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Analyzing Child Abuse and Rape in Immigration

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Analyzing Child Abuse and Rape in Immigration U.S. Department of Justice http://eoir-vll/lib_index.html Executive Office for Immigration Review Published since 2007 Immigration Law Advisor July - August 2012 A Legal Publication of the Executive Office for Immigration Review Vol. 6 No. 7 Discussing the Unmentionable: In this issue... Analyzing Child Abuse and Page 1: Feature Article: Rape in Immigration Law Discussing the Unmentionable: by Elizabeth Donnelly Analyzing Child Abuse and Rape in Immigration Law Page 4: Federal Court Activity ith the Illegal Immigration Reform and Immigrant Responsibility Page 9: BIA Precedent Decisions Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009- 546 (“IIRIRA”), Congress sought to “establish an interrelated Page 15: Regulatory Update W statutory structure designed to put certain targeted criminal aliens on a fast track for removal.” Kwon v. Comfort, 174 F. Supp. 2d 1141, 1143 (D. Colo. 2001). The IIRIRA significantly expanded the criminal grounds of removability, in part by adding child abuse as a new ground of removal The Immigration Law Advisor is a under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, professional newsletter of the Executive 8 U.S.C. § 1227(a)(2)(E)(i), and expanding the definition of an aggravated Office for Immigration Review felony to include rape in section 101(a)(43)(A) of the Act, 8 U.S.C. (“EOIR”) that is intended solely as an § 1101(a)(43)(A). In addition Congress limited the availability of relief educational resource to disseminate from removal for aliens who committed certain crimes. information on developments in immigration law pertinent to the In doing so, Congress did not specifically define the terms “child Immigration Courts and the Board abuse” or “rape.” Since enactment of the IIRIRA, case law has provided of Immigration Appeals. Any views some insight into the definition of these terms; however, the scope of “child expressed are those of the authors and abuse” and “rape” remain rather underdeveloped. In their analyses, the do not represent the positions of EOIR, the Department of Justice, the Attorney Federal courts and Board of Immigration Appeals have drawn heavily on General, or the U.S. Government. This legislative history and historical context to divine congressional intent as to publication contains no legal advice the contemporary meanings of these terms. The scope of these two provisions and may not be construed to create now falls on opposite ends of the spectrum, with child abuse taking on an or limit any rights enforceable by expansive definition and rape confined to a relatively small subset of the law. EOIR will not answer questions sexual offenses that currently populate Federal and State criminal law. concerning the publication’s content or how it may pertain to any individual Crime of Child Abuse case. Guidance concerning proceedings before EOIR may be found in the Section 237(a)(2)(E)(i) of the Act renders deportable any alien Immigration Court Practice Manual who at any time after entry is convicted of child abuse, child neglect, or and/or the Board of Immigration Appeals Practice Manual. child abandonment. Two precedent decisions of the Board of Immigration Appeals explicitly address the issue of child abuse, as do a handful of 1 circuit court cases, some of them unpublished. Generally a “well-recognized legal concept” by the time Congress speaking, the available case law indicates that the term is made it a deportable offense in 1996. Id. at 508. Thus, broad, covering a range of conduct that harms or even the Board had an “established legal usage” from which threatens harm to a child. to determine the “ordinary, contemporary, and common meaning” of child abuse. Id. Accordingly, the Board In Matter of Rodriguez-Rodriguez, 22 I&N Dec. looked to establish a common, flexible definition capable 991, 992 (BIA 1999), the alien was convicted under a of uniform application nationwide. It then assessed the Texas statute of indecency with a child by exposure and legal landscape as of 1996, which included seven Federal sentenced to 10 years’ imprisonment. The Board held statutes concerning child abuse. Noting that the inclusion that the crime constituted sexual abuse of a minor and of “child abuse” in the IIRIRA was an effort to aggressively was therefore an aggravated felony. In its analysis of this combat crimes against children, the Board concluded aggravated felony, the Board noted in dicta that a “crime that a broad definition was appropriate. Ultimately, it of child abuse” includes actions and inactions that do not proposed that the term involved require contact with the victim, citing the Black’s Law Dictionary definition—“[a]ny form of cruelty to a child’s any offense involving an intentional, physical, moral, or mental well-being.” For a time, in knowing, reckless, or criminally the absence of a more definitive statement, the Board negligent act or omission that constitutes applied this language in unpublished orders, and at least maltreatment of a child or that impairs two circuit courts found it a reasonable interpretation of a child’s physical or mental well-being, the statute. Ochieng v. Mukasey, 520 F.3d 1110, 1114-15 including sexual abuse or exploitation. At (10th Cir. 2008) (holding that injury to children under a minimum, this definition encompasses section 18-1501(1) of the Idaho Code Annotated is a convictions for offenses involving the crime of child abuse); Loeza-Dominguez v. Gonzales, 428 infliction on a child of physical harm, F.3d 1156, 1159 (8th Cir. 2005) (holding that malicious even if slight; mental or emotional harm, punishment of a child under section 609.377 of the including acts injurious to morals; sexual Minnesota Statutes is a crime of child abuse). abuse, including direct acts of sexual contact, but also including acts that induce The Board addressed the definition of child (or omissions that permit) a child to engage abuse, neglect, or abandonment in 2008 with Matter in prostitution, pornography, or other of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). sexually explicit conduct; as well as any The alien pled guilty to violating a Washington fourth- act that involves the use or exploitation of degree assault statute and was sentenced to 360 days’ a child as an object of sexual gratification imprisonment. Although the conviction record initially or as a tool in the commission of serious referenced a child victim, a superseding information that crimes, such as drug trafficking. was filed later eliminated any reference to the victim’s age. The Immigration Judge nonetheless found the Id. at 512. The Board further held that a “child” was an offense to be child abuse within the meaning of section individual under 18 years of age and that the definition 237(a)(2)(E)(i) of the Act, relying on information outside was not limited to offenses committed by parents or by the conviction record. The Board initially agreed in a someone acting in loco parentis. brief order. However, following a remand from the United States Court of Appeals for the Ninth Circuit, In analyzing whether a particular State offense the Board adopted a formal definition of child abuse and is a “crime of child abuse,” the Board determined that determined that a categorical approach should be applied courts should employ a categorical approach, confined to to this ground of removal. Applying this approach, the the elements of the offense and the admissible portions Board held that the Government had failed to establish of the conviction record. Under this analysis, the assault removability under section 237(a)(2)(E)(i) by clear and offense in the Washington State statute at issue, which convincing evidence. contained no element requiring proof that the conduct was committed against someone under 18, did not In defining child abuse, the Board observed that constitute a categorically removable offense under section the term “child abuse,” while left undefined in the Act, was 237(a)(2)(E)(i). Furthermore, because State prosecutors 2 had also amended the alien’s conviction record to child abuse offenses” meet the definition it proposed.Id. at eliminate all references to a child victim, the modified 383. At the time, some 38 States and other U.S. territories categorical approach was of no help in establishing the included in their civil definition of child abuse acts or alien’s removability for the crime. The emphasis, the circumstances that threaten harm or create a substantial Board reiterated, remained on the offense of conviction, risk of harm to a child. Some States required a high threat not the respondent’s possible conduct. of harm, though more than half of that number failed to delineate the degree of threat required for a conviction. In Fregozo v. Holder, 576 F.3d 1030, 1035 States used various terminology to describe the threat. The (9th Cir. 2009), the alien pled nolo contendere to a Board left the task to the Immigration Courts to decide California misdemeanor child endangerment statute that whether the risk of harm in any particular statute rose to criminalized “willfully caus[ing] or permit[ting] . [a] the level of child abuse within the meaning of the Act. child to be placed in a situation where his or her person or health may be endangered.” Id. at 1037 (quoting section Turning to the Colorado statute in question, the 273a(b) of the California Penal Code) (internal quotation Board in Matter of Soram stated that the mens rea was marks omitted). The Ninth Circuit deferred to the consistent with that required under Velasquez-Herrera, the Board’s definition of “child abuse” inMatter of Velasquez- juvenile status of the victim was an element of the crime, Herrera but interpreted that definition to require some“ and a study of State case law revealed that the threat to the form” of actual injury on a child.
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