What Matter of Soram Got Wrong: 'Child Abuse' Crimes that May Trigger Deportation Are Constantly Evolving and Even Target Good Parents

18 Pages Posted: 8 Nov 2019 Last revised: 15 Nov 2019

See all articles by Kari E. Hong

Kari E. Hong

Boston College - Law School

Philip Torrey

Harvard Law School

Date Written: October 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 kidnapping 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.

We contend that Congress meant to attach immigration consequences to the narrow definition and limit its reach to crimes involving harm to a child when enacting IIRIRA. It may at first seem counterintuitive to defend those who have committed crimes from deportation. After all, isn’t the threat of immigration, at least as explained by President Trump, the fact that “rapists” and “murderers” are crossing the border to harm U.S. citizens? But just as the fear of rape was wrongfully used to justify slavery and segregation, so too is the fear of rape being used to wrongfully defend the deportation of immigrants, even those who have committed crimes. This is true, as we will explain, even for those accused of child abuse crimes.

Keywords: IIRIRA, aggravated felony, child abuse, parenting, over inclusive, deportation, removal, immigration, categorical approach

Suggested Citation

Hong, Kari E. and Torrey, Philip, What Matter of Soram Got Wrong: 'Child Abuse' Crimes that May Trigger Deportation Are Constantly Evolving and Even Target Good Parents (October 15, 2019). Amicus Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Oct 15 2019 , Boston College Law School Legal Studies Research Paper No. 515, Available at SSRN: https://ssrn.com/abstract=3481994

Kari E. Hong (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Philip Torrey

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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