July 17, 2019

Tenth Circuit: Board of Immigration Appeals’ Interpretation of Crime of Child Neglect Too Broad

The Tenth Circuit Court of Appeals published its opinion in Ibarra v. Holder on Monday, July 1, 2013.

Elia Ibarra Rivas petitioned for review of a Board of Immigration Appeals decision that found her Colorado conviction for “child abuse – negligence – no injury” to categorically constitute a “crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i) of the Immigration and Nationality Act (INA). This finding resulted in her ineligibility for discretionary cancellation of removal. Her conviction apparently resulted from leaving her children with her mother while she was at work and the mother then leaving them alone. The oldest child was age 10 and no child was injured.

The BIA has interpreted “crime of child abuse, child neglect, or child abandonment” broadly to include criminally negligent omissions which endanger children by creating a reasonable probability of harm but which do not lead to injury. The Tenth Circuit agreed with Ms. Ibarra that this definition is an impermissible interpretation of the federal statute and that her conviction was not a “crime of child abuse, neglect, or abandonment” under any permissible interpretation of § 1227(a)(2)(E)(i).

The court reached this decision by looking at state laws in effect in 1996, the year Congress amended the INA to include crimes of child abuse, child neglect, or child abandonment as a basis for deportation. They found a majority of states did not criminalize such conduct when it was committed with only criminal negligence and no injury resulted. Therefore, her crime did not fit the generic federal definition and should not have prohibited her application for cancellation of removal.

The court reversed the BIA’s decision and remanded.

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