VELAZQUEZ-HERRERA

Cite as 24 I&N Dec. 503 (BIA 2008) Interim Decision #3610

Matter of Victor Ramon VELAZQUEZ-HERRERA, Respondent

File A35 874 084 - Seattle

Decided May 20, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) For purposes of the ground of removal set forth at section 237(a)(2)(E)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), the term “crime of

child abuse” means any offense involving an intentional, knowing, reckless, or criminally

negligent act or omission that constitutes maltreatment of a person under 18 years old or

that impairs such a person’s physical or mental well-being, including sexual abuse or

exploitation.

(2) Whether an alien is removable on the basis of a conviction for a “crime of child abuse”

is determined by the elements of the alien’s offense, as reflected in the statutory definition

of the crime or admissible portions of the conviction record.

FOR RESPONDENT: Matthew B. Weber, Miami, Florida

AMICI CURIAE:1 Ann Benson, Esquire, Seattle, Washington

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rhonda M. Dent, Appellate

Counsel

BEFORE: Board Panel: COLE and HESS, Board Members. Concurring Opinion: PAULEY,

Board Member.

COLE, Board Member:

In a decision dated November 27, 2002, an Immigration Judge ordered the

respondent removed from the United States as an alien convicted of 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) (2000), on the basis of his 2001

Washington conviction for assault in the fourth degree. On April 14, 2004, we

issued a brief decision adopting and affirming the Immigration Judge’s order

of removal, and the respondent thereafter filed a petition for review with

1

We acknowledge and appreciate the very helpful briefs submitted by the parties and by

amici curiae, representing the Washington Defender Association’s Immigration Project and

supporting groups.

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the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit

has now remanded the matter to “allow [the Board] an opportunity to issue

a precedential opinion regarding the definition of ‘child abuse’ under 8 U.S.C.

§ 1227(a)(2)(E)(i)” and also to “determine whether the full range of

conduct proscribed by Washington’s fourth degree assault statute falls

within the definition of ‘child abuse.’” Velazquez-Herrera v. Gonzales, 466

F.3d 781, 783 (9th Cir. 2006). Both parties filed additional briefs on remand,

amici curiae submitted a brief in support of the respondent, and a

three-member panel of the Board heard oral argument on June 28, 2007. In

consideration of the Ninth Circuit’s mandate, the intervening precedents of that

circuit, the record of conviction, and the arguments of the parties, we will

vacate our decision of April 14, 2004, sustain the respondent’s appeal, and

terminate the removal proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico and a lawful permanent

resident of the United States. In May 1998 a criminal information was filed

in the Superior Court of Clallam County, Washington, charging the respondent

with first-degree child molestation in violation of section 9A.44.083 of the

Washington Revised Code. That charge was later withdrawn, however, and

in September of 1999 the respondent was convicted of fourth-degree assault

in violation of section 9A.36.041 of the Washington Revised Code, under an

amended information charging that he “did intentionally assault another,

to-wit: D.E.C., a female child whose date of birth is 08/18/1992, who was

five years old at the time.” For that offense the respondent was sentenced to

a term of imprisonment of 365 days.

In October 1999 the former Immigration and Naturalization Service, now

the Department of Homeland Security (“DHS”), initiated removal proceedings

on the basis of the respondent’s conviction, charging him with deportability as

an alien convicted of a “crime of violence” aggravated felony pursuant to

sections 101(a)(43)(F) and 237(a)(2)(A)(iii) of the Act, 8 U.S.C.

§§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) (Supp. II 1996). Shortly thereafter

the respondent filed a motion with the Clallam County Superior Court

requesting permission to withdraw his guilty plea on the ground that he had not

been properly advised of its potential immigration consequences. On

December 31, 1999, the Superior Court granted the motion and vacated

the respondent’s conviction. In response to the vacatur of the respondent’s

conviction, the Immigration Judge entered a January 12, 2000, decision

terminating the removal proceedings, and we affirmed that decision on

January 10, 2001.

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In November 2001 the respondent was once again convicted of

fourth-degree assault, pursuant to a plea agreement that identified the elements

of his offense by reference to the amended information that had been filed in

September 1999. As noted previously, that amended information charged the

respondent with assaulting a 5-year-old child. For this revised offense,

the Superior Court sentenced the respondent to 360 days in jail, a term of

imprisonment that was less than that required to support an aggravated felony

charge under section 101(a)(43)(F) of the Act.

Nevertheless, in March 2002 the DHS initiated the present removal

proceedings, charging that the respondent’s November 2001 conviction was

for a “crime of child abuse” under section 237(a)(2)(E)(i) of the Act.2 Shortly

thereafter the respondent returned to the Clallam County Superior Court, and

in May 2002 the prosecuting attorney filed a “third amended information” with

that court, in which all references to the juvenile status of the respondent’s

victim had been crossed out by hand. In September 2002, moreover, a

superseding third amended information was filed with the Superior Court to

replace the hand-altered document that had been submitted earlier. This third

amended information was back-dated to November 9, 2001, and was accepted

into the conviction record by the Superior Court.

After a number of evidentiary hearings, the Immigration Judge determined

that he was obliged to accept the third amended information into the record,

despite his concern that the State criminal proceedings had been manipulated

in order to affect the immigration consequences of the respondent’s crime.3

Having accepted the third amended information into the record, the

Immigration Judge nonetheless sustained the “crime of child abuse” charge

based on his determination that “assault on a child is abuse, even if it is only

a minor touching . . . because of the unfair advantage that an adult has over a

child.” In support of his determination that the DHS had proven the existence

of a conviction for “child abuse,” the Immigration Judge relied on two pieces

of evidence: (1) the trial court’s judgment, which specified that the respondent

was obliged to pay $0 in restitution to “D.E.C., child victim herein”; and

(2) the trial court’s “no contact” order, issued at the time of sentencing in

2

The DHS also charged the respondent with deportability as an alien convicted of a “sexual

abuse of a minor” aggravated felony, see section 101(a)(43)(A) of the Act, but this charge

was withdrawn in April 2002.

3

The DHS has not challenged the Immigration Judge’s reliance on the third amended

information, so we have no present occasion to decide whether a conviction that has been

modified solely on the basis of immigration hardships, rather than on the basis of a

substantive or procedural defect in the original judgment, would continue to serve as a valid

factual predicate for removal, despite its modification. Cf. Matter of Pickering, 23 I&N Dec.

621 (BIA 2003).

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November 2001, which ordered the respondent to have no contact with the

victim and her mother, and which identified the victim’s date of birth as

“8/18/92,” making her 9 years old at the time of sentencing and 5 years old at

the time of the underlying offense. After sustaining the “crime of child abuse”

charge, the Immigration Judge then denied the respondent’s application for

cancellation of removal in the exercise of discretion and ordered him removed

to Mexico.

The respondent appealed, and we adopted and affirmed the Immigration

Judge’s decision in a brief order, but the Ninth Circuit remanded the matter,

concluding that we had failed to adopt a “‘statutory interpretation [of the term

“crime of child abuse”] that carries the “force of law.”’” Velazquez-Herrera

v. Gonzales, supra, at 783 (quoting Miranda Alvarado v. Gonzales, 449 F.3d

915, 922 (9th Cir. 2006)). But see Ochieng v. Mukasey, 520 F.3d 1110,

1114-15 (10th Cir. 2008) (holding, in accordance with Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), that

the definition of “child abuse” set forth in dicta in a precedent decision of this

Board was entitled to deference because it was based on a permissible

construction of the statute); Loeza-Dominguez v. Gonzales, 428 F.3d 1156 (8th

Cir. 2005) (same). In this regard, the Ninth Circuit observed that the Board

had never formally defined the concept of “child abuse” in a precedent

decision, except in dicta, and that the Immigration Judge’s opinion, which

equated the concept of “child abuse” with any assault committed against a

child, embodied a broader understanding of the concept than the Board had

articulated. On remand and at oral argument, therefore, we have requested that

the parties espouse a position regarding the proper meaning of the term “crime

of child abuse” and identify the sources of law that support their understanding

of the term.

II. ISSUES

The question presented is whether the respondent’s Washington conviction

for fourth-degree assault constitutes a valid factual predicate for a “crime of

child abuse” charge under section 237(a)(2)(E)(i) of the Act. In order to settle

that ultimate question, we must resolve two subsidiary questions. First, we

must decide what the term “crime of child abuse” means in the context of

section 237(a)(2)(E)(i) of the Act. And having done so, we must then decide

whether the evidence contained in the present administrative record is

sufficient to establish that the respondent was convicted of conduct falling

within the scope of that term.

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III. APPLICABLE LAW

Section 237(a) of the Immigration and Nationality Act provides as follows,

in pertinent part:

Classes of Deportable Aliens

Any alien (including an alien crewman) in and admitted to the United States shall,

upon the order of the Attorney General, be removed if the alien is within one or more

of the following classes of deportable aliens:

....

(2) Criminal offenses

....

(E) Crimes of domestic violence, stalking, or violation of protection

order, crimes against children and [sic]

(i) Domestic violence, stalking, and child abuse

Any 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. For purposes of this clause,

the term “crime of domestic violence” means any crime of violence (as

defined in section 16 of title 18, United States Code) against a person

committed by a current or former spouse of the person, by an individual

with whom the person shares a child in common, by an individual who

is cohabiting with or has cohabited with the person as a spouse, by an

individual similarly situated to a spouse of the person under the domestic

or family violence laws of the jurisdiction where the offense occurs, or

by any other individual against a person who is protected from that

individual’s acts under the domestic or family violence laws of the

United States or any State, Indian tribal government, or unit of local

government.

Section 237(a)(2)(E)(i) was enacted pursuant to section 350(a) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-640 (“IIRIRA”), and is

effective with respect to convictions occurring after September 30, 1996. See

id. § 350(b); Matter of Gonzalez-Silva, 24 I&N Dec. 218, 220 (BIA 2007).

IV. DISCUSSION

A. Meaning of “Crime of Child Abuse”

Our inquiry into the meaning of the statutory term “crime of child

abuse” begins with the statutory language itself. INS v. Cardoza-Fonseca, 480

U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). If that

language constitutes a plain expression of congressional intent, it must be

given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., supra, at 842-43. When Congress’s intent is not plainly expressed,

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however, it is our duty to resolve any ambiguities and fill any statutory gaps

in a reasonable manner, at least insofar as they pertain to portions of the statute

that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S.

415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that

“‘the words of a statute must be read in their context and with a view to their

place in the overall statutory scheme.’” Food and Drug Admin. v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis

v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson

v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Section 237(a)(2)(E)(i) covers any alien convicted of “a crime of domestic

violence, a crime of stalking, or a crime of child abuse, child neglect, or child

abandonment.” Significantly, Congress chose to define “crime of domestic

violence” at considerable length, specifically cross-referencing one Federal

criminal statute, 18 U.S.C. § 16, and incorporating by reference a host of other

laws (State, Federal, tribal, or local) that define the legal scope of domestic

relationships. Yet the statute’s other operative terms, including “crime of child

abuse,” were left undefined, triggering the negative inference that Congress

deliberately left them open to interpretation. INS v. Cardoza-Fonseca, supra,

at 432. At the same time, “child abuse” is a well-recognized legal concept,

distinct from the independent terms “child” and “abuse,” and we presume that

Congress intended it to be construed as such. See Gozlon-Peretz v. United

States, 498 U.S. 395, 408 (1991) (holding that the term “supervised release,”

which was used in the Anti-Drug Abuse Act of 1986 but not defined therein,

was to be defined by reference to the well-established meaning of the term as

set forth in earlier statutes bearing on similar subject matter). Thus, although

the ordinary, contemporary, and common meaning of the term “child abuse”

governs our analysis, that meaning is necessarily informed by the term’s

established legal usage. Morissette v. United States, 342 U.S. 246, 263 (1952).

Our analysis is further influenced by the presumption that the Federal

immigration laws are intended to have uniform nationwide application and to

implement a unitary Federal policy. Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir.

1994) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30,

43-44 (1989)). Therefore, absent clear congressional guidance to the contrary,

the meaning of the term “crime of child abuse” will be determined by

reference to a “flexible, uniform standard that reflects the federal policies

underlying” section 237(a)(2)(E)(i) of the Act, and not by reference to legal

classifications that vary from State to State. Kahn v. INS, supra, at 1414-15;

see also Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995 (BIA 1999).

In seeking to identify the “federal policies” underlying section

237(a)(2)(E)(i), we find it significant that the provision was enacted pursuant

to the IIRIRA as part of an aggressive legislative movement to expand the

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criminal grounds of deportability in general and to create a “comprehensive

statutory scheme to cover crimes against children” in particular. Matter of

Rodriguez-Rodriguez, supra, at 994. In addition to the changes brought about

through the enactment of section 237(a)(2)(E)(i), for example, Congress also

expanded the aggravated felony definition to encompass offenses involving the

“sexual abuse of a minor.” See IIRIRA § 321(a)(1), 110 Stat. at 3009-627

(amending section 101(a)(43)(A) of the Act); see also United States v.

Corona-Sanchez, 234 F.3d 449, 454 (9th Cir. 2000) (referring to the IIRIRA

as “expansive legislation” and recognizing, in the aggravated felony context,

that the statute was “intended to sweep a broad range of offenses” into the

grounds of deportability); H.R. Rep. No. 104-828, at 505-06 (1996) (Conf.

Rep.) (Joint Explanatory Statement of the Committee of Conference ). Prior

to the enactment of the IIRIRA, the immigration laws did not subject aliens

convicted of crimes against children to any particular disadvantage vis-à-vis

other criminal aliens. By enacting section 237(a)(2)(E)(i) of the Act and other

provisions augmenting the aggravated felony definition, however, Congress

clearly intended to single out those who have been convicted of maltreating or

preying upon children. In view of the fact that section 237(a)(2)(E)(i) of the

Act is the product of a significant expansion of the grounds of deportability

and was aimed at facilitating the removal of child abusers in particular, it is our

view that the term “crime of child abuse” should be interpreted broadly in this

context.

In 1996, when Congress enacted section 350(a) of the IIRIRA, there were

seven Federal statutes defining “child abuse” and related concepts. Although

the definitions in these statutes are not authoritative in construing section

237(a)(2)(E)(i) of the Act, their common characteristics nonetheless provide

us with valuable insight into the types of conduct that Congress understood to

be encompassed by the term “crime of child abuse.” Afridi v. Gonzales, 442

F.3d 1212, 1216 (9th Cir. 2006) (approving the interpretive methodology

followed by the Board in Matter of Rodriguez-Rodriguez, supra, which relied

in part on the definition of “sexual abuse” set forth at 18 U.S.C. § 3509(a)(8)

(1994) to inform the meaning of the term “sexual abuse of a minor”).4

4

Amici curiae contend that the definition of “child abuse and neglect” set forth at 42 U.S.C.

§ 13925(a)(2) should “significantly inform” our understanding of the meaning of the term

“crime of child abuse” in section 237(a)(2)(E)(i). That definition, which was enacted

pursuant to section 3 of the Violence Against Women and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, 2964 (enacted Jan. 5,

2006) (“VAWA 2005”), defines “child abuse and neglect” narrowly to mean, in pertinent

part, “any recent act or failure to act on the part of a parent or caregiver with intent to cause

death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure

to act which presents an imminent risk of serious harm.” As amici point out, this definition

(continued...)

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Three of these seven statutes defined the term “child abuse” identically to

mean “the physical or mental injury, sexual abuse or exploitation, or negligent

treatment of a child”;5 a fourth defined it to mean “physical or sexual abuse or

neglect of a child”;6 and a fifth stated in much greater detail that the term

includes, but is not limited to—

(A) any case in which—

(i) a child is dead or exhibits evidence of skin bruising, bleeding, malnutrition,

failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue

swelling, and

(ii) such condition is not justifiably explained or may not be the product of an

accidental occurrence; and

(B) any case in which a child is subjected to sexual assault, sexual molestation,

sexual exploitation, sexual contact, or prostitution.7

A sixth statute defined the term “child abuse and neglect” to mean “the

physical or mental injury, sexual abuse or exploitation, negligent treatment, or

(...continued)

is incorporated by reference in the only other provisions of the Act that touch upon crimes

of “child abuse,” both of which relate to the issuance of nonimmigrant visas to the fiancées

or fiancés of United States citizens. Sections 214(d)(3)(A), (r)(5)(A) of the Act, 8 U.S.C.A.

§§ 1184(d)(3)(A), (r)(5)(A) (Supp. 2008). In our judgment, the language of 42 U.S.C.

§ 13925(a)(2) is not a reliable indicia of what Congress intended section 350(a) of the

IIRIRA to mean, because the VAWA 2005 was enacted nearly a decade after the IIRIRA,

and it was intended to serve a very different purpose. As the Supreme Court has explained,

“‘the views of a subsequent Congress form a hazardous basis for inferring the intent of an

earlier one.’” Massachusetts v. EPA, 127 S. Ct. 1438, 1460 n.27 (2007) (quoting United

States v. Price, 361 U.S. 304, 313 (1960)). Instead, we conclude that preference must be

given to “indicia of congressional intent [in existence] at the time the statute was enacted.”

Ngiraingas v. Sanchez, 495 U.S. 182, 187 (1990).

5

18 U.S.C. § 3509(a)(3) (1994) (relating to the rights of child victims as court witnesses);

42 U.S.C. § 3796aa-8 (1994) (relating to the awarding of grants to facilitate the

closed-circuit televising of testimony of child abuse victims); 42 U.S.C. § 13031(c)(1)

(1994) (requiring child abuse reporting in Federal jurisdictions). These three statutes were

enacted contemporaneously pursuant to sections 225, 226, and 241(a)(2) of the Victims of

Child Abuse Act of 1990, Pub. L. No. 101-647, tit. II, 104 Stat. 4792, 4798, 4806, 4813

(“VCAA”).

6

42 U.S.C. § 13001a(5) (1994) (relating to improving the investigation and prosecution of

child abuse) (enacted pursuant to section 6(b)(2) of the Juvenile Justice and Delinquency

Prevention Amendments, Pub. L. No. 102-586, 106 Stat. 4982, 5029-30 (1992)).

7

25 U.S.C. § 3202(3) (1994) (relating to child abuse in Indian country) (enacted pursuant

to section 403 of the Indian Child Protection and Family Violence Prevention Act, Pub. L.

No. 101-630, tit. IV, 104 Stat. 4544, 4545-46 (1990)).

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maltreatment of a child,” but added limiting language confining the term to

harms inflicted by “a person who is responsible for the child’s welfare, under

circumstances which indicate that the child’s health or welfare is harmed or

threatened.”8 In contrast, the seventh statute, which defined the term “child

abuse crime” to mean “a crime committed under any law of a State that

involves the physical or mental injury, sexual abuse or exploitation, negligent

treatment, or maltreatment of a child,” specified that the term related to harms

inflicted “by any person.”9 (Emphasis added.)

As this overview makes plain, the weight of Federal authority when section

237(a)(2)(E)(i) was enacted reflected an understanding that “child abuse”

encompassed the physical and mental injury, sexual abuse or exploitation,

maltreatment, and negligent or neglectful treatment of a child. Among the

States, moreover, there was a growing acceptance by 1996 that the concept of

“child abuse” included not just the intentional infliction of physical injury, but

also acts of sexual abuse or exploitation,10 criminally negligent acts,11 or acts

causing mental or emotional harm.12 Similarly, the most recent edition of

Black’s Law Dictionary provides as its principal definition of “child abuse” the

“[i]ntentional or neglectful physical or emotional harm inflicted on a child,

including sexual molestation.” Black’s Law Dictionary 10 (8th ed. 2004).13

8

42 U.S.C. § 5106g(4) (1994) (enacted pursuant to section 3 of the Child Abuse Prevention

and Treatment Act, Pub. L. No. 93-247, 88 Stat. 4 (1974), as amended (“CAPTA”)). We

note that this definition in the CAPTA was amended shortly after the IIRIRA was enacted.

9

42 U.S.C. § 5119c(3) (1994) (relating to the collection of child abuse crime information

and the conducting of background checks) (enacted pursuant to section 5 of the National

Child Protection Act of 1993, Pub. L. No. 103-209, 107 Stat. 2490, 2493-94).

10

See, e.g., Cal. Penal Code § 11165.6 (West 1996); 325 Ill. Comp. Stat. 5/3(c) (1996); N.H.

Rev. Stat. Ann. § 169-C:3(II)(a) (1996); N.Y. Fam. Ct. Act § 1012(e)(iii) (McKinney 1996);

Ohio Rev. Code Ann. § 2151.031(A) (West 1996); Tex. Fam. Code §§ 261.001(1)(E)-(H)

(Vernon 1996); Wash. Rev. Code Ann. § 26.44.020(12) (West 1996).

11

See, e.g., Ariz. Rev. Stat. Ann. §§ 13-3623(B)(3), (C)(3) (1996); Colo. Rev. Stat.

§§ 18-6-401(7)(a)(II), (IV), (VI), (b)(II) (1996); Fla. Stat. Ann. §§ 827.04(1), (2) (West

1996); Neb. Rev. Stat. §§ 28-707(1), (3) (1996); N.M. Stat. Ann. § 30-6-1(C) (West 1996);

Utah Code Ann. §§ 76-5-109(2)(c), (3)(c) (1996).

12

See, e.g., Ala. Code § 26-14-1(1) (1996); Ark. Code Ann. § 9-30-103(3) (West 1996);

Iowa Code Ann. § 232.68(2)(b) (West 1996); Ky. Rev. Stat. Ann. §§ 600.020(1), (20) (West

1996); Nev. Rev. Stat. § 200.508(3)(a) (1996); 23 Pa. Cons. Stat. Ann. § 6303(b)(1)(ii)

(West 1996); R.I. Gen. Laws § 40-11-2(1) (1996).

13

The sixth edition of Black’s Law Dictionary, published in 1990 and in print when section

237(a)(2)(E)(i) was enacted, defined child abuse as “[a]ny form of cruelty to a child’s

physical, moral or mental well-being.” Black’s Law Dictionary 239 (6th ed. 1990), quoted

in Matter of Rodriguez-Rodriguez, supra, at 996. However, to the extent the word “cruelty”

implied that an abusive act must be committed with the specific intent to inflict suffering on

(continued...)

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These authorities, viewed through the prism of the enforcement-oriented

purpose of section 237(a)(2)(E)(i), lead us to 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.14

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. Cf. Matter of V-F-D-, 23 I&N

Dec. 859 (BIA 2006).15

In 1996 a number of States limited the definition of “child abuse” to acts

committed by a parent, custodian, or other person responsible for the child’s

care, and as we noted previously, one Federal statute—the Child Abuse

Prevention and Treatment Act, Pub. L. No. 93-247, 88 Stat. 4 (1974)

(“CAPTA”)—did so as well. In the Federal sphere, however, this narrowing

construction of child abuse was peculiar to the CAPTA and was a function of

that statute’s unique purpose, which was to provide minimal standards that

would stimulate as many State governments as possible to enact legislation to

prevent child abuse and to protect child abuse victims. See CAPTA § 4(B)(2)

(setting forth standards to which States must conform in order to qualify for

(...continued)

a child, it was contrary to the weight of Federal and State authority in effect in 1996, under

which criminally negligent acts sufficed.

14

The concurring Board Member would adopt this definition to encompass the entire

statutory phrase “crime of child abuse, child neglect, or child abandonment.” While we

recognize that our definition is comprehensive enough to subsume most, if not all, crimes

of “child neglect,” it is not as evident to us that crimes of “child abandonment” would be so

encompassed. We therefore leave that question for another day.

15

In 1996 the Federal child abuse laws, as well as the child abuse laws of 48 States and the

District of Columbia, defined the term “child” to mean a person under 18 years old. See,

e.g., 18 U.S.C. § 3509(a)(2); 25 U.S.C. § 3202(2)(B); 42 U.S.C. § 3796aa-8(1); 42 U.S.C.

§ 5106g(1)(a) (1996); Ariz. Rev. Stat. § 13-3623(A)(2) (1996); D.C. Code § 22-901(a)

(1996); 325 Ill. Comp. Stat. 5/3 (1996); Mo. Ann. Stat. § 210.110(3) (West 1996); R.I. Gen.

Laws § 40-11-2(2) (1996); W. Va. Code § 61-8D-1(2) (1996); Wis. Stat. Ann. § 48.02(2)

(West 1996).

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Federal financial assistance). Furthermore, although this restrictive

construction was not uncommon in the States in 1996, it was by no means

universal, such that it may reasonably be deemed an intrinsic aspect of the

concept of “child abuse.” Accordingly, in view of our determination that

Congress intended the term “crime of child abuse” to be construed broadly in

the context of section 237(a)(2)(E)(i) of the Act, we do not limit the term to

those offenses that were necessarily committed by the child’s parent or by

someone acting in loco parentis.

B. Application to Respondent’s Case

An alien’s deportability under section 237(a)(2)(E)(i) of the Act depends on

the existence of a “conviction” for a crime of child abuse. For nearly a

century, the Federal circuit courts of appeals have held that where a ground of

deportability is premised on the existence of a “conviction” for a particular

type of crime, the focus of the immigration authorities must be on the crime of

which the alien was convicted, to the exclusion of any other criminal or

morally reprehensible acts he may have committed. See, e.g., Dalton v.

Ashcroft, 257 F.3d 200, 204-05 (2d Cir. 2001); Goldeshtein v. INS, 8 F.3d 645,

647 (9th Cir. 1993); Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982); Tseung

Chu v. Cornell, 247 F.2d 929, 935 (9th Cir. 1957); Ablett v. Brownell, 240

F.2d 625, 627 (D.C. Cir. 1957); United States ex rel. Giglio v. Neelly, 208 F.2d

337, 340-41 (7th Cir. 1953); United States ex rel. McKenzie v. Savoretti, 200

F.2d 546, 548 (5th Cir. 1953); United States ex rel. Robinson v. Day, 51 F.2d

1022, 1022-23 (2d Cir. 1931) (Hand, J.); United States ex rel. Mylius v. Uhl,

210 F. 860, 862-63 (2d Cir. 1914).

In accordance with this longstanding body of circuit precedent, we

have from our earliest days espoused the same principle, resulting in an

analytical approach that is essentially identical to the “categorical

approach” adopted by the Supreme Court in both the sentencing and

immigration contexts. Matter of Babaisakov, 24 I&N Dec. 306, 311 (BIA

2007) (citing Gonzales v. Duenas-Alvarez, 546 U.S. 183, 127 S. Ct. 815

(2007); Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States,

495 U.S. 575 (1990)); see also, e.g., Matter of Gertsenshteyn, 24 I&N Dec.

111, 112 (BIA 2007); Matter of Pichardo, 21 I&N Dec. 330, 335-36 (BIA

1996); Matter of Goodalle, 12 I&N Dec. 106, 107-08 (BIA 1967); Matter of

W-, 4 I&N Dec. 241, 243 (BIA 1951); Matter of D-, 1 I&N Dec. 190, 195

(BIA 1942).

On remand the DHS concedes that “[b]ecause the age of the victim is not

an element of the crime, assault in the fourth degree in Washington does not

categorically constitute a crime of child abuse.” Nevertheless, the DHS argues

that under the rationale of our decision in Matter of Gertsenshteyn, supra, “it

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is appropriate for an immigration judge to consider any relevant and probative

evidence to determine the victim’s identity, age, and relationship to the

offender.” Thus, the DHS “suggests that the preferable formulation [of the

term “crime of child abuse”] would be a broadly inclusive one . . . [that]

encompasses any conviction for conduct which, when committed against a

child, harms, exploits, maltreats or imperils the well-being of the child.”

(Emphasis added.)

As the DHS indicates, most “crime of child abuse” charges will be

predicated on State convictions, and there are many valid reasons why State

prosecutors may elect to charge child abusers under generic assault and

battery statutes that do not contain elements bearing on the age of the victim.

Furthermore, we are aware that prosecutors may modify charges in State

criminal proceedings, sometimes even retroactively, to minimize the

immigration consequences for criminal aliens. See, e.g., Beltran-Leon v. INS,

134 F.3d 1379, 1380-81 (9th Cir. 1998); Matter of Pickering, 23 I&N Dec. 621

(BIA 2003). In light of these considerations, defining the term “crime of child

abuse” to encompass only those State offenses that have a child victim as an

element could make section 237(a)(2)(E)(i) underinclusive in certain cases.

By allowing an Immigration Judge to ascertain the age of a victim in the first

instance, the argument goes, we would counteract this tendency, vindicate the

legislative purpose underlying section 237(a)(2)(E)(i), and mitigate any

problems that might arise by virtue of the peculiarities of State law.

The principal difficulty with the DHS’s position is that we simply have no

authority to consider such policy matters except as they may bear on the proper

interpretation of an otherwise ambiguous statute. Most importantly for present

purposes, the United States Court of Appeals for the Ninth Circuit, in whose

jurisdiction this proceeding arises, has found no such ambiguity and has held

in a precedent decision that the “categorical approach is applicable to section

237(a)(2)(E)(i) in its entirety.” Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th

Cir. 2004) (construing section 237(a)(2)(E)(i) of the Act as it applies to

convictions for “crimes of domestic violence”) (emphasis added).

As the DHS points out, we have recognized in several recent precedents that

some criminal removability grounds are phrased so as to require proof of facts

other than “convicted conduct,” and we held with respect to two such grounds

that the categorical approach need not be used to ascertain facts that are

indispensable to the finding of removability but unrelated to the elements of

any predicate offense. Matter of Babaisakov, supra (holding that the

categorical approach does not apply to determining whether an offense caused

a loss to victims of more than $10,000 within the meaning of section

101(a)(43)(M)(i) of the Act); Matter of Gertsenshteyn, supra (holding that the

categorical approach does not apply to determining whether a violation of

18 U.S.C. § 2422(a) was committed for “commercial advantage” within the

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meaning of section 101(a)(43)(K)(ii) of the Act). Yet there is nothing in the

language of the “crime of child abuse” clause of section 237(a)(2)(E)(i) that

invites inquiry into facts unrelated to an alien’s “convicted conduct.”

Furthermore, there is no reason to believe that application of the categorical

approach will render section 237(a)(2)(E)(i) so underinclusive as to defeat the

purpose of the statute. Most States have criminal statutes that are designed to

punish child abuse in its various forms, and many of these statutes protect

children exclusively.

Thus, while we agree with the DHS that Congress intended section

237(a)(2)(E)(i) to be construed broadly, the statute’s general purpose cannot

supersede its language, which plainly focuses on those crimes of which an

alien has been “convicted.” We note in this regard that Congress’s broad,

enforcement-oriented purposes have not prevented courts from determining

that other criminal grounds of deportability are subject to the categorical

approach. See, e.g., Gonzales v. Duenas-Alvarez, 127 S. Ct. at 818 (discussing

the applicability of the categorical approach in the context of a “theft offense”

aggravated felony); Medina v. Ashcroft, 393 F.3d 1063, 1065-66 (9th Cir.

2005) (applying the categorical approach in the context of a “controlled

substance violation” under section 237(a)(2)(B)(i) of the Act); United States

v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (applying the

categorical approach in the context of a “sexual abuse of a minor” aggravated

felony).

Furthermore, when Congress enacted section 350(a) of the IIRIRA in 1996,

different variations of the “categorical” approach had been applied in

immigration proceedings for more than 80 years, and we must presume that

Congress was familiar with that fact when it made deportability under section

237(a)(2)(E)(i) depend on a “conviction.” Lorillard v. Pons, 434 U.S. 575,

580-81 (1978). Had Congress wished to predicate deportability on an alien’s

actual conduct, it would have been a simple enough matter to have done so.

Accordingly, we conclude that the respondent’s removability as an alien

convicted of a “crime of child abuse” must be established categorically.

To ascertain the nature of the respondent’s “convicted conduct,” we confine

our inquiry to the elements of his offense, as reflected in the statutory

definition of the crime and admissible portions of the conviction record.

Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1021 (9th Cir. 2006) (citing

Tokatly v. Ashcroft, supra, at 624); United States ex rel. Zaffarano v. Corsi,

63 F.2d 757, 759 (2d Cir. 1933); Matter of Esfandiary, 16 I&N Dec. 659, 660

(BIA 1979); Matter of Santoro, 11 I&N Dec. 607, 608 (BIA 1966). In May

1998, when the respondent committed the offense of which he was convicted

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in 2001, section 9A.36.041 of the Washington Revised Code provided as

follows, in its entirety:

Assault in the fourth degree

(1) A person is guilty of assault in the fourth degree if, under circumstances not

amounting to assault in the first, second, or third degree, or custodial assault, he or she

assaults another.

(2) Assault in the fourth degree is a gross misdemeanor.

Because “assault” is not defined by statute in Washington, the meaning of

the term is derived from the common law. Clark v. Baines, 84 P.3d 245, 247

n.3 (Wash. 2004). The Washington courts recognize three definitions of

assault: “‘“(1) an attempt, with unlawful force, to inflict bodily injury upon

another; (2) an unlawful touching with criminal intent; and (3) putting another

in apprehension of harm whether or not the actor intends to inflict or is

incapable of inflicting that harm.”’” Id. (quoting State v. Aumick, 894 P.2d

1325, 1328 n.12 (Wash. 1995) (quoting State v. Walden, 841 P.2d 81,

83 (Wash. Ct. App. 1992))).

As Washington law makes clear, and as the DHS concedes, section

9A.36.041 of the Washington Revised Code does not contain any element

requiring proof that an assault be committed against a person under 18 years

old. Consequently, the offense does not correspond categorically to the

generic definition of a “crime of child abuse” that we have here set forth: i.e.,

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. And while the DHS has argued that section 9A.36.041 invites a

“modified” categorical inquiry because some individuals are convicted of

violating that statute on the basis of assaultive conduct directed at children, the

evidence contained in the present administrative record does not establish that

the respondent was convicted of an offense that had the juvenile status of the

victim as an element.

As we noted previously, the Immigration Judge relied on two items of

evidence to support his determination that the respondent had been convicted

of a “crime of child abuse”: (1) a notation on the face of the judgment

indicating that the respondent owed no restitution to his “child victim”; and

(2) a “no-contact order” identifying the victim’s date of birth. This evidence

certainly tends to establish that the respondent’s conduct was directed toward

a child, but it does not constitute clear and convincing evidence that the

respondent was convicted of abusing a child. Specifically, in Washington the

facts upon which a restitution award may be based need only have been proven

to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173,

1175 (Wash. Ct. App. 2000). As a result, they do not constitute proof of the

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defendant’s “convicted conduct,” which must have been proven beyond a

reasonable doubt or admitted as part of a plea.

Likewise, although a “no-contact order” must bear a relationship to an

offender’s convicted offense, no direct causal link need be established between

such an order and the crime committed. State v. Warren, 138 P.3d 1081, 1094

(Wash. Ct. App. 2006) (citing State v. Llamas-Villa, 836 P.2d 239 (Wash. Ct.

App. 1992)). Thus, a no-contact order may be issued in Washington on the

basis of facts that were not necessarily admitted by the defendant or proven

beyond a reasonable doubt in order to establish the defendant’s guilt with

respect to the underlying crime.

We are mindful of the fact that the respondent entered his plea to a charge

that clearly identified his victim as a child. The language of that charge may

well have been significant because the Supreme Court has explained that “the

details of a generically limited charging document” are generally sufficient “in

any sort of case” to establish “whether the plea had ‘necessarily’ rested on the

fact identifying the [offense] as generic.” Shepard v. United States, supra, at

21. Yet as all parties recognize, we are precluded from relying on the original

charge because, after these proceedings commenced, the State prosecutor

removed all traces of the victim’s juvenile status from the amended

information and then interposed the expurgated, back-dated charge into the

conviction record.

V. CONCLUSION

In conclusion, fourth-degree assault in violation of section 9A.36.041 of the

Washington Revised Code does not qualify categorically as a “crime of child

abuse” under section 237(a)(2)(E)(i) of the Act, which we define as 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.

Furthermore, assuming that section 9A.36.041 is divisible with respect to the

“crime of child abuse” definition so as to warrant consideration of the record

of conviction, the evidence relied on by the Immigration Judge to sustain the

“crime of child abuse” charge in this instance was not admissible as proof of

the respondent’s removability because it did not establish the character of his

convicted conduct. Thus, we find that based on those portions of the record

that we are permitted to consult, the DHS has not proven by clear and

convincing evidence that the respondent’s offense of conviction was a “crime

of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Act.

Accordingly, we will vacate our prior decision in this matter, sustain the

respondent’s appeal, and terminate the proceedings against him.

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ORDER: Upon reconsideration, our April 14, 2004, decision is vacated, the

respondent’s appeal is sustained, and the removal proceedings are terminated.

CONCURRING OPINION: Roger A. Pauley, Board Member

I respectfully concur. The majority opinion ably sets forth facts and reasons

why the concept of 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) (2000), should be

given a broad meaning. Yet, at the same time, the majority correctly finds that

in light of the seeming manipulation of the respondent’s criminal charges by the

State authorities in this case,1 his crime, considered under the categorical

approach, nevertheless cannot be found to fall within that definition.

My concern is the following. The phrase enacted by Congress in section

237(a)(2)(E)(i) to protect children is “crime of child abuse, child neglect, or

child abandonment.” The definition the majority opinion adopts for “crime of

child abuse” leaves little, if any, room for the language a crime of “child

neglect, or child abandonment,” inasmuch as the definition of “child abuse”

therein encompasses “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.” Matter of

Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008).2

I would treat the above-quoted phrase in section 237(a)(2)(E)(i) as denoting

a unitary concept and thus apply the broad definition adopted by the majority

as one that describes the entire phrase “crime of child abuse, child neglect, or

1

The State prosecutor denied manipulation in a letter submitted in response to the

Immigration Judge’s request, but the Immigration Judge expressly found to the contrary.

(“The Court concludes that there has been an improper manipulation of the Immigration

law here, and that these changes were made solely to assist the respondent in avoiding

deportation.”). The Immigration Judge’s decision, however, was rendered prior to the

issuance of Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), and the Immigration Judge

believed he had no choice but to accept the revised charges. Moreover, as noted by the

majority, the Department of Homeland Security has not raised the Pickering issue, and it is

therefore not before us.

2

It should be noted that, broad though the definition is, it is unclear whether it extends to

crimes in which a child is merely placed or allowed to remain in a dangerous

situation, without any element in the statute requiring ensuing harm, e.g., a general child

endangerment statute, or selling liquor to an underage minor, or failing to secure a child with

a seatbelt.

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child abandonment.” This is also the grammatically suggested, if not

compelled, reading of the provision.3 Indeed, it appears that crimes of child

neglect or abandonment are a subset of “child abuse” and, although technically

redundant, were likely inserted by Congress to assure coverage of such crimes,

however denominated by the State. See Ali v. Federal Bureau of Prisons, 128

S. Ct. 831 (2008) (discussing the rule of superfluities in the context of

Congress’s inclusion of reference to certain specific types of law enforcement

officers, along with the all-encompassing language “any other” such officer).

3

Section 237(a)(2)(E)(i) reads in pertinent part: “Any 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.” If the concepts of “child neglect” and

“child abandonment” were intended to be separate from “child abuse,” then the words “a

crime of” would precede each, as occurs before “domestic violence” and “stalking.”

519