BIA: CHILD ENDANGERMENT OFFENSE IS CHILD ABUSE UNDER § 237(a)(2)(E)(i)

By: Thamys Gaertner

In a decision issued on February 9, 2016, the Board of Immigration Appeals (BIA) concluded that a crime of endangering the welfare of a child is categorically a removable offense under § 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).

Henry Javier Mendoza Osorio is a native of Ecuador and a United States lawful permanent resident. Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016). Mr. Mendoza Osorio was convicted of endangering the welfare of a child under § 260.10(1) of the New York Penal Law. Id. Consequently, DHS charged Mr. Mendoza Osorio as removable under § 237(a)(2)(E)(i), claiming that his conviction constituted a “crime of child abuse, child neglect, or child abandonment.” Id.

The BIA analyzed Mr. Mendoza Osorio’s claim that the New York Penal Law statute is broader than the “generic” definition of child abuse as used in immigration law. Id. at 704. In order to do so, the BIA conducted a categorical analysis of the child abuse conviction with the “generic” definition of child abuse in immigration law. In an earlier decision, which the BIA quoted at length, the Board interpreted “the term ‘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 . . .” Id. at 704 (quoting Matter of Velazquez-Herrera, 24 I&N Dec. 503, 513 (BIA 2008)). The BIA further stated that this definition includes offenses that do not require proof of harm or injury to the child and includes child neglect or child abandonment offenses. Matter of Mendoza Osorio, 26 I&N Dec. at 704 (discussing Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010)).

Next, the BIA turned to the conviction statute in § 260.10(1) of the New York Penal Law. Matter of Mendoza Osorio, 26 I&N Dec. at 705. In relevant part, § 260.10(1) provides:

A person is guilty of endangering the welfare of a child when: 1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health . . . .

The BIA concluded that the statute is clearly divisible into two distinct offenses: (1) acting in a manner likely to be harmful to a child and (2) allowing a child to work in a dangerous occupation. Id. Mr. Mendoza Osorio does not challenge the second part of the statute and so the BIA focuses on the first part of the statute. Id. According to the BIA, in order to be convicted under the first part of the statute the defendant must know that his actions are likely to cause physical, mental, or moral harm to a child. People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009). Similarly, the Board added that the defendant must have been “aware” of his actions and the potential harm. People v. Johnson, 740 N.E.2d 1075, 1076 (N.Y. 2000)

The BIA was unpersuaded by the cases cited by Mr. Mendoza Osorio because none of them resulted in convictions of child endangerment under the New York statute. Matter of Mendoza Osorio, 26 I&N Dec. at 707. The BIA pointed out that there are many reported cases finding the offender’s conduct insufficient to support a conviction, demonstrating that the range of § 260.10(1) has noteworthy limits. Id. For example, the court cited a case with two different defendants each charged with endangering the welfare of a child. People v. Hitchcock, 780 N.E.2d 181 (N.Y. 2002). One defendant had 23 firearms that were easily accessible in his home. Id. The defendant showed a 14-year old how to load and shoot the guns. Id. The court took these facts as sufficient to uphold a conviction under this statute because the defendant knowingly kept guns in a manner likely to be injurious to children in his home. Id. On the other hand, the other defendant only had one gun and took significant steps to conceal the weapon. Id. The defendant was unaware that his younger brother saw him clean his gun and hide it afterwards. Id. In that case the court found that the evidence was legally insufficient that the defendant was aware that his conduct would likely be injurious to a child. Id.

With these limitations in mind, Mr. Mendoza Osorio argued that the New York statute criminalized conduct that is broader than the federal crime of child abuse. Matter of Mendoza Osorio, 26 I&N Dec. at 710. Mr. Mendoza Osorio argued that § 260.10(1) does not require that there be any actual harm to a child or that the conduct even be directed toward the child. Id. The BIA did not agree.

According to the Board, in Florez v. Holder, 779 F.3d 207, 212 (2d Cir. 2015), the U.S. Court of Appeals for the Second Circuit held that the definition of child abuse is intentionally broad, “consistent with the legislative purpose behind” § 237(a)(2)(E)(i) of the Act. Furthermore, the Board cites multiple cases involving conduct that was not directed at a child that was in fact conduct of child abuse within § 237(a)(2)(E)(i), given the high risk of harm to the child. Matter of Mendoza Osorio, 26 I&N Dec. at 711.

Some child endangerment statutes do not require a high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the Act. Id. For example, the California Penal Code requires conduct placing someone “in a situation where his or her person or health may be endangered.” By penalizing the possibility of harm, it sweeps broader than the § 237(a)(2)(E)(i) definition by not requiring a sufficiently high risk of harm to a child to reach the “generic” definition. Id. at 711.

The BIA states that Mr. Mendoza Osorio must do more than simply claim that the conviction statute is broader than the “generic” definition of child abuse. Matter of Mendoza Osorio, 26 I&N Dec. at 705. Rather, Mr. Mendoza Osorio needed to have shown that there is a “realistic probability” that the statute is actually applied to conduct that does not fall into the “generic” definition of the offense. See Moncrieffe v. Holder, 133 S. Ct. 1678, at 1684−85 (2013). Mr. Mendoza Osorio failed to demonstrate a “realistic probability” in his own case as well. Matter of Mendoza Osorio, 26 I&N Dec. at 705.

Therefore, the BIA determined that New York Penal Law § 260.10(1) requires an awareness that conduct posed a sufficiently high risk of harm to a child to qualify the conviction as a crime of child abuse or neglect under § 237(a)(2)(E)(i) of the INA. Id. at 712. After reviewing Mr. Mendoza Osorio’s § 260.10(1) conviction, the BIA held that this statute fits the definition of child abuse for immigration purposes Id. at 712. Mr. Mendoza Osorio’s appeal was dismissed and the BIA has established a clearer precedent for individuals seeking relief under child endangerment statutes.

Thamys Gaertner is a second-year law student at the University of Denver Sturm College of Law. Thamys is currently completing an externship with the Rocky Mountain Immigrant Advocacy Network. She is passionate about immigration law and hopes to dedicate her career to immigration law.