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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.
