Safe Havens

(A)  Aggravated Felonies.  See § 7.157, supra.

An offense involving child abuse may be considered an aggravated felony crime of violence,[230] or an aggravated felony murder, rape, or sexual abuse of a minor conviction,[231] depending upon the elements of the conviction to which the noncitizen pleads.[232]

(1)    Board of Immigration Appeals:

Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (conviction of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, where negligence in leaving stepson alone in a bathtub resulted in the child’s death, was not conviction of a crime of violence under 18 U.S.C. § 16(b), because there was no “substantial risk that physical force” would be used in the commission of the crime, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

Fifth Circuit:

United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. August 24, 2004) (en banc), cert. denied, 125 S.Ct. 932 (2005) (following grant of rehearing en banc, Fifth Circuit held Texas conviction of child endangerment, in violation of Texas Penal Code § 22.041(c), did not have as element “the use, attempted use, or threatened use of physical force against the person of another,” and thus did not qualify as “crime of violence” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)(2000, 2001)).

United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. Aug. 9, 2002) (Texas conviction of injury to child, in violation of Texas Penal Code § 22.04(a), was not “crime of violence,” and so did not qualify as an “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes).

Ninth Circuit:

United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508, does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and record of conviction was unclear as to level of intent).

[230] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[231] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[232] See N. Tooby, Aggravated Felonies § § 5.13-5.15, Crimes of Violence, § 5.36, Murder, § 5.41, Rape, § § 5.45-5.48, Sexual Abuse of a Minor (2003).