736 F.3d 903 (10th Cir. 2013), 11-9539, Ibarra v. Holder

Docket Nº:11-9539.
Citation:736 F.3d 903
Opinion Judge:SEYMOUR, Circuit Judge.
Party Name:Elia IBARRA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
Attorney:Mari Matsumoto (Mark R. Barr and Laura L. Lichter on the briefs) of Lichter Immigration, Denver, CO, for Petitioner. Lisa Morinelli, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C. (Tony West, Assistant Attorney General, Civil Divisio...
Judge Panel:Before HOLMES, SEYMOUR, and MURPHY, Circuit Judges.
Case Date:July 12, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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736 F.3d 903 (10th Cir. 2013)

Elia IBARRA, Petitioner,

v.

Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11-9539.

United States Court of Appeals, Tenth Circuit.

July 12, 2013

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Mari Matsumoto (Mark R. Barr and Laura L. Lichter on the briefs) of Lichter Immigration, Denver, CO, for Petitioner.

Lisa Morinelli, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C. (Tony West, Assistant Attorney General, Civil Division; and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., with her on the brief), for Respondent.

Before HOLMES, SEYMOUR, and MURPHY, Circuit Judges.

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SEYMOUR, Circuit Judge.

Elia Ibarra Rivas petitions for review of a Board of Immigration Appeals decision that found her Colorado conviction for " child abuse— negligence— no injury" to categorically constitute a " crime of child abuse, child neglect, or child abandonment" under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1227(a)(2)(E)(i).1 Because we conclude that Ms. Ibarra's Colorado conviction is not a " crime of child abuse, child neglect, or child abandonment" within the meaning of the INA, we GRANT her petition for review, REVERSE the decision of the BIA, and REMAND to the Immigration Court to reconsider Ms. Ibarra's application for discretionary cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).

I.

Elia Ibarra Rivas was brought to this country from Mexico in 1985 at the age of four. She has lived here for twenty-eight years, has paid federal income taxes, and is the mother of seven children, all U.S. citizens. Although her father was a lawful permanent resident, Ms. Ibarra was never naturalized while he was alive. At the time of the proceedings before the Immigration Judge (IJ), she had worked for the same employer for ten years.

In 2004, Ms. Ibarra pled guilty to one count of " child abuse— negligence— no injury," a class three misdemeanor, in violation of COLO.REV.STAT. §§ 18-6-401(1)(a), (7)(b)(II).2 The events leading up to that conviction are not entirely clear, but it appears undisputed that Ms. Ibarra's children were unintentionally left home alone one evening while she was at work. 3 The oldest child was ten at the time, and no child was injured.

In 2008, the Department of Homeland Security (DHS) initiated removal proceedings against Ms. Ibarra. She conceded removability under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), which makes non-citizens living in the U.S. without being admitted or paroled removable, but she asked the Immigration Court for discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1). That section provides for discretionary relief from removal when the applicant:

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(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2); 1227(a)(2), or 1227(a)(3) of this title ...; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or ... lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b)(1). The IJ said he would be " inclined to think that the discretionary factors would tilt in her favor and that the hardship factors would be satisfied on the record," Admin. Rec. at 118, but because he also decided that Ms. Ibarra's Colorado conviction categorically constituted a " crime of child abuse" under 8 U.S.C. § 1227(a)(2)(E)(i), he found Ms. Ibarra ineligible for discretionary cancellation of removal. The Board of Immigration Appeals (BIA) affirmed, holding that a conviction for " criminally negligent child endangerment" that does not result in harm or injury " categorically" qualifies as a " crime of child abuse, neglect, or abandonment" under the federal statute. Admin. Rec. at 8.

On appeal, Ms. Ibarra contends the BIA's current interpretation of " crime of child abuse, neglect, and abandonment" to extend to the full range of conduct criminalized by COLO.REV.STAT. §§ 18-6-401(1)(a), (7)(b)(II) is an impermissible and overbroad construction of 8 U.S.C. § 1227(a)(2)(E)(i). For the reasons set out below, we agree. It follows that Ms. Ibarra's conviction is not a " crime of child abuse, child neglect, or child abandonment" that would render her ineligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).

II.

A. The Immigration Statute

The INA in 8 U.S.C. § 1229b(b)(1)(C) pretermits the possibility of discretionary cancellation of removal if a noncitizen has been convicted of one of the crimes listed in 8 U.S.C. § 1227(a)(2). In cases like Ms. Ibarra's, the crimes listed pretermit eligibility for discretionary relief. Notably, however, a conviction for one of the listed crimes is also grounds for deportation of lawful permanent residents. 8 U.S.C. § 1227(a); see Judulang v. Holder, __ U.S. __, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011).

The crimes listed in § 1227(a)(2) as meriting these serious immigration consequences are crimes of moral turpitude; aggravated felonies; high speed flight from an immigration checkpoint; failure to register as a sex offender; controlled substance offenses; some firearm offenses; espionage, treason, threatening the president, and similar political crimes; human trafficking; and, relevant here, " [c]rimes of domestic violence, stalking, or violation of protection order, crimes against children...." § 1227(a)(2)(A)-(F). The " crimes against children" provision was placed into § 1227(a)(2) in 1996, pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act (" IIRIRA" ). Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-640. The provision states in relevant part:

(E)(i) Domestic violence, stalking, and child abuse. Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.

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8 U.S.C. § 1227(a)(2)(E)(i). What Congress meant when it said " crime of child abuse, child neglect, or child abandonment" is the question we are asked to decide. Its answer determines not just whether removable immigrants like Ms. Ibarra are ineligible for discretionary relief, but also which lawful permanent residents may be deported. 8 U.S.C. § 1227(a).

The BIA has interpreted " crime of child abuse, child neglect, or child abandonment" broadly to include criminally negligent omissions which endanger children by creating a reasonable probability of harm but which do not lead to injury. Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (2008); Matter of Soram, 25 I. & N. Dec. 378, 384-85 (2010). We agree with Ms. Ibarra that this definition is an impermissible interpretation of the federal statute and that her conviction is not a " crime of child abuse, neglect, or abandonment" under any permissible interpretation of § 1227(a)(2)(E)(i).

B. The Categorical Approach and the Colorado Crime of Conviction

Before we discuss why we reject the BIA's current definition of " crime of child abuse, child neglect, and child abandonment," we pause to explain briefly the " categorical approach" used to decide whether state convictions qualify as removable crimes under the INA. The categorical approach first requires ignoring a petitioner's actual conduct and examining only the minimum conduct needed for a conviction under the relevant state law. Efagene v. Holder, 642 F.3d 918, 921 (10th Cir.2011) (citing Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If every conviction under a given state statute requires all the elements of the generic federal crime, then the state conviction is categorically a removable offense. Moncrieffe v. Holder, 569 U.S. __, 133 S.Ct. 1678, 1680, 185 L.Ed.2d 727 (2013). If some conduct that would be criminal under the state statute fits within the definition of the federal predicate crime but some does not, a conviction under that state statute merits the modified categorical approach to determine whether the petitioner's actual conduct involved " all the elements of [the] generic" crime. Taylor, 495 U.S. at 602, 110 S.Ct. 2143; see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Thus, " [w]hen the underlying statute reaches a broad range of conduct, some of which would constitute [the generic crime] and some of which would not, courts resolve the ambiguity by consulting reliable judicial records, such as the charging document, plea agreement, or plea colloquy." Vargas v. Dep't of Homeland Sec., 451 F.3d 1105, 1109 (10th Cir.2006) (internal quotation marks omitted).

The statute under which Ms. Ibarra pled guilty is COLO.REV.STAT. § 18-6-401(1)(a), (7)(b)(II). Subsection (1)(a) first provides:

A person commits child abuse if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

§ 18-6-401(1)(a). This is a disjunctive list, containing three types of prohibited conduct:

• Causing injury to a child's life or health;

• Permitting a child to be unreasonably...

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