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.
Matthews appealed to the U.S. Supreme Court, arguing that the BIA’s rule is incorrect based on the statutory text and that the circuit courts are divided on the issue, with the Tenth Circuit rejecting the ImmigrBIA’s interpretation and the Ninth Circuit agreeing with the Second. Matthews contended that the INA makes non-citizens deportable for the specific, serious offenses of child abuse, neglect, and abandonment, but that the BIA’s “categorical,” “risk of harm” approach includes a fourth distinct and less serious offense, child endangerment, and eliminates the actual harm requirement inferable from the language of the INA provision.
Matthews’s argument roughly parallels the Tenth Circuit’s analysis in Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013), in which the court found that the BIA’s interpretation was not entitled to deference and was, in fact, incorrect. In Ibarra, an immigrant had been convicted of class 3 (least serious) misdemeanor under Colorado’s child endangerment law for leaving her children while at work with her mother, who in turn left them unattended. The court determined that that the time of the INA’s passage, state laws criminalizing child abuse, neglect, and abandonment generally required at least criminal negligence and actual harm. Because the “full range of conduct” penalized by the Colorado statute included non-deportable offenses, the appellant’s conviction by itself was not grounds for deportation.
The Ninth Circuit in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), expressly rejected the Tenth Circuit’s approach as “flawed,” finding that the BIA’s interpretation was “reasonable” and entitled to Chevron deference. Martinez-Cedillo involved an immigrant convicted of child endangerment under California law for driving under the influence with a child in the car who was not wearing a seatbelt. Applying the categorical approach, the court agreed that California’s felony child endangerment statute, which required only likelihood of harm to the child, fit within the “generic meaning” of child abuse, neglect, or abandonment comprehended by the INA. Thus, the appellant’s conviction was grounds for removal.
The Supreme Court’s denial of certiorari in Matthews will leave the apparent conflict between the circuit courts’ rulings unresolved. As a nationwide federal agency, the BIA will change its approach only in response to direction from the Supreme Court, not lower courts. This means it will continue to look only at the fit between the relevant state statute and the INA rather than the specific facts underlying an immigrant’s conviction for child endangerment.
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