On August 2nd, 2022, the Eleventh Circuit published Bastias v. U.S. Atty Gen’l, No. 21-11416, which holds that a conviction under Florida Statute §827.03(2)(d) for child neglect is a deportable offense under the Immigration and Nationality Act §237(a)(2)(E)(i). INA §237(a)(2)(E)(i) makes a non-citizen deportable if he or she is convicted of a crime of domestic violence, crime of stalking, or a crime of child abuse, child neglect, or child abandonment.
The INA fails to define “a crime of child abuse, child neglect, or child abandonment.” Each state defines each of these terms differently, so whether a state conviction qualifies as “a crime of child abuse, child neglect, or child abandonment” must be determined by the courts. The Board of Immigration Appeals (“BIA”) is the appellate court for immigration judges in removal hearings (commonly referred to as deportation hearings). The BIA has interpreted this provision to include 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.”
The offense of “child neglect” in Fla. Stat. §827.03(2)(d) requires the State to prove that the person willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement. So, clearly the intent element, or mens rea, required for Florida’s child neglect (culpable negligence) fits within the BIA’s definition that includes “criminally negligent” acts. However, this was not the issue before the Eleventh Circuit.