The Board of Immigration Appeals (BIA) determined that a conviction in New York for endangering the welfare of a child qualifies as a crime of child abuse because it requires knowingly engaging in conduct likely to be injurious to a child.  Though this case will come as a disappointment to attorneys in New York, attorneys in California were given a ray of hope.  Whether California's misdemeanor child endangerment statute qualifies as a crime of child abuse has been an open and contentious question for years.  However, this paragraph offers hope that the issue has been put to rest and that a conviction under the statute will not qualify as a crime of child abuse:

We recognize that there are child endangerment statutes that do not require a sufficiently high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the Act.  For example, the child endangerment statute at section 273a(b) of the California Penal Code criminalizes conduct that places a child “in a situation where his or her person or health may be endangered.”  In Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this statute did not categorically define a “crime of child abuse” within the meaning of the Act. The court observed that the statute does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.”  In this regard, the court cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.”  Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. 

The full text of Matter of Mendoza Osorio can be found here: