(C)  Other Grounds of Deportation.  Some convictions of child abuse might be considered to be aggravated felony crimes of violence, but they would need to meet all the qualifications of that definition.[148]  Some child pornography convictions, likewise, might be considered to be child pornography aggravated felonies,[149] but such statutes should be examined carefully to determine whether they are constitutional.[150]

                Sexual abuse of a minor, an aggravated felony category, also contains the concept of “child abuse,” and decisions under this aggravated felony category may have a bearing on the domestic violence deportation ground definition of “child abuse.”  See § 19.89, supra.

[148] See, e.g., 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).

[149] INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I). See § 19.31, supra.

[150] See Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004) (Child Online Pornography Act, 47 U.S.C. § 231, found likely to violate the First Amendment; preliminary injunction against its application was therefore upheld).

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 - 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.

Ninth Circuit

DOMESTIC VIOLENCE " CHILD ABUSE " CHILD MOLESTATION IN THE THIRD DEGREE
Jimenez-Juarez v. Holder, ___ F.3d ___, 2011 WL 1183698 (9th Cir. Mar. 31, 2011) (Washington conviction of child molestation in the third degree under Revised Code of Washington 9A.44.089, having sexual contact with a minor who is 14 or 15 years of age when the perpetrator is at least forty-eight months older than the minor, is categorically a crime of child abuse under INA 237(a)(2)(E)(i)). NOTE: The Ninth Circuit applied the definition of child abuse in Matter of Velazquez"Herrera, 24 I. & N. Dec. 503 (BIA 2008), finding the definition to be reasonable. The court found the sexually motivated touching of a minor to be categorically harmful to the child's mental well-being, without addressing the issue of whether the minor child knew of the sexual intent.

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)

Other

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.