Friday, November 19, 2010

Matter of Soram, ID 3701, 25 I&N Dec. 378 (BIA 2010) - Unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health

The crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), clarified.

The Board, in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (B.I.A. 2008), interpreted the term “crime of child abuse” in INA § 237(a)(2)(E)(i) 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.

The Board then reviewed how the courts in Colorado have interpreted the “threat of injury” portion of Colo. Rev. Stat. § 18-6-401(1)(a), noting that (1) Colorado courts have repeatedly held that a violation of this statute is not a strict liability offense and that a culpable mental state must be shown in order for a conviction to lie and (2) the respondent here was convicted of “knowingly or recklessly” permitting a child to be unreasonably placed in a situation that posed a threat of injury to the life or health of the child under Colo. Rev. Stat. § 18-6-401(7)(b)(I). The Board found this “knowingly or recklessly” mens rea to be consistent with its definition of a crime of child abuse, which requires an “intentional, knowing, reckless, or criminally negligent act or omission.” The Board further noted that Colorado courts have held that the term “knowingly” in the statute “refers to the actor's general awareness of the abusive nature of his conduct in relation to the child or his awareness of the circumstances in which he commits an act against the well-being of the child” and that “a person acts ‘recklessly’ when he consciously disregards a substantial and unjustifiable risk that, in light of the child's circumstances, a particular act or omission will place the child in a situation which poses a threat of injury to the child's life or health.” The Board concluded that the phrase “an act or omission that constitutes maltreatment of a child” under its definition of a crime of child abuse is sufficiently broad to encompass endangerment-type crimes and that the offense defined by the Colorado statute is categorically a crime of child abuse. In so holding, the Board observed that Colorado's purpose in including the endangerment clause in its child abuse statute was similar to that of Congress in enacting INA § 237(a)(2)(E)(i)--“to single out those who have been convicted of maltreating or preying upon children.”

The Board found that the full range of conduct proscribed by Colo. Rev. Stat. § 18-6-401(a) falls squarely within the definition of a “crime of child abuse” and therefore concluded that the respondent's offense categorically qualifies as a “crime of child abuse” under INA § 237(a)(2)(E)(i). The Board therefore dismissed the respondent's appeal.

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