Unpub. BIA Categorical Approach Victory: N.Y. Child Welfare Statute

Unpub. BIA Categorical Approach Victory: N.Y. Child Welfare Statute

"DHS must prove that 260.10(1) of the New York Penal Law categorically falls within the ambit of a crime of child abuse, neglect or abandonment.  Although our standard in Soram is broadly interpreted, we nonetheless agree with the Immigration Judge that N.Y. Penal Law § 260.10(1) is facially overinclusive in that some crimes punishable under that statute would qualify as child abuse while others would not. ... [W]e conclude that the DHS did not carry its burden to demonstrate that the respondent was convicted of a categorical "crime of child abuse, child neglect, or child abandonment" under section 237(a)(2)(E)(i) of the Act (U. at 3-6). See 8 C.F.R. § 1003.1(d)(3)(ii). Accordingly, the Immigration Judge properly terminated the removal proceedings. ... The DHS' appeal is dismissed." - Matter of X-, Apr. 30, 2013.  [Hats off to Amanda E. Gray!]