conviction with the generic federal definition of the crime of
“child abuse, child neglect, and child abandonment” listed in 8 U.S.C. §
1227(a)(2)(E)(i). See Taylor, 495 U.S. at 600; see also Duenas-Alvarez, 549 U.S.
at 187-95 (applying Taylor to an INA crime).
C. The BIA’s Evolving Definitions of “Crime of Child Abuse”
The BIA has made numerous attempts to create a federal definition of the
4
Because we know from subsection (7)(b)(II) that Ms. Ibarra was convicted
under the “no injury” prong, we also know that she was convicted under the
second clause of § 18-6-401(1)(a), where the child was “permit[ted] to be
unreasonably placed in a situation that poses a threat of injury,” and not one of
the other clauses, which require injury. Thus, Ms. Ibarra was convicted for the
offense of “with criminal negligence . . . permit[ting] a child to be unreasonably
placed in a situation that poses a threat of injury . . . [but leads to] no death or
injury.”
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“crime of child abuse, child neglect, or child abandonment” over the years. At
the time of Ms. Ibarra’s state conviction in 2004, the BIA’s criminal definition of
child abuse was “any form of cruelty to a child’s physical, moral, or mental well-
being.” See Ochieng v. Mukasey, 520 F.3d 1110, 1114 (10th Cir. 2008)
(approving BIA definition from In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991,
996 (BIA 1999)). “Cruelty” means intentionally causing pain or suffering. See
B LACK ’ S L AW D ICTIONARY 405 (8th ed., 2004) (“cruelty: [t]he intentional and
malicious infliction of mental or physical suffering on a living creature, esp. a
human; abusive treatment . . . .” ). We think it highly unlikely that Ms. Ibarra’s
conviction would have fit the BIA’s definition of child abuse in effect at the time
of her guilty plea – “cruelty to a child” – because her conviction required neither
intent nor injury, not even “mental” or “moral” injury.
By the time the government issued Ms. Ibarra’s Notice to Appear on
December 27, 2008, the BIA had expanded its interpretation of child abuse in
Velasquez, 24 I. & N. Dec. 503, to encompass “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 . . . .” Id. at 517. Ms. Ibarra argued to the IJ that even under
Velasquez, her conviction would not fit the BIA’s definition of “crime of child
abuse.” The only federal court to consider Velasquez in a published opinion had
interpreted it to require some injury to the child for a crime to constitute “child
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abuse.” Fregozo v. Holder, 576 F.3d 1030, 1037 (9th Cir. 2009). Ms. Ibarra
relied on Fregozo to urge the IJ, and then the BIA, to hold that a conviction for
“child abuse” which required no injury could never constitute child abuse under
the BIA’s own interpretation of the phrase in Velasquez. The IJ disagreed,
finding Fregozo unpersuasive.
The BIA affirmed, relying on Velasquez and Soram, 25 I. & N. Dec. 378, a
case so recent it had not been decided when Ms. Ibarra filed her appeal to the
Board. 5 In Soram, the Board expanded the definition of “child abuse” even
further. It held that “child abuse, neglect, and abandonment” in 8 U.S.C.
§ 1227(a)(2)(E)(i) constitutes one “unitary concept,” id. at 381, and that offenses
of child endangerment that do not result in “actual harm or injury” are included as
child “maltreatment.” Id. at 380-81. Soram considered the exact Colorado statute
under which Ms. Ibarra was convicted, albeit the knowing/reckless subsection,
C OLO . R EV . S TAT . § 18-6-401(7)(b)(I), instead of the criminal negligence
subsection, 7(b)(II). Although noting this distinction between Ms. Ibarra’s
5
Whether newly expansive agency definitions of removable offenses can
make old state convictions retroactively removable was not raised in this appeal,
but we question whether such an approach would pass muster under the
nonretroactivity principle set forth in I.N.S. v. St. Cyr, 533 U.S. 289, 323-24
(2001) (holding that “it would surely be contrary to ‘familiar considerations of
fair notice, reasonable reliance, and settled expectations” to allow a newly-
enacted law to deprive noncitizens who had already pleaded to certain crimes of
the possibilities available to them at the time of the plea). See also Judulang, 132
S. Ct. at 489 n.12 (suggesting anti-retroactivity principles could equally apply to
BIA decisions that deviate from law upon which petitioner relied in making plea).
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conviction and Soram’s, the BIA held that Ms. Ibarra’s conviction fit into
Velazquez’s ambit because “the range of culpable mental states” the Board had
recognized there included “criminally negligent acts or omissions.” Admin. Rec.
at 8 (italics in original) (citing Velazquez, 24 I. & N. Dec. at 512).
The Board had stated in Velasquez that its inclusion of criminal negligence
reflected a “growing acceptance” among states that criminally negligent acts
could be criminal child abuse, 24 I. & N. Dec. at 511, yet it cited to only six state
criminal statutes, including the Colorado statute at issue here, in support of that
premise, id. at n.11. In neither Velasquez nor Soram did the BIA decide whether
the injury threatened had to be particularly substantial or imminent for an
endangerment-type crime to fall into its definition of “child abuse.” The Board
expressly declined to make that decision, saying it was satisfied with Colorado’s
“reasonable probability” of injury standard. Soram, 25 I. & N. Dec. at 384-85
(citing People v. Hoehl, 568 P.2d 484, 486 (Colo. 1977) (en banc)). Rather than
issue an authoritative statement as to what kind of “threat of injury” had to be at
stake, the Board said it would undertake a “State-by-State analysis . . . to
determine whether the risk of harm required by the endangerment-type language
[in a given state statute of conviction] is sufficient to bring an offense within the
definition of ‘child abuse’ under the Act.” Id. at 382-83.
The result is that so long as there is a mens rea of at least criminal
negligence, the BIA will decide whether a child endangerment crime is a
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deportable offense only after the person has been convicted of it. Whether this ex
post approach provides adequate notice to immigrants considering plea bargains,
an argument not raised by Ms. Ibarra, it has resulted in the BIA arriving, at least
for now, at a federal definition of “child abuse, neglect, and abandonment” that is
coextensive with the definition of “child abuse” in C OLO . R EV . S TAT .
§§ 18-6-401(1)(a), (7)(b)(II), which includes criminally negligent omissions that
cause a reasonable probability of harm but result in no injury or suffering on any
child’s part. The question before us is whether that definition of “child abuse” is
what Congress intended when it enacted 8 U.S.C. § 1227(a)(2)(E)(i).
III.
A. Statutory Interpretation
While we review purely legal questions decided by the BIA de novo,
Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011), we apply Chevron
deference to precedential BIA interpretations of ambiguous federal immigration
statutes so long as the Board’s interpretation does not contravene Congressional
intent. See Chevron, U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984). Soram and Velasquez constitute three-member precedential opinions of
the BIA, so they would qualify for the familiar deference if it is applicable.
Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010). But while the statutory
text at issue here does contain some ambiguity, Congress’s intent is not so opaque
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as to grant the BIA the sweeping interpretive license it has taken.
We do not defer to agency interpretations of statutes until the “traditional
tools of statutory construction yield no relevant congressional intent,” Exxon
Corp. v. Lujan, 970 F.2d 757, 762 (10th Cir. 1992) (internal quotation marks
omitted), and the first place we look for congressional intent is the plain language
of the statute. Leocal v. Ashcroft, 543 U.S. 1, 8 (2004). “With regard to this very
statutory scheme [the INA], we [are] bound to assume that the legislative purpose
is expressed by the ordinary meaning of the words used.” I.N.S v. Cardoza-
Fonseca, 480 U.S. 421, 431 (1987) (internal quotation marks omitted). Notably,
the first word in the phrase “crime of child abuse, child neglect, or child
abandonment” contained in 8 U.S.C. § 1227(a)(2)(E)(i) is “crime.”
“Crime” means crime; not civil adjudication. This distinction is important
because “child abuse” and “child neglect” are frequently defined in other areas of
law: evidence law regarding child witnesses; 6 mandatory-reporting law; 7 and
6
See 18 U.S.C. § 3509(a)(3) (1994) (relied on in Velasquez, 24 I. & N.
Dec. at 510 n.5) (relating to the rights of child victims as court witnesses); 42
U.S.C. § 3796aa-8 (1994) (awarding grants for closed-circuit televising of child
witnesses who were victims of abuse).
7
See 42 U.S.C. § 13031(c)(1) (1994) (requiring child abuse reporting in
federal jurisdictions); 25 U.S.C. § 3202(3) (1994) (relating to child abuse in
Indian country); 42 U.S.C. § 5106g(4) (1994) (CAPTA) (defining “sexual abuse”
for reporting purposes); see list of 38 states’ reporting and child welfare laws
cited in Soram, 25 I. & N. Dec. at 382, at
www.childwelfare.gov/systemwide/laws_policies/statutes/define.cfm.
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family welfare law. 8 The terms are usually defined differently in civil law as
compared to criminal law. For example, many states define “child neglect” for
family welfare purposes as something not requiring fault, but require that “child
neglect” be done “willfully” or “recklessly” to constitute the crime of child
neglect. 9 The purpose of civil definitions is to determine when social services
8
Frequently the definition for reporting purposes and child welfare
proceedings is the same. This definition of “child neglect” almost never requires
any willful or bad intent on the parent’s part. For example, a “neglected child” in
Idaho is someone “[w]hose parents . . . are unable to discharge their
responsibilities . . . and, as a result of such inability, the child lacks the parental
care necessary for his health, safety, or well-being.” I DAHO C ODE
§ 16-1602(25)(b) (Westlaw through 2012 legislation). If a child meets that
definition, case workers investigate, are required to make a reasonable effort to
rehabilitate the parents and improve their parenting capabilities, and if that is
impossible, the child may be taken out of the parents’ custody. See I DAHO C ODE
§ 16-1619 (Westlaw through 2012 legislation). All of this adjudication may
happen without criminal conduct having occurred and without the criminal system
being involved. A conviction for the crime of child endangerment in Idaho
requires “willfully” placing a child in danger. I DAHO C ODE § 18-1501 (Westlaw
through 2012 legislation).
9
For example, compare A LASKA S TAT . § 47.17.290 (Westlaw through 2012
legislation) (defining “child neglect” for purposes of child welfare intervention as
“the failure by a person responsible for the child’s welfare to provide necessary
food, care, clothing, shelter, or medical attention for a child”) with A LASKA S TAT .
§ 11.51.100 (Westlaw through 2012 legislation) (defining “endangering the
welfare of a minor” in the criminal code, as “intentionally desert[ing] the child
. . . . under circumstances creating a substantial risk of physical injury to the
child.”) (emphasis added); compare O KLA . S TAT . A NN . tit. 10a, § 1-1-105(47)
(Westlaw through 2012 legislation) (defining child “neglect” for family welfare
purposes) with O KLA . S TAT . A NN . tit. 10, § 7115 (Westlaw through 2012
legislation) (requiring that the neglect be “willful” or “malicious” to constitute a
crime); compare T ENN . C ODE . A NN . § 37-1-102(b)(1)(Westlaw through 2012
legislation) (civil definition of child abuse not requiring knowing conduct) with
T ENN . C ODE A NN . § 39-15-401(Westlaw through 2012 legislation) (criminal
(continued...)
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may intervene. The purpose of criminal definitions is to determine when an
abuser is criminally culpable.
Congress did not say that one who has committed “child neglect” under
family welfare law is removable; it said that one who has been “convicted” of a
“crime of” child neglect is. We must assume “that Congress says in a statute
what it means and means in a statute what it says there.” Hartford Underwriters
Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (internal quotation
marks omitted). Proper statutory construction also requires considering a
phrase’s “placement and purpose in the statutory scheme.” Bailey v. United
States, 516 U.S. 137, 145 (1995). Section 1227(a)(2)(E)(i) was placed by
Congress in a section of the statute called “criminal offenses,” which lists the
“crimes” that render an immigrant deportable.
Notwithstanding the statute’s plain use of the word “crime,” the BIA relied
in both Velasquez and Soram primarily on definitions of “child abuse” and “child
neglect” from civil, not criminal, law to reach its present definition of “crime of
child abuse, child neglect, and child abandonment.” See Velasquez, 24 I. & N.
Dec. at 510 nn.5-6 (citing federal civil statutes); Soram, 25 I. & N. Dec. at 382
(citing a 2009 Department of Health and Human Services compendium of the civil
laws of 38 states). That approach reads the words “crime of” out of the federal
9
(...continued)
definition of child abuse requires knowingness).
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statute, which we may not do. See Leocal, 543 U.S. at 12 (courts “must give
effect to every word of a statute wherever possible.”). The concurring board
member in Soram noticed this problem and stated, “I find it most relevant to look
to the criminal statutes of the various States in 1996, rather than the civil
statutes,” 25 I. & N. Dec. at 386-87 (Filppu, concurring). Although the
concurring board member at least attempted to ask the right question, he still
relied on several non-criminal laws 10 and unfortunately misunderstood many of
the criminal child-endangerment laws he did cite. 11
Because Congress intended to make only crimes of child abuse, child
neglect, and child abandonment deportable, we must determine what “child abuse,
child neglect, and child abandonment” meant in the criminal context in 1996,
10
The concurrence cited Oklahoma and South Dakota’s reporting laws,
O KLA . S TAT . A NN . tit. 10, § 7102 (Westlaw through 1996 legislation); S.D.
C ODIFIED L AWS § 26-8A-2 (Westlaw through 1996 legislation), to support her
conclusion that the criminal laws of most states supported the outcome in Soram.
Unlike those civil laws, Oklahoma and South Dakota both require willful conduct
in their criminal child endangerment laws. O KLA . S TAT . A NN . tit. 10 § 7115
(Westlaw through 1996 legislation); S.D. C ODIFIED L AWS §§ 26-10-1, 25-7-16
(Westlaw through 1996 legislation).
11
Some of the laws the concurrence cited required an injury. See M D .
C ODE A NN . Art. 27 § 35C (Westlaw through 1996 legislation) (now codified at
M D . C ODE A NN ., Crim. Law § 3-601(a) (Westlaw through 2012 legislation); N.J.
S TAT . A NN . § 2C:24-4 (Westlaw through 1996 legislation); U TAH C ODE A NN .
§76-5-109 (Westlaw through 1996 legislation). Other laws the concurrence cited
required intent, knowledge, or recklessness. See I OWA C ODE A NN . § 726.6
(Westlaw through 1996 legislation); K AN . S TAT . A NN . § 21-3608 (Westlaw
through 1996 legislation); N.H. R EV . S TAT . A NN . § 639:3 (Westlaw through 1996
legislation). Soram, 25 I. & N. Dec. at 388 n.2 (Filppu, concurring).
-17-
when Congress amended the INA. Congress did not provide a definition of
“crime of child abuse, child neglect, or abandonment” in § 1227(a)(2)(E)(i), as it
did for “domestic violence.” Nor did Congress cross-reference to federal criminal
or sentencing law, as it did with the phrase “aggravated felony,” which it cross-
referenced from the INA, 8 U.S.C. § 1101(a)(43)(F), to 18 U.S.C. § 16. There is
no federal crime of non-sexual “child abuse” nor any federal “child neglect” or
“child abandonment” crime from which we might draw an authoritative federal
definition of this type of crime. Moreover, the legislative history of §
1227(a)(2)(E) is almost nonexistent. 12
In Taylor, the Supreme Court also dealt with a crime that Congress had left
undefined, “burglary,” and held that Congress did not intend this crime to be
defined as whatever “burglary” meant in the state where the conviction occurred.
Such an approach “would mean that a person convicted of unlawful possession of
12
The little legislative history that does exist does not support the BIA’s
view that the “crime” of child abuse should be interpreted so broadly. In his
remarks on the Senate floor, one of the co-sponsors of the Dole-Coverdell
Amendment, which added the section at issue to the INA, said “[i]t is long past
time to stop the vicious acts of stalking, child abuse, and sexual abuse. We
cannot prevent in every case the often justified fear that too often haunts our
citizens. But we can make sure that any alien that commits such an act will no
longer remain within our borders.” 142 Cong. Rec. S4613 1996 (Statements of
Sen. Dole). Criminally negligent omissions that do not cause injury are neither
“vicious” nor “acts,” so it is doubtful that the legislators who enacted
§ 1227(a)(2)(E)(i) had these kinds of crimes in mind. See Reves v. Ernst &
Young, 494 U.S. 56, 62-63 (1990) (Statutory text “must be understood against the
backdrop of what Congress was attempting to accomplish in enacting the . . .
Act[].”).
-18-
a firearm would, or would not, receive a sentence enhancement based on exactly
the same conduct, depending on whether the State of his prior conviction
happened to call that conduct ‘burglary.’” Taylor, 495 U.S. at 590-91.
This concern is no less pronounced with respect to the “crime of child
abuse,” where state criminal laws vary at the margins. For example, in Missouri,
but not Delaware, leaving a child alone in a parked car is criminal child
endangerment even if the child is not harmed. Compare State v. Todd, 183 S.W.
3d 273, 280 (Mo. Ct. App. 2005), with State v. E.J., 2005 W.L. 3509700 (Del.
Fam. Ct. 2005). In South Carolina, but not Nevada, a woman with a substance
addiction who becomes pregnant can be convicted for criminal child abuse of the
fetus. Compare Whitner v. State, 328 S.C. 1, 8 (S.C. 1997), with Sheriff, Washoe
County, Nev. v. Encoe, 885 P.2d 596, 598 (Nev. 1994). And in Texas, failing to
provide proper nutrition to a child is criminal child abuse, but it is not a crime in
Indiana (although it would likely cause child protective services to become
involved in every state). Compare Ricketts v. State, 598 N.E.2d 597, 601 (Ind.
1992) with Contreras v. State, 54 S.W.3d 898, 907 (Tex. Ct. App. 2001)
(abrogated on different grounds by Jennings v. State, 302 S.W.3d 306 (Tex. Crim.
App. 2010)).
As Taylor admonished, if a federally-listed crime meant whatever any state
said it meant, that would lead to the “odd results” of an immigrant who left her
child in a parked car being a deportable criminal if she happened to make this
-19-
questionable choice in Missouri, but not if she happened to do so in Delaware.
“Without a clear indication . . . that Congress intended to abandon its general
approach of using uniform categorical definitions to identify predicate offenses,
we do not interpret Congress’ omission of a definition of [a predicate crime] in a
way that leads to odd results of this kind.” Taylor, 495 U.S. at 591. 13 Using the
categorical approach in immigration proceedings “avoid[s] this potential
unfairness.” Montcrieffe, 569 U.S. ___ (2013) (Slip Op. at 16) (quoting Taylor,
495 U.S. at 601).
Thus, absent “clear” evidence of Congressional intent to the contrary, we
must assume that a crime listed by Congress in a federal statute has one generic
meaning that is not “at odds with the generally accepted contemporary meaning of
this term.” Taylor, 495 U.S. at 596 (citing Perrin v. United States, 444 U.S. 37,
49, n.13 (1979)). Taylor instructs courts to find that “generally accepted
contemporary meaning” by looking to “the criminal codes of most States.” Id. at
598. Given that IIRIRA was enacted in 1996, we must identify the majority of
states’ consensus as of that year, “at the time Congress enacted the statute,” to
find the generic meaning of criminal child abuse. Perrin, 444 U.S. at 42; see also
Nijhawan v. Holder, 557 U.S. 29, 47 (2009) (“We examined state statutes . . . in
13
This rule reflects the presumption that “absent plain indication to the
contrary, federal laws are not to be construed so that their application is
dependent on state law, because the application of federal legislation is
nationwide and at times the federal program would be impaired if state law were
to control.” Taylor, 495 U.S. at 591 (internal quotations omitted).
-20-
effect in 1996, when Congress [enacted IIRIRA].”). When a state law
“criminalizes conduct that most other States would not consider” to be a crime, a
conviction under such a law cannot be a deportable offense. Duenas-Alvarez, 549
U.S. at 190-91.
Not only must we interpret the words “child abuse, child neglect, and child
abandonment” in the context of the criminal law in 1996, we must also focus on
the ideas and concepts associated with those particular terms because
where Congress borrows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed word in the
body of learning from which it was taken and the meaning its use will
convey to the judicial mind unless otherwise instructed. In such case,
absence of contrary direction may be taken as satisfaction with widely
accepted definitions, not as a departure from them.
Morissette v. United States, 342 U.S. 246, 263 (1952). While child abuse, child
neglect, and child abandonment were not among the earliest common-law crimes,
they have existed long enough to have “accumulated” legal tradition and certain
“cluster[s] of ideas.” Id. See, e.g., D.C. C ODE § 22-901(b)(2) (Westlaw through
1996 legislation) (originally enacted in 1885); 720 I LL . C OMP . S TAT . § 5/12-21.6
(Westlaw through 1996 legislation) (originally enacted in 1877). Thus, while we
agree with the BIA that the crimes of child abuse, child neglect, and child
abandonment can be considered a “unitary concept,” Soram, 25 I& N. Dec. at
381, the elements of this unitary concept must reflect the “cluster of ideas”
behind the terms Congress actually used. Morissette, 342 U.S. at 263.
-21-
For this reason, to determine the majority approach in 1996, we surveyed
not only crimes called child abuse, neglect, and abandonment, but also state
crimes denoted as child “endangerment,” which substantially overlap with crimes
designated as child abuse, child neglect, and child abandonment. We also
included crimes sharing elements with abuse, neglect, endangerment, or
abandonment that were denominated as something else entirely, such as “cruelty
to children,” G A . C ODE A NN . 16-5-70(a) (Westlaw through 1996 legislation), or
“unlawful conduct toward child,” S.C. C ODE A NN . § 20-7-50 (Westlaw through
1996 legislation). But because Congress used three well-known terms of art, we
have interpreted the unitary concept of “child abuse, child neglect, and child
abandonment” without reference to crimes usually called “nonsupport,”
“contributing to delinquency,” “enticement” of minors, or other sundry crimes
involving children that state criminal codes may include. 14 See Gor v. Holder,
14
In some states, “contributing to delinquency” statutes also included a
prong called “contributing to dependency,” “deprivation,” or “neglect” of a child.
See, e.g., A RIZ . R EV . S TAT . § 13-3613 (West, Westlaw through 1996 legislation)
(enacted 1933). However, these statutes usually date from the early 20th century
and have been supplanted by endangerment and neglect laws dating from the
1970s and 80s. See, e.g., A RIZ . R EV . S TAT § 13-3623 (West, Westlaw through
1996 legislation) (enacted 1979). Moreover, these “contributing” statutes appear
to be used almost exclusively to prosecute contributing to “delinquency,” not
contributing to “neglect.” See, e.g., People v. Tennyson, 790 N.W.2d 354, 364
(Mich. 2010) (“There are no reported cases that address a conviction under
[M ICH . C OMP . L AWS ] § 750.145 [the “contributing” statute, which dates from
1927] on grounds of neglect.”). In addition, unlike child endangerment and
neglect laws, “contributing” statutes seem to target people other than adults in
custodial roles, including other minors. See, e.g., S.D. C ODIFIED L AWS § 26-9-1
(continued...)
-22-
607 F.3d 180, 192-93 (6th Cir. 2010) (suggesting that nonsupport conviction
would not be deportable offense under § 1227(a)(2)(E)(i)). We also excluded
state crimes involving sexual abuse of a minor, because Congress made this a
separately deportable offense under INA § 101(a)(43)(A).
B. Generic Definition of Child Abuse
We examined the criminal laws of all fifty states and the District of
Columbia in effect in 1996 to determine the majority approach to crimes of child
abuse, abandonment, neglect, and endangerment. See Appendices. We determined
that the BIA’s interpretation of this unitary type of crime reaches conduct that the
majority of states did not criminalize in 1996 because the BIA includes non-
injurious conduct done with a mens rea of only criminal negligence.
In 1996, forty-eight states and the District of Columbia had statutes that
criminalized endangering or neglecting children without facially requiring a
resulting injury. 15 See Appendices. But twenty-seven states required a mens rea
14
(...continued)
(any person “other than a parent” can be guilty of causing, encouraging or
contributing to the “abuse, neglect, or delinquency of any child. . . .”). We did
not include these statutes in our survey unless there was evidence that the law was
actually used to prosecute crimes of child neglect or endangerment. We did
include them if there was no other no-injury-required child endangerment or
neglect crime in a given jurisdiction.
15
Because it was unnecessary, we have not assessed whether most states
actually interpreted the laws we include in the Appendices to be no-injury crimes.
Assuming arguendo that injury to the child is not a required element of the crime
of child abuse, neglect, and abandonment for INA purposes, we therefore
(continued...)
-23-
of knowing or intentional. See Appendix A. Six jurisdictions required a
minimum mens rea of recklessness. Appendix B. Only eleven states clearly
criminalized non-injurious child endangerment where the culpable mental state
was only criminal negligence. 16 Appendix C. The minimum mens rea in the five
remaining states was unclear where the conduct did not result in injury.
Appendix D.
Thus, the majority of states in 1996, at least thirty-three, did not
criminalize endangering children or exposing them to a risk of harm absent injury
if there was only a culpable mental state of criminal negligence. Appendices
A, B. Accordingly, contrary to what the BIA has held, criminally negligent
conduct with no resulting injury to a child cannot serve as the generic federal
15
(...continued)
included state statutes which facially leave open the possibility that no-injury
conduct could be included. Most states, however, unlike Colorado’s §
18-6-401(7)(b), do not contain a specific “no injury” prong. See, e.g., I OWA
C ODE § 726.6(2) (two categories for child-endangerment penalties: where
endangerment results in “serious injury,” or where it does not result in “serious
injury.”)
16
We do not decide whether criminal negligence has exactly the same
meaning in all the states listed in Appendix C. It is sufficient to note that
criminal negligence always requires some extra element or elements to distinguish
it from tort negligence. 1 W AYNE R. L A F AVE , S UBSTANTIVE C RIMINAL L AW § 5.4
(2d ed. 2003). The key distinction between criminal negligence and recklessness
is whether an unreasonable risk is consciously disregarded (which makes the mens
rea recklessness) or whether the guilty party is not conscious of the unreasonable
risk but should be (in which case the mens rea is criminal negligence). Id. at §
5.4 nn. 25- 26; see also United States v. Serawop, 410 F.3d 656, 669 n.4 (10th
Cir. 2005).
-24-
definition for the “crime of child abuse, child neglect, or child abandonment.” 17
It is clear that Ms. Ibarra’s conviction under C OLO . R EV . S TAT .
§§ 18-6-401(a)(1), (7)(b)(II) required neither injury nor a mens rea greater than
criminal negligence. Subsection (7)(b)(II) of the Colorado statute does not leave
open the possibility that the person was convicted of a crime requiring injury to
the child or a more culpable mens rea, because those offenses are separately
codified at subsections (7)(a) (“where death or injury results”) and (7)(b)(I)
(where no-injury conduct is knowing or reckless). Ms. Ibarra’s conviction is
therefore not categorically a crime of child abuse, child neglect, or child
abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). Nor is the modified categorical
17
Because the mens rea element disposes of Ms. Ibarra’s appeal, we need
not address petitioner’s argument that Colorado’s statute is non-generic because it
criminalizes child endangerment without requiring that the threatened harm be
particularly imminent or severe. We note, however, that state child endangerment
laws range from requiring that the threat to a child be “imminent” or “practically
certain,” see Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989);
Carmons v. State, 26 S.W.3d 382, 385 (Mo. App. 2000), to requiring only a
“reasonable probability” of harm, see State v. Muhaney, 975 P.2d 156, 159 (Ariz.
App. 1999); People v. Hoehl, 568 P.2d 484, 486 (Colo. 1977) (en banc).
Additionally, some states require that the threatened though unrealized harm be
“serious” or “substantial,” others do not. Compare State v. Goff, 686 P.2d 1023,
1027 (Or. 1984), and Arnold v. State, 755 So. 2d 796, 798 (Fla. Dist. Ct. App.
2000), with People v. Dunaway, 88 P.3d 619, 626 (Colo. 2004) (en banc)
(“significant” risks are only “among the myriad injuries to children that the
endangerment clause works to protect against”), and State v. Castaneda, 20 P.3d
368, 371 (N.M. 2001) (child endangerment can consist of failing to secure child
restraint. Where injury to the child was required, a few more states included
criminal negligence, but it was still only a minority position. See, e.g., M ONT .
C ODE A NN . § 45-5-206 (Westlaw through 1996 legislation); L A . R EV . S TAT . A NN .
§ 14-93 (West, Westlaw through 1996 legislation).
-25-
approach necessary in Ms. Ibarra’s case because subsection (7)(b)(II) does not
contain “several different crimes, each described separately.” Montcrieffe, 569
U.S. ___ (2013) (Slip Op. at 5).
The BIA’s decision to use Colorado’s overly broad definition of the crime
of child abuse to define “child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i)
effectively makes the law of the forum state outcome-determinative regarding
what a deportable offense is under the federal statute. An immigrant who was
convicted of negligent child abuse in Colorado would be deportable but an
immigrant who engaged in the same conduct in the majority of states that do not
criminalize such conduct would not be deportable. Such an approach has long
been rejected as a method of interpreting the INA. Gonzalez-Gonzalez v. Weber,
472 F.3d 1198, 1202 (10th Cir. 2006); Cazarez-Gutierrez v. Ashcroft, 382 F.3d
905, 913 (9th Cir. 2004); Kahn v. I.N.S., 36 F.3d 1412, 1414 (9th Cir. 1994)
(rejecting BIA’s state-law-dependent analysis of common-law marriage); Gerbier
v. Holmes, 280 F.3d 297, 299 (3rd Cir. 2002) (defining as aggravated felonies
only state drug crimes having federal counterparts or containing trafficking
components); Moon Ho Kim v. I.N.S., 514 F.2d 179, 180 (D.C. Cir. 1975)
(rejecting definition of “adultery” dependent on law of forum state); c.f.
Montcrieffe, 569 U.S. ___ (2013) (Slip Op. at 16).
The government points to no evidence that Congress intended “crime of
child abuse” to have an unusual or state-dependent meaning, nor does it
-26-
acknowledge that the BIA has enshrined this crime with a nongeneric definition.
Instead, the government and the BIA claim that the BIA’s definition comports
with the “ordinary, contemporary, and common meaning of the term ‘child
abuse’” and “the term’s established legal usage.” Aple’s Br. at 17 (quoting
Velasquez, 24 I. & N. Dec. at 508-12). Both the government and the BIA stated
the correct test, but both failed to apply it correctly.
As noted above, in Velasquez and Soram, the BIA relied mainly on civil
definitions of “child abuse,” which do not include a mens rea requirement. The
Board at least restricted itself in Velasquez to the relevant time period and relied
exclusively on statutes from around 1996, albeit civil ones. 24 I. & N. Dec. at
510 n.4. But instead of looking at how the majority of states criminalized child
abuse, the Board referred to “a growing acceptance by 1996 that the concept of
‘child abuse’ included criminally negligent acts.” Id. at 511. Citing statutes from
only six states, including the subsection of the Colorado statute we address here,
C OLO . R EV . S TAT . § 18-6-401(7)(b)(II), see id. at n.11, the Board concluded that
the term “crime of child abuse” in 8 U.S.C. § 1227(a)(2)(E)(i) should be
interpreted “broadly” to include “any offense involving an intentional, knowing,
reckless, or criminally negligent act or omission that constitutes maltreatment of a
child.” Id. at 512. This definition defies the rule in Taylor that predicate crimes
reflect the law of “most States.” 495 U.S. at 598. By Soram, the Board had even
abandoned the proper time frame, canvassing statutes both non-criminal and non-
-27-
contemporaneous. Soram, 25 I.&N. Dec. at 382 (“As recently as July 2009, some
38 states . . . included in their civil definition of ‘child abuse’ . . . acts . . . that
threaten a child with harm . . . .”). Civil statutes do not reflect the meaning of the
criminal law, and laws from 2009 do not illustrate the state of the law in 1996. 18
A permissible interpretation of “crime of child abuse, child neglect, or
child abandonment” in 8 U.S.C. § 1227(a)(2)(E)(i) requires giving effect to the
established legal usage and “contemporary and common meaning,” Perrin, 444
U.S. at 42, of the phrase, taking into account the word “crime” and the specific
crimes listed–abuse, neglect, and abandonment. If the BIA’s definition
accomplished as much, we would be required to defer to it even if we found it
unwise. Chevron, 467 U.S. at 866 (“When a challenge to an agency construction
of a statutory provision, fairly conceptualized, really centers on the wisdom of the
agency’s policy, rather than whether it is a reasonable choice within a gap left
18
In Velasquez, the Board referred to a definition of child abuse from the
eighth edition of Black’s Law Dictionary: “intentional or neglectful physical or
emotional harm inflicted on a child.” 24 I. & N. at 511 (alteration omitted). But
the Board did not mention Black’s corresponding definition of “child neglect,”
which explains that not all child neglect is criminal. B LACK ’ S L AW D ICTIONARY
1061 (8th ed. 2004). “Local child-welfare departments investigate reports of
child neglect. In a severe case, criminal charges may be filed against a person
suspected of child neglect.” Id. (emphasis added). Black’s also cited a criminal
law treatise in making it clear that “‘neglect is not the same thing as
‘negligence.’” Id. (citing T URNER , K ENNY ’ S O UTLINES OF C RIMINAL L AW 108 n.1
(16th ed. 1952)). Notwithstanding the Board’s awareness of Black’s Law
Dictionary, by the time it decided Soram its definition of the crime did not match
the definition from Black’s it had cited in Velasquez, because the new definition
conflated neglect with negligence and failed to require the infliction of harm on a
child. Soram, 25 I. & N. Dec. at 380-81.
-28-
open by Congress, the challenge must fail.”).
But whether it is wise policy to define “crime of child abuse” in the INA to
include criminally negligent non-injurious conduct, that is not a policy choice the
BIA may make because Congress gave no indication it intended the crimes it
detailed in § 1227(a)(2)(E)(i) to have idiosyncratic or state-dependent meanings.
Given that the BIA’s current definition falls so far outside the interpretive “gap”
left by Congress, we are not required to defer to it. 19 Id.; see also Efagene, 642
F.3d at 921, 924-25.
Similarly, the BIA’s vague contention in Velasquez, 24 I. & N. Dec. at 512,
that IIRIRA was meant to be “enforcement oriented” is not enough to establish a
non-generic definition of a crime listed in the INA without some evidence that
this was Congress’s intent. 20 Taylor, 495 U.S. at 591; Morissette, 342 U.S. at
19
The case for deference to the Velasquez/Soram definition of “crime of
child abuse, child neglect, and child abandonment” is made even weaker by the
Board’s inconsistency in defining this crime. Cardoza-Fonseca, 480 U.S. at 446,
n.30. And as Velasquez, Soram, and the present case illustrate, “the interpretation
and exposition of criminal law is a task outside the BIA’s sphere of special
competence. Chevron deference is not required where the interpretation of a
particular statute does not implicate agency expertise in a meaningful way . . . .”
Singh v. Ashcroft, 383 F.3d 144, 151 (3d Cir. 2004) (internal quotation marks,
alterations, and citations omitted).
20
Importantly, one of the purposes of the INA is “keeping families of
United States citizens and immigrants united,” Fiallo v. Bell, 430 U.S. 787, 795
n.6 (1977), not just deporting people. Criminal definitions of child abuse that
include negligent, non-injurious conduct are likely to capture the kinds of
mistakes that single caregivers are prone to make, see supra note 2 (remarks of
IJ); see also Sarah Rogerson, Unintended and Unavoidable: The Failure to
(continued...)
-29-
263. The BIA’s definition is particularly indefensible because not only is it
nongeneric, it is nongeneric in an overinclusive way despite the canon that
“ambiguity in criminal statutes referenced by the INA must be construed in the
noncitizen’s favor.” Montcrieffe, 569 U.S. ___ (Slip. Op. 20-21).
In sum,“the full range of conduct” under C OLO . R EV . S TAT .
§§ 18-6-401(1)(a), (7)(b)(II), which includes non-injurious criminally negligent
conduct, cannot serve as a proxy for a generic federal definition of the predicate
crime of “child abuse, child neglect, and child abandonment” in 8 U.S.C. §
1227(a)(2)(E)(i).
C. Conclusion
At the time Congress amended the INA to include crimes of child abuse,
child neglect, and child abandonment as a basis for deportation, a clear majority
of states did not criminalize such conduct when it was committed with only
criminal negligence and resulted in no injury. Accordingly, Ms. Ibarra’s
conviction under C OLO . R EV . S TAT . §§ 18-6-401(1)(a), (7)(b)(II) for negligently
permitting her children to be placed in a situation where they might have been
injured, when no injury occurred, does not fit the generic federal definition of
20
(...continued)
Protect Rule and Its Consequences for Undocumented Parents and their Children,
50 F AM . C T . R EV . 580 (2012) (describing parents deported for criminally
negligent conduct under Florida and New York child neglect law); Nina Rabin,
Disappearing Parents: Immigration Enforcement and the Child Welfare System,
44 C ONN . L. R EV . 99, 105 (2011) (describing primary caregiver mother deported
for child neglect under Arizona child abuse law).
-30-
child “abuse, neglect, or abandonment” in 8 U.S.C. § 1227(a)(2)(E)(i), and should
not have prohibited her application for cancellation of removal under 8 U.S.C. §
1229b(b)(1).
We REVERSE the decision of the BIA and REMAND this case to the
Immigration Court for further proceedings in keeping with this opinion.
-31-
APPENDICES TO OPINION OF THE COURT
APPENDIX A
Twenty-seven jurisdictions required a minimum mens rea of knowingness
or intent for crimes not appearing to require a resulting injury to the child.
Alaska: A LASKA S TAT . § 11.51.100 (West, Westlaw through 1996 legislation);
Arkansas: A RK . C ODE . A NN . § 5-27-204 (Westlaw through 1996 legislation);
California: C AL . P ENAL C ODE §§ 273a, 271 (West, Westlaw through 1996
legislation); Delaware: D EL . C ODE . A NN . tit. 11 §§ 1102(a)(1)(a), 1101 (Westlaw
through 1996 legislation); Georgia: G A . C ODE §§ 16-5-70(a), 19-10-1 (Westlaw
through 1996 legislation); Hawaii: H AW . R EV . S TAT . § 709-904(2), 709-902
(Michie, Westlaw through 1996 legislation); Idaho: I DAHO C ODE A NN . § 18-1501
(Michie, Westlaw through 1996 legislation); Illinois: 720 I LL . C OMP . S TAT . 130/2,
5/12-21.6 (Smith-Hurd, Westlaw through 1996 legislation); Indiana: I ND . C ODE
A NN . § 35-46-1-4(a) (West, Westlaw through 1996 legislation); Kansas: K ANS .
S TAT . A NN . §§ 21-3608, 21-3604 (Westlaw through 1996 legislation); Louisiana:
L A . R EV . S TAT . A NN . §14:79.1 (West, Westlaw through 1996 legislation);
Massachusetts: M ASS . G EN . L AWS . Ch. 119 § 39 (Westlaw through 1996
legislation), see Commonwealth v. Nebel, 795 N.E.2d 609, 612 (Mass. App. Ct.
2003) (explaining intent requirement of ch. 119 § 39, the child abandonment law);
Maryland: M D . C ODE . A NN . § 3-831 21, 10-219, 10-203 (Michie, Westlaw through
1996 legislation); Michigan: M ICH . C OMP . L AWS § 750.135 (Westlaw through
1996 legislation) (now codified at § 28.330 (Westlaw through 2012 legislation));
Mississippi: M ISS . C ODE A NN . §§ 97-5-39(1) 22; 97-5-1 (Westlaw through 1996
legislation); Montana: M ONT . C ODE . A NN . § 45-5-622 (Westlaw through 1996
legislation); New Jersey: N.J. R EV . S TAT . § 9:6-3 (1996), see State v. Demarest,
599 A.2d 937, 942-43 (N.J. Super. Ct. App. Div. 1991) (explaining that both §
2C:24-4 and § 9:6-3 require a mens rea of “knowingness”); Nevada: N EV . R EV .
21
While M D . C ODE A NN . § 3-831 is styled as a “contributing” statute
(and applies to all adults, not just parents and custodians), it includes willfully
causing or contributing to a child’s being “in need of supervision, or in need of
assistance.” Maryland lacks any other no-injury child neglect / endangerment law
other than §§ 10-219 and 10-203 (which both include child abandonment
alongside nonsupport), so we include § 3-831 here.
22
M ISS . C ODE A NN . § 97-5-39(1) is also styled as a “contributing” law
(though it applies only to those with a custodial duty), and it includes contributing
to “neglect.” Like Maryland, Mississippi has no other criminal statute targeting
child neglect or endangerment without requiring an injury other than child
abandonment (at § 97-5-1), so we include § 97-5-39 (1) here.
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S TAT . A NN . § 200.508 (Westlaw through 1996 legislation), see Smith v. State, 927
P.2d 14, 18 (Nev. 1996) (explaining that section 200.508(1)(b) requires general
intent); Rice v. State, 949 P.2d 262, 266 (Nev. 1997) (confirming that all prongs
of section 200.508 require intent); New Hampshire: N.H. R EV . S TAT . A NN . §
639:3 (Michie, Westlaw through 1996 legislation); North Carolina: N.C. G EN .
S TAT . §§ 14-318.2, 14-316.1, 14-322.1 (Michie, Westlaw through 1996
legislation); North Dakota: N.D. C ENT . C ODE § 14-09-22 (Michie, Westlaw
through 1995 legislation); Oklahoma: O KLA S TAT . tit. 10, § 7115 (Westlaw
through 1996 legislation); Pennsylvania: 18 P A . C ONS . S TAT . §4304(a)(1)
(Purdon, Westlaw through 1996 legislation); South Dakota: S.D. C ODIFIED L AWS
§ 25-7-15, 26-10-1 (Westlaw through 1996 legislation), see State v. Beck, 785
N.W.2d 288, 292 (S.D. 2010) (explaining intent requirement of § 26-10-1);
Vermont: V T . S TAT . A NN . tit. 13, § 1304 (Westlaw through 1996 legislation);
Virginia: V A . C ODE A NN . §§ 20-61, 18.2-371 23 (Michie, Westlaw through 1996
legislation); Wisconsin: W IS . S TAT . §§ 948.21, 948.03(4), 948.04(2), 948.20
(West, Westlaw through 1996 legislation).
APPENDIX B
Six jurisdictions required a minimum mens rea of recklessness for crimes
not resulting in injury to the child: District of Columbia: D.C. C ODE § 22-
901(Westlaw through 1996 legislation) (now codified at § 22-11-01(Westlaw
through 2012 legislation)); Iowa: I OWA C ODE §§ 726.6, 726.3 (Westlaw through
1996 legislation); Maine: M E . R EV . S TAT . tit. 17, §§ 553, 554 (Westlaw through
1996 legislation); Minnesota: M INN . S TAT . §§ 609.378(b) (Westlaw through 1996
legislation); Ohio: O HIO R EV . C ODE A NN . §2919.22(A) (Baldwin, Westlaw
through 1996 legislation), State v. Williams, 486 N.E.2d 113, 115 (Ohio Ct. App.
1984) (explaining that § 2919.22(A) requires a mens rea of recklessness);
Washington: W ASH . R EV . C ODE §§ 9A.42.030, 26.20.030 (West, Westlaw through
1996 legislation).
APPENDIX C
23
V A . C ODE A NN . § 18.2-371 is styled as a “contributing” statute but
also includes acts contributing to making a child “abused or neglected.” We
include it because, like Maryland and Mississippi, Virginia lacks any other no-
injury crime apart from child abandonment. V A . C ODE . A NN . § 20-61 (which
appears to be combined with nonsupport: “deserts or willfully neglects or refuses
to provide for child. . . .”)
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Eight jurisdictions required a minimum mens rea of criminal negligence for
crimes not requiring a resultant injury: Arizona: A RIZ . R EV . S TAT . § 13-3623
(West, Westlaw through 1996 legislation); Colorado: C OLO . R EV . S TAT . § 18-6-
401(7)(b) (West, Westlaw through 1996 legislation); Florida: F LA . S TAT . §
827.04 (West, Westlaw through Sept. 1996 legislation); Missouri: M O . R EV . S TAT .
§§ 568.030, 568.032, 568.045, 568.050 (Vernon, Westlaw through 1996
legislation); New Mexico: N.M. S TAT . A NN . § 30-6-1(C) (Westlaw through 1996
legislation), see Santillanes v. State, 849 P.2d 358, 362 (N.M. 1993) (explaining
that “negligently” in § 30-6-1(C) means criminal negligence); Oregon: O R . R EV .
S TAT . §§ 163.535, 163.545, 163.547, 163.575 (Westlaw through 1996 legislation);
Texas: T EX . P ENAL C ODE A NN . § 22.041 (Vernon, Westlaw through 1996
legislation); Wyoming: W YO . S TAT . A NN . § 6-4-403 (1996) (Westlaw through
1996 legislation).
Two states criminalized no-injury conduct with a minimum mens rea of tort
negligence: Nebraska: N EB . R EV . S TAT . § 28-707 (Westlaw through 1996
legislation), State v. Parks, 565 N.W. 734, 738 (Neb. App. 1997) rev’d on other
grounds, 573 N.W.2d 453 (Neb. 1998); South Carolina: S.C. C ODE A NN . § 20-7-
50 (Westlaw through 1996 legislation), State v. Jenkins, 294 S.E.2d 44, 45-46
(S.C. 1982).
One state criminalized no-injury endangerment or neglect of children (if
committed by parents or those with a duty of care) on a strict liability basis. New
York: N.Y. P ENAL L AW § 260.10(2) (McKinney, LEXIS through 1996 legislation),
People v. Scully, 513 N.Y.S.2d 625, 627 (N.Y. Crim. Ct. 1987).
APPENDIX D
Five states we did not place in any of the above categories because while
their statutes facially seem to extend to no-injury scenarios, it is unclear what the
minimum mens rea is where no injury occurs, and we discovered no case law
resolving the question. Alabama: A LA . C ODE § 13A-13-6 (Michie, Westlaw
through 1996 legislation) (Alabama at least criminalizes intentionally abandoning
children, A LA . C ODE §§ 13A-13-5 (Michie, Westlaw through 1996 legislation),
and “willfully maltreat[ing]” children, A LA . C ODE . § 26-15-3 (Michie, Westlaw
through 1996 legislation)); Connecticut: C ONN . G EN . S TAT . § 53-20 (Westlaw
through 1996 legislation) (Connecticut at least criminalizes willfully endangering
children, C ONN . G EN . S TAT . § 53-21 (Westlaw through 1996 legislation), State v.
Cutro, 657 A.2d 239, 242 (Conn. App. 1995) (intent requirement of § 53-21));
Kentucky penalizes at least intentionally abandoning a child, K Y . R EV . S TAT .
A NN . § 530.040 (Baldwin, Westlaw through 1996 legislation); Kentucky: K Y .
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R EV . S TAT . A NN . § 530.060 (Baldwin, Westlaw through 1996 legislation); 24
Rhode Island: R.I. G EN . L AWS § 11-9-5 (Michie, Westlaw through 1996
legislation) 25; West Virginia: W.V A C ODE . § 61-8D-4(e) (Michie, Westlaw
through 1996) (criminalizing “gross neglect” of a child that creates a substantial
risk of serious bodily injury or death, but not explaining the mens rea required for
gross neglect).
APPENDIX E
The two states that did not appear to criminalize child abuse,
endangerment, abandonment, or neglect in 1996 unless the child was injured were
Tennessee and Utah. See U TAH C ODE A NN . § 76-5-109(2) (Westlaw through 1996
legislation); T ENN . C ODE A NN . § 39-15-401 (Westlaw through 1996 legislation).
24
Though this law is similar to a contributing statute, we include it
because Kentucky has no other no-injury child neglect or endangerment laws
apart from child abandonment. K Y . R EV . S TAT . A NN . § 530.040 (1996).
25
Rhode Island’s law, called “cruelty to or neglect of child,” dates
from 1909 and has not been significantly revised since. It refers to “causing” and
“permitting” the prohibited results without referring to a mens rea requirement. It
is an omnibus law proscribing – in a list separated by commas – abandonment,
nonsupport (“neglect or refuse to pay the reasonable charges for the support of
that child”), contributing to delinquency, sexual or “improper” conduct with
children, and permitting “the home of that child to be the resort of lewd, drunken,
wanton, or dissolute persons.” It applies only to parents or custodial adults.
Relevant here, it also proscribes treating a child with “gross or habitual cruelty,”
and “wrongfully caus[ing] or permit[ting] the child to be an habitual sufferer for
want of food, clothing, proper care, or oversight.” We are unsure whether the
additional prohibition on “render[ing] the home of that child a place in which it is
unfit for the child to live” would require a pre-adjudication that the child is
neglected or a showing that the child had suffered. We found no cases arising
under this law where the child was not actually injured and in which the conduct
was not knowing or intentional. However, the text seems to allow for the
possibility of no-injury conduct, and no cases clarify whether there is a minimum
required mens rea.
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