BIA

DOMESTIC VIOLENCE " CHILD ABUSE
Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010) (Colorado conviction of unreasonably placing a child in a situation that poses a threat of injury to the childs life or health, in violation of Colorado Revised Statutes 18-6-401(1)(a), is categorically a crime of child abuse under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required), clarifying Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008).

DOMESTIC VIOLENCE - DEPORTATION GROUND - CRIME OF CHILD ABUSE - LIMITATIONS - CHILD ENDANGERMENT WITHOUT ELEMENT OF HARM
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ n.2 (BIA May 20, 2008) (Pauley, Boardmember, concurring) ("child abuse definition does not clearly extend to crimes in which a child is merely placed or allowed to remain in a dangerous situation, without any element in the statute requiring ensuing harm, e.g., a general child endangerment statute . . . selling liquor to a minor . . . failing to secure a child with a seatbelt.").

DOMESTIC VIOLENCE - DEPORTATION GROUND -- CHILD NEGLECT -- DEFINITION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ n.14 (BIA May 20, 2008) (child abuse definition "is comprehensive enough to subsume most, if not all, crimes of 'child neglect'").

DOMESTIC VIOLENCE - DEPORTATION GROUND -- CHILD ABANDONMENT -- DEFINITION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ n.14 (BIA May 20, 2008) (BIA decision leaves open definition of crime of child abandonment: "it is not as evident to us that crimes of "child abandonment" would be so encompassed. We therefore leave that question for another day.").

DOMESTIC VIOLENCE - DEPORTATION GROUND - CRIME OF CHILD ABUSE - LIMITATION TO ACTS OR OMISSIONS BY PARENT OR ONE ACTING IN LOCO PARENTIS
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (despite the laws of a number of states in 1996, BIA refused to limit "crime of child abuse" to acts or omissions by parents or those acting in loco parentis).

DOMESTIC VIOLENCE - CHILD ABUSE - FOURTH DEGREE ASSAULT - NOT CATEGORICALLY A CRIME OF CHILD ABUSE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington conviction of fourth degree assault, in violation of Wash. Rev. Code 9A.36.041, did not categorically constitute a "crime of child abuse," under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), because statutory elements contain no element of age of the victim, and "administrative record does not establish that the respondent was convicted of an offense that had the juvenile status of the victim as an element." (emphasis in original)).

DOMESTIC VIOLENCE - DEPORTATION GROUND CHILD ABUSE -- DEFINITION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA May 20, 2008) (child abuse, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 or impairs his or her physical or mental well-being, including sexual abuse or exploitation, as determined by the elements of the offense, as reflected in the statute or admissible portions of the record of conviction), after remand, Velasquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006).

     The Board defined "crime of child abuse" as follows:

     These authorities, viewed through the prism of the enforcement-oriented purpose of section 237(a)(2)(E)(i), lead us to 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. Moreover, as in the "sexual abuse of a minor" context, we deem the term "crime of child abuse" to refer to an offense committed against an individual who had not yet reached the age of 18 years. Cf. Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006).

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (footnotes omitted).

     The precedent and state law cited by the BIA in support of its broad interpretation of "crime of child abuse," however, should be examined to determine whether each instance was the definition of a criminal statute (arguably more narrow definitions), or for broader remedial purposes. Because the rule of strict construction applicable to the interpretation of deportation statutes, see Rosenberg, Benefit Of The Doubt: The Survival Of The Principle Of Narrow Construction And Its Current Applications, 8 BENDER'S IMMIGR. BULL. 1553 (2003), this crime-related ground of deportation should be based on the narrower definitions of child abuse crimes, rather than the broader remedial definitions used for such purposes as funding of social programs and the like.

The BIA's decision in Velazquez-Herrera appears to conflict with a number of Ninth Circuit decisions. It seems to include in its definition of child abuse conduct that would not qualify as abuse in the Ninth Circuit under Pallares-Galan (i.e., sexually motivated acts that cause no actual harm to the child). Counsel can argue that the Ninth Circuit, in Pallares-Galan, found the statute clear, so no deference is owed to the BIA.

Second Circuit

Florez v. Holder, 779 F.3d 207 (2d Cir. Mar. 4, 2015) (New York convictions for child endangerment under New York State Penal Law 260.10(1) [knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child], including driving under the influence of alcohol while children were in the car, constituted child abuse, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), even though no harm came to a child; the reviewing court must grant Chevron deference to the BIA), citing Matter of Velazquez"Herrera, 24 I. & N. Dec. 503 (BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010). NOTE: While disagreeing with Ibarra v. Holder, 736 F.3d 903, 910 (10th Cir. 2013), the court found that there was some limitation to the Child Abuse definition: Although the BIA's definition of a crime of child abuse is expansive, it is not unlimited. Soram confirms that a state child-endangerment statute qualifies as a crime of child abuse under the INA only if it requires, as an element of the crime, a sufficiently high risk of harm to a child. See 25 I. & N. Dec. at 385 (holding that Colorado's child-endangerment statute is categorically a crime of child abuse under the INA, in part because [p]ermitting a child to be placed in a situation posing a threat involving less than a reasonable probability of injury is not punishable as child abuse in Colorado) (emphasis added). Id. at 212.

Sixth Circuit

DOMESTIC VIOLENCE - CHILD ABANDONMENT
Gor v. Holder, 607 F.3d 180 (6th Cir. Jun. 4, 2010) (BIA found Ohio conviction for violation of Ohio Revised code 2919.21(B), "abandon[ment], or fail[ure] to provide support as established by a court order," constitutes a "child abandonment" conviction for purposes of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i); although Sixth Circuit court found significant problems with this analysis, and with the BIAs expansive definition of "child abuse" in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 508-09, 517 (BIA 2008), the court determined that it lacked jurisdiction to review the issue because it was raised as part of a sua sponte motion to reopen).

Ninth Circuit

DOMESTIC VIOLENCE " CHILD ABUSE, ABANDONMENT, OR NEGLECT " AGE OF MINOR
United States v. Doss, 630 F.3d 1181 (9th Cir. Mar. 15, 2011) (in federal criminal cases, the prior sex offense must involve a victim age 16 or under in order to enhance a sentence to a life sentence 18 U.S.C. 3559(e)).

DOMESTIC VIOLENCE - CHILD ABUSE - CHILD ENDANGERMENT
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) (California conviction of misdemeanor child endangerment, in violation of Penal Code 273a(b), was not categorically a domestic violence "crime of child abuse" under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), and therefore does not disqualify the noncitizen from statutory eligibility for cancellation of removal for non-Lawful Permanent Residents under INA 240A(b)(1)(c), 1229b(b)(1)(C), because in penalizing allowing "[a] child to be placed in a situation where his or her person or health may be endangered," Penal Code 273a(b) (emphasis added) clearly reaches conduct that creates only potential harm to a child; no actual injury to a child is required for conviction, which is broader than the BIA's definition of "child abuse," which requires that the perpetrators actions, either intentional or criminally negligent, must actually inflict some form of injury on a child); citing Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008)

DOMESTIC VIOLENCE - CHILD ABUSE
Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. Oct. 19, 2006) (reversing BIA decision that Washington conviction of fourth degree assault constituted a crime of child abuse under 8 U.S.C. 1227(a)(2)(E)(i), and remanding to the BIA to issue a precedential decision defining what constitutes "child abuse" for purpose of this ground of deportation).
http://caselaw.lp.findlaw.com/data2/circs/9th/0472417p.pdf

Other

DOMESTIC VIOLENCE - CHILD ABUSE - CHILD NEGLECT
Advocates can argue the immigration court should apply the definition of "child abuse or child neglect" that is now in INA 214(d)(3) (added by the VAWA reauthorization Act, as of 1/06) to INA 237(a)(2)(E)(i). This definition of child neglect requires "an imminent risk of serious harm" which is a much higher standard than some state statutes. INA 214(d)(3) incorporates the definition "for purposes of this subsection."

DOMESTIC VIOLENCE " CHILD ABUSE, ABANDONMENT, OR NEGLECT " AGE OF MINOR
Immigration counsel could argue that 18 U.S.C. 3559(e) should be used to define minor in the sexual abuse of a minor context, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and child in the domestic violence deportation ground, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). See United States v. Doss, ___ F.3d ___, 2011 WL 871391 (9th Cir. Mar. 15, 2011) (in federal criminal cases, the prior sex offense must involve a victim age 16 or under in order to enhance a sentence to a life sentence 18 U.S.C. 3559(e)). The argument is nonfrivolous, but unlikely to win. In the immigration context, the BIA has specifically held that a minor is a person under the age of 18, for purposes of the aggravated felony 'sexual abuse of a minor' and a deportable 'crime of child abuse.' The Ninth Circuit has upheld this rule, except in Estrada-Espinoza, when it defined sexual abuse of a minor in the context of consensual sex with a minor as only applying to a minor under the age of 16. In non-consensual contexts, however, for example in finding that a conviction of annoying or molesting a minor, in violation of California Penal Code 647.9, is divisible as a sexual abuse of a minor aggravated felony, the Ninth Circuit has accepted that the age of the victim may go up through 17. Thanks to Katherine Brady.

DOMESTIC VIOLENCE " CHILD ABUSE " ARGUMENT THE FULL CATEGORICAL APPROACH APPLIES TO CRIMES OF CHILD ABUSE
The BIA in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), held that the full categorical approach applies to any category of crimes contained in the Domestic Violence deportation ground, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), including crimes of Child Abuse. The BIA cited Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), for this point, but gave no indication they would disagree in other circuits. Therefore, the BIA applies the full categorical approach nationally to crimes of child abuse within the domestic violence ground of deportation. The United States Supreme Court, in Nijhawan and Johnson clarified how to apply the categorical approach to generic offenses such as crimes of child abuse. Nijhawan v. Holder, 129 S.Ct. 2294, 2303 (2009); Johnson v. United States, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (Mar. 2, 2010). In Nijhawan, the Supreme Court affirmed that under the categorical approach, if a criminal statute is missing an element of the offense, a court cannot supply the missing element by looking at the record of conviction. The modified categorical approach, including consulting the record of conviction, can be done only to determine which set of elements (i.e., which offense of two or more), within a divisible statute containing more than one offense was the offense of which respondent was convicted. The Supreme Court in Nijhawan explained how the categorical approach would apply to the loss component of aggravated felony fraud offenses. It found if the strict categorical approach were used, the statute defining the offense must actually have an element of the offense required for guilty requiring a loss in excess of $10,000. A more general loss requirement, or a requirement of "at least $5,000," would not be sufficient, even though the fact of a loss in excess of $10,000 appeared in the record of conviction. Since very few fraud statutes require a loss in excess of $10,000, the categorical approach would practically nullify the fraud offense aggravated felony category. Therefore, Congress did not intend the categorical approach to apply to the loss requirement. Therefore, the court invented the 'circumstance specific' approach to handle that particular aggravated felony category, and very few others where Congressional intent was clear that the categorical approach is not functional. The court concluded, however, that the full categorical approach applies to the fraud offense portion of the fraud aggravated felony, and to all other conviction-based grounds of removal where to do so would not nullify Congressional intent. Nijhawan noted that the full categorical approach does apply to sexual abuse of a minor and cited with approval the Ninth Circuit case of Estrada-Espinoza, which applied the strict categorical approach to sexual abuse of a minor. Nijhawan, supra, at 2300, citing Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Nijhawan changes the test even in those circuits, like the Seventh, that before Nijhawan had held that the age component of sexual abuse of a minor aggravated felonies or child abuse domestic violence offenses need not be an element of the offense or could be proven by evidence outside the record of conviction. Immigration counsel may not wish to rely on Tokatly, however, in the child abuse context. The crime of domestic violence category, however, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), has been interpreted to include a circumstance-specific component like the loss requirement of the fraud aggravated felony discussed in Nijhawan. Bianco v. Holder, 624 F.3d 265 (5th Cir. Oct. 19, 2011) (crime of domestic violence need not have as an element the domestic relationship of victim to defendant, and the government can use any admissible evidence to prove this relationship during the removal hearing); see United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079, 1087 (February 24, 2009) (holding that the criminal statute under which the defendant was earlier convicted need not have as a specific element that the accused and victim be in a domestic relationship in order to qualify as a crime of domestic violence under 18 U.S.C. 922(g)(9), prohibiting possession of a firearm by such persons, but the domestic relationship could be proven beyond a reasonable doubt as an element of this criminal offense by evidence beyond the record of conviction of the domestic violence offense). The Ninth Circuit may follow the logic of these decisions, and overrule Tokatly in the future. If that happens, immigration counsel can object to evidence of the domestic relationship during the removal hearing on the basis of the reasonable restrictions that do exist on what evidence can be used to establish a circumstance-specific element of the crime of domestic violence removal ground. In the meantime, immigration counsel can enforce Tokatly unless it is overruled by the Ninth Circuit, but may not wish to bring it up in the child abuse context. Only the domestic relationship portion of the crime of domestic violence deportation ground may legitimately be subject to the circumstance-specific approach. The crime of violence portion remains subject to the strict categorical analysis, and the child abuse portion of the ground is likewise subject to the categorical approach. Even under the circumstance-specific approach in the domestic violence context, immigration counsel can argue that the domestic relationship must be proven beyond a reasonable doubt in the criminal case, since that is what Hayes required. Hayes, supra, at 1087 (To obtain a conviction in a 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.); cf. Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (June 14, 2010)(prior controlled substances conviction must be proven up during the criminal proceeding beyond a reasonable doubt to establish the aggravated felony drug trafficking removal ground, even though its not an element of a underlying predicate offense). Immigration counsel, however, should not give up too soon on Tokatly, because the Ninth Circuit has already distinguished a Hayes-type finding about a prior conviction from one in immigration court, in Cisneros-Perez: Here, the contexts of the two decisions involve different statutory provisions, as to which the pertinent considerations are quite different: In Belless, the government was required to prove a second, distinct crime in the second prosecution. We concluded that the domestic aspect of a prior domestic violence conviction can be proven as an element of the second crime whether or not established by the conviction documents in the prior proceeding. Tokatly, on the other hand, involved the application of the modified categorical approach in an immigration case, such as this one, in which the inquiry is confined only to determining the nature of the prior crime. As Tokatly indicated, citing statutory language in the immigration statutes, when Congress wants to make conduct the basis for removal [rather than conviction] it does so specifically. Tokatly, 371 F.3d at 622. We conclude that Belless does not apply in the immigration context. Instead, the clear and direct holding of Tokatly-that the modified categorical approach applies to prior crimes of domestic violence in the immigration context-is controlling. (Cisneros-Perez v. Gonzales 465 F.3d 386, 392 (9th Cir.2006) (emphasis added).) Thanks to Kathy Brady, Dan Kesselbrenner, and Jonathan Moore.