Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701

Matter of Dency Epen SORAM, Respondent Decided November 17, 2010 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals The crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically 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) (2006), even though no proof of actual harm or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), clarified. FOR RESPONDENT: David Ari Collins, Esquire, Denver, Colorado FOR THE DEPARTMENT OF HOMELAND SECURITY: Lillian Alves, Assistant Chief Counsel BEFORE: Board Panel: COLE and PAULEY, Board Members. Concurring Opinion: FILPPU, Board Member. COLE, Board Member: In a decision dated August 19, 2009, an Immigration Judge found the respondent removable under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), as an alien convicted of “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.” The Immigration Judge also found the respondent statutorily ineligible for voluntary departure and ordered him removed from the United States. The respondent has timely appealed, contesting only the Immigration Judge’s determination regarding removability. The appeal will be dismissed. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of the Federated States of Micronesia. The record establishes that on October 24, 2007, he was convicted in the District Court for Arapahoe County, State of Colorado, pursuant to a plea of guilty to the crime of “child abuse—no injury—knowingly or recklessly” Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701

in violation of sections 18-6-401(1) and (7)(b)(I) of the Colorado Revised Statutes.^[1] In July 2008 the Department of Homeland Security initiated removal proceedings on the basis of the respondent’s conviction, charging him with deportability under section 237(a)(2)(E)(i) of the Act. Following evidentiary hearings, the Immigration Judge determined that the respondent was convicted of a “crime of child abuse” as that term was defined in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), and he sustained the charge of deportability. On appeal, the respondent argues that an offense under section 18-6-401(1)(a) of the Colorado Revised Statutes is not categorically a crime of child abuse as defined in Matter of Velazquez-Herrera, because the full range of conduct proscribed under the Colorado child abuse statute exceeds the definition of child abuse adopted by the Board. Specifically, he asserts that he was convicted under the clause of the Colorado statute that punishes a person who “permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health.” He contends that this “endangerment” crime does not constitute child abuse, because that clause does not require, at a minimum, physical harm, mental or emotional harm, acts injurious to morals, sexual abuse, or child exploitation. II. ISSUE There is no dispute that the respondent was convicted under the endangerment clause of section 18-6-401(1)(a) of the Colorado Revised Statutes, which punishes a person who permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health. Accordingly, we must decide whether our definition of a crime of child abuse Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701

is sufficiently broad to encompass this endangerment-type crime under Colorado law, where there is no actual injury, but rather only a threat of injury. III. ANALYSIS In Matter of Velazquez-Herrera, 24 I&N Dec. at 512, we construed the meaning of the term “crime of child abuse” in section 237(a)(2)(E)(i) of the Act as follows: [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. 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. Id. (footnote omitted). While we set forth the minimum conduct that would qualify as a crime of child abuse, we did not reach the question whether other conduct constituting endangerment of a child would be encompassed in this definition. Notably, a footnote in the concurring opinion observed 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. Id. at 518 n.2 (Pauley, concurring). However, the United States Court of Appeals for the Ninth Circuit has issued a decision addressing this question. Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009). The court interpreted our decision in Matter of Velazquez-Herrera to require that a child must actually be injured for a crime to constitute child abuse. Therefore, the court held that a conviction under California’s misdemeanor child endangerment statute was not categorically one for child abuse. In so finding, the Ninth Circuit stated that it was deferring to the Board’s interpretation of child abuse in Matter of Velazquez-Herrera. Id. at 1035. However, as indicated above, we did not Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701

directly address this issue in Velazquez-Herrera. We do so now and find no convincing reason to limit offenses under section 237(a)(2)(E) of the Act to those requiring proof of actual harm or injury to the child. In the context of the separate but related crime of sexual abuse of a minor, the Ninth Circuit has held that the crime defined by section 288(a) of the California Penal Code, which prohibits lewd or lascivious conduct, constitutes sexual abuse of a minor, and therefore an aggravated felony, even though the child suffers no harm or injury. United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999). According to the court, even an “‘innocuous’ touching, ‘innocently and warmly received,’” violates the statute, if the touching was done with a sexual intent. Id. at 1147 (quoting People v. Lopez, 965 P.2d 713, 718 (Cal. 1998)). In rejecting arguments that this statute covered conduct that could not be considered sexual abuse, the court explicitly rejected “the notion . . . that Congress intended the aggravated felony law to excuse an individual who preys upon a child too young to understand the nature of his advances.” Id. The court concluded that “[t]he use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order . . . . It constitutes maltreatment, no matter its form.” Id. (citations omitted). Applying the same reasoning, we respectfully clarify that the term “crime of child abuse,” as described in Velazquez-Herrera, is not limited to offenses requiring proof of injury to the child. In addition, we take this opportunity to address a second issue we left open in Velazquez-Herrera, namely, whether child neglect and child abandonment were included in the broad definition of child abuse we adopted. In a footnote, we recognized that while our definition was comprehensive enough to subsume most, if not all, crimes of “child neglect,” it was not evident that crimes of “child abandonment” would be encompassed. Matter of Velazquez-Herrera, 24 I&N Dec. at 512 n.14. Therefore, we decided to “leave that question for another day.” Id. We now adopt the suggestion of the concurring opinion in Matter of Velazquez-Herrera that the phrase “a crime of child abuse, child neglect, or child abandonment” in section 237(a)(2)(E)(i) of the Act denotes a unitary concept and that our broad definition of child abuse describes the entire phrase. Id. at 518-19. This view ensures uniformity in the application of section 237(a)(2)(E)(i), given that endangering a child can reasonably be viewed as either abuse or neglect, and that some States include child endangerment in their definition of “child abuse,” while a number of others consider it “child abuse or neglect.” See id. at 508 (stating that 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” (quoting Kahn v. INS, 36 F.3d 1412, 1414-15 (9th Cir. 1994))).

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As recently as July 2009, some 38 States,2 as well as the United States territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands, included in their civil definition of “child abuse,” or “child abuse or neglect,” acts or circumstances that threaten a child with harm or create a substantial risk of harm to a child’s health or welfare.3 Child Welfare Information Gateway, U.S. Dep’t of Health and Human Services, Definitions of Child Abuse and Neglect: Summary of State Laws 2-3 (2009), http://www.childwelfare.gov/systemwide/laws_policies/statutes/define.cfm. In a few of these States, including Pennsylvania, Tennessee, and Wyoming, the threat of harm must be quite high, requiring that the child be placed in “imminent” or “immediate” danger of injury or harm.4 However, approximately half of the States that include endangerment-type offenses in their definitions of “child abuse,” or “child abuse or neglect” do not specify the degree of threat required. Moreover, the remaining States use various terms to describe the level of threat required, including “realistic,” “serious,” “reasonably foreseeable,” “substantial,” or “genuine.” Since the meaning Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701

of a term such as “substantial” could be subject to different interpretations by courts in each State, we will not attempt to analyze whether the myriad State formulations of endangerment-type child abuse offenses come within the ambit of “child abuse” under section 237(a)(2)(E)(i) of the Act. Rather, we find that 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. Accordingly, we have reviewed how the courts in Colorado have interpreted the “threat of injury” portion of section 18-6-401(1)(a) of the Colorado Revised Statutes. Initially, we observe that Colorado courts have repeatedly held that a violation of this statute is not a strict liability offense and that a culpable mental state must be shown in order for a conviction to lie. See People v. Deskins, 927 P.2d 368, 371 (Colo. 1996) (stating that “the culpable mental states applicable to a crime of child abuse relate not to a particular result, but rather to the nature of the offender’s conduct in relation to the child or to the circumstances under which the act or omission occurred” (citing Lybarger v. People, 807 P.2d 570, 575 (Colo. 1991))). The respondent was convicted of “knowingly or recklessly” permitting a child to be unreasonably placed in a situation that posed a threat of injury to the life or health of the child under section 18-6-401(7)(b)(I) of the Colorado Revised Statutes. This “knowingly or recklessly” mens rea is consistent with our definition of a crime of child abuse, which requires an “intentional, knowing, reckless, or criminally negligent act or omission.” Matter of Velazquez-Herrera, 24 I&N Dec. at 512. Colorado courts have held that the term “knowingly” in the statute “refers to the actor’s general awareness of the abusive nature of his conduct in relation to the child or his awareness of the circumstances in which he commits an act against the well-being of the child.” People v. Noble, 635 P.2d 203, 210 (Colo. 1981). Furthermore, “a person acts ‘recklessly’ when he consciously disregards a substantial and unjustifiable risk that, in light of the child’s circumstances, a particular act or omission will place the child in a situation which poses a threat of injury to the child’s life or health.” Lybarger v. People, 807 P.2d at 575. We conclude that the phrase “an act or omission that constitutes maltreatment of a child” under our definition of a crime of child abuse is sufficiently broad to encompass endangerment-type crimes and that the offense defined by the Colorado statute is categorically a crime of child abuse. Matter of Velazquez-Herrera, 24 I&N Dec. at 512. In so holding, we observe that Colorado’s purpose in including the endangerment clause in its child abuse statute is similar to that of Congress in enacting section 237(a)(2)(E)(i) of the Act. In Matter of Velazquez-Herrera, 24 I&N Dec. at 509, we indicated that the enactment of section 237(a)(2)(E)(i) in 1996 was the product Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701

of a significant expansion of the grounds of deportability and was “clearly intended to single out those who have been convicted of maltreating or preying upon children.” Similarly, the Supreme Court of Colorado has observed that it “interpreted the endangerment clause of section 18-6-401(1)(a) to ‘protect children, who frequently are unable to care for themselves, from the risk of injury or death associated with conduct that places a child in a situation that poses a threat to the child’s well-being.’” People v. Dunaway, 88 P.3d 619, 625 (Colo. 2004) (quoting Lybarger v. People, 807 P.2d at 578). In addition, the culpability of those who permit a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health is quite high. In this regard, we observe that, prior to 1980, section 18-6-401(1)(a) of the Colorado Revised Statutes used the phrase “may endanger [a child’s] life or health.” People v. Weinreich, 119 P.3d 1073, 1077 (Colo. 2005). The Supreme Court of Colorado has recognized that the use of the phrase “may endanger” introduced a “broad and unconstitutionally vague spectrum of speculative causal possibilities,” noting that “‘virtually any conduct directed toward a child has the possibility, however slim, of endangering the child’s life or health.’” Id. at 1078 (quoting People v. Hoehl, 568 P.2d 484, 486 (1977)). Accordingly, to render the statute constitutional, the court interpreted the phrase “may endanger” to mean that “there is a reasonable probability that the child’s life or health will be endangered from the situation in which the child is placed.” People v. Hoehl, 568 P.2d at 486 (emphasis added). In 1980, the Colorado legislature repealed and reenacted the child abuse statute, adding an “endanger” provision alongside the “may endanger” provision. People v. Weinreich, 119 P.3d at 1077. However, this construction produced a new set of problems, because it raised the question whether the “may endanger” and “endanger” clauses punished the same behavior with different penalties, thereby violating equal protection guarantees. See People v. Schwartz, 678 P.2d 1000 (Colo. 1984). In an effort to resolve this problem, in 1985 the Colorado legislature deleted all references to “may endanger” or “endanger” and defined the offense as permitting the child “‘to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health.’”5 People v. Weinreich, 119 P.3d at 1077 (quoting section 18-6-401(1)(a) of the Colorado Revised Statutes); see also 1985 Colo. Sess. Laws, ch. 154, at 672-73. There is no indication that Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701 Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701 Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701 Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701 Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701 Cite as 25 I&N Dec. 378 (BIA 2010) Interim Decision #3701