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.