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Articles Posted in Immigration impact of Criminal Charges

In February, the United States Supreme Court was asked to consider whether a misdemeanor child endangerment conviction may be grounds for removal of a lawful resident immigrant under the Immigration and Nationality Act. The Court recently denied certiorari, allowing the petitioner’s removal to proceed. This decision effectively endorses an expansive interpretation of the scope of offenses against children that can result in deportation.

Gerard Matthews has held lawful permanent resident status in the United States since 1989. Almost twenty years ago, the State of New York charged Matthews with child endangerment for committing sexual acts in front of a minor on two occasions. Matthews pled guilty to both counts. Consequently, in 2011, the Department of Homeland Security initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(E)(i), which provides that “[a]ny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” The INA does not define the crimes of child abuse, neglect, or abandonment, although it does define domestic violence. Under New York’s child-endangerment statute, a person commits child endangerments when “[h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child….”

An immigration judge concluded that Matthews was removable and that his criminal history made him undeserving of discretionary relief. The Board of Immigration Appeals and the Court of Appeals for the Second Circuit affirmed. Matthews v. Barr, 927 F.3d 606 (2nd Cir. 2019). In particular, the Second Circuit deferred to an earlier interpretation by the BIA holding that the INA provision encompasses incidents of child endangerment where there is a sufficiently high risk of harm to the child. This definition includes mental and emotional harm as well as sexual exploitation. Moreover, the court held that Matthews failed to present evidence that New York convicts defendants of child endangerment for offenses that are insufficiently serious to fall within the BIA’s definition of child abuse. Under these circumstances, the court concluded that the New York statute was a “categorical match” with the BIA’s definition and relief was not warranted.

District attorneys and public defenders filed a lawsuit Monday April 29, 2019 to prohibit Immigration and Customs Enforcement (ICE) agents from entering into state courthouses to enforce detainers.

What’s an ICE Detainer?

The United States Department of Homeland Security allows ICE the ability to issue a detainer, which is an immigration hold request to federal, state, and local law enforcement agencies who currently have an alien arrested on criminal charges in their custody. The detainer asks law enforcement agencies to notify ICE before releasing the alien, and to additionally detain the individual up to 48 hours in order for ICE to determine whether or not they wish to take the alien into federal custody.  ICE uses detainers for those aliens they have probable cause to believe should be deported from the U.S.

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