Law School Case Brief
Martinez v. U.S. Attorney General - 413 F. App'x 163 (11th Cir. 2011)
The Board of Immigration Appeals (BIA) has broadly defined the term "crime of child abuse" for purposes of 8 U.S.C.S. §§ 1229b(b)(1)(C), 1227(a)(2)(E), as any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child's physical or mental well-being, including sexual abuse or exploitation. The BIA has further indicated that, at a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact. A "crime of child abuse" does not require proof of actual harm or injury to the child by the petitioner. In addition, the BIA has clarified that the crime of child neglect can be a "crime of child abuse" under the Immigration and Nationality Act.
Petitioner Lucia Medina Martinez sought review of the Board of Immigration Appeals' ("BIA") decision affirming the denial of her petition for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The BIA found that Martinez's 2007 Florida conviction for child neglect was a "crime of child abuse," as used in 8 U.S.C.S. § 1227(a)(2)(E)(i), precluding her eligibility for respondent Attorney General's discretionary ability to cancel a removal proceeding on hardship grounds. The BIA decision was based on Martinez's child neglect conviction, which in turn was predicated on Martinez allowing her husband (who sexually abused her daughter), to return home for 3 weeks on the advice of her pastor. On appeal, Martinez argued that her conviction for child neglect did not meet the BIA's definition of a "crime of child abuse.
Did Martinez's child neglect conviction qualify as a "crime of child abuse" under the BIA's definition?
The court denied the petition for review. The court ruled that all conduct criminalized under § 827.03(3) was a "crime of child abuse" under the BIA's definition. The BIA's definition expressly referred to a criminally negligent act or omission that constituted maltreatment of a child. Proof of an actual injury or harm to the child was not required. Thus, the argument that there was no evidence that any physical harm was inflicted upon the child as a result of her husband's return to the family home for 3 weeks was unavailing. The broad definition of a "crime of child abuse" included child neglect. Thus, the conviction for child neglect qualified as a "crime of child abuse," and it was not legal error to find the conviction precluded eligibility for cancellation of removal under § 1229b(b)(1). The court urged the Attorney General to closely review the case again, as Martinez had filed criminal charges against her husband, who was serving a 15-year prison term, and all six of her children had been returned to her.
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