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U.S.

Department of Justice

Execu tive Office for Immigration Review

Board oflmmigralion Appeals


Office of the Clerk

5 /07 I.eesbw g !'Ike, S11/te 2000


Falls C/111rcl,, flirginla U04/

Saenz, Andrea A OHS/ICE Office of Chief Counsel - NYC

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Brooklyn Defender Services 26 Federal Plaza, 11th Floor
180 Livingston St. , Suite 300 New York, NY 10278
Brooklyn, NY 11201

Name: Q - A~85

Date of this notice: 6/20/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

J ,"-....,;
I / Jk-.
vw O
Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
O'C onnor, Blair
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: B-Q-, AXXX XXX 485 (BIA June 20, 2017)
U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A 485 - New York, NY Date:


JUN 2 0 2017
In re: B Q

IN REMOVAL PROCEEDINGS

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APPEAL

ON BEHALF OF RESPONDENT: Andrea A. Saenz, Esquire

ON BEHALF OF DHS : Genevieve Kim


Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] -


Convicted of crime of domestic violence, stalking, or child abuse, child
neglect, or child abandonment

APPLICATION: Termination

In a decision dated June 29, 2016, an Immigration Judge terminated the removal proceedings
against the respondent, a native and citizen of Saint Vincent and the Grenadines and a lawful
pennanent resident of the United States. The Department of Homeland Security ("DHS") has
appealed from that decision. The appeal will be dismissed.

The respondent was convicted in 2003 of attempting to endanger the welfare of a child in
violation of sections 110.00 and 260.10 of the New York Penal Law (hereafter "section 110.00"
and "section 260. l O,'' respectively). In 2003, section 110.00 provided that "[a] person is guilty of
an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which
tends to effect the commission of such crime," while section 260.10 provided as follows:

A person is guilty of endangering the welfare of a child when:

1. He 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 life or health; or

2. Being a parent, guardian or other person legally charged with the care or
custody of a child less than eighteen years old, he fails or refuses to exercise
reasonable diligence in the control of such child to prevent him from becoming
an "abused child," a "neglected child/' a "juvenile delinquent" or a ''person in
need of supervision," as those terms are defined in articles ten, three and seven
of the family court act.

Cite as: B-Q-, AXXX XXX 485 (BIA June 20, 2017)
A 485

Endangering the welfare of a child is a class A misdemeanor.

Based on that conviction, the OHS initiated removal proceedings against the respondent by
filing a notice to appear in Immigration Court, charging him with removability under section
237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(E)(i), which states
in relevant part that "[a]ny alien who at any time after admission is convicted of . . . a crime of
child abuse, child neglect, or child abandonment is deportable." The phrase 'crime of child abuse,

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child neglect, or child abandonment" is not statutorily defined, but this Board has defined it
broadly, to include 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, whether or not the
act or omission results in the actual infliction of harm or injury to the victim. Matter of Mendoza
Osorio, 26 I&N Dec. 703, 704 (BIA 2016); Matter of Soram, 25 I&N Dec. 378, 380-81 (BIA
2010); Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008).

In April 2016, the respondent moved to terminate the removal proceedings, arguing that section
. 237(a)(2)(E)(i) of the Act applies only to completed child abuse, neglect, or abandonment offenses,
not to attempts. The Immigration Judge rejected that argument (I.J. at 4), but granted the motion
to terminate on different grounds~ specifically, she acknowledged that section 260.10(1) defines a
categorical crime of child abuse under Matter of Mendoza Osorio, supra, but found that section
260.10(2) was broad enough to cover some conduct that did not involve child abuse or neglect (I.J.
at 7). As a result, she determined that section 260.10, taken in its entirety, was "overbroad,, vis-a.-
vis section 237(a)(2)(E)(i) of the Act. Further, while the Immigration Judge deemed section
260.10 to be "divisible"- thereby authorizing her to conduct a "modified categorical'' analysis of
the respondent's conviction record-she found that those records did not clearly indicate whether
the respondent was convicted of attempting to violate section 260.10(1) or section 260.10(2) (I.J.
at 7~8).

On appeal, the DHS advances a series of alternative arguments in opposition to the


Immigration Judge's decision. First, although the OHS acknowledges that we have consistently
employed the 'categorical approach" when seeking to determine whether a particular offense
qualifies as a "crime of child abuse, child neglect, or child abandonment," it urges us to reverse
course and instead conduct a non-categorical, "circumstance-specific'' inquiry into the nature of
the respondent's offense conduct (DHS Brief at 12-15). In the DHS's view, such a circumstance-
specific inquiry would clearly reveal that the respondent's offense fell within the scope of the
"crime of child abuse" concept. Alternatively, assuming that the categorical approach applies, the
DHS also argues that section 260.10 is a "categorical match" to the 1'crime of child abuse" concept,
and that the Immigration Judge erred when she found section 260.10(2) to be "overbroad,, (DHS
Brief at 9-12). Further, even assuming that section 260.10 is overbroad vis-a-vis the "crime of
child abuse" definition, the DHS maintains that proper application of the "modified categoricaP
approach establishes that the respondent was convicted of attempting to violate subsection (1) of
section 260. l 0, which defines a categorical "crime of child abuse" under Matter of Mendoza
Osorio, supra (DHS Brief at 6-9). Finally, although the DHS disagrees with the Immigration
Judge's ultimate decision to tenninate the proceedings, it argues that we should not disturb the
portion of her decision in which she held that "attempt" offenses are covered by section
237(a)(2)(E)(i) of the Act (DHS Brief at 15-17).

Cite as: B-Q-, AXXX XXX 485 (BIA June 20, 2017)
A 485

The respondent.opposes the appeal and argues in his brief that the DHS waived its appellate
arguments by failing to raise them below (Resp. Brief at 3-5). Alternatively, the respondent asks
us to affinn the Immigration Judge's tenrunation order on the ground that "attempt" convictions
are not covered by section 23 7(a)(2)(E)(i) of the Act (Resp. Brief at 5-8). In the event the Board
finds his argument on the "attempt" issue unpersuasive, moreover, the respondent argues that the
Immigration Judge correctly applied the modified categorical approach and that we should affinn
her determination that the DHS did not carry its burden of proving his removability by clear and

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convincing evidence (Resp. Brief at 8-17).

Whether the respondent's conviction renders him removable under section 237(a)(2)(E)(i) of
the Act is a question of law that we review de novo. See 8 C.F.R. 1003.l(d)(3)(ii). Before
discussing the substantive merits of the appeal, however, we reaffirm that removability
detenninations under section 237(a)(2)(E)(i)'s 1'crime of child abuse, child neglect, and child
abandonment" clause must be made ''categorically," by comparing the elements of the offense of
conviction (and the minimum conduct that has a realistic probability of being prosecuted under
those elements) to the elements of the "crime of child abuse, child neglect, and child abandonment"
definition. See Matter ofMendoza Osorio, supra, at 706-07. We do not agree that application of
a "circumstance-specific" inquiry would be consistent with the language, structure, or purpose of
the crime of child abuse removal ground.

Turning to the merits, we begin by acknowledging the breadth of the "crime of child abuse,
child neglect, or child abandonment'' concept, which applies not just to the deliberate infliction of
physical or emotional hann upon children, but also to acts of negligence or recklessness which
expose children to an unreasonable risk of such hann. See Matter of Mendoza Osorio, supra, at
704; Matter of Soram, supra; Matter of Velazquez-Herrera, supra, at 512. In each of our prior
cases, however, we applied this broad definition to offenses which were defined to require a
completed act of child maltreatment or endangerment. Here, by contrast, we are confronted with
a respondent who was convicted not of endangering a child, but rather of attempting to do so -
that is, of failing to consummate an act of chi ld endangem1ent despite specifically intending to
commit such an act and despite having engaged in conduct which tended to effect its commission.
SeeN.Y. PENAL LAW 110.00.

Upon de novo review, we conclude that the respondent's attempt conviction does not qualify
as a conviction for a "crime of child abuse, child neglect, or child abandonment," even if the
completed offense would have so qualified, because the full range of conduct punishable as
attempted endangering the welfare of a child under New York law would not constitute
maltreatment of a child or expose a child to an unreasonable risk of harm. In this regard, we
observe that a person may be successfully prosecuted in New York for attempting to endanger the
welfare of a child even if the "child" victim was a fictitious creation of an undercover police
officer. See, e.g., People v. Michael Z., 20 Misc. 3d 1118(A), 867 N.Y.S.2d 19 (Sup. Ct. 2008)
(Table), available at 2008 WL 2746725. Abusive actions directed at undercover police officers
do not, by themselves, "maltreat" or "endanger" children, and thus such actions can only qualify
as crimes of child abuse on an "attempt" theory.

The language of section 237(a)(2)(E)(i) of the Act is silent about "attempts.'' This silence is
suggestive because attempt offenses are expressly included in most other removal grounds.
See sections 10l(a)(43)(U), 212(a)(2)(A)(i)(I), 212(a)(2)(A)(i)(II), 237(a)(2)(B)(i), 237(a)(2)(C),

Cite as: B-Q-, AXXX XXX 485 (BIA June 20, 2017)
A 485

237(a)(2)(D), 237(a)(3)(B)(ii), and 237(a)(3)(B)(iii) of the Act. It is a familiar rule of statutory


construction that "where Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23
(1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). We have
indulged that very presumption in an analogous circumstance, holding that "the absence of the
term 'attempt' in section 241 (a)(2)(C) of the Act [the former ground of deportability pertaining to

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"firearm offenses"] should be read as excluding attempted firearms violations from the reach of
that provision." See Matter of Hou, 20 I&N Dec. 513, 519-20 (BIA 1992) superseded by statute,
Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 203(b),
108 Stat. 4305, 43 I 1.

We recognize that the Russello presumption is not irrebuttable. With respect to crimes
involving moral turpitude, for instance, we have held that "the express inclusion of attempt
offenses in other sections of the Act was not actually an intentional exclusion of them from section
237(a)(2)(A)[(i)]." See Matter of Vo, 25 I&N. Dec. 426,430 (BIA 2011) (emphasis in original).
We drew that conclusion, however, because of the "moral turpitude" concept's peculiar focus on
the "evil intent" or "corrupt scienter" of the defendant. See id at 428 (stating that "moral turpitude
inheres in the intent") (quoting Matter ofKatsanis, 14 I&N Dec. 266,269 (BIA 1973)). Because
one who ''attempts,, to commit a crime involving moral turpitude necessarily acts with the specific
intent to complete that crime, it follows that the intent underlying the attempt offense will always
be at least as culpable as that associated with the completed offense.

In contrast, our primary focus under section 237(a)(2)(E)(i) of the Act is not on the subjective
intent of the accused. but rather upon the degree of objective harm or danger to a child that is
contemplated by his conduct. There is no "intent" requirement for crimes of child abuse; criminal
negligence suffices. See Matter of Mendoza Osorio, supra, at 704-05. Nevertheless, under the
categorical approach an offense cannot plausibly be deemed to involve "maltreatment" or
''endangerment" of a child absent proof that a child was in fact maltreated or endangered by its
commission. Because a person can be convicted of attempting to endanger the welfare of a child
in New York without ever having placed a child in harm's way, a conviction for that offense does
not trigger removability.

In light of the foregoing, we conclude that the respondent's conviction for attempting to
endanger the welfare of a child under sections 110.00 and 260.10 of the New York Penal Law does
not support a charge ofremovability under section 237(a)(2)(E)(i) of the Act, and thus the removal
proceedings were properly tem1inated. Given this dete1mination, we need not decide whether a
completed violation of section 260.10(2) would support such a charge or, if not, whether section
260.10 is a divisible statute.

ORDER: The appeal is dismissed.

Cite as: B-Q-, AXXX XXX 485 (BIA June 20, 2017)