Ibarra v. Holder, The Categorical Approach and Family Unity

Readers of this blog are more than aware of the strong convergence of immigration law, family law and criminal law in immigration jurisprudence.

Ibarra v. Holder, — F.3d —-, 2013 WL 3490753 (C.A.10), decided last month, highlights such intersection. In Ibarra, the 10th Circuit considered the case of a mother of seven in Colorado who was seeking cancellation of removal, having consented to removability.  Four years prior to her removal hearing, Ms. Ibarra pled guilty to a crime of child neglect resulting from an incident during which she went to work and left her children in the care of her mother who became intoxicated and abandoned the children in Ms. Ibarra’s apartment.  The Court held that Ms. Ibarra’s conviction for “child abuse – negligence – no injury” could not be categorically considered a “crime of child abuse, child neglect or child abandonment” as articulated in the Immigration and Nationality Act (INA), because it did not fit the generic federal definition of such a crime and because it was not the intent of Congress to make criminally negligent conduct a deportable offense.  Noting that family unity is a purpose of the INA (in addition to deportation), the Court found that the inclusion of criminally negligent conduct as a deportable offense by the lower courts was over inclusive. Download Ibarra v. Holder here.

In overturning the lower courts’ categorical approach, the court made a notable statement in footnote 20. Citing Fiallo v. Bell, the court stated that one of the purposes of the INA is “keeping families of United States citizens and families united,” and “not just deporting people.”  To support its statement, the court cited two law review articles by immigration law professors.  First, it cited Sarah Rogerson’s article, “Unintended and Unavoidable: The Failure to Protect Rule and its Consequences for Undocumented Parents and their Children” (published in the Family Court Review), which discusses how this approach disproportionately punishes immigrant parents for the conduct of third parties, including barring them from immigration relief, deporting them and permanently separating them from their children. Second, it cited Nina Rabin’s article, Disappearing Parents: Immigration Enforcement and the Child Welfare System (published in the Connecticut Law Review), which conducts original empirical research that documents systemic failures of the federal immigration enforcement and state child welfare systems when immigrant parents in detention and deportation proceedings have children in state custody.

RCV