If a person who is not a U.S. citizen commits a crime within the United States, their crime will be investigated by Executive Office for Immigration Review (EOIR), and charges may be brought by an immigration judge. For non-U.S. citizens, criminal law is closely intertwined with immigration law. If an immigrant disagrees with a judge's decision, they have the option to appeal to the Board of Immigration Appeals to contest it.
Case Overview
The respondent was convicted by a Texas state court for attempted injury to a child and was deemed deportable for committing a crime related to child abuse, neglect, or endangerment. It is important to note that the attempt had a sexual context involving a 10-year-old child. According to immigration law, an immigrant who commits any offense involving intentional, knowing, reckless, or criminally negligent actions or inactions that constitute child abuse or cause harm to a child's physical or mental well-being, including sexual abuse or exploitation, is subject to deportation.
The defendant filed two motions against the immigration judge's decision, both of which were denied. He then appealed to the Board of Immigration Appeals. In his appeal, he contests his deportation on two grounds. First, he argues that the crime of child abuse does not include attempts, as they are not explicitly mentioned in the legislative text. Second, he claims that the attempt to cause harm does not imply a sufficient likelihood of harm to qualify as a crime of child abuse.
The Board’s decision to reject the appeal is significant for the interpretation of legislative language and the approach to ambiguous crimes within the context of immigration law.
Key Findings
1. Inclusion of Attempted Crimes
The analysis by the Board of Immigration Appeals confirms that the legislative framework of section 237(a)(2)(E)(i) of the INA does not exclude attempted crimes from being considered as offenses against children. The law defines crimes against children in broad terms, encompassing actions or inactions that constitute child abuse. The Board recognized that, although the word "attempt"; is not explicitly mentioned in the statute, this does not exclude such crimes. This conclusion aligns with the majority opinion that the legislative structure and history of section 237(a)(2)(E)(i) of the INA do not exclude attempts.
The provisions in section 237 that explicitly include attempts pertain to deportation on various grounds, including controlled substances, firearms offenses, and different crimes related to national security, which are distinct from one another and from crimes involving child abuse. Nonetheless, the Board ruled that even though the word "attempt" is not included in the section on children, it is implicitly understood to be included.
The fact that the word "attempt" was added by Congress in other sections only highlights that it was specifically included as a particular emphasis to eliminate any doubt that these sections cover such crimes.
2. Conceptual Distinction Between Attempts and Completed Crimes
The Board's decision highlights an important distinction: while the law does not explicitly include attempts, it also does not exclude them. This approach is based on a broader context of legislative interpretation. The Board emphasized that attempted crimes are not fundamentally different from completed crimes; both can pose a significant threat to children. This perspective aligns with the Fifth Circuit's decision in the Vargas case and previous Board rulings on ambiguous crimes, indicating that attempted crimes can fall under the definition of offenses against children if they meet the legislative definitions and intentions.
3. Reasonable Probability of Harm
Attempted injury to a child under sections 15.01(a) and 22.04(a)(1) of the Texas Penal Code constitutes a crime of child abuse. Regardless of whether the attempt resulted in actual harm, the danger it poses to the child at the time of the attempt is what matters. As the Fifth Circuit recognized, “luck plays a role in whether individuals engaging in equally culpable actions are successful.” It would contradict the very purpose of the grounds for deportation due to child abuse—and common sense in general—to reward defendants who come dangerously close to causing actual harm to a child but are stopped solely due to external intervention.
The Board considered the respondent's argument that a crime against children should be based on the "probability of harm" to the child. The Board rejected this argument, stating that the "reasonable probability"; analysis does not apply to such crimes. In this case, the respondent was convicted of attempted injury to a child, not merely a threat, which is a more serious offense. Therefore, additional analysis of the likelihood of harm is not applicable.
The Board's decision highlights the importance of interpreting legislation within immigration law. By affirming that an attempted injury to a child can be considered a crime against children, the Board underscores the responsibility of individuals involved in such offenses, even if they are only attempts, according to immigration law. The decision reflects a nuanced understanding of legislative language and aligns with broader principles regarding ambiguous crimes.
Every immigration case is unique. If you are unsure which specific regulations apply to your situation or if you find yourself in a difficult position and are unsure of the next steps, we recommend consulting an experienced immigration attorney.
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