# MENDOZA OSORIO

> Board of Immigration Appeals · July 1, 2016 · 26 I. & N. Dec. 703

URL: https://www.frixlaw.com/law-library/cases/6074039

## Case

- **Court:** Board of Immigration Appeals
- **Decided:** July 1, 2016
- **Citations:** 26 I. & N. Dec. 703
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6074039

## How later opinions describe it (automated extraction)

- noting that California Penal Code § 273a(b) “do[es] not require a sufficiently high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the [INA]”
- discussing California statute and agreeing that it is not categorically a crime of child abuse

## Opinion text

Cite as 26 I&N Dec. 703 (BIA 2016) Interim Decision #3856

Matter of Henry Javier MENDOZA OSORIO, Respondent
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).
FOR RESPONDENT: Xavier A. Palacios, Esquire, Mineola, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Mele Moreno, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and MANN, Board Members.
MALPHRUS, Board Member:

In a decision dated April 14, 2015, an Immigration Judge ordered the
respondent removed from the United States. 1 The respondent has appealed
from that decision. The appeal will be dismissed.

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.

1
The Immigration Judge also noted that the respondent’s removability was previously
determined in an order dated March 31, 2015, which was incorporated by reference.

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II. ANALYSIS
The respondent only contests the Immigration Judge’s finding of
removability, arguing that the offense of endangering the welfare of a child
in violation of section 260.10(1) of the New York Penal Law is not
categorically a “crime of child abuse, child neglect, or child abandonment”
under section 237(a)(2)(E)(i) of the Act. Specifically, he asserts that the
crime defined in section 260.10(1) is broader than the definition of child
abuse that we have previously articulated. We review this question of law
de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2015).
As we first stated in Matter of Velazquez-Herrera, 24 I&N Dec. 503
(BIA 2008),

[we] interpret the term “crime of child abuse” 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.

Id. at 512 (emphasis added). In Matter of Soram, 25 I&N Dec. 378, 381
(BIA 2010), we further clarified that the term “crime of child abuse” is not
limited to offenses that require proof of actual harm or injury to a child and
that crimes of child neglect and abandonment are included in our definition
of child abuse. In addition, we determined that because States use a variety
of terms to describe the degree of threat required under endangerment-type
offenses, “a State-by-State analysis is appropriate to determine whether the
risk of harm required by the endangerment-type language in any given
State statute is sufficient to bring an offense within the definition of ‘child
abuse’ under the Act.” Id. at 381−83.
The United States Court of Appeals for the Second Circuit, in whose
jurisdiction this case arises, held that our precedent decisions provided a
reasonable interpretation of a statutory ambiguity and accorded them
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Florez v. Holder, 779 F.3d 207, 209,
211−14 (2d Cir. 2015), petition for cert. filed sub nom. Florez v. Lynch,
84 U.S.L.W. 3280, 2015 WL 6774583 (U.S. Nov. 5, 2015) (No. 15-590);
accord Hackshaw v. Att’y Gen. of U.S., 458 F. App’x 137 (3d Cir. 2012);

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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 so

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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))). 2
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.
2
This realistic probability standard, which has been applied by the Supreme Court to
determine whether an alien’s conviction was for an “elements-based” aggravated felony
under the Act, also applies in the context of removability under section 237(a)(2)(E)(i) of
the Act. See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 599 (BIA 2015) (stating that
pursuant to Moncrieffe, in the context of the “broadly descriptive class of offenses in the
Act, such as ‘sexual abuse of a minor,’” we now “‘look only to the minimum conduct that
has a realistic probability of being prosecuted’ under the State statute” (quoting Matter of
Esquivel-Quintana, 26 I&N Dec. 469, 472 (BIA 2015), aff’d, Esquivel-Quintana
v. Lynch, No. 15-3101, 2016 WL 192009 (6th Cir. Jan. 15, 2016))).

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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. 3 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. 4

3
Farkas v. Barry, 335 F. Supp. 681 (E.D.N.Y. 1972) (accepting assurances by the
prosecuting attorney in a related case that section 260.10(1) is inapplicable to a parent
bringing a minor child to a lecture on birth control); People v. Kanciper, 954 N.Y.S.2d
146 (N.Y. App. Div. 2012) (finding insufficient evidence to support a conviction where
the defendant injected a dog with a tranquilizer in a child’s presence, but the child, who
was familiar with such medical treatments, was not upset by it and was unaware that it
was in preparation to euthanize the dog); People v. Campbell, No. 570557/01, 2003 WL
1907680 (N.Y. App. Term Apr. 3, 2003) (vacating the conviction where there was no
basis for the jury to conclude that the defendant created a likelihood of harm to children
seated in a stationary vehicle when he spun his car wheels as he drove past them); People
v. Cruz, 809 N.Y.S.2d 850 (N.Y. Crim. Ct. 2005) (finding a complaint to be facially
insufficient where a mother left her infant son in the care of a responsible adult neighbor
for about 20 hours); People v. Smith, 678 N.Y.S.2d 872 (N.Y. Crim. Ct. 1998) (granting a
motion to dismiss as facially insufficient an accusatory instrument alleging that the
defendant left four children between the ages of 5 and 13 home alone for 2 hours without
adult supervision or food); People v. Weyrick, 287 N.Y.S.2d 715, 716 (N.Y. City Ct.
1968) (dismissing an information charging the defendant with having a beer party with
minors present where nothing alleged that he “did anything to actually cause or permit
the life or limb of the minors to be endangered”); see also People v. Duenas, 742
N.Y.S.2d 468 (N.Y. App. Term 2002), aff’d sub nom. People v. Hitchcock, 780 N.E.2d at
184 (holding that the evidence was legally insufficient to conclude that the defendant was
aware that his conduct would likely be injurious to a child where he made a significant
effort to conceal a handgun and was unaware that a child knew it was in the house).
4
In arguing that there is a “realistic probability” that a defendant could be convicted for
conduct that violates section 260.10(1) but that does not constitute a “crime of child
abuse,” the respondent has also submitted copies of redacted complaints and charging
documents issued by the State of New York. We are not persuaded that a realistic
probability of a successful prosecution may be shown by looking only to a charging
document that did not necessarily result in a conviction. To be relevant to this inquiry,
there must be more than just a charging document, because a judge or jury may have
found that the facts as charged were insufficient to support a conviction.

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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
5
Other cases that illustrate limits on the reach of section 260.10(1) involve the
possession of marijuana in the presence of children. Compare People v. Alvarez, 860
N.Y.S.2d 745, 749 (N.Y. Crim. Ct. 2008) (concluding that the factual allegations were
facially sufficient where there was a reasonable inference from the strong, pervasive odor
of marijuana in an apartment that it was recently used illegally in the presence of young
children), with People v. Grajales, 686 N.Y.S.2d 608, 609 (N.Y. Crim. Ct. 1999)
(granting a motion to dismiss, finding that merely having marijuana in an apartment with
a child present was not sufficient to sustain the charges).

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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). 6

6
Other cases cited in Guzman involved pretrial motions to dismiss the charges as
facially insufficient, asserting that the factual allegations did not provide reasonable cause
to believe that the defendant committed the offenses charged. See N.Y. Crim. Proc. Law
§§ 100.15, 100.40 (McKinney 2015). Under this standard, a guilty inference can be
drawn based on the facts alleged and the reasonable inferences that logically flowed from
them. See People v. Deegan, 509 N.E.2d 345 (N.Y. 1987) (stating that the legal context
for a motion to dismiss concerns “whether the facts, if proven, and the inferences that
logically flow from those facts supply proof of every element of the charged crimes” and
whether “the Grand Jury could rationally have drawn the guilty inference”). We
conclude that these cases also involved child abuse or neglect because serious, potentially
harmful conduct was alleged, particularly when considering the reasonable inferences
that could be drawn from the facts. See, e.g., People v. Ambers, 840 N.Y.S.2d 533 (N.Y.
Crim. Ct. 2007) (denying a motion to dismiss because it could be reasonably inferred
from the factual allegations that the defendant knowingly permitted her children to live in
a home so filled with garbage, rat feces, insects, and rotten food that it was likely to be
injurious to their health); People v. D’Ambrosia, 746 N.Y.S.2d 556 (N.Y. Just. Ct. 2002)
(finding that the allegations supported the charge where the defendant drove while
intoxicated at a speed well over the limit, creating a serious risk of an accident that would
likely result in injury to a child in the car); People v. Suquisupa, 637 N.Y.S.2d 302 (N.Y.
Sup. Ct. 1996) (finding that allegations the defendant sold fireworks to an unsupervised
13-year-old child were sufficient to support the charge).

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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

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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 child.
We 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

7
For example, Guzman cited two cases involving children left alone by the defendants
who sought to dismiss the charges of child endangerment under section 260.10(1).
People v. Watson, 700 N.Y.S.2d 651, 655 (N.Y. Crim. Ct. 1999) (denying a motion to
dismiss where a 7-year-old child was left alone for 2½ hours by a defendant entrusted
with his care in a locked apartment in the Bronx where “a wide range of dangers” could
befall the scared child); People v. Cenat, 671 N.Y.S.2d 578 (N.Y. Crim. Ct. 1997)
(denying a motion to dismiss where a mother left her two young children unsupervised in
a car on a New York City street for more than 2 hours). In these cases, there were
aggravating circumstances that exacerbated the risk of harm to the child, including the
child’s young age, the location where the offense occurred, and the length of time the
child was left alone. When viewed in the totality of the circumstances, particularly in the
context of a pretrial motion to dismiss where it is appropriate to consider reasonable
inferences that can be drawn from the facts alleged, these cases involve more than simply
leaving a child alone for a short period of time.

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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.

III. CONCLUSION
Having considered the respondent’s arguments and the New York cases
he cited, we are unable to agree that he has shown a “realistic probability”
that section 260.10(1) would successfully be applied to conduct falling
outside our definition of child abuse or neglect. Moncrieffe v. Holder, 133
S. Ct. at 1693 (stating that an alien must “demonstrate that the State
actually prosecutes the relevant offense” in cases outside the Federal
definition). The respondent has also not relied on his own case to show
such a realistic probability, even though the record contains information
regarding his conviction. See Gonzales v. Duenas-Alvarez, 549 U.S. at 193
(stating that an alien must “at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues”). We therefore conclude that the
crime of endangering the welfare of a child in violation of section
260.10(1) of the New York Penal Law is categorically a “crime of child
abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i)
of the Act. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6074039. Public record. Not legal advice.