"Negligent Child Abuse with No Injury" Conviction Did Not Preclude Cancellation of Removal; Useful Categorical Analysis Discussion

Ibarra v. Holder, 2013 WL 3490753 (amended 7/12/13, originally published 7/1/13) - Although this is an immigration case, it has some helpful categorical analysis in a win for the alien. The alien's conviction for negligent child abuse with no injury is not a "crime of child abuse, child neglect or child abandonment" that would have precluded cancellation of the alien's removal. The BIA incorrectly interpreted the child-neglect provision to include criminally negligent omissions which endanger children. It was wrong to adopt a civil mens rea when, by using the word "crime" Congress meant to restrict the definition to a criminal mens rea. A generic meaning that is not dependent on a particular state's definition applies. In 1996 when the child abuse provision was enacted the majority of the states required a mens rea of knowing or intentional for criminal sanctions to apply for child neglect with no injury. So a conviction, like the alien's, for criminal negligence with no injury does not fit within the child-neglect category. The BIA's interpretation was so out of the loop it didn't deserve deference. The 10th helpfully observes the categorical approach requires examining only the minimum conduct needed for a conviction. The 10th also questioned whether the BIA could change its interpretation of the child neglect provision to cover crimes like the alien's after the alien already pleaded guilty.