A
Hawaii State Senator of Ilocano ancestry was
driving too slowly (30 mph) on the H-1 freeway a few years ago. Police pulled
him over on suspicion of drunken driving. His excuse was that he had poor
eyesight. His two minor sons were with him. He was reported to have claimed
that he had brought them to a social function and that he had at most two
glasses of wine. He agreed to blow into a device to measure his blood alcohol
content. He refused additional sobriety tests saying he was wearing ill-fitting
contact lenses and had a fractured foot.
He had a shot (pardon the
pun) at beating the DUI charge since breathalyzer tests (showing it was above
the legal limit of 0.08) are not generally reliable and there was no other
evidence of his blood alcohol level. As a lawyer, he knew or ought to have
known that. But what did he do? He
pleaded no contest and was convicted, spent two nights in jail, paid a fine of US$800,
had his license revoked for 90 days, and ordered to attend alcohol treatment
class. He was shown on television clad
in prison garb. Nakakahiya. He lost his reelection bid. He ran for
Honolulu City Council in a different district—a Filipino bailiwick. He won. We
wrote an article “There is Life after DUI.”
If the politician had been an
immigrant he would have been deported for child abuse by endangering the
welfare of a child. Recently, a Honduran immigrant was charged in New York with
a variety of offenses, including endangering the welfare of a child, in
violation of New York Penal Law, for knowingly acting in a manner likely to be
injurious to the physical, mental or moral welfare of a child less than
seventeen years old. He was driving under the influence of alcohol while his
two children aged one and nine, were in the car.
Child abuse, child neglect, or child abandonment are
deportable offenses
The Department of Homeland Security commenced removal
proceedings against the Honduran under § 237(a)(2)(E)(i) of the Immigration and
Nationality Act [8 USC § 1227(a)(2)(E)(i)] which provides that any alien who at
any time after entry is convicted of a crime of “child abuse, child neglect, or
child abandonment is deportable.”
The Immigration Judge ordered
him deported, holding that his conviction for child-endangerment satisfied the
generic federal definition of a “crime of child abuse”.
The BIA affirmed. The Court
of Appeals denied a petition for review. The Court rejected the claim that the
BIA’s interpretation of the phrase “crime of child abuse,” as including
child-endangerment crimes for which injury to a child is not a required
element, is so broad as to be unreasonable and not entitled to Chevron
deference. (Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842 (1984). The Court found that the BIA’s broad interpretation of the
phrase “crime of child abuse” was reasonable. The Court observed that many
states have crimes called “child abuse” where injury is not a required element.
In determining whether a
state conviction qualifies as a removable offense, the court employs a
“categorical approach” to determine whether the state offense is comparable to
an offense listed in the INA. Under the categorical approach, the court looks
not at the facts of the case but whether the state statute defining the crime
of conviction categorically fits within the generic definition in the INA.
The New York Penal Law can be
violated (1) by taking action that is “likely to be injurious” to a child,
whether or not harm ensues; or (2) by allowing a child to work in a dangerous
occupation. The Honduran’s conviction was under the first prong “likely to be
injurious”. Florez v. Holder, No.
14-874, 03/04/2015, CA2.
QUERY: Is not the minor
children’s forcible separation from their father “likely to be injurious” to
the children?
RECOMMENDATION. Better become
a citizen if you have a propensity to drink and drive, especially if you have
children with you. You might even become a Hawaii legislator.
(Atty. Tipon has a Master of Laws degree from Yale Law School and a
Bachelor of Laws degree from the University of the Philippines. He specializes
in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110,
Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com.
Websites: www.MilitaryandCriminalLaw.com.
He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration
Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume
practice guide for immigration officers and lawyers. This article is a general
overview of the subject matter discussed and is not intended as legal advice.
No warranty is made by the writer or publisher as to its completeness or
correctness at the time of publication. No attorney-client relationship is
established between the writer and readers relying upon and/or acting pursuant
to the contents of this article.)
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