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Decided February 9, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law, which requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Ecuador and a lawful permanent resident of the United States. The record reflects that he was convicted on December 10, 2013, of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law. On the basis of that conviction, the Department of Homeland Security (“DHS”) charged the respondent with removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an alien convicted of a “crime of child abuse, child neglect, or child abandonment.” The Immigration Judge found that the respondent is removable as charged and that he did not seek any relief from removal.

Martinez v. U.S. Att’y Gen., 413 F. App’x 163 (11th Cir. 2011). But see Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013). The alien in Florez, who was also convicted under section 260.10(1), conceded that our definition of the phrase “crime of child abuse” was sufficiently broad to encompass a violation of that section. Therefore the court did not reach the question whether such a violation is categorically a “crime of child abuse, child neglect, or child abandonment.” Florez v. Holder, 779 F.3d at 209−10. Because this issue has been raised by the respondent, we address it here. Section 260.10(1) of the New York Penal Law provides:

A person is guilty of endangering the welfare of a child when:

1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health . . . .

Although contained in a single sentence, section 260.10(1) is phrased in the disjunctive and defines two discrete offenses: (1) taking action that is likely to be harmful to a child’s welfare, and (2) allowing a child to work in a dangerous occupation. See Florez v. Holder, 779 F.3d at 210 (stating that section 260.10(1) “can be violated in two conceptually distinct ways”); United States v. Beardsley, 691 F.3d 252, 268 n.11 (2d Cir. 2012) (noting that “the statute does create two offenses”).

The respondent has not claimed that he was convicted of the second part of section 260.10(1) or specifically explained how conduct punished under that part of the statute would fall outside of our definition of a crime of child abuse. Furthermore, he has not cited to any reported decision where a defendant was convicted under that part of the statute, and we are unaware of any decisions that explicitly discuss this aspect of section 260.10(1). Under these circumstances, we are unpersuaded that the offense of directing a child to engage in an occupation that involves a substantial risk of injury or illness does not define a categorical crime of child abuse or neglect. We therefore focus our inquiry on the first offense in the statute.

In employing the categorical approach to determine if a State crime is comparable to a removable offense under the Act, we look to whether the State statute defining the crime categorically fits within the Federal definition of the corresponding offense. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The respondent argues that the offense of endangering the welfare of a child under section 260.10(1) is not categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Act because the New York statute is broad that it encompasses conduct that falls outside of that phrase, as it was defined in Matter of Soram and Matter of Velazquez-Herrera. However, to establish that the New York offense is not a categorical crime of child abuse, the respondent must do more than merely invoke the statute’s breadth in general terms. He must show that there is a “realistic probability” that the statute is, in fact, applied to punish conduct that does not qualify as child abuse under the Act. See Moncrieffe v. Holder, 133 S. Ct. at 1684−85 (stating that the “focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense” and that “there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime’” (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007))).

A conviction for endangering the welfare of a child under the first part of section 260.10(1) requires a showing that the defendant knew that his actions were likely to result in physical, mental, or moral harm to a child. People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009). To act “knowingly” under New York law, the defendant must have been “aware” of the nature of his conduct and of the fact that his actions had the potential for harm. See People v. Johnson, 740 N.E.2d 1075, 1076 (N.Y. 2000); see also People v. Simmons, 635 N.Y.S.2d. 373 (N.Y. App. Div. 1995) (holding that it was error to convict based on what the defendant “should have known” because section 260.10(1) requires “actual knowledge”). There must also be proof that the harm was “likely to occur, and not merely possible.” People v. Hitchcock, 780 N.E.2d 181, 183 (N.Y. 2002).

These elements—a knowing mental state coupled with an act or acts creating a likelihood of harm to a child—fit within our definition of a “crime of child abuse, child neglect, or child abandonment” in section 237(a)(2)(E)(i) of the Act. However, the respondent argues that the New York statute is overly broad because it proscribes a wide range of conduct that is not specifically delineated, claiming that it therefore criminalizes actions that were not contemplated to be child abuse or neglect under the Act. We disagree.

The respondent claims that various New York cases support his argument that section 260.10(1) criminalizes conduct that is not within our definition of child abuse because it does not constitute maltreatment of a child. He mentions leaving a child unattended for a short period, driving with a suspended license in the presence of a child, and committing petit larceny in the presence of a child, but he has not provided citations to any cases involving these circumstances. He did cite cases that he claims fall outside our definition, but none of them resulted in a successful prosecution because the defendant’s conduct did not constitute endangering the welfare of a child under the New York statute. Since there was no conviction in any of these cases, they are unpersuasive in establishing that there is a realistic probability that section 260.10(1) would be successfully applied to conduct outside our definition of child abuse.

See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 601 (BIA 2015) (finding neither support for the contention that the State statute “could be successfully applied to conduct” outside the Federal definition of a crime of violence nor evidence of “any such successful prosecutions”); Matter of Ferreira, 26 I&N Dec. 415, 420 (BIA 2014) (finding no support for the contention that the State statute was “actually used to successfully prosecute” offenses involving antique firearms).

The fact that there are numerous reported cases finding the offender’s conduct insufficient to support a conviction shows that the breadth of section 260.10(1) has significant limits. People v. Hitchcock, 780 N.E.2d 181, a case involving guns decided by the highest court of New York, illustrates that while section 260.10(1) potentially covers a broad range of conduct, acts that risk harm or actually result in harm to a child may still not meet the statute’s threshold requirement that the offender knowingly acted in a manner likely to be harmful to a child’s welfare. 5 The case involved two defendants, Hitchcock and Duenas, both of whom were charged with endangering the welfare of a child following accidents in which one child used the defendant’s gun to shoot another child. Hitchcock had 23 firearms in his home, including semiautomatic weapons and an assault rifle, most of which were openly accessible. At least one weapon was loaded, and ammunition for the others was nearby. Hitchcock testified that he had shown a 14-year-old living in his home how to load and shoot the guns and that he suspected they had been tampered with in his absence. The court took these facts into consideration in concluding that the evidence was legally sufficient to convict Hitchcock because it was reasonable for the jury to infer that he knowingly kept guns in a manner likely to be injurious to children living in or near his home. In contrast, Duenas had only one gun in his home and had made a significant effort to conceal it. There was no evidence that anyone else in the household knew about the gun, and Duenas was unaware that his younger brother had secretly seen him cleaning it in his bedroom. In these circumstances, the court found that the evidence was legally insufficient to conclude that Duenas was aware that his conduct would likely be injurious to a child. Thus, although both defendants possessed handguns that resulted in harm to a child, Duenas’ conduct did not meet the legal requirements for conviction under section 260.10(1). This case demonstrates that there are, in fact, significant limits to the sweep of the statute, contrary to the respondent’s assertion. Prior to our decision in Matter of Soram, the Second Circuit issued an unpublished opinion, noting that the statute was broad and remanding for us to clarify whether the minimal conduct encompassed by a conviction under section 260.10(1) constitutes a crime of child abuse or neglect. Guzman v. Holder, 340 F. App’x 679 (2d Cir. 2009). The court listed a number of New York cases, some of which the respondent has also cited. In our view, each of the cases cited in Guzman involved conduct that the defendant knew would pose a substantial risk of harm to a child in the totality of the circumstances and would therefore qualify as a crime of child abuse or neglect. See, e.g., People v. Manon, 640 N.Y.S.2d 318 (N.Y. App. Div. 1996) (sustaining the conviction of a mother who kept her infant son in extremely unsanitary conditions without necessary medical attention, which resulted in his death from malnutrition and dehydration); People v. Afia, 843 N.Y.S.2d 906 (N.Y. Crim. Ct. 2007) (convicting a school minibus attendant who was responsible for the safety of special needs children and knowingly failed to check for sleeping students, as instructed, which left a 7-year-old passenger alone on the bus for several hours in an unfamiliar location miles away from school).

The respondent raises issues that were noted in Guzman, arguing that because section 260.10(1) does not require that there be any actual harm to a child or that the conduct be directed toward the child, the statute prohibits conduct that is broader than the Federal crime of child abuse defined by our precedent decisions. This argument is unavailing, however, because we addressed the question of harm subsequent to Guzman and held that our definition of child abuse is not limited to offenses that require proof of harm or injury to the child. Matter of Soram, 25 I&N Dec. at 381. Furthermore, the Second Circuit has approved our conclusion in this regard. Florez v. Holder, 779 F.3d at 212.

In Florez, the court noted that Guzman had questioned whether our definition of child abuse was broad enough to include child endangerment statutes like section 260.10(1), which criminalize conduct that did not actually harm a child. Id. at 211. The court observed that this definition is intentionally expansive, “consistent with the legislative purpose behind” section 237(a)(2)(E)(i) of the Act. Id. at 213. However, it explained that under Soram, the definition is not unlimited because “a state child-endangerment statute qualifies as a ‘crime of child abuse’ under the [Act] only if it requires, as an element of the crime, a sufficiently high risk of harm to a child.” Id. at 212. The court upheld our definition because it includes the required level of risk of harm to a child, recognizing that this limitation ensures that our treatment of such statutes “remains within the realm of reason.” Id.

Although Florez did not specifically address the issue of conduct that was not directed at a child, we have reviewed New York cases that involved defendants who were convicted under section 260.10(1) for committing acts that were not directed at a child. See, e.g., People v. Johnson, 740 N.E.2d at 1075−76 (children witnessed the defendant knock their mother down in the street and drag her home, then listened to him beat and yell at her for 10 hours while she screamed); People v. Meseck, 860 N.Y.S.2d 263 (N.Y. App. Div. 2008) (children witnessed the defendant confine their mother for 4 hours while he yelled at her, called her names, and threatened to kill her with a baseball bat); People v. Spickerman, 762 N.Y.S.2d 470 (N.Y. App. Div. 2003) (children witnessed the defendant beat their mother, breaking her jaw and rupturing her eardrums); People v. Brooks, 705 N.Y.S.2d 349 (N.Y. App. Div. 2000) (defendant stabbed his estranged wife in the presence of their 3-year old son); People v. Parr, 548 N.Y.S.2d 121 (N.Y. App. Div. 1989) (defendant forcibly sodomized a 5-year-old child’s mother in the child’s presence). In these cases the defendant was aware of the presence of the child when he committed severe acts of violence against the child’s mother. Witnessing such acts of domestic violence is likely to cause serious psychological and developmental damage to children, even if they are not themselves subjected to physical abuse. People v. Johnson, 740 N.E.2d at 1077. Therefore, even though the defendant’s conduct was not directed at a child, we would consider it to be child abuse within our definition, given the high risk of harm to the childWe recognize that there are child endangerment statutes that do not require a sufficiently high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the Act. For example, the child endangerment statute at section 273a(b) of the California Penal Code criminalizes conduct that places a child “in a situation where his or her person or health may be endangered.” (Emphasis added.) In Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this statute did not categorically define a “crime of child abuse” within the meaning of the Act. The court observed that the statute does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.” Id. at 1037−38. In this regard, the court cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.” Id. Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. A conviction under section 260.10(1) at issue here requires that the defendant “knowingly engaged in conduct likely to be injurious to a child.” People v. Hitchcock, 780 N.E.2d at 184. In reviewing this statute, we have considered the totality of the circumstances presented in each case, rather than viewing certain facts in isolation.7 The New York cases that resulted in a successful prosecution under the statute are those where the defendant had an awareness that his conduct posed a sufficiently high risk of harm to a child to qualify the offense as a crime of child abuse or neglect under section 237(a)(2)(E)(i) of the Act. Thus, while there are child endangerment statutes that do not meet our definition, we conclude that section 260.10(1) is not one of them.

To be continued.

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