A man convicted of child endangerment cannot be deported on grounds of child abuse, a federal appeals court ruled, because of a difference in statutory definitions.
The U.S. Court of Appeals for the Third Circuit on Monday granted Chinese citizen Zhi Fei Liao’s petition to remand and have the basis of his removal on child abuse re-examined.
Liao had argued that his state court conviction of child endangerment does not match the statutory definition of child abuse under the Immigration and Naturalization Act, and so his removal on that ground must be reviewed again by the Bureau of Immigration Appeals.
According to Third Circuit Judge Patty Shwartz’s opinion, Liao became a lawful permanent resident of the United States in 2005. Ten years later, he had a physical altercation with his girlfriend while she held their infant child. The child was uninjured, but Liao was charged with and convicted of child endangerment, ultimately serving 106 days behind bars.
Immigration proceedings later ensued, and removal was recommended. However, Shwartz said further proceedings were needed to examine the risk requirements in Pennsylvania law and federal law.
“Comparing the Pennsylvania child endangerment statute to the offense of ‘child abuse’ under the INA reveals a difference between each statute’s risk requirements. Whereas the Pennsylvania statute merely requires conduct that ‘could threaten’ a child’s ‘welfare,’ ‘child abuse’ under the INA requires ‘a likelihood of harm to [the] child,’” Shwartz said. “The BIA has not identified a specific risk level, but it does embrace the view that a statute that does not ‘require … any particular likelihood of harm to a child’ would not include ‘a sufficiently high risk of harm to a child’ to qualify as INA child abuse.”
“This required risk level places a reasonable limitation on the offenses that constitute ‘child abuse’ under the INA,” Shwartz continued.
The government argued that the court was required to engage in a “’realistic probability’ inquiry, examining convictions under the state statute to assess ‘whether the statute is actually applied to conduct that falls outside of the federal definition.’”
Shwartz said that analysis was unnecessary.
“Pennsylvania does not require any particular level of risk to violate its child endangerment statute, and thus, there is a difference between the risk element under the Pennsylvania child endangerment statute and the INA child abuse statute, making further inquiry into the law’s application unnecessary,” Shwartz said. “Put simply, the elements leave nothing to the ‘legal imagination.’”
Joshua S. Bolian of Robbins Russell, who represents Liao, said: ”We are pleased that the court reached the correct result.”
The Department of Justice Office of Immigration Litigation didn’t respond to a request for comment.