Safe Havens

(B)  Child Abuse.  “Child abuse” is a broad term, whose meaning is not very clear.[1183]  The term “child” has a particular definition under immigration law,[1184]  but since it states it generally means an unmarried person under 21 years of age, it is unlikely to be what Congress meant in the present context.  A better definition of “child” for this purpose would be: “At common law one who had not attained the age of fourteen years, though the meaning now varies in different statutes.”[1185]  “Child abuse” has been defined as “any form of cruelty to a child’s physical, moral or mental well-being.  Also used to describe form of sexual attack which may or may not amount to rape.  Such acts are criminal offenses in most states.”[1186]

Child abuse also encompasses “inactions” that do not require physical contact with the child.[1187]  Therefore, child abuse convictions, where this is true of the essential elements of the crime, should not be considered crimes of violence and are therefore not aggravated felonies under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).[1188]

            Although United States v. Pallares-Galan[1189] did not specifically deal with the domestic violence ground of removability, the case has significant implications for domestic violence ground offenses of “child abuse.” 

            The domestic violence deportation ground provides that: “[a]ny 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.”[1190]  The definition the Ninth Circuit gave the term “abuse” in the immigration context of an aggravated felony sexual abuse of a minor case suggests that the same definition should be adopted for the word “abuse” in the domestic violence ground of removal.

            Adopting the same definition, a noncitizen charged with committing a child abuse offense could be removable only if the government demonstrated that the noncitizen plead to conduct that injured, hurt, or damaged the child.[1191]  See § 7.98, supra.

[1183] See Annot., Validity and Construction of Penal Statute Prohibiting Child Abuse, 1 ALR 4th 38.

[1184] INA § 101(b)(1), 8 U.S.C. § 1101(b)(1).

[1185] black’s law dictionary, p. 239 (1990).

[1186] Ibid.

[1187] See Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA Sept. 16, 1999) (“We note that in including child abuse as a ground of removal in section 237(a)(2)(E)(i) of the Act, Congress likewise did not refer to a particular statutory definition, although in the same section it did designate a statutory definition for the term ‘crime of domestic violence.’  By its common usage, ‘child abuse’ encompasses actions or inactions that also do not require physical contact. See Blacks Law Dictionary, supra, at 239 (defining child abuse as ‘(a)ny form of cruelty to a child’s physical, moral or mental well-being’).”).

[1188] See Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

[1189] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004).

[1190] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (emphasis supplied).

[1191] See United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004).