Offense
Battery, Simple
Aggravated Felony (AF)
Not an AF: Not a COV, plus maximum sentence is less than 1-yr
Crime Involving Moral Turpitude (CIMT)
Not CIMT, but see Advice regarding ROC
Other Removal Grounds
Not a COV so not a deportable DV offense but see Advice.
To ensure not wrongly charged as a crime of child abuse, keep a minor V’s age out of the ROC. Under the categorical approach, no age-neutral offense can correctly be held child abuse even if the minor age appears in the ROC,1Deportable crime of child abuse. Conviction of a crime of child abuse, child neglect, or child abandonment is a ground of deportability under 8 USC § 1227(a)(2)(E)(i). The BIA interprets abuse, neglect, and abandonment as one category, which we will refer to as a “crime of child abuse.” To be deportable, the person must have been convicted after admission to the United States and after September 30, 1996. For further discussion of crimes of child abuse see ILRC, 2022 Case Update: Domestic Violence Deportation Ground (March 2022), https://www.ilrc.org/resources/2022-case-update-domestic-violence-deportation-ground.
Some, but not all, offenses with minor age as an element are held to be deportable crimes of child abuse.
Child endangerment. Most states have child endangerment statutes that prohibit negligently placing or leaving children in a situation where they are or could be harmed. The BIA has taken a “state by state” approach to analyzing each state’s child endangerment statute, depending on the BIA’s evaluation of the level of harm and degree of risk involved. This has made it difficult to predict whether an endangerment statute is a crime of child abuse.
In California, there finally is a clear answer (unless the issue goes to the Supreme Court). In a fractured en banc decision, the Ninth Circuit held that PC § 273a(a), child endangerment punishable as a wobbler, is a deportable crime of child abuse. Diaz-Rodriguez v. Garland, 55 F.4th 697 (9th Cir. 2022) (en banc). The BIA has stated that § 273a(b), child endangerment with a risk of less harm, a misdemeanor, is not a crime of child abuse. Matter of Mendoza Osorio, 26 I&N Dec. 703, 711 (BIA 2016). Therefore, 273a(b) is a relatively safe plea, while § 273a(a) is not.
As an alternative to a 273a(a) charge, consider 273a(b) and/or another offense, e.g., felony or misdemeanor 459, 594, if necessary DUI..
Consensual sex with a minor. ICE may charge that PC § 261.5(c) (intercourse with a minor under age 18 and at least three years younger than the defendant) is a crime of child abuse, by asserting that the BIA in Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) held that intercourse with a minor under age 18 is categorically child abuse. While it is possible that the BIA en banc, the Attorney General, or the Ninth Circuit will either reverse Aguilar-Barajas or hold that it does not apply to an offense like 261.5(c), defenders still should avoid this plea if it is important to avoid a deportable offense. Advocates in removal proceedings can argue that (1) Aguilar-Barajas does not apply to PC 261.5(c), and/or (2) it was wrongly decided. See arguments that it was wrongly decided in the dissent to Aguilar-Barajas. See further discussion at PC 261.5(c) and at ILRC, . As always with untested arguments, advocates at the same time should investigate the possibility of post-conviction relief. Assume that 261.5(d) is a deportable crime of child abuse, as well as an aggravated felony.
Police posing as minors. The BIA held that the generic definition of a deportable crime of child abuse under 8 USC 1227(a)(2)(E)(i) requires a child as the victim, not a police officer posing as child. See Matter of Jimenez-Cedillo, 27 I. & N. Dec. 782, 794 (BIA 2020), citing Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) (holding that a “crime of child abuse” is an offense that “constitutes maltreatment of a child”).
Age-neutral offenses. Under the categorical approach, an age-neutral offense—e.g., battery under Pen C § 243(a), or any other offense that does not have age of the victim as an element—never can be a deportable crime of child abuse. The problem is that some immigration judges or officers might not understand this. For one thing, an older BIA decision incorrectly held that an age-neutral offense can be a crime of child abuse if the record of conviction conclusively shows that the victim was under age 18. See Matter of Velazquez-Herrera, discussed below. Immigration advocates should be prepared to explain the law, and criminal defenders should do their best to avoid the whole issue by pleading to an age-neutral offense and, if possible, keeping information about minor age out of the defendant’s record of conviction (the charge pled to, plea colloquy and written plea agreement, judgment, and any factual basis for the plea admitted by the defendant).
The explanation is: The categorical approach governs whether an offense is a deportable crime of child abuse. See, e.g., Velazquez-Herrera, 24 I&N Dec.503 (BIA 2008); Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018). In Velazquez-Herrera the BIA held that a simple battery statute, which had no element relating to age, was “divisible” under the categorical approach. The BIA held that if information in the record of conviction establishes that the victim was under age 18, the conviction is a deportable crime of child abuse. However, this aspect of Velazquez-Herrera has been overruled by subsequent U.S. Supreme Court decisions that discuss when a statute is “truly” divisible—rulings that the BIA has adopted. These decisions make clear that a statute is divisible only if it sets out multiple statutory alternatives that are different offenses, and the elements of at least one of these offenses matches the generic definition at issue. See discussion of Mathis v. United States, 579 U.S. 500 (2016) and Matter of Chairez, 27 I&N Dec. 21 (BIA 2017). Because an age-neutral statute has no element (or even statutory language) requiring minor age, it is not divisible and never can be a deportable crime of child abuse for any immigration purpose, regardless of information in the record.
Remember that to cause deportability under this ground, a conviction must be after September 30, 1996 and after the person was admitted into the United States. For further discussion of crime of child abuse see ILRC, 2022 Case Update: Domestic Violence Deportation Ground, supra. but a sanitized ROC clean will protect D against error.
Advice and Comments
PC 243(a)
Good immigration plea. Because minimum conduct for 241(a), 243(a) is offensive touching and the statutes are not divisible, no conviction is a COV or CIMT for any purpose.2 The minimum conduct to commit assault under Pen C § 240 and battery under Pen C § 242 is an offensive touching, which is not a crime of violence or crime involving moral turpitude. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (noting that the phrase “force or violence” is a term of art that does not set out alternative types of conduct; the words are synonymous and can be committed by an offensive touching).
These sections must be evaluated solely based on the minimum prosecuted conduct, because they are not divisible. Prior precedent holding such statutes to be divisible has been overturned by the Supreme Court. See ILRC, How to Use the Categorical Approach Now (2021) and see, e.g., discussion in U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, the resisting arrest statute is no longer divisible because it is not phrased in the alternative: if minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The phrase “force or violence” is a term of art that does not set out alternative types of conduct. See, e.g., Ortega-Mendez, supra.) See also Matter of Dang, 28 I&N Dec. 541 (BIA 2022), reaffirming that a battery statute (in this case, spousal battery) that reaches offensive touching is not a crime of violence. This also applies to 243(e).
But in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to plead to offensive touching or at least keep violence out of ROC, if possible. But this is not legally necessary to prevent a COV or CIMT.