Appellate Court Clarified How Child Endangerment Charge Impacts Immigration Status

Newark, NJ- One aspect of immigration that often gets overlooked is the effect a criminal conviction can have on an individual’s status. Regardless of whether the person is documented or not, for an immigrant, a criminal conviction, even a seemingly minor one, can jeopardize their status and put them in danger of facing deportation. Which criminal convictions make an immigrant removable can be difficult to determine because of the complicated laws, and courts are repeatedly asked to interpret immigration laws for this purpose.

In a recent case before the Third Circuit Court of Appeals, an undocumented immigrant, facing removal after a child endangerment conviction, asked the court to clarify which crimes against children and what mental state would make a convicted offender removable under the Immigration Nationality Act.

According to the September 4^th decision, the case centered on Luis Alberto Hernandez–Cruz, a native of Mexico, who entered the U.S. without authorization in 1998. Over a decade later, after an incident in which he hit his ten-year old step son, Hernandez-Cruz pled guilty to simple assault and child endangerment under Pennsylvania state statutes.

Shortly after his guilty plea, Hernandez-Cruz received notice he was eligible for removal from the U.S., and was ordered to appear before an immigration judge. In the notice, the Department of Homeland Security asserted Hernandez-Cruz was removable because of his status as a resident alien in the U.S. without authorization and because Hernandez-Cruz’s child endangerment conviction constituted a “crime involving moral turpitude” (CIMT) under the Immigration Nationality Act.

Hernandez-Cruz applied for cancellation of removal, an option available to undocumented immigrants who have been in the United States for at least ten years, who have a qualifying relative that would suffer extreme hardship in their absence, and who are not barred by certain criminal convictions, stating it would cause undue hardship on his U.S.-born children. In separate appearances, one before an immigration judge, and later, the Board of Immigration Appeals, Hernandez-Cruz agreed he was removable because of his status as an unauthorized and non-paroled immigrant. However he argued his convictions, because they did not involve any “aggravating circumstances,” could not be considered crimes of moral turpitude.

In his first appeal, the Board of Immigration Appeals concluded that Hernandez-Cruz was removable under the CIMT standard because he “neglected his duty of care” and “knowingly” put a child in danger. However, the Third Circuit Court of Appeals disagreed because under Pennsylvania statues a person could be convicted for behavior that would not be considered “depraved, vile or base,” as required to be a CIMT.

Citing an example provided by Hernandez-Cruz’s legal team, the justices noted that under Pennsylvania law, a person could be charged with a removable child endangerment charge for something as minor as driving five miles over the speed limit. Such an offense, the justices said, was not “inherently base, vile, or depraved” and was thus not serious enough to be considered a crime of moral turpitude.

The Third Circuit sent Hernandez-Cruz’s case back to the BIA to reconsider his removability after finding the BIA previously  “unreasonably” concluded the conviction was a crime of moral turpitude. The BIA will look at Hernandez-Cruz’s case again and re-evaluate what constitutes a crime of moral turpitude under Pennsylvania statutes. After another review, it is possible Hernandez-Cruz might avoid being removed.

The decision in Hernandez-Cruz’s case, like others, has an effect on how immigration judges and the BIA will decide future cases based on similar facts. As an attorney, is is my duty to keep abreast of decisions like this one to give my clients the best representation possible.

Immigration and criminal defense are my primary areas of practice, which allows me to help immigrants charged with or convicted of crimes avoid decisions or mistakes that will negatively impact their immigration status.  If you have a notice to appear in immigration court, a criminal conviction or a pending criminal charge, you should immediately contact me at one of my New Jersey offices to discuss your case.