D. Rodriguez

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 (BIA 2024)                                Interim Decision #4078




                 Matter of D. RODRIGUEZ, Respondent
                              Decided August 27, 2024

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


(1) A conviction for an attempt to commit a crime may constitute a crime of child abuse,
   child neglect, or child abandonment under section 237(a)(2)(E)(i) of the Immigration
   and Nationality Act, 

(a)(2)(E)(i) (2018).
(2) The respondent’s conviction for attempted injury to a child under sections 15.01(a) and
   22.04(a)(1) of the Texas Penal Code renders him removable under section
   237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i), for having committed a crime
   of child abuse.
FOR THE RESPONDENT: Christopher R. Carlston, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joshua S. Levy, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
PETTY, Appellate Immigration Judge. Concurring Opinion: CLARK, Appellate
Immigration Judge.
PETTY, Appellate Immigration Judge:


    The respondent was convicted in a Texas court of attempted injury to a
child and found removable for having committed a crime of child abuse,
child neglect, or child abandonment. On appeal from the Immigration
Judge’s decision, he challenges his removability on two grounds. First, he
contends that a crime of child abuse does not encompass attempts because
they are not expressly included in the statutory language. Second, he
claims that attempted injury does not require a sufficient likelihood
of harm to qualify as a crime of child abuse. We reject both of the
respondent’s arguments regarding removability. We further conclude that
the Immigration Judge properly denied cancellation of removal in the
exercise of discretion. The appeal will be dismissed.




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                               I. BACKGROUND
    The respondent was convicted in 2018 of attempted injury to a child under
sections 15.01(a) and 22.04(a)(1) of the Texas Penal Code. 1 The
Immigration Judge found that the conviction was based on, among other
misconduct, having digitally penetrated a 10-year-old family member. The
respondent was initially arrested for sexual assault of a child; he later pleaded
guilty to attempted injury to a child. He was sentenced to 350 days’
imprisonment, which was probated for 5 years. Based on this conviction, the
Department of Homeland Security (“DHS”) charged the respondent with
removability under section 237(a)(2)(E)(i) of the Immigration and
Nationality Act (“INA”), 

(a)(2)(E)(i) (2018), as a noncitizen
convicted of a crime of child abuse, child neglect, or child abandonment.
    The respondent moved to terminate his removal proceedings, and the
Immigration Judge denied the motion in a written decision. 2 The respondent
also applied for cancellation of removal for certain permanent residents
under section 240A(a) of the INA, 8 U.S.C. § 1229b(a) (2018), which the
Immigration Judge denied as a matter of discretion. The Immigration Judge
considered the respondent’s 18-year residence in the United States, his
4 children residing in the country, and his successful operation of a business
that at one point employed as many as 15 people, but concluded that these
positive factors were outweighed by the respondent’s criminal conduct,
including his conviction for attempted injury to a child and his arrests for
domestic violence and driving while intoxicated with an open container.
The Immigration Judge therefore ordered the respondent removed. The
respondent appeals, challenging both his removability and the denial of
relief. DHS has filed a response in opposition to the appeal.

                                II. DISCUSSION
                                 A. Removability

    Section 237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i), provides
that a noncitizen is removable from the United States if, at any time after
admission, he or she is convicted of a “crime of child abuse, child neglect, or
child abandonment.” Congress did not define this term. Matter of
Velazquez-Herrera, 

 (BIA 2008); accord Garcia v.
Barr, 

 (5th Cir. 2020). We have interpreted it “broadly to
1
   It is not disputed that the offense of serious bodily injury to a child under section
22.04(a)(1) of the Texas Penal Code underlies the respondent’s conviction for attempt.
2
   The Immigration Judge subsequently denied the respondent’s motion to reconsider this
decision.

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mean any offense involving an intentional, knowing, reckless, or criminally
negligent act or omission that constitutes maltreatment of a child or that
impairs a child’s physical or mental well-being, including sexual abuse or
exploitation.” Matter of Velazquez-Herrera, 

. To
determine whether the respondent’s offense is a “crime of child abuse” 3
under section 237(a)(2)(E)(i), we employ the categorical approach. Matter
of Aguilar-Barajas, 

, 356 (BIA 2021). We must disregard
the respondent’s actual conduct and focus instead on the elements of the
offense and the minimum conduct that has a realistic probability of being
prosecuted under the statute he was convicted of violating. 

. The Language of Section 237(a)(2)(E)(i) Does Not Exclude Attempts

    The respondent first contends that section 237(a)(2)(E)(i) encompasses
only completed offenses and therefore cannot include his conviction for
attempted injury to a child. He maintains that because section 237(a)(2)(E)(i)
is silent with respect to attempts—whereas other provisions in
section 237 expressly reference attempts—the absence of attempts in
section 237(a)(2)(E)(i) must have been deliberate.
    The respondent’s argument is based on the principle that “[w]here
Congress includes particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion.”
Russello v. United States, 

 (1983) (citation omitted). But
“[c]ontext counts, and it is sometimes difficult to read much into the absence
of a word that is present elsewhere in a statute.” Bartenwerfer v. Buckley,

 (2023). In particular, the principle described in Russello
loses force as the statutory provisions being compared move apart from each
other in time, space, subject matter, and structure.
    First, with respect to time of enactment, the five instances in which the
word “attempt” is found in section 237 were created in three separate acts of
Congress passed in 1990, 1991 and 1994. 4 They were all enacted prior to the
3
   For brevity, we will use the phrase “crime of child abuse” to refer to the Board’s unitary
definition of a “crime of child abuse, child neglect, or child abandonment.” See Matter of
Aguilar-Barajas, 

, 355 & n.3 (BIA 2021); Matter of Soram, 

 (BIA 2010).
4
   The word “attempt” was added to what is now section 237(a)(2)(B)(i) of the INA,

(a)(2)(B)(i), by the Immigration Act of 1990, 

(a), 

, 5051. What is now section 237(a)(2)(D) of the INA, 

(a)(2)(D), was amended in a similar fashion by the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991, 

(h)(7),

, 1756. Finally, what are now sections 237(a)(2)(C), (3)(B)(ii), and
(3)(B)(iii) of the INA, 

(a)(2)(C), (3)(B)(ii), (iii), were amended by the

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Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Division C of 

(a), 

-546, 3009-639, which created section 237(a)(2)(E)(i) of the INA,

(a)(2)(E)(i). IIRIRA and the three preceding acts were each
passed by different Congresses. Thus, “this is not a case where Congress has
‘include[d] particular language in one section of a statute but omit[ted] it in
another section of the same Act.’” Johnson v. United States, 

 (2010) (alteration in original) (quoting Russello, 

).
    Next, with respect to space or relative position, Russello explained that if
two provisions in “the same Act” are adjacent to each other, that can lend
support to a negative inference. 

 (citation omitted) (“Had
Congress intended to restrict § 1963(a)(1) to an interest in an enterprise, it
presumably would have done so expressly as it did in the immediately
following subsection (a)(2).” (emphasis added)); see also Fedorenko v.
United States, 

, 512–13 (1981) (comparing adjacent provisions
and concluding that because voluntariness was specifically included in one
provision but not the other, the omission must be understood as intentional).
But here, no relevant adjacent (or even proximate) provision was enacted in
IIRIRA. Additionally, although section 237(a)(2)(E)(i) of the INA,

(a)(2)(E)(i), appears near provisions that explicitly include
attempts, nothing in the language of section 237(a)(2)(E)(i) suggests it was
drafted in response to other provisions in section 237(a)(2) and (3) that
already existed. 5
    Third, with respect to subject matter, section 237(a)(2)(E)(i) of the INA,

(a)(2)(E)(i), addresses crimes of domestic violence, stalking,
and child abuse, child neglect, and child abandonment. The provisions in
section 237 that expressly include attempts address removability on disparate
grounds—including controlled substances, firearms offenses, and various
national security offenses—which are both unlike each other and unlike
crimes of child abuse. See INA § 237(a)(2)(B)(i), (C), (D), (3)(B)(ii), (iii),

(a)(2)(B)(i), (C), (D), (3)(B)(ii), (iii).
    This is a step further removed from Russello and Fedorenko, which
concerned two related provisions addressing the scope of criminal forfeiture
under the Organized Crime Control Act of 1970, 

(a), 

, 943 (codified at 

), and two exclusion
criteria for wartime conduct under the Displaced Persons Act of 1948,

Immigration and Nationality Technical Corrections Act of 1994, 

(b), 

, 4311.
5
    We note that title 8 of the United States Code, entitled “Aliens and Nationality,” is a
nonpositive law title. See Mendoza-Linares v. Garland, 

, 1149 n.1 (9th Cir.
2022), cert. denied, 

 (2024) (mem.); see also 

 note (2018)
(listing titles of the United States Code that have been enacted into positive law).

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(b), 

, 1009, respectively. See Russello,
646 U.S. at 23–24; Fedorenko, 449 U.S. at 509–12. The difference in subject
matter weighs against drawing a negative inference. See Martin v. Hadix,

 (1999) (“Because [two adjacent sections] address wholly
distinct subject matters, the . . . negative inference does not arise from the
silence of [one of the sections].”); see also Young v. United States, 

 (2002) (concluding that the Court “would draw no negative inference
from the presence of an express tolling provision in [a provision involving
nonbankruptcy courts] and the absence of one in [a provision involving
bankruptcy courts]”).
    Finally, with respect to common design or parallel structure, the Russello
presumption “grows weaker with each difference in the formulation of the
provisions under inspection.” See City of Columbus v. Ours Garage &
Wrecker Serv., Inc., 

, 435–36 (2002). The negative inference
from the absence of a statutory phrase is most persuasive if the omission is
the sole difference in the expression of a general rule. 

. The
respondent has not identified any provision in section 237 that is structurally
parallel to subsection (a)(2)(E)(i), and we are aware of none. 6 See Clay v.
United States, 

, 529–30 (2003) (declining to apply Russello
where the provisions at issue are not parallel).
    Under these circumstances, we conclude it would be improper to infer
from silence that Congress deliberately intended to exclude attempts from
section 237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i). See Cruz v.
Garland, 

, 367–68 (4th Cir. 2024) (explaining that the “context
[of section 237(a)(2)(E)(i)] indicates that Congress did not intend its silence
[regarding attempts] as exclusion”). As we explained in Matter of Vo,

 (BIA 2011), “the ‘attempt’ language was added to the
various sections of the [INA] at different times, [so] its inclusion [elsewhere]
does not represent a unified design to effectuate a single intent.” Congress
may have explicitly added the attempt language to certain sections “as a point
of special emphasis to remove any doubt that those sections included such
offenses.” Matter of Vo, 25 I&N Dec. at 429; see also Romo v. Barr,

 (9th Cir. 2019) (“[I]t is not unusual to see redundancy
occur in clarifying enactments, which do run the risk of introducing other
problems while focusing on the task of making sure that a particular problem
does not arise.” (citing Conn. Nat’l Bank v. Germain, 

(1992))).

6
   The phrase “abuse, neglect, [or] abandonment” is also found in section 101(a)(27)(J)(i)
of the INA, 

(a)(27)(J)(i) (2018), but that provision defines eligibility for
special immigrant juvenile status; it is not a ground of removability. The absence of
“attempt” in that provision is hardly surprising as it does not describe a class of criminal
offenses, but rather pertains to reasons why reunification with a parent is not viable.

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    As the United States Court of Appeals for the Fifth Circuit recently
explained, silence does not always imply exclusion. See United States v.
Vargas, 

 (5th Cir. 2023) (en banc) (noting that “[n]ot
mentioning something does not necessarily mean excluding it” and that
“[t]he context must justify that inference”), cert. denied, 

(2024). The Supreme Court of the United States teaches that drawing an
inference from silence is permissible where there is a “statutory listing or
grouping” and the “items expressed are members of an ‘associated group or
series,’ justifying the inference that items not mentioned were excluded by
deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co.,

 (2003) (citation omitted). Because section 237(a)(2)(E)(i)
of the INA, 

(a)(2)(E)(i), does not include a list or group
containing inchoate offenses other than attempts, the wording of the statute
does not suggest that attempts have been deliberately excluded. See Vargas,
74 F.4th at 686–87 (concluding that section 4B1.2(b) of the United States
Sentencing Guidelines permissibly includes attempts though not expressly
listed).
    Although section 237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i),
uses the phrase “crime of child abuse, child neglect, or child abandonment,”
we have interpreted these terms as denoting a single “unitary concept,”7
rather than listing separate, exclusive categories. Matter of Soram, 

 (BIA 2010); see also Cruz, 

. Even if we were
to treat these terms as independent of each other, “attempt” would not fit
there either. Just as the Fifth Circuit explained with respect to conspiracy,
an attempt is not “just another” type of harm to a child, but rather something
“conceptually different from the listed acts.” Vargas, 

. One
can attempt any of them. 

    Lastly, our conclusion is consistent with Congress’ stated intent “to
expand the criminal grounds of deportability in general and to create a
‘comprehensive statutory scheme to cover crimes against children’ in
particular.” Matter of Velazquez-Herrera, 24 I&N Dec. at 508–09 (quoting
Matter of Rodriguez-Rodriguez, 

 (BIA 1999)); see also
Cruz, 

 (stating that it was Congress’ “intent to ‘single out
those who have been convicted of maltreating or preying upon children’”
(citation omitted)). Excluding attempt offenses from the reach of section
237(a)(2)(E)(i) would preclude removal of convicted offenders who tried,

7
   This is because States may use inconsistent or overlapping language to denote the same
acts. As we explained, this definition “ensures uniformity in the application of
section 237(a)(2)(E)(i), given that endangering a child can reasonably be viewed as either
abuse or neglect, and that some States include child endangerment in their definition of
‘child abuse,’ while a number of others consider it ‘child abuse or neglect.’” Matter of
Soram, 25 I&N Dec. at 381.

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but failed, to abuse children. Cf. Quarles v. United States, 

(2019) (rejecting a narrow generic definition of burglary that would have
“defeat[ed] Congress’ stated objective”). We therefore conclude that
although attempts are not expressly included in the statutory language, a
conviction for an attempt to commit a crime may constitute a crime of child
abuse under section 237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i). 8
See Cruz, 

 (holding that in the crime of child abuse context,
just as in the crime of moral turpitude context, “it ma[kes] little sense to read
Congress’s decision to leave a broadly worded term open-ended as somehow
evincing an intention to narrow its scope”).

    2. Attempted Injury to a Child Under Sections 15.01(a) and 22.04(a)(1) of
                the Texas Penal Code Is a Crime of Child Abuse

    We have defined “child abuse” in part as “an act or omission that
constitutes maltreatment of a child.” Matter of Soram, 25 I&N Dec. at 383
(quoting Matter of Velazquez-Herrera, 

). Whether an
attempt to injure ultimately results in injury is immaterial to the danger posed
to the child at the moment the attempt is made. As the Fifth Circuit has
acknowledged, “luck plays a role in whether people engaging in equally
blameworthy conduct succeed[].” United States v. Hoffman, 

 (5th Cir. 2018) (citation omitted). “[I]t would cut against the very
purpose of the child abuse ground of removability—and, for that matter,
commonsense—to reward defendants who come within dangerous
proximity to causing actual harm to a child but are stopped by the pure
happenstance of some external interference.” Cruz, 

;

8
   We have previously held, albeit in other contexts, that attempts are implicitly included
in various grounds of removability, even where not expressly stated. See, e.g., Matter of
Vo, 25 I&N Dec. at 429 (crime involving moral turpitude); Matter of Bronsztejn, 

 (BIA 1974) (collecting authority), aff’d, 

 (2d Cir. 1975). This
approach to attempts is consistent with our approach to inchoate offenses more generally.
See, e.g., Matter of Al Sabsabi, 

, 272–73 (BIA 2021) (conspiracy); Matter
of Beltran, 

 (BIA 1992) (solicitation); Matter of Del Risco, 

 (BIA 1989) (facilitation). Although we previously concluded that a
provision that expressly included conspiracies but not attempts should be read to exclude
the latter, we relied in that case on statutes that amended the surrounding provisions to
include attempts, presuming that Congress’ decision not to amend the relevant provision
demonstrated an intent to exclude attempts. See Matter of Hou, 

(BIA 1992), superseded by statute, Immigration and Nationality Technical Corrections Act
of 1994, 

(b), 

, 4311 (codified as amended at

(a) (1994)). This reasoning has been called into question by subsequent
Supreme Court case law. See Almendarez-Torres v. United States, 

(1998) (“Later enacted laws . . . . do not declare the meaning of earlier law.”).

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see also United States v. Farley, 

 (11th Cir. 2010)
(“[T]hose who unsuccessfully attempt to commit crimes are ‘no less
blameworthy, only less skillful’ than those who succeed.” (quoting Rummel
v. Estelle, 

 (1980))). Attempting to injure a child is
therefore “an act or omission that constitutes maltreatment of a child.”
Matter of Soram, 25 I&N Dec. at 383.
    To demonstrate removability for attempted injury to a child, DHS must
make two showings: First, it must show that the substantive crime attempted
is a categorical match with our definition of a “crime of child abuse.” See
Matter of Aguilar-Barajas, 

. Second, it must show that
the State definition of attempt is a categorical match for the Federal definition
of attempt, which requires a “substantial step” toward the completion of a
substantive offense. United States v. Hansen, 

, 775 (2023);
cf. Matter of S-I-K-, 

, 326–27 (BIA 2007) (holding that to
be removable for having committed a conspiracy to commit fraud, the
respondent’s conviction for conspiracy had to be a categorical match to the
generic definition of conspiracy). Both of these elements must categorically
match their generic counterparts in order for an attempted injury to a child to
constitute a crime of child abuse. 9 Taken together, attempted injury to a child
constitutes a crime of child abuse under section 237(a)(2)(E)(i) of the INA,

(a)(2)(E)(i), where a substantial step has been taken toward
the completion of a categorically abusive act.
    Applying this rule, we conclude that attempted injury to a child under
sections 15.01(a) and 22.04(a)(1) of the Texas Penal Code is a crime of child
abuse under section 237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i).
Section 22.04(a)(1) states that “[a] person commits an offense if he
intentionally, knowingly, recklessly, or with criminal negligence, by act or
intentionally, knowingly, or recklessly by omission, causes to a child, elderly
individual, or disabled individual . . . serious bodily injury.” 

(a)(1) (West 2018). The Fifth Circuit has concluded that section
22.04(a) is divisible with respect to victim class and that a conviction for the
completed offense of bodily injury to a child under section 22.04(a)(3) of the
Texas Penal Code is a crime of child abuse. See Monsonyem v. Garland,

, 643–45 (5th Cir. 2022); see also Matter of Velazquez-Herrera,
24 I&N Dec. at 512 (“At a minimum, th[e] definition [of child abuse]
encompasses convictions for offenses involving the infliction on a child of
physical harm, even if slight.”). The Fifth Circuit has also concluded that

9
    We leave for another day, in a case presenting the question, under what circumstances
attempted endangerment may constitute a crime of child abuse. The offense at issue in this
case is not an endangerment crime and this decision does not alter the Board’s established
legal framework for evaluating a respondent’s removability for endangerment crimes as
crimes of child abuse.

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Texas’ definition of attempt under section 15.01(a) of the Texas Penal Code
is a categorical match for the Federal definition. See United States v.
Sanchez, 

, 563–66 (5th Cir. 2012).
    The Immigration Judge found, based on the respondent’s conviction
record, that he was convicted of attempting to injury a child. The respondent
does not contend that Texas’ definition of a “child” is overbroad, and we note
that this statute is limited to victims 14 years of age and younger, which is
narrower than the generic definition. Compare 

(c)(1), with Matter of Velazquez-Herrera, 24 I&N Dec. at 512.
Accordingly, the respondent’s conviction for attempted injury to a child
under sections 15.01(a) and 22.04(a)(1) of the Texas Penal Code renders him
removable under section 237(a)(2)(E)(i) of the INA, 

(a)(2)(E)(i), for having committed a crime of child abuse.

 3. The “Reasonable Probability” or “Likelihood of Harm” Analysis Does
                  Not Apply to Injury-Type Statutes

    The respondent submits that a “crime of child abuse” requires a
categorical “reasonable probability” or “likelihood of harm” to a child, and
because one can be convicted of attempt without any completed harm
whatsoever, attempts necessarily fail to meet this standard. We reject this
argument because the “reasonable probability” inquiry does not apply to
injury-type offenses, including the statute the respondent was convicted of
violating.
    In Matter of Soram, 25 I&N Dec. at 383, we held that “our definition of
a crime of child abuse is sufficiently broad to encompass endangerment-type
crimes.” We later cautioned 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.” Matter of Mendoza Osorio, 

(BIA 2016) (emphasis added). To determine whether an endangerment
crime is categorically abusive, we consider whether it “require[s] proof of a
‘likelihood’ or ‘reasonable probability’ that a child will be harmed.” Matter
of Rivera-Mendoza, 

, 187 (BIA 2020). Here, the respondent
was convicted of attempting to injure a child—not to endanger one. See

(a), 22.04(a)(1) (West 2018). The additional
likelihood-of-harm analysis is therefore inapplicable.

                         B. Cancellation of Removal

   In denying the respondent’s application for cancellation of removal, the
Immigration Judge balanced the respondent’s equities with the negative
considerations in this case. See Matter of C-V-T-, 

, 11

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(BIA 1998). Specifically, the Immigration Judge concluded that the
respondent’s 18-year residence, his four children, and his operation of a
successful business employing over a dozen people were outweighed by his
conviction for attempted injury to a child and his arrests for domestic
violence and driving while intoxicated with an open container.
    The respondent argues on appeal that in denying his application as a
matter of discretion, the Immigration Judge improperly considered the police
report describing the conduct that led to his conviction. Specifically, he
contends that the Immigration Judge’s weighing of the evidence was contrary
to Matter of Arreguin, 

 (BIA 1995), in which we were
“hesitant to give substantial weight to an arrest report, absent a conviction or
corroborating evidence of the allegations contained therein.” See also Rosa
v. Garland, No. 22-1523, 

, *15 (1st Cir. Aug. 16, 2024)
(remanding to the Board to consider what qualifies as sufficient
corroborating evidence under Matter of Arreguin and whether the
corroboration can come from the police report itself).
    The arrest report in Matter of Arreguin, 

, was based on
uncorroborated statements of law enforcement officers and the allegations in
those reports did not result in a conviction. Here, however, the police report
is not limited to an officer’s personal observations or opinions, but also
collects statements that the victim made to her therapist, her mother, and a
forensic interviewer, as well as statements allegedly made by the respondent
himself to the victim’s mother. The respondent has not challenged the
veracity of these statements. Moreover, unlike the arrest in Matter of
Arreguin, which did not lead to a conviction, the allegations here ultimately
did result in a conviction, albeit to a lesser offense than the original charge.
In any event, consideration of arrest or other police reports in discretionary
determinations is highly fact dependent. Both before and after Matter of
Arreguin, we have held that police reports and other reliable evidence
concerning the circumstances of an arrest may properly be considered in
assessing whether a respondent merits discretionary relief, even if the arrest
did not result in a conviction. See, e.g., Matter of D-A-C, 

,
579–80 (BIA 2019); Matter of Teixeira, 

 (BIA 1996);
Matter of Mendez, 

, 303 n.1 (BIA 1996); Matter of Grijalva,

 (BIA 1988). Accordingly, we discern no legal error
in the Immigration Judge’s consideration of the police report.
    Having considered the Immigration Judge’s findings of fact, we agree
with his conclusion that the respondent’s criminal conduct outweighs his
positive equities. See Matter of C-V-T-, 22 I&N Dec. at 11. We therefore
affirm the Immigration Judge’s denial of the respondent’s application for
cancellation for removal in the exercise of discretion.
    ORDER: The appeal is dismissed.

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CONCURRING OPINION:                  Katharine E. Clark, Appellate Immigration
Judge

    I concur in the outcome of this case, but I write separately to express my
view that the analytical framework set forth in the majority opinion would
not apply to attempted child endangerment convictions.
    I agree with the majority opinion that the relevant statutory framework
does not per se exclude attempt offenses from consideration as crimes of
child abuse. Like the majority, I acknowledge that the word “attempt” does
not appear in section 237(a)(2)(E)(i) of the Immigration and Nationality Act
(“INA”), 

(a)(2)(E)(i) (2018), as it does in other
subparagraphs of section 237(a)(2) of the INA, 

(a)(2). Nor
is attempt expressly incorporated by reference, as it is elsewhere in the
statute. See INA § 101(a)(43)(U), 

(a)(43)(U) (2018). While
I perceive the interpretive question as being closer than the majority sees it,
I ultimately agree with the majority’s reasoning that the statutory structure,
subject matter, and legislative history of section 237(a)(2)(E)(i) of the INA,

(a)(2)(E)(i), do not, per se, exclude attempt offenses. 1
    I also agree with the majority that Matter of Soram, 

(BIA 2010), and Matter of Mendoza Osorio, 

 (BIA 2016),
do not bind us in cases that do not involve child endangerment convictions.
Indeed, I write separately to express my view that the question in attempted
endangerment cases should be whether the minimum conduct necessary for
a conviction of attempted endangerment creates at least “a reasonable
probability that the child’s life or health will be endangered.” Matter of
Soram, 25 I&N Dec. at 384 (quoting People v. Hoehl, 

(Colo. 1977)). That is, the Matter of Soram likelihood-of-harm framework
should be applied to the “attempted endangerment” conviction as a whole,
not merely to the underlying substantive offense of endangerment. In other
words, and consistent with our endangerment case law, an attempt to commit
a child endangerment offense could qualify as a categorical crime of child
abuse only if the act constituting a substantial step toward the commission of
the underlying offense creates “a ‘likelihood’ or ‘reasonable probability’ that
a child will be harmed.” Matter of Rivera-Mendoza, 

, 187
(BIA 2020).
    I would take this approach because attempted endangerment—unlike
attempted injury—does not involve inherent danger to the child at the time
the attempt is made. At most, attempted endangerment involves a substantial
step toward the creation of danger at some point in the future, whether or not
that danger ever comes to pass. Because section 237(a)(2)(E)(i) of the INA,
1
    To the extent that the majority reaches this conclusion in part by reasoning that title 8
of the United States Code is a nonpositive law title, I would not rely on such reasoning.

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(a)(2)(E)(i), targets convicted conduct “that impairs a child’s
physical or mental well-being,” I would not expand it further to include
convictions that require no showing of actual risk to a child. Matter of
Velazquez-Herrera, 

 (BIA 2008). Therefore, rather
than simply stating that we are not addressing attempted endangerment, I
would specifically limit the holding of this opinion to attempted injury
convictions. 2
    This limitation would be especially timely because it appears likely that
the courts of appeals will be revisiting our endangerment case law in the
coming months. The Supreme Court of the United States recently granted
certiorari, vacated two published decisions, and remanded proceedings to the
United States Courts of Appeals for the Ninth and Eleventh Circuits in cases
where those courts afforded deference to our child endangerment case law
under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

 (1984). See Diaz-Rodriguez v. Garland, No. 22-863, 

 (Jul. 2, 2024) (mem.), vacating 

 (9th Cir. 2022)
(en banc); Bastias v. Garland, No. 22-868, 

 (Jul. 2, 2024)
(mem.), vacating Bastias v. U.S. Att’y Gen., 

 (11th Cir. 2022).
    The Supreme Court indicated that its orders were entered in light of its
holding in Loper Bright Enterprises v. Raimondo, 

 (2024),
which overruled Chevron. Loper Bright does not vacate our precedent
decisions retroactively, and the Supreme Court’s orders in Diaz-Rodriguez
and Bastias do not address the merits of the previous holdings of the Ninth
and Eleventh Circuits. See Henry v. City of Rock Hill, 

(1964) (clarifying that a Supreme Court order granting certiorari, vacating
judgment, and remanding to the lower court was not a “final determination
on the merits” but was an indication that an intervening Supreme Court
decision required “re-examination of the case”). However, because the

2
    The majority indicates that this decision does not alter the Board’s established legal
framework for evaluating a respondent’s removability for endangerment crimes as crimes
of child abuse. I hope that proves to be correct. However, the majority’s framework
establishes a simple formula: if the underlying crime is one of child abuse, and the attempt
offense matches the federal definition, then the attempted crime is a crime of child abuse.
Where the underlying crime is one of child endangerment, the majority’s framework would
require a finding of removability even where no increased risk has come to pass. For
instance, if the majority’s formula were applied to an underlying crime of child
endangerment, a noncitizen could be found removable for taking a substantial step toward
“abandoning [a child] in a vehicle,” Matter of Soram, 25 I&N Dec. at 385, or leaving a
child alone in a bus, Matter of Mendoza Osorio, 

, perhaps by merely
stepping out of the car or moving toward the door of the bus without the child. In these
situations, where the act of leaving the child was never completed, I would find any
theoretical increased risk to be insufficient to rise above “a mere possibility or potential for
harm.” Matter of Rivera-Mendoza, 

.

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vacatur of the Ninth and Eleventh Circuits’ decisions in Diaz-Rodriguez and
Bastias, respectively, has placed our child endangerment case law into some
degree of flux, I would specifically limit our holding today to attempted
injury convictions.




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