Child endangerment involving conduct likely to cause GBI or death
Aggravated Felony (AF)
No conviction of 273a(a) or (b) is a COV, because the minimum conduct is negligence and the statute is indivisible.1The Ninth Circuit held that the minimum conduct to commit felony § 273a(a) is not a COV. Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016) (“Although section 273a(a) requires a mens rea of ‘willful[ness]’ for the three prongs of the statute that criminalize indirect infliction of harm or passive conduct, the California Supreme Court has interpreted ‘willful[ness]’ in this context to require proof only of criminal negligence.”). The BIA also has found that criminally negligent child abuse is not a crime of violence under 18 USC § 16(a), even where it results in the child’s death, because it does not involve intentional conduct. See, e.g., Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (en banc) (negligence resulted in death by drowning of baby).
The Ninth Circuit held that § 273a(a) is not divisible between the various prongs. Ramirez v. Lynch, 810 F.3d at 1134-1138. Therefore, no conviction of § 273a(a) is a COV. The same ruling must apply to § 273a(b), a lesser included offense to § 273a(a) that is identical to § 273a(a) except that it causes a risk of less serious injury.
But as always, the best practice is to get 364 days or less on each count, when that is possible.
Crime Involving Moral Turpitude (CIMT)
No conviction of 273a(a) or (b) should be held a CIMT because the minimum conduct is negligence and the statute is indivisible.2Moral turpitude requires reprehensible conduct with a minimum of reckless intent, or moral depravity. Negligent conduct never is a CIMT.
Section 273a is not a CIMT because the minimum conduct requires only negligence, and the statute is indivisible. See above endnote for discussion of Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016), which held that that because felony § 273a(a) is an indivisible statute that can be committed by negligence, no conviction can be held a COV. Section 273a can be violated by wholly passive conduct, or good faith but unreasonable belief that the conduct is in the child’s best interest: “the statute does not necessarily imply a general readiness to do evil or any moral depravity.” People v. Sanders (1992) 10 Cal.App. 4th 1268, 1272-1275 (as a state CIMT case finding that 273a is not a CIMT, not controlling but informative). See also, e.g., People v. Pointer (1984) 151 Cal.App.3d 1128, 1131-1134 (macrobiotic diet resulting in severe malnutrition); and Walker v. Superior Court (1988) 47 Cal.3d 112, People v. Rippenberger (1991) 231 Cal.App.3d 1667 (273a includes failure to seek care for sincere religious reasons).
Other Removal Grounds
Crime of child abuse.
Defenders must assume that 273a(a) is a deportable crime of child abuse. See Advice for how to respond to a 273a(a) charge.
But imm advocates can fight this categorization, and the Ninth Circuit may take up the issue.3Advocates should argue that 273a(a) is not a crime of child abuse. They can argue, among other things, that child endangerment is distinct from child abuse, neglect, or abandonment. See sample brief at www.ilrc.org/crimes. It is very possible that the Ninth Circuit will consider this en banc, as it voted to earlier before the case at issue was mooted out. In the Martinez-Cedillo case, the Ninth Circuit had held in a panel decision by Judge Bybee that § 273a(a) is a deportable crime of child abuse. The Ninth Circuit granted a petition for rehearing en banc, and designated the decision as non-precedential. Mr. Martinez-Cedillo died soon after that, and the court dismissed the appeal as moot and vacated the panel decision. See Martinez-Cedillo v Sessions, 869 F.3d 979 (9th Cir. 2018), rehearing en banc granted in Martinez-Cedillo v. Barr 918 F.3d 601 (9th Cir. March 18, 2019), appeal dismissed and panel decision vacated in Martinez-Cedillo v. Barr, 923 F.3d 1162 (9th Cir. May 16, 2019). The court may be willing to take up the issue again.
Advice and Comments
Responding to 273a(a) charge. Consider 273a(b) and/or an immigration-neutral felony or misdemeanor that will not cause deportability for child abuse, e.g., 460(a), 594, or, with sentence of 364 days or less, PC 32 or 136.1(b)(1) (trying to persuade another adult not to call police).
Instead of 273a(a), consider age-neutral offense such as 243, 245 or other (but keep minor age out of the ROC to prevent mistaken charge of child abuse). See endnote at PC 243(a) regarding age-neutral offenses.4The BIA and courts admit that the categorical approach applies to determining whether an offense is a deportable “crime of child abuse.” Under that test, an age-neutral offense can’t possibly be divisible because the statute does not set out alternative elements, one of which requires proof of minor age. Because the statute is overbroad and indivisible, it is not a crime of child abuse for any immigration purpose, regardless of information in the ROC. See discussion at ILRC, Case Update: Domestic Violence Deportation Ground (August 2019) at www.ilrc.org/crimes.
Emphasize to prosecution that even misd 273a(a) will be charged as a crime of child abuse, and thus can cause the child to permanently lose their LPR or undocumented parent.5Even misdemeanor § 273a(a) can have terrible impact, depending on the case. The conviction will cause an LPR or refugee parent (and many others) to become deportable, so that they can be detained and held hundreds of miles away, and deported. A discretionary waiver of the deportation may or may not be available, depending on individual circumstances. The conviction will bar an undocumented parent from applying for non-LPR cancellation to stay to care for a USC or LPR child, even if it is clear that the parent’s deportation will cause the child to suffer “exceptional and extremely unusual hardship.” See 8 USC § 1229b(b)(1) and Relief Toolkit, “Cancellation for Non-Permanent Residents” at https://www.ilrc.org/sites/default/files/resources/relief_toolkit-20180827.pdf. If available, PC 1001 misdemeanor pretrial diversion is not a conviction.
Adam Walsh Act. If ROC shows sexual conduct was involved, this might block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.