Because Mr. Rivera-Mendoza had been convicted of a disqualifying offense under section 237(a)(2) of the INA, the Immigration Judge (“IJ”) determined that he was statutorily ineligible for cancellation of removal.
Falls Church, Virginia – On December 22, 2020, the Board of Immigration Appeals (“BIA”) decided Matter of Sotero Rivera-Mendoza, in which it held that the crime for child neglect in the second degree under section 163.545(1) of the Oregon Revised Statutes (“ORS”) is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2), warranting removal.
OR Rev Stat § 163.545(1) states that “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.”
Sotero Rivera-Mendoza, a foreign national from Mexico, was convicted of two counts of child neglect in the second degree under this section on April 9, 2012. The Department of Homeland Security (“DHS”) then charged Mr. Rivera-Mendoza with removability under Section 237 of the INA which renders any foreign national “convicted of a crime of domestic violence, crime of stalking, or a crime of child abuse, child neglect, or child abandonment…” at any time after admission. During his appearance in Immigration Court, Mr. Rivera-Mendoza conceded removability and applied for cancellation of removal under 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1) which deems foreign nationals eligible for cancellation of removal if they can establish, among other things, that prior to being ordered removed they have not been convicted of an offense covered under 8 U. S. C. § 212(a)(2), 237(a)(2), or 237(a)(3).
Because Mr. Rivera-Mendoza had been convicted of a disqualifying offense under section 237(a)(2) of the INA, the Immigration Judge (“IJ”) determined that he was statutorily ineligible for cancellation of removal pursuant to section 240A(b)(1)(C) of the INA. Mr. Rivera-Mendoza was ordered removed under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as a foreign national present in the United States without being admitted or paroled, on November 16, 2012.
On appeal, the BIA upheld the IJ’s determination that Mr. Rivera-Mendoza was statutorily ineligible for cancellation of removal. He petitioned this decision for review by the Court of Appeals for the Ninth Circuit, who remanded the case for further consideration of the respondent’s eligibility for cancellation of removal and prompted the Court to “further explain its determination that the [respondent’s] second-degree neglect conviction . . . is a categorical child abuse crime under [section 237(a)(2)(E)(i) of the Act].”
To resolve this appeal, the BIA employed the categorical approach to determine if the offense defined in the Oregon statute categorically fits within the generic definition of a “crime of child
abuse.” While the Ninth Circuit finds that the definition of a “crime of child abuse” previously articulated by the Board to be ambiguous regarding the risk of harm to a child, the Board concluded that the offense in the Matter of Sotero Rivera-Mendoza is categorically a “crime of child abuse, child neglect, or child abandonment and dismissed the appeal, warranting removal.
If you or a loved one are a foreign national in the United States and have recently been arrested and charged with a criminal crime such as the one discussed above, please be sure to contact The Law Office of Eric M. Mark to schedule a free 10-minute consultation with an expert in both criminal and immigration law who will help you pursue the best possible outcome in your case.