Court Finds Colorado Child Abuse Conviction Does Not Prohibit Discretionary Relief from Removal

A US court recently held that certain convictions for child abuse involving criminal negligence to not prohibit a person from applying for discretionary relief from removal in the case of Ibarra v. Holder, No. 11-953 (July 12, 2013) by the US Court of Appeals for the Tenth Circuit.

The facts of the case are that the petitioner, Ms. Ibarra, unintentionally left her children home alone while she was at work one evening. The oldest child was 10 years old, and no children were injured. She pled guilty to a charge of child abuse under Colorado Revised Statute §§ 18-6-401 (1) (A), (7) (b) (II) called “child abuse – negligence – no injury” that prohibits the following three types of conduct:

  • Causing injury to child’s life or health;
  • Permitting a child to be unreasonably placed in a situation that poses a threat of injury to a child’s life or health; or
  • Engaging in a continued pattern of conduct that results in the child’s death or serious bodily injury.

The statute also requires a mens rea of at least criminal negligence.

Removal proceedings were initiated against Ms. Ibarra in Immigration Court. She conceded removability and made a request for discretionary relief from removal. 8 U.S.C. § 1129b(b)(1) allows an applicant to apply for discretionary relief from removal in the following circumstances:

  1. Has been in the United States for a continuous period of 10 years or more;
  2. Has been a person of good moral character during that period;
  3. Has not been convicted of an offense under § 1182(a)(2), 1227(a)(2), or 1227(a)(3); and
  4. Establishes that removal would result in exceptional and extremely unusual hardship to a foreign national’s spouse, parent, or child, who is a US citizen or US permanent resident.

The Immigration Judge (IJ) ruled that Ms. Ibarra’s child abuse conviction was one of the crimes listed in 8 U.S.C. § 1227(a)(2), and therefore that she was ineligible for discretionary relief from removal. She filed an appeal with the Board of Immigration Appeals (BIA), which affirmed the IJ’s decision. She then appealed to the US Court of Appeals for the Tenth Circuit.

The Court of Appeals examined the crime of child abuse under the federal statute 8 U.S.C. §1227(a)(2) that makes it a crime to commit child abuse, child neglect, or child abandonment. The court noted that the BIA has in the past interpreted the statute broadly to include cases of criminal negligence that create a reasonable probability of harm but do not cause injury. The BIA has stated previously that there has been a “growing acceptance” among states that criminally negligent acts can be considered criminal child abuse.

The court disagreed and said that the BIA’s interpretation of the law contradicts Congressional intent. The court held that in order for an offense to be categorized as an offense under § 1182(a)(2), 1227(a)(2), or 1227(a)(3), the state statute must contain the same elements as the federal statute, not merely have the same title. The court held that the federal statute required that mental culpability of at least knowing or reckless, not criminal negligence. Therefore, since the state statute upon which Ms. Ibarra was convicted requires the mental culpability of criminal negligence, and the federal statute does not, the statutes do not have the same elements, and the state child abuse conviction does not prevent her from discretionary relief from removal.

The court reversed the decision of the BIA remanded case to the Immigration Court for consideration of Ms. Ibarra’s discretionary relief application.

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