BIA Decision Shows Congress Needs to Revise the Grounds for Removal

A modest proposal: two misdemeanors or one felony, and you are removable

By Andrew R. Arthur on December 29, 2020

On Tuesday, the Board of Immigration Appeals (BIA) issued a decision in Matter of Rivera-Mendoza. It held that child neglect in the second degree under Oregon law is categorically a crime subjecting an alien to removal under section 237 of the Immigration and Nationality Act (INA), and barring the alien from cancellation of removal under section 240A(b) of the INA (42B cancellation). What the case really shows, however, is that the grounds of removal are in need of a refresh. A model for doing so is already in the INA.

First, here is what the Oregon provision at issue states:

A person having custody or control of a child under 10 years of age commits the crime of child neglect in the second degree if, with criminal negligence, the person leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child. [Emphasis added.]

The crime makes perfect sense. If you are responsible for a child of tender years, you either need to keep tabs on the kid, or make sure that someone else does. But, children wander off, or go out and play with their friends, and Oregon has struck a reasonable balance between keeping youngsters under constant watch and ignoring them to their peril.

The INA is fairly reasonable on this issue, as well. Aliens who commit crimes of "child abuse, child neglect, or child abandonment" are deportable. These offenses are malum in se in the law – that is, they are illegal because they inherently wrong, and not just because the state says they are illegal (like not having your car inspected annually).

When it came to removability for such an offense, Congress, however, painted with a broad brush, logically expecting reasonable adjudicators to apply these terms, well, reasonably.

It likely expected too much, because the courts have parsed the laws as they relate to immigration in such a way that places a heavy burden on administrative adjudicators – in this case, immigration judges (IJs) and the BIA.

I have already written (in unflattering terms) about the method they are expected to use to do so: the so-called categorical approach. It was initially created for federal judges to apply in assessing whether recidivist criminals deserve more stringent sentences for their crimes, but it was quickly applied to interpretations of the criminal grounds of removability and bars to relief in the INA.

Overly simply, here's how it works: When Congress identifies a category of crime that has immigration consequences, the court must determine the least serious acts for which the alien could have been convicted. It then must compare them to a "generic" definition of the crime, and determine whether the conviction matches that definition.

If the conviction was for acts that are the same or even more specifically defined than the generic definition, there is a categorical match, and the alien faces immigration consequences. If not, the alien is a criminal, but not removable.

Conviction documents are often unclear, however, or sometimes inaccessible (which is especially an issue with the passage of time). And often – as here – the IJ or the BIA has to do a deep dive into state court decisions to determine how the jurisdiction itself interprets the offense in question.

Applying the categorical approach can be a time-consuming effort, and with 1,281,586 cases (through November) on the dockets of the nation's 520 IJs (through October), unreasonably burdensome. That burden exacerbates backlogs in the immigration courts, and likely explains (in part) why the average removal case current takes 849 days to complete (with a high of more than three years in Colorado).

It is likely unfair to place all of the blame on the courts for this miasma. Most crimes in our republic are prosecuted at the state and local level, and state laws are written and applied to respond to criminality – not to impose immigration consequences on offenders. To ensure that there is objectivity in the removal process, some rules are needed to apply the INA to those state convictions.

But, there has to be a better way to achieve that goal. Which brings me back to Matter of Rivera-Mendoza.

The respondent there (a Mexican national who had entered illegally) was convicted of two counts of child neglect in the second degree in April 2012, and DHS served him with a Notice to Appear (the charging document in removal proceedings) the same day.

He applied for 42B – a very restrictive form of relief allowing aliens in the United States illegally to obtain green cards based on hardship to their relatives if they were removed. The IJ made fairly quick work of the case, finding that the respondent was removable for entering illegally and that his conviction was "categorically" a crime of child abuse, which barred him from 42B, in November of that year.

The respondent appealed the IJ's decision to the BIA. For reasons that are unclear, it took just days less than four years for the BIA to issue its (first) decision, but in any event, it dismissed respondent's appeal.

The respondent then filed a petition for review of that decision, and was still in the United States illegally more than two years later when the Ninth Circuit remanded the matter (at the government's request, but that is a different issue) in July 2019 for the BIA to explain its logic.

And, of course, he is still here. Finally, as noted, on Tuesday the BIA issued its second decision.

The BIA has previously held that "crime of child abuse" is a "unitary concept", and includes crimes of child neglect and child abandonment (all of which, as the foregoing reveals, Congress has made deportable offenses). In other words, the same essential wrongdoing underpins each. Congress was wise to include the laundry list, however, given the differences in how the several states define the same crime.

Under BIA precedent, a "crime of child abuse" includes "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 . . . ."

The risk of harm to the child is the key element for an offense to trigger removal on this ground, and therefore the crime must be one in which there is a "likelihood" or "reasonable probability" that the child will suffer harm, as opposed to a "mere possibility" or the "potential for harm". The Ninth Circuit has already accepted the BIA's "reasonable possibility" standard of harm for such crimes of child abuse.

Given all of this, it does not take much analysis to see that the Oregon offense for which respondent was convicted fits the bill.

Or, so you would think. Instead, the BIA spent almost three pages examining the elements of the offense and how those elements have been interpreted by Oregon state courts, and contrasting them with contrary Ninth Circuit case law – including its distinction between crimes of child abuse in which there is a "reasonable possibility" that harm could occur on the one hand and a "reasonable foreseeability" of harm occurring on the other.

The good news is that an IJ can short circuit this analysis in the future for any other alien convicted of child neglect in the second degree under Oregon law by simply citing the BIA's latest (precedent) decision in Matter of Rivera-Mendoza (assuming that decision is not overturned by the Ninth Circuit during a second go-round).

The bad news is that this seven-page decision neatly encapsulates the hoops an IJ must jump through to assess the immigration consequences of any criminal offense. To reiterate, the court must: (1) identify the criminal offense; (2) determine the elements of that offense; (3) see how state courts have interpreted those elements; (4) find the generic definition of the crime identified as a removable offense; and (5) compare the elements in the crime for which the alien was convicted to the generic definition.

And even if the IJ determines that the respondent is removable and/or not eligible for relief, the respondent can appeal that decision to the BIA as a matter of right and to the circuit court on a petition for review. It has been more than eight years and seven months since Rivera-Mendoza was convicted, and his case is probably not over yet.

Nor is the glacial pace of such cases the only issue. Our law is premised on the concept that you know (or should know) the consequences of any potential criminal activity before you commit the act. Prison is almost certain if you kill another person, for example. An alien, however, cannot always be sure whether removal will result from criminal activity.

As an IJ, I once had a respondent complain that he did not know that selling drugs could cost him his green card (he suggested that DHS provide him a pamphlet of crimes that he could not commit). That is an extreme example, but the underlying premise is not as odd as it sounds, at least given the current regime that exists for determining removability.

Your logical response is that we do not want aliens committing any crimes, and don't want criminal aliens coming to the United States. But, there are lots of crimes that aliens can commit without immigration consequences now.

In fact, the INA is rather limited (all things considered) in its applicability on this point. For example, a firearms conviction does not render an alien inadmissible. DUI may be considered in the exercise of discretion or in determining whether an alien has demonstrated good moral character, but it is not a ground of removal per se.

Congress could address these problems by simplifying the grounds of removal. It already has models for doing so.

Temporary protected status (TPS) under section 244 of the INA is available to nationals of certain designated countries, but is explicitly barred for aliens who have been convicted of any felony or two misdemeanors committed in the United States. Aliens are barred from receiving Deferred Action for Childhood Arrivals (DACA) if they have been convicted of a felony, a "significant misdemeanor", or three other misdemeanors.

The TPS exclusion likely strikes the right balance as it addresses crimes committed in the United States (note that both TPS and DACA provide benefits to aliens who are removable on criminal grounds now). The same bars could also be a consequence of foreign convictions. And, if Congress were concerned that the one felony/two misdemeanor rule could inadvertently have harsh consequences, it could always provide a discretionary waiver in exceptional cases – one unreviewable at the circuit-court level.

Best of all, such a rule both requires only a minimum of legal analysis and can therefore be applied expeditiously (reducing the backlog), and places aliens on notice that criminal convictions have immigration consequences. DHS could actually give aliens a pamphlet of do's and don'ts with their green cards, as the referenced respondent suggested all those years ago.