Introduction: Matter of Mendoza Osorio

On February 9, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016) [PDF version]. In the Matter of Mendoza Osorio, the BIA held that a New York child endangerment categorically constituted a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). In this article, we will look at the issues presented, the BIA’s reasoning, and the potential effects of this new BIA precedent going forward.

Facts of the Case and Procedural History

The respondent, a native and citizen of Ecuador, is a lawful permanent resident (LPR) in the United States.
He was convicted on December 10, 2013, of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law.
On the basis of this conviction, the Department of Homeland Security (DHS) charged the respondent with removability under section 237(a)(2)(E)(i) of the INA.
The Immigration Judge found that the respondent was removable as charged.

Relevant Statutes

Before studying the BIA’s analysis, it is first important to understand the two primary statutes at issue in the Matter of Mendoza Osorio.

First, the BIA excerpted the relevant portion of section 260.10(1) of the New York Penal Law:

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 … .

That is the New York penal law under which the respondent in the Matter of Mendoza Osorio was convicted. Subsequent to that conviction, the DHS charged him with removability under section 237(a)(2)(E)(i) of the INA. The following portion of section 237(a)(2)(E)(i) is relevant to the instant case:

Any alien who at any time after admission is convicted of … a crime of child abuse, child neglect, or child abandonment is deportable.

The issue before the Board was whether a conviction under section 260.10(1) of the New York Penal Law was categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the INA. To resolve the issue, the Board needed to determine whether any possible conviction under section 260.10(1) of the New York Penal Law would fall under section 237(a)(2)(E)(i) of the INA. Importantly, this means that the question before the Board was purely about the wording of the two statutory provisions, and not about the specific conduct of the respondent that led to his conviction. Please read our article on Descamps v. United States, 570 U.S. __, 133 S.Ct. 2276 (2013) to learn more about the categorical approach [see article].

BIA Analysis and Decision

The respondent argued that section 260.10(1) of the New York Penal Law is not categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the INA. This claim was grounded upon his assertion that the conduct punishable by section 260.10(1) of the New York Penal Law was broader than the conduct covered by section 237(a)(2)(E)(i) of the INA. We will examine why the Board disagreed.

Key BIA Precedent

First, the Board quoted from its precedent decision in the Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008) [PDF version], which remains one of the leading administrative precedents in interpreting “a crime of child abuse” as employed in section 237(a)(2)(E)(i) of the INA:

[W]e interpret 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, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking.

The Board also cited its precedent decision in the Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010) [PDF version], which the Board had “further clarified that the term ‘crime of child abuse’ is not limited to offenses that require proof of actual harm or injury to a child and that crimes of child neglect and abandonment are included in our definition of child abuse.” The Board indicated that it would apply its own precedents from the Matter of Velazquez-Herrera and the Matter of Soram to analyzing the issue at hand in the Matter of Mendoza Osorio.

Analysis of Section 260.10(1) of the New York Penal Law

In analyzing section 260.10(1) of the New York Penal Law [see Relevant Statutes], the Board noted that it contains two discrete offenses:

1. Taking action that is likely to be harmful to a child’s welfare; and
2. Allowing a child to work in a dangerous occupation.

The Board noted that the Second Circuit had read the statute in this way in multiple cases, notably in United States v. Beardsley, 691 F.3d 252, 268 n.11 (2d Cir. 2012).

The Board stated that, because the respondent did not claim that he had been convicted under the second part of the statute or explained how conduct under the second part of the statute would fall outside of “our definition of a crime of child abuse.” Indeed, the respondent did not cite any reported decision involving a conviction for violating the second part of the statute. In noting that the Board was also unaware of any reported decisions that discuss the second part of the statute, it stated that it was “unpersuaded” that the second part of the statute does not define “a categorical crime of child abuse or neglect.” Therefore, the Board limited its inquiry to the analysis of the first part of the statute.

The respondent cited the Board’s decisions in the Matter of Velazquez-Herrera and the Matter of Soram that the offense of “endangering the welfare of a child” under section 260.10(1) of the New York Penal Law was not categorically a crime of child abuse. Specifically, he argued that the Board’s definition of the relevant portions of section 237(a)(2)(E)(i) of the INA was narrower than the state statute under which he was convicted. However, citing the Supreme Court decision in Moncrieffe v. Holder, 133 S.Ct 1678, 1684 (2013), the Board stated that the burden was on the respondent to show that there is a “realistic probability” that the statute in question is applied by the state to conduct that does not qualify as “child abuse” under the INA. In short, the Board read Moncrieffe as requiring the respondent to present actual case law that supported his assertion that the statute could be applied to conduct that would not fall under section 237(a)(2)(E)(i) of the INA.

Citing People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009), the Board noted that section 260.10(1) of the New York Penal Law “requires a showing that the defendant knew that his actions were likely to result in physical mental, or moral harm to a child.” The Board noted that to act “knowingly” under New York law requires that the defendant must have been “aware” that his or her actions had the potential for harm. Citing the People v. Hitchcock, 780 N.E.2d 181, 183 (N.Y. 2002), the Board noted that the statute has been interpreted by the New York Court of Appeals to require proof that the harm was “likely to occur, and not merely possible.”

The Board found the above interpretations of section 260.10(1) of the New York Penal Law to be consistent with its definition of a “crime of abuse, child neglect, or child abandonment” in section 237(a)(2)(E)(i) of the INA. Ultimately, the Board disagreed with the respondent’s argument that because section 260.10(1) “proscribes a wide range conduct that is not specifically delignated,” that it covers conduct that is not covered by the INA.

Sec. 260.10(1) is Categorically for “a Crime of Child Abuse”

The Board noted that the respondent failed to present any recorded cases a conviction was obtained under section 260.10(1) that would not fall under section 237(a)(2)(E)(i) of the INA as well. Following Moncrieffe, the Board held that this was a requirement. The Board noted that this is consistent with its precedent decisions in the Matter of Francisco-Alonzo, 26 I&N Dec. 594, 601 (BIA 2015) [PDF version] and the Matter of Ferreira, 26 I&N Dec. 415, 420 (BIA 2014) [PDF version], both of which held that this was a requirement in the context of demonstrating that a conviction under a statute was not a categorical “crime of violence” under the INA.

The Board noted that multiple cases in which charges were brought under section 260.10(1), but convictions were not obtained, as proof that the statute had definite limits as interpreted by the New York Court of Appeals. This supported the conclusion that all of the conduct that section 260.10(1) proscribes falls under section 237(a)(2)(E)(i) of the INA. For example, in the People v. Hitchcock, two defendants were charged with endangering the welfare of a child following accidents in which one child used the defendant’s gun to shoot another child. Based on the facts, one defendant was convicted (had 23 guns in the home, most of which were openly accessible), whereas the other defendant was acquitted (had one gun in the home and it was concealed).

Additionally, based on its precedent decision in the Matter of Soram, the Board rejected the respondent’s argument that the fact that the statute does not require that there “be any actual harm to a child or that the conduct be directed toward the child.” Furthermore, the Second Circuit approved of the Board’s precedent in the Matter of Soram in Florez v. Holder, 779 F.3d 207, 209, 211-14 (2d Cir. 2015).

Finally, the Board noted that section 237(a)(2)(E)(i) of the INA does not encompass every child endangerment statute. For example, it noted that section 273a(b) of the California Penal Code, which criminalizes conduct that places a child “in a situation where his or her health may be endangered” (emphasis added by the Board) was held by the Ninth Circuit in Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009) to not categorically define a crime of child abuse. In contrast, the Board noted that section 260.10(1) of the New York Penal Code differs in that it requires that the defendant have knowingly engaged in such conduct and that the conduct have been “likely to be injurious to a child.”

Accordingly, the Board found that section 260.10(1) of the New York Penal Code is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the INA, and dismissed the respondent’s appeal.

Conclusion: Matter of Mendoza Osorio

By concluding that section 260.10(1) of the New York Penal Code is categorically “a crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the INA, the board has interpreted section 237(a)(2)(E)(i) broadly. Specifically, it held in the Matter of Mendoza Osorio that a child endangerment statute which criminalizes “knowingly” acting in a manner that is “likely” to be injurious to a child can be a categorical “crime of child abuse” under the INA. However, as the Board noted in discussing the California child endangerment statute, the decision does not mean that every statute for child endangerment will meet the standard.

Any alien who is charged with deportability on the basis of a criminal conviction should consult with an experienced immigration attorney immediately for guidance on how to proceed.