The Third Circuit has determined that a Pennsylvania conviction for endangering the welfare of a child does not match the definition of a crime of child abuse. “To qualify as a crime of child abuse under the INA, a state child endangerment offense must require that the actor’s conduct create a particular likelihood of harm to the child that rises above conduct that creates only the bare potential for nonserious harm. As a result, where a state child endangerment statute fails to require any particular likelihood of harm to a child, it falls outside the ambit of the INA’s child abuse offense.”
Pennsylvania’s child endangerment statute has been construed to impose a duty on parents and other caretakers to not risk any kind of harm, not just bodily injury, to a minor child in his or her care. Thus, a conviction for endangering the welfare of children only requires proof of circumstances that could threaten the child’s physical or psychological welfare.
The Third Circuit determined that “the Pennsylvania statute lacks an element requiring proof of a sufficiently high risk of harm.” “Because child abuse under the INA requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm, and the Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not, the elements of the two statutes do not match. As a result, under the categorical approach, Pennsylvania’s child endangerment statute under which Liao was convicted does not fit within the definition of child abuse under § 1227(a)(2)(E)(i), and the BIA erred in concluding otherwise.“
The full text of Liao v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/171825p.pdf
