Matter of Velazquez-Herrera

• Decision Date: 20 May 2008
• Docket Number: Interim Decision No. 3610.,File A35 874 084.
• Parties: Matter of Victor Ramon VELAZQUEZ-HERRERA, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 503

Matter of Victor Ramon VELAZQUEZ-HERRERA, Respondent.

Interim Decision No. 3610.

File A35 874 084 - Seattle.

Board of Immigration Appeals.

Decided May 20, 2008.

(1) For purposes of the ground of removal set forth at section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), the term "crime of child abuse" means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person's physical or mental well-being, including sexual abuse or exploitation.

(2) Whether an alien is removable on the basis of a conviction for a "crime of child abuse" is determined by the elements of the alien's offense, as reflected in the statutory definition of the crime or admissible portions of the conviction record.

FOR RESPONDENT: Matthew B. Weber, Miami, Florida.

AMICI CURIAE:¹ Ann Benson, Esquire, Seattle, Washington.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rhonda M. Dent, Appellate Counsel.

BEFORE: Board Panel: COLE and HESS, Board Members. Concurring Opinion: PAULEY, Board Member.

COLE, Board Member:

In a decision dated November 27, 2002, an Immigration Judge ordered the respondent removed from the United States as an alien convicted of a "crime of child abuse" under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), on the basis of his 2001 Washington conviction for assault in the fourth degree. On April 14, 2004, we issued a brief decision adopting and affirming the Immigration Judge's order of removal, and the respondent thereafter filed a petition for review with the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit has now remanded the matter to "allow [the Board] an opportunity to issue a precedential opinion regarding the definition of `child abuse' under 8 U.S.C. § 1227(a)(2)(E)(i)" and also to "determine whether the full range of conduct proscribed by Washington's fourth degree assault statute falls within the definition of `child abuse.'" Velazquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006). Both parties filed additional briefs on remand, amici curiae submitted a brief in support of the respondent, and a three-member panel of the Board heard oral argument on June 28, 2007. In consideration of the Ninth Circuit's mandate, the intervening precedents of that circuit, the record of conviction, and the arguments of the parties, we will vacate our decision of April 14, 2004, sustain the respondent's appeal, and terminate the removal proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico and a lawful permanent resident of the United States. In May 1998 a criminal information was filed in the Superior Court of Clallam County, Washington, charging the respondent with first-degree child molestation in violation of section 9A.44.083 of the Washington Revised Code. That charge was later withdrawn, however, and in September of 1999 the respondent was convicted of fourth-degree assault in violation of section 9A.36.041 of the Washington Revised Code, under an amended information charging that he "did intentionally assault another, to-wit: D.E.C., a female child whose date of birth is 08/18/1992, who was five years old at the time." For that offense the respondent was sentenced to a term of imprisonment of 365 days.

In October 1999 the former Immigration and Naturalization Service, now the Department of Homeland Security ("DHS"), initiated removal proceedings on the basis of the respondent's conviction, charging him with deportability as an alien convicted of a "crime of violence" aggravated felony pursuant to sections 101(a)(43)(F) and 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) (Supp. II 1996). Shortly thereafter the respondent filed a motion with the Clallam County Superior Court requesting permission to withdraw his guilty plea on the ground that he had not been properly advised of its potential immigration consequences. On December 31, 1999, the Superior Court granted the motion and vacated the respondent's conviction. In response to the vacatur of the respondent's conviction, the Immigration Judge entered a January 12, 2000, decision terminating the removal proceedings, and we affirmed that decision on January 10, 2001.

In November 2001 the respondent was once again convicted of fourth-degree assault, pursuant to a plea agreement that identified the elements of his offense by reference to the amended information that had been filed in September 1999. As noted previously, that amended information charged the respondent with assaulting a 5-year-old child. For this revised offense, the Superior Court sentenced the respondent to 360 days in jail, a term of imprisonment that was less than that required to support an aggravated felony charge under section 101(a)(43)(F) of the Act.

Nevertheless, in March 2002 the DHS initiated the present removal proceedings, charging that the respondent's November 2001 conviction was for a "crime of child abuse" under section 237(a)(2)(E)(i) of the Act.² Shortly thereafter the respondent returned to the Clallam County Superior Court, and in May 2002 the prosecuting attorney filed a "third amended information" with that court, in which all references to the juvenile status of the respondent's victim had been crossed out by hand. In September 2002, moreover, a superseding third amended information was filed with the Superior Court to replace the hand-altered document that had been submitted earlier. This third amended information was back-dated to November 9, 2001, and was accepted into the conviction record by the Superior Court.

After a number of evidentiary hearings, the Immigration Judge determined that he was obliged to accept the third amended information into the record, despite his concern that the State criminal proceedings had been manipulated in order to affect the immigration consequences of the respondent's crime.³ Having accepted the third amended information into the record, the Immigration Judge nonetheless sustained the "crime of child abuse" charge based on his determination that "assault on a child is abuse, even if it is only a minor touching . . . because of the unfair advantage that an adult has over a child." In support of his determination that the DHS had proven the existence of a conviction for "child abuse," the Immigration Judge relied on two pieces of evidence: (1) the trial court's judgment, which specified that the respondent was obliged to pay $0 in restitution to "D.E.C., child victim herein"; and (2) the trial court's "no contact" order, issued at the time of sentencing in November 2001, which ordered the respondent to have no contact with the victim and her mother, and which identified the victim's date of birth as "8/18/92," making her 9 years old at the time of sentencing and 5 years old at the time of the underlying offense. After sustaining the "crime of child abuse" charge, the Immigration Judge then denied the respondent's application for cancellation of removal in the exercise of discretion and ordered him removed to Mexico.

The respondent appealed, and we adopted and affirmed the Immigration Judge's decision in a brief order, but the Ninth Circuit remanded the matter, concluding that we had failed to adopt a "`statutory interpretation [of the term "crime of child abuse"] that carries the "force of law."'" Velazquez-Herrera v. Gonzales, supra, at 783 (quoting Miranda Alvarado v. Gonzales, 449 F.3d 915, 922 (9th Cir. 2006)). But see Ochieng v. Mukasey, 520 F.3d 1110, 1114-15 (10th Cir. 2008) (holding, in accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), that the definition of "child abuse" set forth in dicta in a precedent decision of this Board was entitled to deference because it was based on a permissible construction of the statute); Loeza-Dominguez v. Gonzales, 428 F.3d 1156 (8th Cir. 2005) (same). In this regard, the Ninth Circuit observed that the Board had never formally defined the concept of "child abuse" in a precedent decision, except in dicta, and that the Immigration Judge's opinion, which equated the concept of "child abuse" with any assault committed against a child, embodied a broader understanding of the concept than the Board had articulated. On remand and at oral argument, therefore, we have requested that the parties espouse a position regarding the proper meaning of the term "crime of child abuse" and identify the sources of law that support their understanding of the term.

II. ISSUES

The question presented is whether the respondent's Washington conviction for fourth-degree assault constitutes a valid factual predicate for a "crime of child abuse" charge under section 237(a)(2)(E)(i) of the Act. In order to settle that ultimate question, we must resolve two subsidiary questions. First, we must decide what the term "crime of child abuse" means in the context of section 237(a)(2)(E)(i) of the Act. And having done so, we must then decide whether the evidence contained in the present administrative record is sufficient to establish that the respondent was convicted of conduct falling within the scope of that term.

III. APPLICABLE LAW

Section 237(a) of the Immigration and Nationality Act provides as follows, in pertinent part:

Classes of Deportable Aliens

Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

. . . .

(2) Criminal offenses

. . . .

(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and [sic]

(i) Domestic violence, stalking, and child abuse

Any alien who at any time after admission is convicted of a crime of...