Document Type

Article

Publication Date

10-15-2019

Abstract

Many are surprised to learn that crime-based deportations do not necessarily make intuitive sense. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a misdemeanor drug offense for which probation was imposed 20 years ago can be an “aggravated felony,” a category reserved for the presumably most serious offenses that result in detention, deportation, and denial of most forms of immigration relief. But a felony conviction for kidnaping may have no consequences at all. The crime of “child abuse, child neglect, or child abandonment” removal ground created by IIRIRA similarly leads to illogical results. This deportability ground, first created in 1996 by IIRIRA, is causing federal circuit courts (and arguably the Board of Immigration Appeals itself) to split over whether this deportability ground is narrow or broad. We contend that the narrow interpretation, best defended by the Tenth Circuit, is the proper one. Not only does the legislative history support a narrow reading, but the ground’s broad interpretation adopted by the Second Circuit improperly includes civil actions (not just crimes) and does not even require acts that cause injury to a child. As a result, the broad interpretation sweeps too far. It includes parents with civil violations for leaving their child unattended, either out of circumstances arising from the lack of child care for the working poor or from deliberate parenting choices known as “free-range” parenting in which children are encouraged to function independently and with limited parental supervision. The deportability ground should be interpreted narrowly—as intended by Congress— to trigger deportation only for those who are harming and preying on children.

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