Summary
This Ninth Circuit opinion addresses consolidated petitions for review by Martin Leon-Briviesca and Sotero Rivera-Mendoza concerning whether their state convictions qualified as crimes of child abuse, child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). The panel held that the statute encompasses child endangerment, requires at least criminal negligence and specified endangerment-related conduct, and applies to persons who are not parents or legal guardians. The court concluded that both petitioners’ convictions fell within the statute; Judge Bumatay concurred in the judgment but disagreed with the majority’s unitary-concept analysis.
Topics
Practice areas
Questions Presented
- Whether 8 U.S.C. § 1227(a)(2)(E)(i) encompasses child-endangerment offenses where the child is placed at substantial risk of physical or mental harm but is not actually injured.
- What mens rea and actus reus a state conviction must require to qualify as a crime of child abuse, child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i).
- Whether § 1227(a)(2)(E)(i) applies to offenses committed by a person who is not the child's parent or legal guardian.
- Whether Rivera-Mendoza's conviction under Oregon Revised Statute § 163.545 categorically qualifies under § 1227(a)(2)(E)(i).
Holdings
- The best reading of 8 U.S.C. § 1227(a)(2)(E)(i) encompasses child-endangerment offenses even when the child is not actually injured.
- A state conviction qualifies under § 1227(a)(2)(E)(i) only if the offense requires a mens rea of at least criminal negligence.
- The offense must require placing a child in a situation presenting a substantial risk of physical or mental harm, in a manner constituting a gross deviation from accepted standards.
- Section 1227(a)(2)(E)(i) applies to a person who is neither the child's parent nor legal guardian.
- A conviction under Oregon Revised Statute § 163.545 categorically qualifies as a crime of child abuse, child neglect, or child abandonment under § 1227(a)(2)(E)(i), making Rivera-Mendoza ineligible for cancellation of removal.
Key quotations
“We conclude that the best reading of § 1227(a)(2)(E)(i), is that: (1) it covers child endangerment; (2) requires a mens rea of at least criminal negligence; (3) requires an actus reus of placing a child in a situation where the child’s person or health is endangered under circumstances or conditions likely to produce bodily or mental harm; and (4) applies to a defendant who is not the child’s parent or guardian.” (6-7)
“In sum, we hold that a state conviction comes within § 1227 if it requires a mens rea of at least criminal negligence.” (26)
“We affirm that for child endangerment to be covered by § 1227 there must be an actus reus of placing a child in a situation presenting a substantial risk of harm to a child’s physical or mental health.” (32)
“We conclude that the best reading of § 1227 is that: (a) it covers child endangerment; (b) requires a mens rea of at least criminal negligence and an actus reus of creating a real danger of physical or mental harm to the child; and (c) applies to individuals who are neither the child’s parent or guardian.” (43)
Factual background
Rivera-Mendoza, a native and citizen of Mexico, entered the United States in 2000 and lived in Oregon with his two United States citizen children and their mother. In 2010, he pleaded guilty to two counts of child neglect under Oregon Revised Statute § 163.545. The record did not disclose the factual basis for the convictions, although his brief referenced a police report alleging that he and his wife left their sleeping two- and three-year-old children unattended while they went to a store.
Procedural history
Rivera-Mendoza pleaded guilty in Oregon state court to two counts of child neglect under Oregon Revised Statute § 163.545. In removal proceedings, the Immigration Judge pretermitted his application for cancellation of removal because the convictions constituted crimes of child abuse, child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i), later denied his remaining claims for relief, and granted voluntary departure. The BIA affirmed. After an earlier Ninth Circuit proceeding was remanded to the BIA for further consideration, the BIA issued a published decision holding that the Oregon statute categorically qualified as a disqualifying offense, and Rivera-Mendoza timely petitioned for review.