Take these two cases:
Case #1: Ana is a 17-year-old Honduran girl who just arrived in the U.S. to reunite with her mom. She lived with her dad in Honduras, but fled after her dad was physically abusive to her brother (but not to her). She does not fear persecution in Honduras, but she would like to find a way to legally remain in the U.S.
Case #2: Brian is a 50-year-old Nigerian man who has lived most of his life in the U.S. with a green card. One day, he accidentally ran over his teenage daughter’s foot with his car, breaking one of her toes. He took her to the hospital immediately, but he was charged with the crime of fourth degree child abuse. He pleaded no contest. He is now in removal proceedings.
These cases raise the same legal question: what does the Immigration and Nationality Act (INA) mean by “child abuse, neglect, or abandonment”? The answer to this question is critical to two very different types of cases: whether a vulnerable noncitizen child is eligible for protection through the Special Immigrant Juvenile Status (SIJS) process and whether a noncitizen is subject to a criminal ground of removability.
Every state has at least one law that defines or describes child abuse, neglect, or abandonment. Michigan law addresses it primarily in two places: the Michigan Child Protection Law (MCL 722.621 et seq.), and the child abuse criminal statute (MCL 750.136b).
Before the U.S. Citizenship and Immigration Services (USCIS) can grant SIJS, a state juvenile court judge must first find that the child’s reunification with one or both parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.”1
A noncitizen who has been admitted to the U.S. can become removable if they have been convicted of “a crime of child abuse, child neglect, or child abandonment.”2
The repetition of “child abuse, neglect, or abandonment” (CANA for short) in these and other sections of the INA warrants a careful study of the phrase. Understanding its meaning can help advocates better represent their clients, either by proving that a SIJS applicant client did experience CANA, or by proving that a removal defense client was not convicted of a crime of CANA.
The different functions of CANA in immigration law create some tension in that a more expansive definition benefits some noncitizens but disadvantages others. However, it is possible to sidestep this potential tension because CANA in the SIJS context is determined based on the perpetrator’s actual conduct, whereas CANA in the removal context is based solely on the least acts criminalized by the elements of the statute (the categorical approach).
HOW FEDERAL LAW DEFINES A DEPORTABLE “CRIME OF CANA”
How federal law defines CANA is important for immigrants in “crimmigration” cases. If they are charged with a state or federal crime and want to assess the potential immigration consequences, they will need to understand whether the crime fits within the federal definition of a crime of CANA.
The Board of Immigration Appeals (BIA) treats a “crime of child abuse, child neglect, or child abandonment” at § 1227(a)(2)(E)(i) as one unitary concept—it does not draw distinctions between child abuse, child neglect, or child abandonment.3 This determination is made through the application of the categorical approach, which focuses on the elements of the offense and the least of the acts criminalized by the state statute.4
The BIA has established an extremely broad definition of what constitutes a crime of CANA. It announced the definition in its 2008 case Matter of Velazquez-Herrera, which remains in place today (see full definition in footnote).5 The definition is long and broad, reaching many crimes involving children.
The BIA’s definition of a crime of CANA can even include a “child endangerment” crime where no harm actually came to a child.6
However, the BIA has left open the possibility that some child-victim offenses may not be deportable crimes of CANA. For child endangerment-type offenses, the BIA has emphasized that the statute must contain “a knowing mental state coupled with an act or acts creating a likelihood of harm to a child.”—otherwise, it would not be a crime of CANA and may not be a deportable offense.7
The BIA has employed this reasoning in favor of the respondent in at least one unpublished decision, where it found that Pennsylvania’s “child endangerment” statute covered conduct that did not create a likelihood of harm to a child, and therefore that it is not categorically a crime of CANA.8
WHETHER MICHIGAN’S CHILD ABUSE LAW FITS WITHIN THE FEDERAL DEFINITION
When representing immigrants charged or convicted under a Michigan child abuse statute, it is crucial to assess whether the statute or the underlying conduct fits within the federal definition of a “crime of CANA.” If it is not a crime of CANA, then the person might not be deportable.
The statute—MCL 750.136b—does not clearly or distinctly define CANA. Instead, it uses “child abuse” as a blanket term, creating four different crimes—child abuse in the first, second, third, and fourth degrees. The four degrees of criminal child abuse differ in their elements—particularly the mental state and harm elements— but each degree can encompass conduct that could be described as either “abuse,” “neglect,” or “abandonment.”9
As of this writing, there are no published decisions by the BIA or federal courts directly addressing whether Michigan child abuse convictions constitute deportable crimes of CANA (or, for that matter, whether they constitute “crimes involving moral turpitude” or “aggravated felonies”).10
Reading the Michigan statute, first-degree child abuse is likely to be classified as a “crime of CANA” as well as a “crime involving moral turpitude” for immigration purposes.11 First-degree child abuse may not come within any of the 25-plus categories of convictions that are defined as aggravated felonies.12
But for the lower degrees of child abuse, particularly fourth degree, there may be some wiggle room. To sustain a removal charge under § 1227(a)(2)(E)(i), the government would have to prove that a conviction under this statute requires “a knowing mental state coupled with an act or acts creating a likelihood of harm to a child.”13
Case #2: Brian pleaded no contest to misdemeanor child abuse in the fourth degree, on the basis that he knowingly reversed his car without looking, which posed a risk of injury to a child. He was then served with a notice to appear, charging him as deportable under § 1227(a)(2) (E)(i) for committing a crime of child abuse. His advocate argues that Michigan’s fourth degree child abuse is not categorically a crime of CANA, and that Brian’s conduct proves the statute to be overbroad due to the relatively low risk of harm and low culpability of his mental state.
For additional information regarding the immigration consequences of first- through fourth degree child abuse under Michigan law, as well as other crimes under Michigan law, please consult the Immigration Consequences of Selected Michigan Offenses Reference Chart.14
USING MICHIGAN’S CHILD PROTECTION LAW IN SIJS CASES
How state law defines CANA is important for SIJS applicants. This is because SIJS applicants must get an order from a state juvenile court that contains special findings that they were victims of CANA as defined by state law to ensure protection from deportation.
The Child Protection Law contains clear and distinct definitions of “child abuse” and “child neglect” (in contrast to the child abuse criminal statute, which lumps these concepts together).15 The definitions cover a very broad range of conduct, which can make it easier for advocates to demonstrate that their SIJS clients experienced CANA.
Notably, under the INA, SIJS eligibility can come from CANA or “a similar basis found under State law.”16 This “similar basis” language is an instruction to juvenile court judges to take a liberal view of what constitutes CANA. By contrast, no such “similar basis” language appears in the CANA deportability ground.17 Deportability should not be triggered by crimes “similar” to CANA—rather, a person must have been convicted of an offense that categorically matches the removal definition of CANA to trigger this provision.
Immigration practitioners should cite to the Michigan Child Protection Law when asking state juvenile court judges to issue SIJS predicate orders.
Here is how Michigan’s Child Protection Law can be used on behalf of a SIJS client.
Case #1: An advocate representing Ana files a custody petition for Ana on behalf of her mother, along with a motion for SIJS findings. The advocate cites to MCL 722.622(g), arguing that Ana’s father’s physical abuse of her brother (but not directly of her) nonetheless constitutes child abuse under Michigan’s Child Protection Law, because it represents “threatened harm to the child’s health or welfare” through “mental injury” or “maltreatment.” Even though Ana might not have been a victim of criminal child abuse as defined by Michigan law, the advocate argues that the judge should still issue the requested order, because her father’s conduct falls within the Child Protection Law’s broad definition of abuse. The advocate also cites to the INA’s “similar basis found un under State law” language to encourage the judge to think of CANA in the broadest terms possible.
A final note: Michigan’s criminal child abuse statute (MCL 750.136b) can also be helpful in SIJS cases. SIJS applicants can show how their parent’s conduct would be punishable as criminal child abuse if it had occurred in Michigan. While SIJS applicants do not need to demonstrate that their parent committed a crime, showing that the parent’s conduct was criminal could help convince a judge to issue the order of SIJS findings. Unlike in the removal context, a conviction is not required to establish that a noncitizen child seeking SIJS was the victim of child abuse, abandonment, or neglect.