Immigration: Appeals court rules on deportation after kids left unattended

A decision today by the Tenth Circuit Court of Appeals could have a positive effect on the deportation case of Imelda Valenzuela Gonzalez, whose story we told in this week's feature, "Out of the Shadows."

The appeals court ruled that an undocumented immigrant named Elia Ibarra should not be considered a child abuser and should be allowed to petition to stay in the country. Ibarra pleaded guilty to leaving her children unattended, the same crime to which Valenzuela Gonzalez pleaded guilty.

Ibarra's case begins in 2004, when she pleaded guilty to one count of "child abuse -- negligence -- no injury." A mother of seven children, Ibarra had been in the United States since she was a young child herself. Though she is undocumented, all seven of her kids were born here, making them U.S. citizens.

The appeals court decision (which is on view below) says that the circumstances leading up to Ibarra's conviction "are not entirely clear, but it appears undisputed that Ms. Ibarra's children were unintentionally left home alone one evening while she was at work." The police were alerted and although no child was injured, Ibarra was charged with negligent child abuse, a low-level misdemeanor.

In 2008, federal immigration authorities began deportation proceedings against Ibarra. The immigration judge in her case found that while Ibarra had a good argument for remaining in the U.S., given the hardship that her being deported would cause her seven citizen children, her misdemeanor constituted a "crime of child abuse" as defined by the Board of Immigration Appeals, the highest federal body for interpreting immigration laws. That finding made Ibarra ineligible for "cancellation of removal," which would have allowed her to stay here.

Ibarra appealed that decision to the Board of Immigration Appeals in Virginia, which upheld the judge's ruling. Ibarra then took her case one step further, appealing to the federal Tenth Circuit Court of Appeals, which is based in Denver. Today, a three-judge panel overturned the decision of the Board of Immigration Appeals and sent the case back to an immigration judge "for further proceedings in keeping with this opinion."

And what is that opinion, exactly? The appellate judges found that the Board of Immigration Appeals's definition of a "crime of child abuse" is too broad.

Continue for more on the appeals court's decision. In 1996, Congress added "child abuse, child neglect and child abandonment" to the list of crimes that would render an immigrant deportable. It didn't define those terms, however. Since child abuse is a state crime and not a federal one, the appellate judges looked to how states defined "child abuse" in 1996. They found that at least 33 states did not criminalize exposing children to harm, when there was no injury, if the alleged perpetrator did so negligently -- as opposed to intentionally or recklessly.

Therefore, the judges found that Ibarra's conviction "does not fit the generic federal definition of 'child abuse, neglect or abandonment'" and should not prohibit her from applying for cancellation of removal.

That's good news for Valenzuela Gonzalez, an undocumented immigrant who has been in the United States since 1999 and owns her own hair salon in Westminster. In 2008, she left her two youngest children -- then ages eleven and seven -- home alone while she ran an errand. The kids began to bicker, and the seven-year-old called 911. Valenzuela Gonzalez got home at the same time that the police arrived, and though the children weren't physically injured, she was charged with negligent child abuse.

She pleaded guilty and her case was dismissed in 2009 after she completed a year of probation and twelve parenting classes. But her criminal attorney had failed to tell her that admitting to child abuse would make her a criminal in the eyes of federal immigration authorities.

Around the same time that her child neglect case was wrapping up, the feds started deportation proceedings against her. Valenzuela Gonzalez hired a lawyer, who told her that her charge would make it harder to ask a judge to allow her to stay in the U.S. Encouraged by her politically active oldest daughter, Valenzuela Gonzalez decided to go public with her story in an attempt to convince immigration authorities to let her remain here with her family -- a growing trend chronicled in "Out of the Shadows."

At a hearing in April, an immigration judge decided to delay her case until December 4 to give the Tenth Circuit Court of Appeals time to decide the Ibarra case. Now, her attorney, Johnny Poon, says the decision leaves Valenzuela Gonzalez with two options. The first is to ask federal immigration lawyers for what's called prosecutorial discretion, which means they would drop the case against her. If they refuse, Valenzuela Gonzalez could petition the court for cancellation of removal.

"With this in place now, we're legally able to move forward in her case," Poon says.

Stay tuned for updates on this case and others profiled in our story.

Continue to read the Ibarra decision in its entirety.

Order in Ibarra Case

More from our Immigration archive: "Immigration bill: How would reform measure affect those in deportation proceedings?"

Follow me on Twitter @MelanieAsmar or e-mail me at [email protected]

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Melanie Asmar is a staff writer for Westword. She joined the paper in 2009 and has won awards for her stories about education, immigration and epic legal battles. Got a tip? She'd love to hear it.
Contact: Melanie Asmar